According to Borzou Daragahi of the LA Times, at least one unnamed Western government is funding a fact-finding operation in Syria in order to gather evidence which may eventually be used against Syrian President Bashar Assad in a case before the International Criminal Court.
When considering why Libya and not Syria was referred to the ICC, it is hard not to be stumped. There is no good answer. After all, if we are to believe what human rights groups say – that a crime against humanity is a crime against humanity, regardless of where it takes place – then surely the treatment of international crimes across contexts should be similar. Does the divergent treatment of the gravest of crimes, with only a chosen few subjected to international justice, not demonstrate the uncomfortable reality that some forms of suffering and violence are more important and worthy of attention than others? In the wake of indictments issued by the ICC against the Tripoli Three, even the Gaddafi regime appeared to have noticed this uneven application of justice.
There has been no shortage of speculation on the reasons for the divergent (some would simply describe it as hypocritical) international responses to the alleged atrocities being committed in Libya and Syria: the Western powers have spent their political capital on intervening in Libya; there is little support from regional organizations for an intervention in Libya; perhaps the ICC is experiencing “judicial overstretch” with its ever-expanding case-load; and the ICC simply doesn’t have enough money to investigate crimes, particularly in the wake of new investigations in Libya and Ivory Coast.
It is in this context of a general lack of international political will and a lack of funds that reports regarding a clandestine funding of a fact-finding mission in Syria have emerged:
“At least one Western government is bankrolling a project to gather evidence that could be used to indict Syria’s President Bashar Assad at an international tribunal over his crackdown on the country’s democracy movement, said a jurist leading the effort and a diplomat whose government is sponsoring it.
The fact-finding mission mostly involves assembling testimony from Syrian refugees that conforms to standards of international law necessary to sustain a war crimes trial at the International Criminal Court“
It remains unclear whether the ICC itself is receiving funds from the anonymous government(s) or whether this is a semi-independent fact-finding operation which may eventually provide the Court with evidence should Syria fall under its jurisdiction. However, the Jurist interpreted the report as signaling that an “unknown Western nation [is] funding ICC investigation of Syria.”
Like Libya, Syria is not a member-state of the ICC. For the situation in Syria to fall under the Court’s jurisdiction, it would require a UN Security Council referral.
On the surface, a Western government-funded fact-finding mission for the ICC would appear to be a fundamentally good thing and, indeed, on some level it is: better an anonymous Western government fund such a project, behind the scenes, than no one at all; better someone, anyone, take action than no one.
But on another level, this underground funding of ICC operations is symptomatic of the uneven, highly-charged and precariously political ground on which international criminal justice is currently functioning. This is clear in at least two regards.
First, the reality that accumulating evidence against alleged crimes perpetrated by Assad’s regime must be done anonymously is sharply symptomatic of the absence of political will and interest in openly investigating alleged acts which, by all accounts, are in need of investigation and international attention. Presumably the Western government funding the fact-finding operation is a supporter of the ICC. What does it say when a champion of the Court can’t support its operations openly? Additionally, there is an obvious cost to the transparency of such an investigation: How are things being investigated? Which facts are being gathered? Who is leading this mission?
Secondly, this development may cause rifts within the ICC. The potential funding crisis facing the Court affects the Court as a whole – all of its organs and everything from detention facilities and witness protection to defense costs and the OTP’s investigations. By earmarking funds or “donating” facts to the OTP, thus saving it the time and money to conduct its own investigation, the anonymous Western state, intentionally or not, makes the OTP the wealthy, comfortable organ of the Court while the others are forced to deal with funding shortages and shortfalls. This is neither good for internal political dynamics nor the achievement or delivery of justice itself.
That it is seemingly easy to intervene, militarily and judicially, in Libya but seemingly impossible to muster up any will in Syria is a sad, if not disturbing, reality. But clandestine, underground, anonymous funding of the Court by mysterious Western governments is surely not the ideal remedy.