(Photo: AP)

For the most part, Luis Moreno-Ocampo has remained quiet about the work of his former employer, the International Criminal Court (ICC). But in the midst of ongoing debates about the utility and legality of military intervention in Syria, the vocal former Chief Prosecutor of the ICC decided to enter the fray.

In a Huffington Post op-ed, Moreno-Ocampo set out the argument that a United Nations Security Council referral of Syria to the ICC could represent a middle ground position between doing nothing and military intervention. Interestingly, Moreno-Ocampo avoided proselytizing the role of the ICC. Instead, he maintains that international criminal justice must be “integrated” with political negotiations – and any potential military intervention:

…to be an effective option for halting the crimes against humanity, the international justice path should be refined and improved. There should be a strategy integrating justice with military efforts and political negotiations, a strategy that was lacking in the past.

This represents a subtle but important softening in Moreno-Ocampo’s position towards the relationship between pursuing justice and negotiating peace. Previously, the former Prosecutor had been much more strident. For example, in a 2009 interview on how to resolve the conflict in Darfur, Moreno-Ocampo remarked: “We need negotiations, but if Bashir…is not the person to negotiate with. Mr. Bashir could not be an option for [negotiations on] Darfur. I believe negotiators have to learn how to adjust to the reality. The court is a reality.”

In his op-ed, Moreno-Ocampo also outlines four conditions for achieving a referral of Syria to the ICC: getting Russia on board; getting China on board; utilizing the temporal jurisdiction of the ICC to pressure the parties to end the war; and making sure that a referral specifies how any subsequent arrest warrants issued by the Court will be enforced.

Luis Moreno-Ocampo (Photo: Al Arabiya)

The third condition is particularly interesting. Here’s what Moreno-Ocampo has to say:

Third, the temporal jurisdiction should be thoroughly discussed by UN Security Council members. They have options. They can request that ICC investigations start from the beginning of the Syria conflict or establish a deadline in the near future that will trigger the jurisdiction of the Court. Such a timeframe could provide an incentive to begin a different style of negotiations to end the conflict.

Should the conflict effectively stop before the deadline, the national leadership could discuss adequate ways to promote justice for the past. It will be a challenge for negotiators to include accountability as a part of the political agreement but it will be the only guarantee that the leadership are not involved in new crimes.

This sounds very much to me like an endorsement of a conditional ICC referral, as discussed (although with significant differences) in an op-ed by Kip Hale. In a post last summer I suggested that such a referral might well be worth considering. The idea is that the Security Council would legally bind itself to a “ticking-time ICC referral”. In practice, this would require the Council to legally declare that it will refer Syria to the ICC in a month from now (it could be sooner or later). Once set in motion, the only way to stop the referral would be through a subsequent affirmative vote by the Security Council, following the advice of relevant parties such as the UN Envoy to Syria. Syrian and opposition forces would have one month (or whatever time period was agreed to) in order to stop the commission of atrocities and enter negotiations. If indiscriminate violence on the part of the Syrian regime and the opposition forces did not cease, the referral to the ICC would go ahead automatically.

Of course, there are advantages and drawbacks to this proposal. It would mark an important test for the ICC’s deterrence effect. But it could also very easily give way to greater manipulation of the Court by the Security Council. It might work in pressuring the parties to negotiate a political solution. But it also might be readily ignored by the regime and the Syrian opposition. While imperfect, a conditional referral may well be worth considering. At the very least, it should be part of the larger debate on options for action in Syria.

As I’ve argued previously, a referral of Syria to the ICC remains unlikely for a variety of reasons. But it’s very good to see some out-of-the-box thinking from authorities like Moreno-Ocampo. The crisis in Syria needs it.