As talks between the Syrian government and Syrian opposition stumble in the opening phases of the so-called Geneva II negotiations, a hot topic is whether those parties responsible for atrocity crimes in Syria can and should be prosecuted.
Of course, this debate has been ongoing since the beginning of the Syria’s civil war. Early on, Western governments funded a team of investigators to collect evidence of alleged war crimes and crimes against humanity, a process that has apparently continued to this day. At the same time, there have been numerous calls by organizations and states for the situation in Syria to be referred to the International Criminal Court (ICC). Because Syria is not a member-state of the ICC, doing so would require a resolution from the United Nations Security Council. Last September, the possibility of referring Syria to the Court was shot down by the Council. According to Carsten Stahn, the potential referral “was sacrificed for the purpose of facilitating a diplomatic compromise over the enforcement regime.”
For a host of reasons (and not just the tired argument that Russia will block any referral), an investigation of crimes in Syria by the ICC isn’t going to happen any time soon. Not even the use of chemical weapons against civilians was enough to alter the stalemate over justice and accountability. Making things particularly tricky is that there is evidence that both sides of the conflict have committed crimes within the jurisdiction of the ICC. Yet (and perhaps as a result), amongst those political actors with leverage, there appears to be little-to-no appetite for accountability in Syria. This is evidenced by the lack of interest in middle-ground options such as a conditional referral, a referral-deferral or the creation of an ad hoc tribunal.
Of course, any suggestion that international criminal justice should be pursued in the context of ongoing hostilities in Syria leads us to the familiar “peace versus justice” debate. Within this debate, there are broadly two camps: one which views international criminal justice as a necessary and useful tool which can deter crimes, marginalize perpetrators and even be conducive to peace negotiations; and a second camp which sees judicial interventions as deleterious to peace talks and claims that it creates disincentives for warring parties to negotiate and leads to increased levels of violence.
To date, those who have engaged in the debate have largely recycled the claims and arguments from one camp or the other and applied them to new and emerging contexts. Thus any potential prosecution of Bashar al-Assad is either necessary to any sustainable peace in Syria or constitutes a naive and dangerous proposition which could prolong violence in the country.
If the Geneva peace talks ultimately fail, it obviously won’t be because of the ICC but a host of other factors. But if the ICC does intervene and the peace talks also fail, critics will point their accusatory fingers at the Court, ascribe responsibility for the failure of negotiations to the Prosecutor and neglect the very factors that would have led to the talks failing irrespective of an ICC intervention. The moving parts would be brushed aside because, within the dominant lenses of the “peace versus justice” debate, the ICC can only help or a hinder to peace. It remains too rarely conceded that the Courts effects are mixed and, even more rarely, that they might be negligible.This points to the ongoing need to reimagine how we study and assess the effects of the ICC on ongoing and active conflicts. There is little doubt that the Court can have negative and positive effects on the ability of warring parties and interested actors to transform conflicts and establish peace. But this shouldn’t lead to a belief that the ICC must have these effects across cases. In some instances, the Court may actually have minimal or even inconsequential effects. As importantly, in many if not most cases, the ICC won’t be the be-all and end-all of peace processes. Even when the Court has palpable effects, peace processes aren’t likely to flourish or perish on the hill of international criminal justice.
What is rarely considered in analyses of the effects of international criminal justice on peace processes are the ‘non-cases’ – those conflicts in which international criminal justice is feasible but isn’t pursued. Syria is one of those situations. How the Geneva II peace negotiations between the government and opposition unfold is, at this juncture, anyone’s guess. What seems certain is that the ICC won’t be intervening in Syria any time soon. Those of us interested in the effects of the Court on peace processes would be wise to consider what happens when the ICC doesn’t intervene and doesn’t have effects as well as when it does.