With few options remaining for action against the regime in Syria and violence growing and continuing, calls for a referral of the situation in Syria to the International Criminal Court (ICC) continue to be made. For the time being, a Security Council referral is unlikely given the opposition of veto-wielding members China and Russia.  In any case, careful consideration needs to be given to the real-life implications of an ICC investigation.

Key Conclusions:
In a protracted conflict where death tolls are rising, where atrocities are being committed in front of the eyes of the world community, pressures to do something or be seen as doing something inevitably rise. One such option is an investigation by the ICC triggered by a referral from the Security Council. This scenario seems unlikely, given the strong opposition of Russia and China to a referral, but their opposition may not be insurmountable, and a referral could come to pass.

Political pressures could possibly be brought to bear to get China and Russia to agree to a referral. And if Darfur and Libya serve as lessons, this option should be viewed skeptically. The difficulties of these investigations could actually lessen the concerns of Russia and China, but should remind those in favor of a referral of the conditions that need to be present for ICC prosecutions to be successful: political, practical, and financial support; cooperation with the Court, and, importantly, the enforcement of arrest warrants. If such support cannot be ensured, one should be careful to wish for an ICC investigation.

Analysis:
With the United Nations Supervision Mission in Syria (UNSMIS) having suspended its operations and the Annan peace plan on the verge of failure, the situation in Syria is increasingly dire and very few options for a resolution or even just calming of the conflict are currently available. In such desperate moments, calls to do something inevitably grow louder. The ICC has been mentioned in the debate over the past months as one such option for the international community to do something, something that is short of military intervention. So, is it politically feasible to refer the situation in Syria to the ICC? Is it expedient, and what happens if a referral is indeed passed?

Elie Wiesel recently made an emphatic call for the case of Syria to be referred to the ICC, or at least threaten investigations. Wiesel argued that this, combined with isolation by the international community, “might put an end to [Assad’s] senseless struggle for survival.”

Sadly, it may not be that easy. International justice cannot replace a larger political solution. Nevertheless, given the mounting violence and evidence of widespread crimes against humanity, calls for accountability may be one of the few options available to the international community to take action against the crimes of the regime in Damascus.

Bernard Kouchner explained why a military intervention is not an option at the moment. Not only would an intervention lead to a deadly chain of events which could embroil the entire region, possibly along sectarian lines, but the Western world has no appetite to wage another costly war in the Middle East. But looking at the largely ineffectual – and now suspended – observer mission and the lack of other options, Kouchner does argue in favor of involving the ICC, even if just preliminarily, should a Security Council referral not be forthcoming for the time being.

The key issue is how to reach agreement on an ICC referral in light of staunch opposition by Russia and China. Because Syria has only signed but not ratified the Rome Statute, the ICC only has jurisdiction over the crimes in Syria via a referral by the Security Council acting under Chapter VII of the UN Charter in accordance with Article 13 of the Rome Statute. This is how the situation in Libya was referred to the ICC in Security Council resolution 1970 (2011).

The subsequent developments in Libya, especially the later adoption of a no-fly zone in Security Council resolution 1973 (2011) which resulted in more or less overt regime change in Libya, has made Russia and China and other non-permanent members of the Security Council such as Brazil and India reluctant to authorize another investigation that could be seen as a first step for more intrusive measures.

David Scheffer in a recent op-ed argued in favor of creative compromises to reach agreement on a referral, which could provide members of the Syrian leadership with an “escape hatch” to cede power and end the conflict before the “full weight of the Court’s jurisdiction comes thundering down on them.”

More convincing is Marc Lynch’s reasoning who says that the vetoes of China and Russia simply aren’t unalterable facts of nature. He argues that these countries’ opposition to the ICC has been overcome in the past when the referrals to the ICC of the situation in Darfur and in Libya were adopted with the – at least tacit – support of Russia and China. To get there requires sustained political pressure.

This pressure is growing. The United Nations High Commissioner for Human Rights Navi Pillay has made repeated calls for the situation in Syria to be referred to the ICC. The foreign ministers of the UK and France have publicly voiced their support for such a referral; the UK recently reiterated this and stated that it is working on a resolution. NGOs and advocacy organizations like Human Rights Watch also continue to call for an ICC investigation. Even though none of these organizations hold direct sway over Russia and China, they do influence public opinion in the Western world, they influence Western governments. At some point, relations may become increasingly tainted by the Syria issue and begin to negatively affect the ability to work together on other areas of common concern; eventually, Russia and China may reconsider their opposition to an ICC referral.

But if a referral to the ICC does come to pass, it may be a double-edged sword. Some critics of the Court would argue, of course, that the presence of the ICC would further constrain options for deal-making and conflict resolution, i.e. there could be no amnesty deals shielding Assad from prosecution. But, more importantly, if the past is to be a lesson, a referral could turn out to be just another toothless gesture. Omar al-Bashir has faced some embarrassment, but neither him nor any other members of the ruling clique in Khartoum have faced any meaningful consequences in the seven years since the situation was referred to the ICC. In Libya, initially it seemed as if cooperation may be more forthcoming, but with one indictee killed, none surrendered, no credible domestic prosecutions taking place, and a team of ICC staff members currently under arrest in Libya things don’t look good either.

When faced with growing political pressure which inhibits Russia and China’s ability to work with the West, when the costs of opposition become too high, they might consider allowing an ICC referral to go ahead, while maintaining their opposition to military intervention. The limited effects of the ICC in Darfur and Libya could be further factors as to why China and Russia might consent to an ICC investigation, and are precisely why the international community should think twice before authorizing a referral.

Cynicism aside, those involved in Syria should consider the political, operational, and financial implications of an ICC referral. If states are not willing to back up an ICC investigation — genuinely cooperating with it and enforcing its decisions — employing it as merely another tool to exercise some kind of pressure is bound to fail, will not help the Syrian people, and could undermine the Court as well as the Security Council and the states that backed a referral.

Till Papenfuss is a Policy Analyst at the International Peace Institute. He can be followed on Twitter at @tijopa

About the photo: A Syria Independence Flag behind a Free Syrian Army member, March 6th.