Diane Orentlicher
By Diane Orentlicher
Demanding “accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people”, the Obama administration has forcefully argued that Syria must be punished for gassing more than 1,400 civilians to death in a single day — an act President Barack Obama called “a crime against humanity, and a violation of the laws of war” in his speech on Tuesday night. Leaders around the world have also denounced Syria’s “war crimes” and its “crime against civilisation.” But if they seem to be making the case for prosecutions, that option has, in fact, received scant serious attention — despite French and British efforts to press the issue.
Syria’s unexpected agreement to place its chemical weapons under international control may seem to obviate the need for new policy options, assuming the devilish details of this initiative can be nailed down. But seeking justice will become a key dimension of US and international policy responses to Syrian atrocities — not least because Syrians will expect some measure of justice for the depredations they have endured.
Though prosecutions wouldn’t deal an immediate blow to Syria’s chemical weapons capacity, they can help restore a global taboo that has been dangerously breached, while also honouring the suffering of thousands of Syrian victims. Notably, the International Criminal Court last year acquired explicit jurisdiction over the war crime of using poisonous gas in the kind of conflict underway in Syria. Bringing this charge against Syrian perpetrators would bolster other efforts to restore the taboo against use of weapons of mass destruction.
The reasons why the justice option has received little attention to date offer important lessons from past experience about what war crimes tribunals can deliver; when they can make a real contribution, and the fragility of the one court potentially able to address atrocities anywhere in the world — the International Criminal Court.
These lessons should shape our response to the monstrous crimes in Syria. Not just the appalling use last month of chemical weapons, but also the monstrosities that have gone on for more than two years. For our response provides an opportunity to make much-needed course corrections in our approach to global justice.
What global justice can do for Syrians — and what it cannot. Past experience gives little reason to believe that threatening prosecutions would have a direct, immediate impact in ending ongoing atrocities in Syria. Atrocities did not end in Bosnia when the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in May 1993 — they ended when the US and its North American Treaty Organisation allies took military action in the wake of the Srebrenica genocide, more than two years later. Nor did the ICTY’s existence stop Serbian atrocities in Kosovo in the 1990s. Another US-led Nato intervention did that. This is not to say that war crimes tribunals have no deterrent effect. There is plenty of anecdotal evidence that the ICC and other tribunals have made both senior officials and low-ranking soldiers think twice about committing atrocities.
For example, then-President of Senegal Abdoulaye Wade reportedly told aides last year that he would not use violence to enforce what would have been a false claim of winning the presidential election lest he face charges before the ICC — which had happened to former Ivoirian president Laurent Gbagbo. Instead, Wade accepted electoral defeat. International indictments of other leaders who were considered untouchable, like former Liberian president Charles Taylor and Serbian leader Slobodan Milosevich, helped marginalise them, easing the way to democratic transitions. It is difficult, however, to identify a situation in which the initiation of an international criminal process significantly altered the course of mass atrocities well underway.
Yet criminal prosecutions can advance important goals. Trials and other initiatives, such as reparations, would provide some measure of justice to the Syrians haunted by the inhumanity they have endured and recognition of the harm they suffered. Justice can also serve to re-affirm victims’ humanity.
If this sounds like a vague contribution, it may be invaluable to victims. Bosnians, like Syrians, have been haunted by the trauma of a years-long descent into the abyss, have stressed to me how crucial justice has been for them — even as they cite criticisms of the ICTY. As the ICTY has shown, international tribunals can also catalyse domestic courts to step up their game in ending impunity for atrocious crimes. Unfortunately, the International Criminal Court has not seen its job as helping local courts develop stronger capacity to provide justice — an approach that may be due for mid-course correction. What kind of justice?
If justice is to play a role in addressing Syrian atrocities, what model might be most effective? The obvious is the ICC, which was created to address “the most serious crimes of concern to the international community” — precisely the kind of outrage perpetrated in northern Damascus when hundreds of civilians died a tormenting death from chemical weapons. Because Syria is not a party to the ICC’s statute, however, the court could take up an investigation only if the UN Security Council refers a “situation” in Syria to the court. Many countries and human-rights advocates had been urging the Security Council to do this long before last month’s use of chemical weapons.
Though the court’s relationship with the African Union (AU) has been fraught for years, it has deteriorated markedly since March. That month, two men the ICC is prosecuting for alleged roles in violence after Kenya’s 2007 presidential voting were elected as president and deputy president of Kenya. Uganda’s president — who gave the court its first set of cases when he self-referred the situation in his country to the ICC — used the Kenyans’ inauguration to denounce the “arrogant actors” from the court who carried out “careless and shallow analysis.” The AU chairman concluded a summit by accusing the ICC of conducting “some kind of race hunting” against Africans. This month, Kenya’s parliament passed a motion urging the government to withdraw from the ICC’s statute. If the government followed through, Kenya would be the first country to do this, dealing a major blow to the court’s credibility.
A referral of Syria would also answer a critique of the Security Council that has tarnished the ICC’s credibility — that the council acts selectively when referring situations to the court. To date, it has referred only two — in Africa. The charge of selectivity is often framed as a rhetorical question — Why Libya but not Syria? — that a Syria referral would answer.
The transitional government in Libya understandably wants to prosecute the two surviving suspects the ICC has brought charges against. Even with an ICC ruling that Libya must surrender one of them, Saif Al Islam Gaddafi, Libya continues to insist it should be allowed to bring him to justice itself. This standoff is still resolved, but one thing is clear: Governments are more mindful now of the extent to which ICC jurisdiction can constrain the choices of a post-dictatorship society.WP-BLOOMBERG
By Diane Orentlicher
Demanding “accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people”, the Obama administration has forcefully argued that Syria must be punished for gassing more than 1,400 civilians to death in a single day — an act President Barack Obama called “a crime against humanity, and a violation of the laws of war” in his speech on Tuesday night. Leaders around the world have also denounced Syria’s “war crimes” and its “crime against civilisation.” But if they seem to be making the case for prosecutions, that option has, in fact, received scant serious attention — despite French and British efforts to press the issue.
Syria’s unexpected agreement to place its chemical weapons under international control may seem to obviate the need for new policy options, assuming the devilish details of this initiative can be nailed down. But seeking justice will become a key dimension of US and international policy responses to Syrian atrocities — not least because Syrians will expect some measure of justice for the depredations they have endured.
Though prosecutions wouldn’t deal an immediate blow to Syria’s chemical weapons capacity, they can help restore a global taboo that has been dangerously breached, while also honouring the suffering of thousands of Syrian victims. Notably, the International Criminal Court last year acquired explicit jurisdiction over the war crime of using poisonous gas in the kind of conflict underway in Syria. Bringing this charge against Syrian perpetrators would bolster other efforts to restore the taboo against use of weapons of mass destruction.
The reasons why the justice option has received little attention to date offer important lessons from past experience about what war crimes tribunals can deliver; when they can make a real contribution, and the fragility of the one court potentially able to address atrocities anywhere in the world — the International Criminal Court.
These lessons should shape our response to the monstrous crimes in Syria. Not just the appalling use last month of chemical weapons, but also the monstrosities that have gone on for more than two years. For our response provides an opportunity to make much-needed course corrections in our approach to global justice.
What global justice can do for Syrians — and what it cannot. Past experience gives little reason to believe that threatening prosecutions would have a direct, immediate impact in ending ongoing atrocities in Syria. Atrocities did not end in Bosnia when the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in May 1993 — they ended when the US and its North American Treaty Organisation allies took military action in the wake of the Srebrenica genocide, more than two years later. Nor did the ICTY’s existence stop Serbian atrocities in Kosovo in the 1990s. Another US-led Nato intervention did that. This is not to say that war crimes tribunals have no deterrent effect. There is plenty of anecdotal evidence that the ICC and other tribunals have made both senior officials and low-ranking soldiers think twice about committing atrocities.
For example, then-President of Senegal Abdoulaye Wade reportedly told aides last year that he would not use violence to enforce what would have been a false claim of winning the presidential election lest he face charges before the ICC — which had happened to former Ivoirian president Laurent Gbagbo. Instead, Wade accepted electoral defeat. International indictments of other leaders who were considered untouchable, like former Liberian president Charles Taylor and Serbian leader Slobodan Milosevich, helped marginalise them, easing the way to democratic transitions. It is difficult, however, to identify a situation in which the initiation of an international criminal process significantly altered the course of mass atrocities well underway.
Yet criminal prosecutions can advance important goals. Trials and other initiatives, such as reparations, would provide some measure of justice to the Syrians haunted by the inhumanity they have endured and recognition of the harm they suffered. Justice can also serve to re-affirm victims’ humanity.
If this sounds like a vague contribution, it may be invaluable to victims. Bosnians, like Syrians, have been haunted by the trauma of a years-long descent into the abyss, have stressed to me how crucial justice has been for them — even as they cite criticisms of the ICTY. As the ICTY has shown, international tribunals can also catalyse domestic courts to step up their game in ending impunity for atrocious crimes. Unfortunately, the International Criminal Court has not seen its job as helping local courts develop stronger capacity to provide justice — an approach that may be due for mid-course correction. What kind of justice?
If justice is to play a role in addressing Syrian atrocities, what model might be most effective? The obvious is the ICC, which was created to address “the most serious crimes of concern to the international community” — precisely the kind of outrage perpetrated in northern Damascus when hundreds of civilians died a tormenting death from chemical weapons. Because Syria is not a party to the ICC’s statute, however, the court could take up an investigation only if the UN Security Council refers a “situation” in Syria to the court. Many countries and human-rights advocates had been urging the Security Council to do this long before last month’s use of chemical weapons.
Though the court’s relationship with the African Union (AU) has been fraught for years, it has deteriorated markedly since March. That month, two men the ICC is prosecuting for alleged roles in violence after Kenya’s 2007 presidential voting were elected as president and deputy president of Kenya. Uganda’s president — who gave the court its first set of cases when he self-referred the situation in his country to the ICC — used the Kenyans’ inauguration to denounce the “arrogant actors” from the court who carried out “careless and shallow analysis.” The AU chairman concluded a summit by accusing the ICC of conducting “some kind of race hunting” against Africans. This month, Kenya’s parliament passed a motion urging the government to withdraw from the ICC’s statute. If the government followed through, Kenya would be the first country to do this, dealing a major blow to the court’s credibility.
A referral of Syria would also answer a critique of the Security Council that has tarnished the ICC’s credibility — that the council acts selectively when referring situations to the court. To date, it has referred only two — in Africa. The charge of selectivity is often framed as a rhetorical question — Why Libya but not Syria? — that a Syria referral would answer.
The transitional government in Libya understandably wants to prosecute the two surviving suspects the ICC has brought charges against. Even with an ICC ruling that Libya must surrender one of them, Saif Al Islam Gaddafi, Libya continues to insist it should be allowed to bring him to justice itself. This standoff is still resolved, but one thing is clear: Governments are more mindful now of the extent to which ICC jurisdiction can constrain the choices of a post-dictatorship society.WP-BLOOMBERG
