Last week, CNAS released my report
"Pressure Not War," which attempted to lay out a path forward on Syria which
could accelerate a political transition without a military intervention.  It’s generated a great response, and a lot of hopefully productive debate.

I was surprised that the most interesting and heated arguments focused upon my recommendation to take top Syrian regime officials to the International Criminal Court if they do not immediately move towards a ceasefire and political transition. This was only one of a number of layered, interlocking
proposals designed to offer a non-military alternative to protect
Syrian civilians and accelerate progress towards a durable political
transition. Even if it didn’t materialize, the rest of the arguments about the limits of military options and the ways to advance a political solution would still apply.   So I wasn’t expecting that one point to draw so much attention.

But I’m glad that it did, since I would like to see international justice at the center of the debate.  Despite all the obvious obstacles, I don’t agree that the ICC and the instruments of international justice can not be brought into play against Bashar al-Assad and the top officials of the Syrian regime.  I see a real possibility that Syria could be referred if it is made a top diplomatic priority, and mounting such a diplomatic campaign would be useful even if the effort failed.  But there is a serious and ongoing discussion about whether using the ICC as a instrument of pressure is desirable, even if possible — for Syria, or for building global norms against impunity for atrocities. [[BREAK]]

The most common objection to the ICC recommendation was that a referral was
impossible without UN Security Council agreement which would not be forthcoming.  The argument is straightforward.  Syria is not a state party to the ICC.  The Court therefore has no jurisdication to indict its citizens without referral from the Security Council.  Russian and Chinese support for Damascus means that the Security Council will not authorize such a referral.  The ICC, therefore, can not play a role and an ultimatum would be an empty bluff. I was aware of all this when I wrote the report, obviously, so why did I nevertheless call for referrring Syrian officials to the ICC?  

First, there actually is a legal argument for involving the ICC even if the Security Council stays blocked, which rests on the fact that Syria, unlike Libya, is a signatory to the Treaty of
Rome even if it has not acceded to the Court.  Its 2000 signature does create some obligations, as a colleague of mine explains:

"the Vienna Convention on the Law of Treaties (VCLT) governs the
obligations of states that have signed but not ratified a treaty.
Article 18 says they must "refrain from acts which would defeat the
object and purpose of a treaty" (unless they have signaled their intent
not to ratify it).  That would seem to be the legal obligation on Syria
at this point."

Another international lawyer friend of mine proposes a second path (*):

"if the Syrian National Council were recognized as the legitimate representative of Syria, then this could support an article 12(3) filing by the SNC to the ICC to accept jurisdiction for the conflict here–they can do this without formal ratification of the Rome Statute (and the fact that Syria did sign the treaty could help give this some legal heft), and it would then allow an initiation of an investigation without the SC."

But both paths, while plausible, are less promising than it initially appears.  In such a highly charged, contenti0us case it seems unlikely that this legal gambit would survive the political firestorm to follow.   Even if it worked against Syria, it would probably have the longer-term result of undermining the legitimacy and the international acceptance of the ICC.  For reasons I elaborate upon below, I would oppose going this route if it had the effect of undermining the evolving legal international order dealing with atrocities and impunity. 

My thinking on the viability of the ICC rested more on political than legal logic.  Put simply, the Russian and Chinese veto is not simply an unalterable fact of nature which must be accepted.  An impressive consensus has been built at the
international level condemning the Syrian regime’s abuses, including a 137-22
General Assembly Vote, an even more sweeping vote at the UN Human Rights
Council, and a unanimous statement (not resolution) from the UN Security
Council.  The UN’s Human Rights Council recently released a damning, detailed report on the atrocities in Syria, and High Commissioner Navi Pillay has called for referral to the ICC.  Even the Security Council recently issued a unanimous, albeit nonbinding, statement demanding that Syria allow its humanitarian representative "free and unfettered access" to investigate the deteriorating situation. In short, there is very high-level, intense and growing attention both publicly and inside international institutions to Syrian human rights abuses and atrocities which most agree meet the criteria which would merit investigation.    

The Russian and Chinese vetoes at the Security Council which stand in the way are not necessarily insurmountable. As the Financial Times pointed out recently, China has reversed its objection to ICC referrals twice:  in 2005 allowing the referral of Sudan over Darfur, and in 2011 allowing the referral of Libya. China may well again reverse course and accept an ICC
referral, especially if lobbied heavily by the Gulf states on which it depends for energy and if this were seen as the price of blocking an international mandate for military intervention. Without Chinese cover, Russia might find it difficult to stand alone in the
way… and might find its diplomatic efforts better focused elsewhere.

Will this be easy?  Of course not.  But thus far, as I pointed out in the report, the US and its allies have not yet even attempted to pursue this route because they preferred to keep open Assad’s exit option.  As Hilary Clinton testified last week, Assad may fit the definition of a war criminal but "such a step often makes it difficult for a leader to step down."  But the time for this logic is rapidly passing, since Assad has shown no interest in such a deal while the atrocities mount. Ad hoc measures which are useful tactically but undermine the strategic
goal of constructing robust norms against regime violence should be
avoided unless there is a clear and overwhelming case that it is
necessary to end violence and achieve a transition. 

At any rate, there is no way to know what is possible without trying.  Pushing for this would
be productive even if it isn’t immediately accomplished.  At a minimum, pressure at the UN in this
direction would keep Syrian regime atrocities at the center of international attention and would put the onus for inaction squarely on the small and dwindling number of states standing in the way.  And are we to believe that
somehow getting UN authorization for an ICC referral is more difficult than getting authorization for military action?

A different line of argument last week made a compelling and thoughtful case that the push for indictments in Syria
would harm the cause of international justice by instrumentalizing the Court as
a political pawn of the Security Council or the United States.  Generically, the ICC must remain insulated from great power politics in order to establish its independence and integrity, by this argument. If it takes its lead from the political preferences of the United States or even the Security Council, it would lose the judicial autonomy essential for developing the rule of law. More specifically, Alana Tiemessen argues, the ICC must avoid having its indictments turn into bargaining chips if it hopes to remain credible.

I take
these arguments very seriously.  I believe that building legitimate international norms against impunity for atrocities should be at the center of U.S. and international strategy not just for Syria but across the Middle East and broader world politics. This is why I opposed the immunity deal granted to Yemeni President Ali Abdullah Saleh and supported the intervention in Libya.  It’s why I saw an opportunity in the Bassiouni report on Bahrain, but have been so disappointed by the regime’s refusal to seriously implement its findings.  Long ago, I argued against the NATO intervention in Kosovo because it undermined the international legitimacy and legality of humanitarian intervention, and today I worry for the same reason about Anne-Marie Slaughter’s suggestion that intervention in Syria should be carried out without Security Council authorization.   Whatever actions we take should build rather than undermine the foundations of global norms against impunity for atrocities.

But I also believe that the broad consensus already expressed across
multiple international institutions about the nature of Syrian regime atrocities reduces the force of this critique.  As noted above, the UN Human Rights Council and the General Assembly have overwhelmingly and formally endorsed international attention to the Syrian atrocities.  I would argue that the ICC was created precisely to deal with such atrocities, and that bringing it into
play would build rather than undermine those norms.  This is a debate which is well worth having — and one which I look forward to continuing.  

(*) I added this second path a few hours after the original publication of this post.