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In this image taken from amateur video posted online, appearing to show a presumed UN staff member measuring and photographing a canister in the suburb of Moadamiyeh in Damascus on Aug. 26, 2013, the suburb where the Syrian regime allegedly used chemical weapons. (Associated Press)
In this image taken from amateur video posted online, appearing to show a presumed UN staff member measuring and photographing a canister in the suburb of Moadamiyeh in Damascus on Aug. 26, 2013, the suburb where the Syrian regime allegedly used chemical weapons. (Associated Press)

Mark Kersten

Syria: War is looming, but is justice possible? Add to ...

Despite two years of an incessant civil war that has claimed at least 80,000 people, the United Nations Security Council has been mired in deadlock on how to respond to the violence in Syria. Yet the images and videos of civilians attacked with chemical weapons in the outskirts of Damascus has rocked the Syrian status quo. As Jon Western suggests, the chemical weapons attack may constitute “Syria’s Srebrenica,” galvanizing the international community into taking action in a war they can no longer afford to ignore.

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The massacre of 8,000 Bosnian Muslims at Srebrenica in 1995 became a crucial moment not only in the Bosnian war but for international justice. The International Criminal Tribunal for the former Yugoslavia declared that the massacre at Srebrenica constituted genocide; generals and political officials have been tried and convicted for their role in the carnage.

In the case of Syria, however, there have been no calls from the Security Council for chemical weapons attacks to be investigated by the International Criminal Court (ICC). Even as UN Secretary-General Ban Ki-moon declared that the use of chemical weapons in Syria constituted an “outrageous crime” that could not be met with impunity, there were no calls for the Council to refer Syria to the ICC. This begs the question: if the use of chemical weapons against thousands of civilians is a crime, why the silence on Syria and the ICC?

When it comes to justice in Syria, the ball is in the Security Council’s court. Because Syria is not a member-state of the ICC, in order for the Court to investigate any alleged crimes, including the use of chemical weapons, the Security Council would have to refer Syria to the Court. The Council has done so on two previous occasions: Darfur in 2005 and Libya in 2011.

In the earlier stages of the war, there were calls for the ICC to investigate alleged crimes in Syria. Led by Switzerland, a group of over fifty states, including France and the UK (although curiously excluding Canada) urged the UN to do so. However, as a result of the stalemate between China, Russia and Western powers on the Security Council, a referral never stood a chance.

Dominant thinking attributes most of the blame to Russia. If only Russia would stop defending the regime of Bashar al-Assad, meaningful intervention and perhaps even an ICC investigation could take place. While Russia’s protection of the Syrian regime is undoubtedly vile, the barriers to justice in Syria are far more complicated.

Both the UN Commission of Inquiry on Syria and the UN’s Human Rights Commissioner, Navi Pillay, have claimed that Syrian rebels have committed war crimes. Those same rebels are backed by Western powers who have little interest in the ICC targeting their allies. We witnessed this dynamic in Libya. It was very useful to NATO’s military intervention that the ICC only targeted the regime of Muammar Gaddafi and not Western-backed Libyan rebels. In short, Western states aren’t keen on having the ICC investigate and indict the Syrian rebel groups they support.

A lesser known but equally important reason why the ICC is unlikely to be tapped to intervene in Syria stems from the fact that Israel controls the Golan Heights, a strip of land in southwestern Syria. Western states are steadfast against Israeli officials falling under the jurisdiction of the ICC. A Syrian referral could, paradoxically, do just that.

So what is the international community to do? The U.S. appears to be moving towards some type of military strike against Syria. Channelling shades of the unsanctioned invasion of Iraq in 2003, UK Foreign Secretary William Hague has stated that it would be legal to take military action in Syria without UN approval (Hague has not explained how such action would be legal under international law). Undoubtedly, any military action by Western powers will be framed as an act of justice and an attempt to hold those responsible for crimes in Syria to account. History shows, however, that justice is poorly served at the barrel of a gun or the tip of a cruise missile.

The wisdom of an ICC intervention in Syria will continue to be hotly debated. Some argue that an ICC referral is a “ justified gamble ” because it would alter the political dynamics of the war. Critics will undoubtedly respond that the involvement of the Court would complicate any attempt to negotiate peace between the Syrian rebels and the regime as it would give Mr. Assad little incentive but to continue fighting. Perhaps a middle-ground exists to pursue a creative option by credibly threatening both sides with the possibility of a referral.

Whatever one thinks about the wisdom of having the ICC intervene, the status quo has done nothing to help resolve the war. Peace negotiations have gone nowhere and mass atrocities remain uninvestigated. Of course, the ICC isn’t a silver bullet; alone, it cannot stop war crimes or end wars. But neither will a handful of military strikes against the regime. The ICC should at least be part of the equation.

With the creation of the ICC, expectations of how the international community should respond to mass atrocities have been fundamentally redrawn. When a regime murders its own people, we expect that accountability will be pursued. We expect the international to struggle in the pursuit of international justice, even if it’s not always easy or even possible to achieve.

Evoking belligerent rhetoric on the use of force without UN approval while ignoring justice and accountability will meet virtually no one’s expectations, least of all those of Syria’s victims.

Mark Kersten, creator and co-author of the blog Justice in Conflict , is a researcher at the London School of Economics where he studies the effects of the International Criminal Court on peace processes in Libya and northern Uganda.

 

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