Last week, in a desperate effort to derail Syria’s murderous civil war, the Swiss government and 55 countries from every region of the world collectively called on the United Nations Security Council to refer the crisis to the International Criminal Court. After almost two years of escalating atrocities, and the repeated failure of the international community to stop the violence, the signatories to the Swiss letter hoped that a few key criminal indictments might kick-start change.
Their chances of success may be minimal – Russia has already denounced the initiative as “counterproductive,” even as it delivers weapons to Syria, and China and the United States have so far remained silent – but it’s worth a try. With the death toll at 60,000 and the violence worsening, there is nothing to lose.
A referral is worth a try for several reasons. Allowing the gory killing of civilians to continue unabated undermines the principle of criminal accountability under international law. That’s a given. But there is more. Few talk about the psychological damage inflicted when we watch atrocities happen, helpless. The killings become normalized over time, setting a dangerous political and moral precedent.
A related harm is the slow marginalization of the ICC, which was created a decade ago to bring the perpetrators of the world’s worst crimes to justice. The court is jeopardized when it stands by impotently in the face of crimes that fall within its jurisdiction, lacking recourse without a Security Council referral. Syria has neither signed nor ratified the ICC governing treaty, leaving the prosecutor’s hands tied.
A single saving option lies behind the Swiss letter: Where the perpetrators are citizens of a state that is not party to the Rome Statute, the Security Council may refer the situation to the ICC. This has already happened twice, with mixed success. In 2005, the Security Council referred the case of Darfur, resulting in an indictment of Sudanese President Omar al-Bashir for genocide. (Mr. al-Bashir remains in power, although several of his colleagues are in the ICC trial pipeline.) And in 2011, the Security Council referred the case of Libya, resulting in the indictment of Moammar Gadhafi, who was never tried but was gone within a year.
It is of interest that Chile and Libya, both countries that have experienced internal violence, are among the signatories to the Swiss petition. It is of equal interest that Canada, which effectively led the international community in the creation of the ICC, refused to sign.
Council members debating the Swiss petition might consider the long-term effects of the violence we have witnessed in Syria for almost two years: the damaging normalization of atrocities and the fact that without an international move against such crimes, ruthless leaders are less likely to be deterred. They might consider that peacemaking and justice are interdependent, and that faced with the present deadlock, marginalizing perpetrators through indictments may encourage negotiations. They might also think about the future of the ICC itself: Two-thirds of UN member states have signed the Rome Statute, meaning that international support for the court is high. That backing could weaken if the tribunal is seen to be failing in its mandate.
Until the Rome Statute is universally recognized, a Security Council referral is the only way to effect justice when major crimes are committed in a country that does not hold membership in the ICC.
There is much at stake. The Security Council must act wisely.
Erna Paris is the winner of the 2012 World Federalist Movement – Canada World Peace Award.