November 4, 2013
A Sword of Damocles for Syria?
By Luis Moreno Ocampo
Former Prosecutor, International Criminal Court (2003-2012)

A deal brokered by the Russians may have put Bashar al-Assad’s chemical weapons under international inspection, but the bloody conflict in Syria rages on. Former International Criminal Court prosecutor Luis Moreno Ocampo argues that the ICC can play a critical role in stopping the carnage there.

The destruction of chemical weapons will not be enough in Syria. Something else must be done to stop the violence. An unexplored option exists to help resolve the conflict: the United Nations Security Council could refer the Syrian situation to the International Criminal Court (ICC) – and here’s the first novel idea– with a future jurisdiction starting in 2014. In other words, the ICC could choose to start evaluating events in Syria as of some date in 2014 and ignore all prior events.

First, a delayed ICC jurisdiction would give all relevant parties incentives to stop committing grave crimes. If international jurisdiction were established from the beginning of the conflict, and if the suspicion that Syrian President Bashar al-Assad himself was ordering crimes were confirmed, Assad would have no reason to comply. A delayed start, however, would put Assad and the rebels on notice that they would face international justice, and would provide them with meaningful incentives to stop the violence and bring their behavior in line with international law.

People have both underesti- mated and overesti- mated the impact that the ICC could have on this situation.

The delayed start would also give international mediators the type of leverage needed to facilitate a political settlement. This approach combines diplomacy with action: it first creates a window for a negotiated settlement and then, if that fails, it provides clear international authorization to take real action.

For nine years, my role as the chief prosecutor of the ICC restrained my ability to comment on political decisions. I never requested to be assigned to a case. I had a duty to fully respect the UN Security Council’s authority to decide when and where to request the court’s intervention. But I witnessed a general lack of integration between the Security Council’s strategy and its referrals to the ICC. Sequencing the timing of the referral could be a new way to combine political negotiations, judicial activities, and arrest operations.

People have both underestimated and overestimated the impact that the ICC could have on this situation. American journalist Nicholas Kristof, for example, contends that bringing the Syrian situation to the ICC would back Assad into a corner, making him wary of stepping down. There is a legal solution to this problem, however, that Kristof is not taking into consideration. Article 16 of the ICC statute provides that the UN Security Council has the authority to suspend judicial proceedings, and therefore facilitate a final negotiation, at any time.

Meanwhile, others think the ICC is too weak. Samantha Power, the United States ambassador to the United Nations, recently asked, “What could the International Criminal Court really do, even if Russia or China were to allow a referral? Would a drawn out legal process really affect the immediate calculus of Assad and those who ordered chemical weapons attacks?” She is right: a judicial decision without enforcement will not stop the carnage; it will not be powerful enough. This, then, is the second novel point: enforcing the arrest warrant.

If the United States is ready to strike, it should also be ready to work with other countries to plan effective arrest operations, and to integrate judicial decisions with political and military power. U.S. President Barack Obama can make the threat of prosecution a credible, preventative measure, employing it as a sword of Damocles. But in order to achieve such an effect, he must be ready to implement it if necessary.

The threat of an ICC interven- tion supported by arrest operations would provide all parties involved in the conflict with serious incentives to put an end to the violence.

The threat of an ICC intervention supported by arrest operations would provide all parties involved in the conflict with serious incentives to put an end to the violence. An ICC investigation would probe crimes against humanity and war crimes committed by the Syrian regime as well as the rebels. It would help deter any future use of chemical weapons as well as widespread attacks against civilians using conventional weapons. The investigation would also extend to the execution of prisoners and any other crime committed by Al Qaeda or other rebel forces.

Of course, in order for the Security Council to refer the Syrian situation to the ICC, an agreement must be reached with Russia and China. There is some confusion about the Russian position. Russia did not veto the intervention of the ICC. Instead, its veto reflects its opposition to military interventions and regime change. Since Nuremberg, Russia has supported international justice. It signed the ICC statute and voted in favor of the Darfur and Libya referrals.

It will be difficult to achieve, but a well-calibrated ICC intervention could provide the most efficient option to manage the current Syrian violence and contribute to the prevention of future crimes. The right combination of criminal investigations, political negotiations, and arrest operations is a new, promising alternative that could provide a real solution. Even if a referral to the ICC does not stop the crimes, the international response will confirm a red line that the entire world will support: chemical weapons cannot be used, crimes against humanity and war crimes will not be tolerated, and leaders cannot attack civilians to gain or retain power.

Photo credit: Pablo Martinez Monsivais/Associated Press

(A version of this article appeared earlier on Just Security)

Luis Moreno OcampoLuis Moreno Ocampo was the first Prosecutor of the International Criminal Court and currently practices law in New York.