International Analysis — The ICC as the Sword of Damocles

By Luis Moreno Ocampo —The Mark News (A version of this article appeared earlier on Just Security) —

The destruction of the chemical weapons would not be enough in Syria. An unexplored option exists to help resolve the conflict: the Security Council could refer the Syrian situation to the International Criminal Court with – and here’s the first novel point – a future jurisdiction that would start on 2014. This delayed onset of jurisdiction would serve a number of useful functions.

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 Assad himself was ordering crimes were confirmed, he would have no interest to comply.  A delayed start, however, would put Assad and the rebels on notice that they would face international justice and provide them with meaningful incentives to stop the violence and bring their behavior in line international law. Second, the delayed start would buy some time for a negotiated settlement, which should include domestic justice, but with a clear deadline.  Finally, 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 a referral, I had a duty to fully respect the UN Security Council authority to decide when and where to request the Court’s intervention. But I witnessed a general lack of integration between the Security Council 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 ICC’s impact.  Nicholas Kristof, for example, contends that bringing the Syria situation to the ICC would back Assad into a corner, making him wary of stepping down. There is a legal solution to this problem that Kristof is not taking into consideration. Article 16 of the ICC statute provides that the UN Security Council at any moment has the authority to suspend judicial proceedings, and therefore to facilitate a final negotiation.

Meanwhile, others think the ICC is too weak.  Ambassador Samantha Power recently asked: “What could the International Criminal Court really do…? 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. President Obama can make the threat of prosecution a credible, preventative measure, employing it as a sword of Damocles; and in order to achieve such effect he must be ready to implement it if necessary.

The threat of an ICC intervention supported by arrest operations would provide serious incentives to stop the brutal attacks, to change behavior without changing regime. And it would do so for all parties involved in the conflict and for all the serious crimes.  An ICC investigation would probe crimes against humanity and war crimes committed by the Syrian regime as well as the rebels. It would include 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, a referral to the ICC will require a UN Security Council decision, which entails reaching agreement with Russia and China. There is some confusion about the Russian position. Russia did not veto the intervention of the ICC; instead, its veto relates to its opposition to military interventions and to regime change. Since Nuremberg, Russia 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 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 would support: chemical weapons cannot be used, crimes against humanity and war crimes will not be tolerated and leaders cannot attack civilians to gain or to retain power.

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

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