Tuesday, February 12, 2013

ICC: Syria and the illusion of universal international criminal justice

Source: ISS

Syria and the illusion of universal international criminal justice

With estimates of the death toll in Syria climbing to over 60 000 as of January 2013, it is worth questioning the deadlock in the United Nations Security Council (UNSC) that has lasted nearly two years now, with Russian and Chinese threats of a veto preventing the international community from intervening in the Syrian conflict.

Russia and China have also helped to avoid a referral of the grave crimes committed in Syria to the International Criminal Court (ICC). The UNSC is empowered to refer situations of gross international crimes to the ICC, and has done so in respect of two African situations: crimes committed in Libya during Muammar Gaddafi’s final days, and the crimes committed by President Omar Al-Bashir’s regime in Sudan. But so far Syria has escaped the ICC’s attention because of the impasse in the UNSC. Syria is not a signatory to the ICC’s Rome Statute, which means that short of a referral by the UNSC, the ICC cannot get jurisdiction over the crimes committed there.

Not only is this a tragedy for the Syrian victims of war crimes and crimes against humanity, it is also a telling example of the illusion of universal international criminal justice; and the reality of politics frustrating the justice ideals of the ICC.

It has become fashionable to criticise the ICC for its exclusive focus on African cases. Developing nations, particularly from the South, now repeatedly and rightly complain about the skewed power relations reflected in the UNSC. Those power relations – and the imbalance of power within the Council – have come sharply into focus in the case of the ICC and the UNSC’s influence over it. After a decade of the ICC’s work, the UNSC has found the common purpose to refer two African situations to the ICC (Sudan and Libya) – but has repeatedly failed to do so in respect of equally deserving situations in relation to crimes committed in Palestine, and most recently in respect of the crimes unfolding before our eyes in Syria. Ten years on, we can reflect soberly on the reality that all the cases opened by the ICC are in Africa.

It is no longer enough to explain that this situation has arisen because the African cases before the ICC deserve its attention; of course they do. But while crimes in Syria, or Palestine, remain beyond the ICC’s reach, it becomes impossible to claim that the international criminal justice project is truly universal in its justice aspirations, or free from the vicissitudes of international politics. Ultimately, it is a question that any first-year law student is taught to identify: one of fairness and equality. As long as the UNSC and the ICC ensure that the court busies itself exclusively with African situations, and avoid dealing with the crimes in Syria or Palestine, the principle of equality before the law becomes little more than a platitude.

There is another reason why the ICC perception problem can no longer be ignored. Aside from the justice principles of equality and fairness, this exclusive focus on Africa affords powerful elites on the continent a means to draw deserving attention away from African crimes and the plight of African victims by insisting that the spotlight be kept trained on the skewed nature of international criminal justice. It also gives them a stick with which to beat the ICC and the international criminal justice project. It is no coincidence that the African Union’s resistance to the ICC reached its shrillest levels the moment the ICC, through the UNSC’s referral of the Sudan situation to the court, decided to focus on the crimes allegedly committed by a sitting head of state in the form of President Al-Bashir. As the net fell on him, it became clear to others similarly situated on the continent that his fate might be shared by other elites.

Against this background the news last month of a letter sent to the UNSC by Switzerland calling for a referral of the situation in Syria to the ICC should be applauded. The letter, sent on 14 January, was signed by 57 states. African signatories included Botswana, Libya, Seychelles and Côte d’Ivoire. South Africa was noticeably absent from the list. But perhaps more important is the fact that the states on the list reflect a global cross-section of countries, including such diverse partners as Japan and Costa Rica, the Republic of Korea, Australia, Samoa and Andorra, and every member of the European Union save for Sweden.

Such efforts demonstrate the potential for a win-win situation: for the ICC to do justice as it should to the African victims of the cases that are rightly before it and to do justice to the victims of grave crimes outside of Africa who equally deserve the court’s and the international community’s attention. It remains to be seen whether the members of the UNSC will embrace this challenge to pursue a common goal of justice for Syrians suffering under a brutal regime. If they do not, it will be further sad confirmation that an international criminal justice system that cares equally for all of the world’s people is still a utopian dream.

Max du Plessis, Senior Research Associate, Transnational Threats and International Crime Division, ISS Pretoria