Marc Lynch’s policy brief for the Center for a New American Security, titled “Pressure Not War:” A Pragmatic and Principled Policy Towards Syria” raises a provocative possibility for ICC judicial intervention. Lynch argues that pressure should be put on Assad and his officials to either go into exile to allow for a political transition or risk facing war crimes charges at the ICC. In his own words:
“To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no sign of being willing to take a political deal, an in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice and permanent isolation.”
The war criminal accusation is already part of the diplomatic discourse on Assad. UN Human Rights chief Navi Pillay’s statements and a UN inquiry report’s assessments concur that war crimes and crimes against humanity have been committed in the Syria regime’s siege on civilians. (Hillary Clinton also sort of called Assad a war criminal – considered unhelpful by David Bosco.)
But as we all know, Syria is not a State Party to the Rome Statute and Russia and China would block a Security Council referral of the situation to the ICC. Putting this obstacle aside, the “exile or justice” ultimatum is a frustrating position to take. Despite the sub-title of this policy brief, this ultimatum is based on assumptions that are neither soundly pragmatic nor principled.
On pragmatics, the offer of exile can no longer be viewed by war criminals as a credible guarantee of impunity – and won’t by Assad and his regime officials. Recall Charles Taylor, who abdicated his Presidency in Liberia in 2003 when the Special Court for Sierra Leone unsealed an arrest warrant for him and he took the negotiated offer of exile in Nigeria. He was arrested and transferred to the SCSL three years later. Recall the Khmer Rouge, many of whom were guaranteed exile and impunity for decades by a sympathetic Cambodian government and a passive UN; several of them now face justice and their victims at the ECCC. Political and security climates that may permit impunity in the short term will inevitably shift in the long term.
On principle, ICC officials and human rights advocates consistently balk at suggestions that the Court’s investigations and arrest warrants, and justice in general, should be used as a bargaining chip in conflict resolution. They have argued as much in the Libya, Sudan, and Uganda situations – all of which are delicate sequencing of peace and justice scenarios. In line with my belief that the “principles vs. pragmatism” dichotomy is unhelpful, such advocates also make consequentialist arguments that impunity is likely to lead to a resurgence of violence and instability. Look to the ICC’s justifications for intervening in Cote d’Ivoire and Kenya as evidence of this causal argument.
All in, the ICC cannot be viewed as credible if it endorses such “exile or justice” ultimatums. Moreover, the developing bond between the Court and UN Security Council as co-defenders of justice and peace will be severed by such unjust political bargains.
(Note: Michael Scharf provides an interesting legal analysis of the exile option, comparing Hussein and Taylor. See, Scharf, Michael P. “Trading Justice for Peace: The contemporary law and policy debate” in Atrocities and International Accountability: Beyond transitional justice.” Hughes, Schabas, and Thakur (eds). 2007.