This House believes individuals who have committed atrocities in the Syrian Civil War should be inve

The purpose of the ICC is to be the venue for the implementation of international criminal law, a principle that the international community has supported since the creation of the ICTY and ICTR and prior to that.[1] The crimes that the court is to prosecute include genocide – which is probably not occurring but has been alleged,[2] crimes against humanity and War Crimes[3] – which have certainly happened the chemical attacks being just one among many examples.

The allegations against the Assad regime are serious – including the use of chemical weapons, which are specifically mentioned as a war crime under article 8/1/b/xviii the Rome Statute. It would set a terrible precedent for such crimes to not be punished under international criminal law.

[1] ‘About the Court’, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx

[2] Chulov, Martin, and Mahmood, Mona, ‘Syrian Sunnis fear Assad regime wants to ‘ethnically cleanse’ Alawite heartland’, The Guardian, 22 July 2013, http://www.theguardian.com/world/2013/jul/22/syria-sunnis-fear-alawite-ethnic-cleansing

[3] Rome Statute of the International Criminal Court’, International Criminal Court, 1998, http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

In any conflict, the apportionment of blame for individual crimes committed against civilians to a standard of proof that would be acceptable in a court is extremely difficult, even such a high profile crime as attacks using chemical weapons have been disputed.[1]  That is why the ICC typically gets involved after conflicts, rather than during them because it provides the time for thorough investigations, availability of witnesses, and means the investigators will not be at risk.

Whenever the indictment is issued, the conflict would be likely to have finished before the ICC would be able to actually have the defendants in the dock. This therefore would be no help in ending the conflict.

[1] Radia, Krit, ‘Putin Rejects Syria Chemical Weapons Accusations as ‘Utter Nonsense’’, ABC News, http://abcnews.go.com/International/russian-president-putin-rejects-syria-chemical-weapons-accusations/story?id=20125419

The ICC has a high level of soft power in this case. It has the resources to investigate and prosecute, backed up by widespread support from large swathes of the international community. The ICC is part of a growing international norm against war and crimes against humanity. The willingness to prosecute for these crimes – particularly if it is done consistently – will build norms where even ruthless leaders realise they can’t get away with such crimes. Pursuing war crimes from the Syrian conflict alone will not be enough but when combined with similar measures elsewhere and the arrests of other leaders such as Charles Taylor, Slobodan Milosevic and Laurent Gbagbo show that even leaders are no longer out of reach of international law.[1]

The ICC could act as an effective deterrent to the use of chemical weapons and other war crimes by threatening to prosecute individuals who commit them.

[1] Grono, Nick, ‘The deterrent effect of ICC on the commission of international crimes by government leaders’, International Crisis Group, 5 October 2012, http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-deterrent-effect-of-the-icc.aspx

Atrocities have continued on both sides of the conflict throughout this war. Military threats of intervention have not caused any reduction in hostilities – they just ramped up tension. There is a very real prospect that an ICC intervention could just fan the flames of the existing warfare; UN weapons inspectors being in the country did not deter the use of chemical weapons, they were used only a few miles from where the inspectors were staying.

Also, the ICC has not been a useful deterrent in other situations, such as Darfur, which while referred to the ICC by the UN Security Council is still an ongoing conflict.[1] One of the few academic studies done on the issue suggests ICC involvement simply damages the prospects of peace by ensuring that an actor who may have been willing at some point to negotiate has to fight on.[2] Combatants are already fearing death – would the prospect of spending 30 years in a European prison cell really add too much of a deterrent?

[1] Kristof, Nicholas D., ‘Darfur in 2013 Sounds Awfully Familiar’, The New York Times, 20 July 2013, http://www.nytimes.com/2013/07/21/opinion/sunday/darfur-in-2013-sounds-awfully-familiar.html?_r=1&

[2] Ku, Julian, and Nzelibe, Jide, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?;, Washington University Law Review, Vol.84, No.4, 2006, pp.777-833, http://lawreview.wustl.edu/inprint/84-4/KuNzelibe777.pdf pp.181, 832

The use of the ICC could work better than domestic show trials in the aftermath of a civil war. Instead of domestic courts, prone to all their biases, an international, unbiased, criminal system could replace the prospect of a Ceausescu-style non-trial followed by summary execution, or some other form of unfair trial which could sow the seeds for problems down the line. Even the trial of Iraqi dictator Saddam Hussein done while the United States had a lot of influence over the country as a result of its occupation was condemned as having “serious administrative, procedural and substantive legal defects”.[1]

Instead, an ICC trial would allow the full details to be probed, investigated and independently prosecuted without being subject to domestic post-war recriminations.

[1] ‘Judging Dujail The First Trial before the Iraqi High Tribunal’, Human Rights Watch, 20 November 2006, http://www.hrw.org/en/reports/2006/11/19/judging-dujail

Even if the ICC brings proceedings, that does not guarantee that individuals, even if captured by forces that oppose them, will be transferred over to the ICC – the new Libyan government is still holding Saif Gaddafi.[1]

The ICC can also only act when the state is unwilling or unable to provide a trial – this this is the principle of complementarity. However there is not ICC force that can act to arrest a suspect. This means in effect that it will be down to the forces on the ground which may mean summary justice by those who capture the suspect if they think it won’t get a sufficiently stiff sentence at the ICC – there is no death penalty.

At any rate, many in Syria would want to see a fully military conclusion to the conflict, rather than any result through the international courts or a political settlement.

[1] Aliriza, Fadil, ‘Is Libya too scared to put Said Gaddafi on trial?’, The Independent, 16 August 2013, http://www.independent.co.uk/news/world/africa/is-libya-too-scared-to-put-saif-gaddafi-on-trial-8771495.html

The UN Security Council has so far been undecided over any future action in Syria. China has so far been unconvinced over any action. Russia has supported Assad, selling the Assad regime arms. Russia and China, being permanent members of the UNSC means that they can block any action on this issue that the other permanent members (USA, UK and France) may wish to bring for any form of sanction towards the Assad regime.

While it may not be possible to get Russia to support a military intervention, which is something that they are opposed to[1], it may be possible to swing Russia round to a position where they abstain on a reference to the ICC[2]. Russia has had a flexible (or, more cynically, hypocritical, view on the ICC before, opposing a Syria reference in February 2013[3] but supporting one in to the actions of NATO in the Syrian conflict[4]) position on the ICC, having voted in favour of references to it before. Because the involvement of the ICC would mean investigating both sides it would not be entirely impossible for a diplomatic solution to be reached for Russia to abstain on a reference.

[1] Al Jazeera and agencies, ‘Russia and Iran warn against attack on Syria’, Al Jazeera, 27 August 2013, http://www.aljazeera.com/news/europe/2013/08/20138278414963267.html

[2] Kaye, David, ‘Responsibility to Object’, Foreign Policy, 10 January 2013, http://www.foreignpolicy.com/articles/2013/01/10/responsibility_to_object?page=0,1

[3] Baczynska, Gabriela, ‘Russia opposes referring Syrians to ICC now: official’, Reuters, 19 February 2013, http://www.reuters.com/article/2013/02/19/us-syria-crisis-russia-icc-idUSBRE91I0HJ20130219

[4] ‘Russia wants ICC to examine NATO bombings’, United Press International, 18 May 2012, http://www.upi.com/Top_News/World-News/2012/05/18/Russia-wants-ICC-to-examine-NATO-bombings/UPI-57171337338753/

Just because a reference to the ICC is possible does not mean it would be effective. It would still require individuals to be captured, and enough evidence to be ascertained in order for a conviction.

Also, Russia has a track record of opposing the reference of the Syria case to the ICC, or any other involvement in the Syria issue. Negotiating with Russia could amount to a fruitless exercise

Also, such a reference could cause problems if a Western military intervention were to take place later, possibly exposing foreign peacekeepers to liability if any incident were to occur.

The purpose of the ICC is to be the venue for the implementation of international criminal law, a principle that the international community has supported since the creation of the ICTY and ICTR and prior to that.[1] The crimes that the court is to prosecute include genocide – which is probably not occurring but has been alleged,[2] crimes against humanity and War Crimes[3] – which have certainly happened the chemical attacks being just one among many examples.

The allegations against the Assad regime are serious – including the use of chemical weapons, which are specifically mentioned as a war crime under article 8/1/b/xviii the Rome Statute. It would set a terrible precedent for such crimes to not be punished under international criminal law.

[1] ‘About the Court’, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx

[2] Chulov, Martin, and Mahmood, Mona, ‘Syrian Sunnis fear Assad regime wants to ‘ethnically cleanse’ Alawite heartland’, The Guardian, 22 July 2013, http://www.theguardian.com/world/2013/jul/22/syria-sunnis-fear-alawite-ethnic-cleansing

[3] Rome Statute of the International Criminal Court’, International Criminal Court, 1998, http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

In any conflict, the apportionment of blame for individual crimes committed against civilians to a standard of proof that would be acceptable in a court is extremely difficult, even such a high profile crime as attacks using chemical weapons have been disputed.[1]  That is why the ICC typically gets involved after conflicts, rather than during them because it provides the time for thorough investigations, availability of witnesses, and means the investigators will not be at risk.

Whenever the indictment is issued, the conflict would be likely to have finished before the ICC would be able to actually have the defendants in the dock. This therefore would be no help in ending the conflict.

[1] Radia, Krit, ‘Putin Rejects Syria Chemical Weapons Accusations as ‘Utter Nonsense’’, ABC News, http://abcnews.go.com/International/russian-president-putin-rejects-syria-chemical-weapons-accusations/story?id=20125419

The ICC has a high level of soft power in this case. It has the resources to investigate and prosecute, backed up by widespread support from large swathes of the international community. The ICC is part of a growing international norm against war and crimes against humanity. The willingness to prosecute for these crimes – particularly if it is done consistently – will build norms where even ruthless leaders realise they can’t get away with such crimes. Pursuing war crimes from the Syrian conflict alone will not be enough but when combined with similar measures elsewhere and the arrests of other leaders such as Charles Taylor, Slobodan Milosevic and Laurent Gbagbo show that even leaders are no longer out of reach of international law.[1]

The ICC could act as an effective deterrent to the use of chemical weapons and other war crimes by threatening to prosecute individuals who commit them.

[1] Grono, Nick, ‘The deterrent effect of ICC on the commission of international crimes by government leaders’, International Crisis Group, 5 October 2012, http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-deterrent-effect-of-the-icc.aspx

Atrocities have continued on both sides of the conflict throughout this war. Military threats of intervention have not caused any reduction in hostilities – they just ramped up tension. There is a very real prospect that an ICC intervention could just fan the flames of the existing warfare; UN weapons inspectors being in the country did not deter the use of chemical weapons, they were used only a few miles from where the inspectors were staying.

Also, the ICC has not been a useful deterrent in other situations, such as Darfur, which while referred to the ICC by the UN Security Council is still an ongoing conflict.[1] One of the few academic studies done on the issue suggests ICC involvement simply damages the prospects of peace by ensuring that an actor who may have been willing at some point to negotiate has to fight on.[2] Combatants are already fearing death – would the prospect of spending 30 years in a European prison cell really add too much of a deterrent?

[1] Kristof, Nicholas D., ‘Darfur in 2013 Sounds Awfully Familiar’, The New York Times, 20 July 2013, http://www.nytimes.com/2013/07/21/opinion/sunday/darfur-in-2013-sounds-awfully-familiar.html?_r=1&

[2] Ku, Julian, and Nzelibe, Jide, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?;, Washington University Law Review, Vol.84, No.4, 2006, pp.777-833, http://lawreview.wustl.edu/inprint/84-4/KuNzelibe777.pdf pp.181, 832

The use of the ICC could work better than domestic show trials in the aftermath of a civil war. Instead of domestic courts, prone to all their biases, an international, unbiased, criminal system could replace the prospect of a Ceausescu-style non-trial followed by summary execution, or some other form of unfair trial which could sow the seeds for problems down the line. Even the trial of Iraqi dictator Saddam Hussein done while the United States had a lot of influence over the country as a result of its occupation was condemned as having “serious administrative, procedural and substantive legal defects”.[1]

Instead, an ICC trial would allow the full details to be probed, investigated and independently prosecuted without being subject to domestic post-war recriminations.

[1] ‘Judging Dujail The First Trial before the Iraqi High Tribunal’, Human Rights Watch, 20 November 2006, http://www.hrw.org/en/reports/2006/11/19/judging-dujail

Even if the ICC brings proceedings, that does not guarantee that individuals, even if captured by forces that oppose them, will be transferred over to the ICC – the new Libyan government is still holding Saif Gaddafi.[1]

The ICC can also only act when the state is unwilling or unable to provide a trial – this this is the principle of complementarity. However there is not ICC force that can act to arrest a suspect. This means in effect that it will be down to the forces on the ground which may mean summary justice by those who capture the suspect if they think it won’t get a sufficiently stiff sentence at the ICC – there is no death penalty.

At any rate, many in Syria would want to see a fully military conclusion to the conflict, rather than any result through the international courts or a political settlement.

[1] Aliriza, Fadil, ‘Is Libya too scared to put Said Gaddafi on trial?’, The Independent, 16 August 2013, http://www.independent.co.uk/news/world/africa/is-libya-too-scared-to-put-saif-gaddafi-on-trial-8771495.html

The UN Security Council has so far been undecided over any future action in Syria. China has so far been unconvinced over any action. Russia has supported Assad, selling the Assad regime arms. Russia and China, being permanent members of the UNSC means that they can block any action on this issue that the other permanent members (USA, UK and France) may wish to bring for any form of sanction towards the Assad regime.

While it may not be possible to get Russia to support a military intervention, which is something that they are opposed to[1], it may be possible to swing Russia round to a position where they abstain on a reference to the ICC[2]. Russia has had a flexible (or, more cynically, hypocritical, view on the ICC before, opposing a Syria reference in February 2013[3] but supporting one in to the actions of NATO in the Syrian conflict[4]) position on the ICC, having voted in favour of references to it before. Because the involvement of the ICC would mean investigating both sides it would not be entirely impossible for a diplomatic solution to be reached for Russia to abstain on a reference.

[1] Al Jazeera and agencies, ‘Russia and Iran warn against attack on Syria’, Al Jazeera, 27 August 2013, http://www.aljazeera.com/news/europe/2013/08/20138278414963267.html

[2] Kaye, David, ‘Responsibility to Object’, Foreign Policy, 10 January 2013, http://www.foreignpolicy.com/articles/2013/01/10/responsibility_to_object?page=0,1

[3] Baczynska, Gabriela, ‘Russia opposes referring Syrians to ICC now: official’, Reuters, 19 February 2013, http://www.reuters.com/article/2013/02/19/us-syria-crisis-russia-icc-idUSBRE91I0HJ20130219

[4] ‘Russia wants ICC to examine NATO bombings’, United Press International, 18 May 2012, http://www.upi.com/Top_News/World-News/2012/05/18/Russia-wants-ICC-to-examine-NATO-bombings/UPI-57171337338753/

Just because a reference to the ICC is possible does not mean it would be effective. It would still require individuals to be captured, and enough evidence to be ascertained in order for a conviction.

Also, Russia has a track record of opposing the reference of the Syria case to the ICC, or any other involvement in the Syria issue. Negotiating with Russia could amount to a fruitless exercise

Also, such a reference could cause problems if a Western military intervention were to take place later, possibly exposing foreign peacekeepers to liability if any incident were to occur.

The Syrian Civil War has already claimed over 100,000 lives, but it could get worse. The Assad regime is infamous for its stockpiling of chemical weapons – it is one of few states to not sign the Chemical Weapons convention, and is known to have stocks of mustard gas, VX and other weapons of mass destruction. Assad still has chemical weapons to use. An ICC referral could cause the regime to regard itself as in a position with nothing to lose so making it more willing to make use of these weapons against its own people. If there is no hope of a swift decisive victory by either side then by far the best solution to the conflict would be to have a negotiated settlement – the ICC seeking to prosecute senior figures on either side would make this much harder to arrive at. In South Africa – in a less volatile situation – former President Thabo Mbeki has stated “Had there been a threat of a Nuremberg-style trial over members of the apartheid security establishment we would have never undergone peaceful change.” [1]

[1] Ku, Julian, and Nzelibe, Jide, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?;, Washington University Law Review, Vol.84, No.4, 2006, pp.777-833, http://lawreview.wustl.edu/inprint/84-4/KuNzelibe777.pdf p.819

The problem with fears of fuelling the conflict further is that the conflict is already almost as large as it can be within the borders of Syria, and has already spilled over in to neighbouring Lebanon, with bombings in Tripoli and Beirut) – it is a full scale conflict which will be difficult to resolve peacefully as it is, with existing threats of military intervention on the table there is no more possible escalation to fear. 

Even if the situation were to be referred (which would require abstention or support from both Russia and China on the UN Security Council, which itself is unlikely), it would be necessary to capture Assad and other suspects before trying them. This has proven very difficult, for example none of the suspects in the investigation in to the Lords Resistance Army activity in Uganda have been captured[1] – it is equally likely that they would be killed during any capture attempt as occurred in Libya when Gaddafi was captured and then shot on the spot by the insurgents[2]; one cannot put a corpse on trial.

[1] Dicker, Richard, and Ebenson, Elizabeth, ‘ICC Suspects Can Hide – and That Is the Problem’, Jurist, 24 January 2013, http://jurist.org/hotline/2013/01/dicker-evenson-icc-suspects.php

[2] Kofman, Jeffrey, and Dolak, Keven ‘Moammar Gadhafi Dead: How Rebels Killed the Dictator’, ABC News, 21 October 2011, http://abcnews.go.com/International/moammar-gadhafi-dead-rebels-killed-dictator/story?id=14784776 n.b. the video in this article is rather graphic

While it is not possible to guarantee the capture of any suspect that has not stopped the ICC attempting to build a case. If any defendants are captured alive, it will not be a waste of time: bearing in mind that the ICC does capture many of the individuals it seeks to put on trial, it is not beyond the bounds of possibility that some or all people indicted after a Syria investigation would be captured.

After the conclusion of the war in Syria, there will have to be a period of nation building – either Assad will have destroyed his enemies and have an alienated nation to deal with, or the Syrian National Congress will have to take effective control over the country.

Syria will need a process of truth and reconciliation[1] - a collective understanding of events that happened on the past, such as that which occurred after the end of Apartheid in South Africa - in order to move forward: this may be hampered by reopening old wounds by prosecuting large numbers of people for offences in the civil war.

[1] For more information see the Debatabase debate ‘This House supports the use of truth and reconciliation commissions’

The Syrian Civil war is far larger than any of the conflicts where the truth and reconciliation model has been implemented. The divisions in society will not be healable through a system of truth and reconciliation – like other atrocities, such as those in Sierra Leone and the Balkans there will need to be a system of criminal trials.

In addition, a South African style truth and reconciliation commission with an amnesty for perpetrators of human rights violations[1] would grant impunity to perpetrators on other sides who have committed some of the gravest atrocities in the 21^st century, from cannibalism[2] to the use of chemical weapons. Letting these people remain free would not promote reconciliation it would simply mean Syrians would believe that justice has not been done.

[1] Simpson, G., ‘A Brief Evaluation of South Africa's Truth and Reconciliation Commission: Some lessons for societies in transition.’, The Centre for the Study of Violence and Reconciliation’, October 1998, http://www.csvr.org.za/index.php/publications/1724-a-brief-evaluation-of-south-africas-truth-and-reconciliation-commission-some-lessons-for-societies-in-transition.html

[2] Muir, Jim, ‘Outrage as Syrian rebel shown ‘eating soldier’s heart’’, BBC News, 14 May 2013, http://www.bbc.co.uk/news/world-middle-east-22519770