Coauthored with Claire Schachter, research associate in the International Institutions and Global Governance program.
Today the UN Security Council voted on a French draft resolution referring the situation in Syria—where government forces have systematically slaughtered civilians—to the International Criminal Court (ICC). Russia and China vetoed the resolution. While not surprising, the double veto is enormously frustrating to those demanding a stronger international response to war crimes in Syria. To some observers, the failure of this referral may signal the impossibility of ensuring accountability in a context of geopolitical rivalry. But the Obama administration’s decision to support the resolution, even in the face of near certain defeat, was appropriate and necessary—appropriate in light of its evolving relationship with the ICC and necessary given its limited options for ending the conflict in Syria.
Syria—like the United States, as well as Russia and China—is not party to the Rome Statute, the painstakingly negotiated treaty that created the world’s first permanent international criminal tribunal. Accordingly, the situation in Syria can only be investigated by the Office of the Prosecutor pursuant to a UN Security Council resolution.
The Obama administration’s decision to endorse the draft resolution was notable, given the tumultuous history between the United States and the ICC. President Bill Clinton signed the Rome Statute just before leaving office, while advising against U.S. ratification until “fundamental concerns” were addressed. The succeeding Republican administration of George W. Bush signaled its immediate antipathy toward the Court, given the perceived risk that its independent prosecutor might launch politically motivated indictments against U.S. officials or servicemen and women. In May 2002, Undersecretary of State John Bolton took the symbolic step of “unsigning” the treaty (an act he later called “my happiest moment at State”).
Despite this initial estrangement, the United States’ relationship toward the ICC has evolved steadily since Bolton’s action. During its second term, the Bush administration began quiet, pragmatic cooperation with the Court, including by providing evidentiary and other materials related to cases on its docket. Most dramatically, in 2005 the United States supported the UN Security Council’s referral of the situation in Darfur to the ICC and the pursuit of prosecutions of those senior Sudanese officials suspected of war crimes. This quiet support has expanded under the Obama administration, which voted at UN Security Council in spring 2011 to refer the Libya situation to the ICC. Unsurprisingly, many international observers now regard the United States as a de facto member of the ICC—albeit one that remains outside its jurisdiction.
The vote on referral to the ICC was ridiculously late in coming. More than eight months have passed since the government of Bashar al-Assad provoked global outrage by deploying chemical weapons against civilians in the suburbs of Damascus. It has been five months since Navi Pillay, the UN High Commissioner for Human Rights, announced that an international inquiry into Syrian atrocities “indicates responsibility at the highest level of government, including the head of state.”
What explains the Obama administration’s decision to back a vote now? One obvious explanation is that the administration is genuinely committed to the principle of accountability for crimes against humanity. On this reading, supporting an ICC referral was a victory for U.S. ambassador to the United Nations Samantha Power, one of the most outspoken advocates of this principle and a proponent of an increasingly close relationship between the United States and the ICC. Power—and perhaps likeminded others in the administration—have become increasing frustrated by the United States’ passivity in the face of Syria’s human rights catastrophe.
Cynics might argue that the administration, having struggled to develop a coherent and effective policy to end the bloodletting in Syria—and having shied from pursuing more forceful steps in the face of limited support at home and few allies willing and capable of sharing the burden of military intervention—is grasping at symbolic straws. That would be too harsh an indictment. At this stage, the United States has a very poor hand to play, facing divisions among (and extremists within) the Syrian opposition and the political agendas of veto-wielding countries at the UN.
The vote was also bound to fail. Although supported by scores of UN member states, Russia’s publicly stated opposition and dogged defense of a rare client state condemned it from the outset. Vladimir Putin no doubt calculated that he has already lost in the court of Western public opinion, whereas he can still earn points at home for standing up to the West—just as he has over Ukraine. More disappointing though hardly surprising was China’s decision to veto (rather than abstain)—the latest in Beijing’s troubling pattern of passivity toward perpetrators of gross human rights abuses.
Belated failure is still hard to stomach, especially because it would have been worthwhile to pursue accountability against Assad now. Critics of pursuing justice before peace argue that if the priority is to end the conflict, indictments are misguided because they may encourage tyrants to hold on to power rather than weaken their position or deter them from further abusing their citizens. According to this perspective, the double veto may have preempted an investigation that would have prolonged the conflict, and also preserved whatever little hope there may be for the Geneva Process. This position, however, is based on the flawed assumption that there is a necessary trade-off between peace and justice; that the pursuit of the latter will necessarily compromise the former. As with the earlier indictment of al-Bashir however, there is little in Assad’s history or behavior to suggest that he needs any additional motivation to cling to power and pursue victory.
Today’s vote marks yet another setback for the Syrian people and for the pursuit of international accountability for the most heinous crimes. And yet, by forcing Moscow and Beijing to go on the record as defenders of continued impunity for the Assad regime, the Obama administration did the right thing and demonstrated its commitment to working with the ICC. However, the failed vote also sends an invaluable reminder to the United States that a stronger relationship with the Court is no substitute for willingness to take forceful action to prevent or halt atrocities.