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Justice for Whom? ICC in Syria and Lessons from Darfur

February 13, 2013

On January 14, 2013 Switzerland sent a letter on behalf of 58 countries addressed to the UN Security Council. The object was the necessity to refer the government of the Syrian Arab Republic to the International Criminal Court because of crimes against humanity and war crimes committed during the almost 2 years long conflict. According to the Roman Statute, which is the legal foundation of the ICC, the court can only take up those cases which are referred to by the Security Council or can initiate investigations for those countries which have signed the Roman Statute. Syria does not fall in neither category, hence the standoff. The proposed referral to the ICC by the 58 states however hides the risk of an ICC which is invoked as an instrument of victor’s justice. Lessons from Darfur shed light on why this the way to go down.

Double Standard Justice. States sitting in the UN security council have the power to decide which states and which countries can be referred to the ICC: implicitly, critics of the court argue, the members have the power to establish who is under the law and who one is above it. The fact that the same crimes in different countries have sometimes been referred to the court and sometimes have not points to the political aspect of the act of referring to the court. From this perspective ICC critics have had an easy task in accusing the ICC of not being a neutral enforcer of the rule law at the international level but a political pawn of the Security Council or of the US.

Blind (and aggressive) justice (source claybennet.com)

Justice for Whom? Many have also argued that when a conflict is referred to the ICC the identity of the combatants seems to pre-determine whether or not these groups will be accused by the court. In the case of Darfur, the scholar Mamdani pointed out that one side of the conflict (the government) was dubbed as genocidaire whereas the deeds of the other party in the conflict (the rebel from Darfur) were labeled as resistance to the genocide and therefore of less gravity. This reading of the event, Mamdani argued, was in sync with (and to a considerable extent dictated by) the War on Terror framework imposed by the US on the conflict in which one side (the “Arab” government) was perpetuating massacres on the other. In other words, the prosecution seemed to be used as an instrument of victor’s justice (in this case the US) rather than being impartial and seeking to neutrally end impunity. The action of the ICC disproved such thesis as it indicted both the government and the rebels, yet to whom ICC’s justice is to be applied remains a contentious issue.

Syria today is likely to lend itself to such manipulations and, as a result, to the criticism of a selective justice. In the country there is in fact an authoritarian government which has violently clamped down on initially peaceful violence. If the opposition has taken up arms is to respond to the ostracism of a regime unwilling to compromise and ready to resort to extreme violence to cling to power. In this narrative the government is the genocidaire with the opposition groups merely counter-responding to the massacres. Yet the reality is more nuanced and nuances count a great deal if the ICC is to walk the talk and the impunity of all (and not some) perpetrators of most serious crimes is to be ended.  Reports from different independent commission have gathered evidence that many of the groups comprising what is called the Opposition have engaged in serious crimes. The report of the United Nations High Commissioner for Human Rights about the situation of human rights in Syria states it clearly

During the period under review, reports were received of numerous human rights violations committed by Government forces, which may amount to crimes against humanity and, possibly, war crimes. There were also increasing reports that anti Government armed groups were committing serious human rights violations.

The violations include torture, abduction, summary executions and use of children as soldiers. The violations of human rights by government forces is compounded by the indiscriminate and disproportionate  use of force causing a heavy toll in terms of civilian deaths. The bottom line is however clear: perpetrators stand on both side of the fence.

To scrutinize all the parties involved in the conflict is not to undermine to legitimacy of those who fight against a brutal regime. It is fundamental however as it conveys an important message: none of the warring parties is above the law (regardless whose country they are toeing the line) and therefore will not stay unpunished. And this is the mandate of the International Criminal Court, regardless of the identity of the warring parties.

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