by Max du Plessis
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