Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

On 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. As I have tried to argue in an earlier post (based on a piece for the Journal of International Criminal Justice) much of the rhetoric concerning the justification for the use of force was related to arguments of ‘punishment’ and ‘deterrence’. Resolution 2118 pays little attention to the accountability dimensions of the alleged ‘new’ norm.

SC Resolution 2118 and approaches towards accountability

Paragraph 7 of the preamble of the resolution stresses that ‘those responsible for any use of chemical weapons must be held accountable’. Operative paragraph 15 expresses a ‘strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable’. The text of the Resolution does not include any concrete options for the exercise of criminal jurisdiction. This omission stands in contrast to the criminal nature of the prohibition and earlier policy initiatives towards an ICC referral.

In the negotiations of the resolution, the option of an ICC referral was inter alia openly supported by France, the United Kingdom, Luxembourg, Argentina, Australia and South Korea. This move was sacrificed for the purpose of facilitating a diplomatic compromise over the enforcement regime. Australia and Luxemburg deplored this in statements following the adoption of Resolution 2118. (2013). The Resolution advocates a more cautious approach. It treats accountability as a long-term issue that needs to be addressed through a political process. It entrusts the task of investigations to the UN Investigative Mission, established by the Secretary-General (para. 7 of the preamble).  Broader justice strategies are referenced in the ‘Geneva Communiqué of 30 June 2012’ of the Action Group for Syria (paras. 16 and 17) which is annexed to the Resolution (Annex II). The Communiqué contains ‘Agreed principles and guidelines for a Syrian-led transition’, including a commitment to ‘accountability’ and ‘transitional justice’ strategies (Art. 10 (d) of the Communiqué). This is a clear signal that formal responsibility should be addressed as part of the political settlement of the crisis.

Some states sought to defend the lack of an ICC referral by pragmatic considerations. For instance, US Permanent Representative to the United Nations, Samantha Power, argued after the adoption of the resolution that the destruction of weapons constitutes in itself a ‘very intense form of accountability’. But the lack of support for an ICC referral has deeper policy reasons. One element is growing ‘ICC fatigue’ and criticism of its working methods and selection of situations and cases (‘European Court for Africa’). Another factor is the inherent tension between the implementation of the disarmament regime under Resolution 2118 (2013) and investigations and prosecution of crimes committed by the Assad regime before a transfer of political power. The destruction of Syrian chemical weapons requires information, support and cooperation by the Syrian government. The Resolution underlines the ‘primary responsibility of the Syrian Government in this regard’ (para. 11). The issuance of arrest warrants and indictments against senior Syrian leaders would complicate this process. The resolution thus embraces the general logic that ‘peace’ should precede international justice’. This simplicity is deplorable and fails to take into the growing sophistication in the uses of international justice in conflict resolution.

Beyond peace v. justice

The prioritization of disarmament and political settlement over rationales of criminal responsibility has visible downsides. The choice reflected in Resolution 2118 (2013) disregards that there might have been alternative avenues (e.g. use of conditions, modalities of sequencing) to combine these different objectives. In the process leading up to the adoption of the Resolution, several proposals have been made to this effect. As argued by Kip Hale, one option to avoid a trade-off of justice is the possible use of an ICC referral as an instrument to put pressure on parties to address accountability in a political settlement. Resolution 2118 (2013) could have made clear that the situation would be referred to the ICC under certain conditions, e.g. if the parties to the conflict do not reach a political settlement on accountability in the process under the Geneva Communiqué, or if the Syrian government violates obligations under Resolution 2118 (2013). The enforcement clause under paragraph 22 of the Resolution does not preclude such an option. But the insertion of express language would have created additional leverage for compliance.

Alternatively, the situation in Syria might have been referred to the ICC, with a proviso to defer the actual exercise of jurisdiction. This option has been suggested by former ICC Prosecutor Luis Moreno Ocampo, in development of the ICC practice relating to Kenya, where the Office of the Prosecutor used proprio motu powers under Article 15 as a threat to foster the brokering of a domestic justice settlement.  In the Syrian case, there was a window of opportunity to explore new ways in relation to Security Council referrals.   Resolution 2118 (2013) could have combined a referral of the situation to the ICC with a request under Article 16 of the Statute not to commence investigation or prosecutions pending a political settlement. Such an approach would not be entirely novel. Referrals, such as Resolution 1593 (2005) on Darfur or Resolution 1970 (2011) on Libya,  have included references to Article 16. Invoking Article 16 ex ante in a referral resolution to facilitate political negotiations and agreements on accountability would provide a new way to mitigate the traditional peace versus justice dilemma.

The Council’s lack of engagement with these options is a lost opportunity. The use of chemical weapons on 21 August 2013 represents only a small fraction of the violence committed in the Syrian conflict. The broad spectrum of human rights violations and international crimes was continuously highlighted by the Independent International Commission of Inquiry on the Syrian Arab Republic, established by the Human Rights Council. A referral of the ‘situation’ to the ICC would have provided a means to address the wider accountability dilemmas in the Syrian conflict, including crimes committed by both sides. The narrow approach of Resolution 2118 (2013) carries certain risks. Focusing accountability on incidents relating to the use of chemical weapons blurs the vision of the conflict. It renders the Security Council even more vulnerable to criticisms of selectivity in relation to international justice.

The way ahead

The adoption of Resolution 2118 (2013) has provided a diplomatic way out of the pending crisis. But one of the inherent contradictions of the Resolution is that it addresses the consequences of breaches of the new norm against the use of chemical weapons primarily through disarmament obligations and potential enforcement measures under Chapter VII, rather than through instruments of accountability and criminal justice. Following the strengthening of the prohibition of chemical weapons, there is an urgent need to establish that the new ‘red line’ for chemical weapons does not detract from the imperative of accountability for other types of violence and categories of crimes.

In recent debate, several proposals have been made to deal with accountability in the Syrian conflict. One suggestion is the creation of a new ad hoc tribunal, based on the precedent of the ‘International Criminal Tribunal for the former Yugoslavia’, the ‘International Criminal Tribunal for Rwanda’, or the formula of the ‘Special Court for Sierra Leone’. This option has been proposed by group of U.S. Congressmen in mid-September. The draft bill suggests inter alia that the

‘President should direct the United States representative to the United Nations to use the voice and vote of the United States to immediately promote the establishment of a Syrian war crimes tribunal, an ad hoc court to prosecute the perpetrators of such serious crimes committed during the civil war in Syria’.

This proposal is problematic. It would require a solid basis under a novel Security Council Resolution (e.g. under Chapter VII). It would be costly. The Tribunal would need to start operations from scratch. Moreover, it would face many of the same fundamental criticisms that these mechanisms have faced in the past, i.e. selectivity, detachment from domestic institutions, priorities and cultures, and distance from victims and local communities. It is thus, if at all, at best, a  ‘second best’ option to the prospect of an ICC referral.

An alternative option is the establishment of an ‘internationalized’ tribunal, i.e. a domestic mechanism with international elements. This approach has been suggested by an eminent group of experts who crafted the ‘Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes’. It envisages the creation of a tribunal that would be ‘complementary to the ordinary criminal and military courts of Syria’. This proposal appears to be more promising. It might be part of the range of options to be discussed in negotiations on a political settlement. But this model has also a number of weaknesses. It could possibly only operate after the facts, i.e. following a peace settlement and as part of a process of judicial reform. It would require solid domestic consent. Otherwise, it would face significant operational difficulties. Moreover, it would need to enjoy a sufficient degree of independence, in order to be recognized as fair and impartial. The existing record of similar internationalized institutions, such as the Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists or the Extraordinary Chambers in the Courts of Cambodia, has been more than mixed. The Iraqi High Criminal Court has faced criticism in relation to prosecutorial choices and standards of fairness in proceedings (e.g. by Human Rights Watch). The Extraordinary Chambers in the Courts of Cambodia have struggled with their hybrid legal status and their relations to the Cambodian Government in their operation.

None of the existing initiatives offers thus a ‘blueprint’ for action. The two proposals are essentially replicating previous models, with all their merits, risks and potential failures. One deeper criticism that may be voiced against such (well-intended) projects is that it may be somewhat artificial to devise ideal-type institutions and draft Statutes before a broader societal and domestic discourse on accountability. Further progress might require some fresh thinking. What is needed is a targeted ‘justice strategy’, before a move to institutions.

A modest first step in the direction of greater accountability might be a strengthening of existing fact-finding and investigative mechanisms, and a better linkage of their work to potential justice mechanisms. This nexus remains underdeveloped in existing practice. It would facilitate crucial steps, such as preservation of evidence, in the interim phase, i.e. prior to potential criminal proceedings in the post-conflict phase.

In the long run, it might be necessary to develop a comprehensive accountability strategy. Based on experiences from other transitions, this might inter alia require  different layers of accountability (e.g. international(ized) and domestic mechanisms), different types of justice (e.g., formal and informal mechanisms), measures supporting the fostering of a culture of accountability (e.g., a nexus between justice and peacebuilding strategies, a stocktaking or review of domestic legislation in various fields), and most of all input from ‘local actors’ and voices in the region. This dimension has all too often been sidelined in existing discourse and previous international initiatives of this kind.