Written by: Regina Paulose
Josh D. Scheinert wrote a post in the Huffington Post critiquing the possible failures of the ICC. While his post raises interesting points, his critique seems a bit unfair.
First, Mr. Scheinert contends that the United Nations Security Council’s (UNSC) Resolution 2118 translates into the idea that the ICC “does not fit into the plans of the international community.” Resolution 2118, specifically discusses the means and method by which Syria should dispense its chemical weapons. The latest measure to remove chemical weapons comes at the end of a long list of other actions that have already taken place in order to end the war. Resolution 2118 does not prevent any future discussion with regards to the crimes that have taken place in Syria.
Second, Mr. Scheinert points out some recent failings of the ICC. He states that the ICC has failed because Kenyatta and Ruto, President and Deputy President of Kenya, were elected and therefore “[t]he ICC has refused to heed to the democratic wishes of Kenyans, the majority of whom appear to favour moving on over justice, and is not calling off the charges or trials.” It is not very clear what Mr. Scheinert is arguing here. Should a person charged with grave crimes that run for political office and wins, have his criminal charges dismissed? At the time of the initial investigation into the Kenyan post-election violence, 62% of Kenyans favored ICC intervention. While this has dropped in recent months, support for the ICC still continues, with nearly 39% still favoring charges against the two leaders.
Third, Mr. Scheinert points out that “[i]t is easy to look at these facts, and other distressing ICC realities, and conclude that the 11-year old court is failing. And it might be.” He articulates that the upcoming AU Summit, Simone Gbagbo’s case, the ICC’s only guilty verdict, and the outstanding warrants are examples of this. It is a little bit dramatic to say that these are all examples of failure. If African leaders are unhappy that they signed a treaty and now will be held culpable for grave crimes, then so be it. This does not mean the ICC is failing. The success of the ICC should never be measured by the number of convictions it has. Perhaps a more practical measure is whether the ICC is fulfilling its mandate as agreed upon by the Assembly of State Parties. Further, these are cases which involve grave crimes. They will take a significant amount of time to prosecute given all the factors that go into building a case, including an examination of whether or not the sovereign’s own judiciary is taking action in a manner to address the situation. The amount of warrants that the Court has issued that have not yet been served is not a commentary on the efficacy of the institution. It is a commentary on how lame state parties are in cooperating with an institution that they created.
He is correct when he states that “[o]ur commitment to justice cannot be selective. Holding accountable the perpetrators of genocide, war crimes, and crimes against humanity, no matter who those perpetrators are, should not take a back seat to political expediency.” He is also correct when he exposes western hypocrisy, but the analysis needs to go a step further and point out the hypocrisy of countries such as Russia and China who also have failed to ratify the Rome statute. Don’t these two permanent UNSC members matter as well?
What does justice in Syria look like and what that will it entail? China and Russia may be quick to prevent a referral from happening. In addition, an ICC referral could (or already has) become a political concession in order to prevent further violence in Syria. However, that may only be a temporary political concession, until the war ends. (This argument is not to say that this action is proper in any way). We are quick to jump on the ICC and say it is not doing its job in Syria, but the war is not over. When has a judicial process ever started in the middle of a war? Is this really an effective solution right now when we have no peace deal in place to stop further violence? Have our concerns regarding justice trumped that of the safety and welfare of the hundreds of thousands who are displaced?
Finally, Mr. Scheinert alludes to the fact that any form of international justice in Syria would be a marked improvement. Correct. The ICC is not the only solution for bringing justice. In fact, before we begin with an analysis on ICC intervention, we should consider how or if Syria’s judicial system can handle these crimes. In this situation, perhaps an ad hoc tribunal, similar to that of the ICTY, SCSL, or ICTR to address what has happened would be appropriate. This is in large part because the majority of evidence will be easier to gather, the amount of potential defendants will be (and should be) extremely high, the people of Syria can participate in a meaningful manner, and most importantly, the Syrian judicial system can be strengthened, to allow for a proper healing, closure, and reparations to take place. If the ICC can complement the efforts of such a Tribunal, perhaps by prosecuting the high level officials (on both sides), then Syria, the international community, and justice can win.
This is not meant to be an apology for the Court. Mr. Scheinert is correct that the ICC needs reform. Which urgent reforms are needed remains to be seen as the Court continues to interpret and test its procedure in different cases. We must remain vigilant about reminding world leaders that grave crimes do not have a place in this world. While I applaud Mr. Scheinert’s ability to write for the Huffington Post and bring this discussion to the surface, including advocating for more actions by his own country, one should be cautious when critiquing the international community’s stance towards international justice. Surely, not all of us agree that international justice has been placed on the sidelines or that the ICC is a failure.
 Josh Scheinert, “The Challenging of International Justice” October 3, 2013, available at: http://www.huffingtonpost.ca/josh-d-scheinert/international-criminal-court-problems_b_4041086.html?goback=%2Egmr_2946720%2Egde_2946720_member_5792060239243132928#21
 UNSC Resolution 2118, September 27, 2013: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2118(2013)
 Global Centre for the Responsibility to Protect, “Timeline of International Response to Situation in Syria” (accessed 10-6-2013) available at: http://www.globalr2p.org/media/files/timeline-of-international-response-to-syria-1.pdf
 Recall that the recent Kenya elections did in fact have a disputed outcome: BBC News, “Kenya Supreme Court upholds Uhuru Kenyatta election win” March 30, 2013, available at: http://www.bbc.co.uk/news/world-africa-21979298
 I take up on the Simone Gbagbo case and the AU summit in another post on the blog: https://acontrarioicl.com/2013/09/22/simone-gbagbo-iccs-leading-lady/
 ICC The Office of the Prosecutor, “Seventeenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593, (2005), available at: http://www.icc-cpi.int/iccdocs/otp/ICC-OTP-UNSC-Dafur-05June2013-ENG.pdf
 Paul Richter, “UN report on Syria gas attack fuels calls for Assad’s Prosecution” LA Times, September 17, 2013, available at: http://articles.latimes.com/2013/sep/17/world/la-fg-syria-accountability-20130918