This spring brought poignant anniversaries: it has now been three years since the inception of the Syrian crisis, twelve years since the creation of the International Criminal Court (ICC), and twenty years since the Rwandan genocide. The links are clear. To what extent can institutions of justice, such as the ICC, address ongoing conflicts? Can future Rwandas be avoided? How should justice be pursued in Syria?
When discussing these questions, justice and peace are often framed as a trade-off: in pursuing one, communities lose their capacity to fully realize the other. This framework has many elements of truth. How effective will trials be if states lack the capacity or authority to implement verdicts? What incentive do combatants have to lay down arms if they know they will be prosecuted? Proponents of peace and justice, however, ought to identify the specific types of trade-offs and acknowledge the instances in which peace and justice can be mutually reinforcing.
This has critical relevance to Syria. At an American Bar Association event marking the 12th anniversary of the ICC, the ICC’s Chief Prosecutor Fatou Bensouda emphasized that peace and justice can be pursued together, saying “we should move away from thinking that you have to wait for peace to pursue justice.” Former ICC Prosecutor Richard Goldstone agreed, noting that justice may assist in negotiating peace. Nonetheless, he cautioned, “the investigation of war crimes may inhibit peace negotiations.” In the case of Syria, the country may benefit from a piecemeal approach—first, simultaneously pursuing peace while laying the foundations for justice efforts and, second, completing justice processes. The first step in pursuing justice involves documentation of crimes and popular discussion of transitional justice processes—tasks which have a low likelihood of inhibiting peace processes. The International Center for Transitional Justice supports this gradual approach, emphasizing the imperative of a “legitimate, nationally-owned [justice] process”—something which can only be created with buy-in over time.
Nonetheless, gradual does not mean delayed; this process must be tackled now. It has been over three years since the beginning of the conflict in Syria, and no viable international or national efforts are underway. Syria is not being considered by the ICC because it is not a state party to the ICC’s founding document, the Rome Statute, and because the body responsible for referring non-state parties to the ICC—the UN Security Council—has not referred Syria to the court. French efforts to pursue a Security Council referral will most likely be met with a Russian veto. On a domestic level, justice mechanisms currently in place do not garner respect; the UN Commission of Inquiry and Human Rights Watch report that Syrian justice mechanisms do not meet “minimum international standards.”
The absence of justice persists, not to allow space for peacemaking, but to preserve impunity. Violent actors have little incentive to change the status quo—why expose themselves to prosecution? Consequently, others must push to advance justice processes. International justice experts and, more importantly, Syrians themselves must determine what avenues of justice are available and satisfying in the Syrian context. To what extent is there appetite for international adjudication? To what extent can Syrians alter existing national justice mechanisms, rendering them palatable to all?
Given the lengthy nature of justice efforts, Syrians and the international community cannot delay construction of effective accountability mechanisms for Syria. The exact mechanisms will not be achieved overnight, but initiating serious conversations today will maximize Syria’s chance of realizing justice processes in the future. A final benefit: ultimately, if conducted carefully, these conversations about justice may also contribute to conversations about peace.