Fighting Impunity in Syria: The International Criminal Court

By: Martin Meeùs

The Need for Accountability

Even though all countries acknowledge the atrocities committed by the Syrian regime and the rebels during the three-and-a-half-year civil war, a military intervention against Syrian President Bashar al-Assad and his regime seems to be ruled out by the international community. A few months ago, the emergence of the Islamic State in Iraq and the Levant (ISIS), an organization committing unprecedented acts of violence, pushed the United States and its “allies” to conduct air strikes but only against this particular organization and not against the Syrian regime.

This international posture does not exclude the fact that serious international crimes must be punished and that perpetrators of these crimes must be held accountable in some way. When it comes to criminal accountability in the Syrian civil war, thus far, the International Criminal Court (ICC) has monopolized the debate. The High Commissioner for Human Rights has urged the United Nations Security Council (UNSC) several times to refer the situation to the ICC.  Ultimately, the ICC may not be the best solution.

Three Ways to the ICC

There are currently three ways in which Syria could be brought in front of the International Criminal Court. First, Syria signed the Rome Statute but did not ratify it. Although it seems unrealistic that al-Assad would ratify a treaty that could be highly damaging to his regime, it is not impossible. Indeed, diplomatic talks already led Syria to join the Chemical Weapons Convention (CWC) as a condition to avoid a military intervention from abroad. Similarly, the international community could use the ratification of the Rome Statute as a bargaining chip against Syria.  Second, the Syrian government could send a declaration to the Registrar of the Court, accepting its jurisdiction for this particular situation only. Such voluntary ad hoc submission also seems unlikely but is not altogether impossible given the CWC precedent.  Third, Article 13(b) of the Rome Statute allows the UNSC to refer any situation to the ICC, even if the targeted country is not party to the Rome Statute. The country’s consent would not necessarily be needed. This is seemingly the only path currently available for Syria to be brought to the ICC.

Significantly for Syria, the UNSC has referred two situations to the ICC in the past, though these have been rife with complications.  In 2005, the UNSC referred the situation in Sudan, and the Court initiated investigations against seven individuals, including against the President, Omar al-Bashir. After nine years, four individuals are still at large. This includes the president, who is still freely traveling in neighboring countries. Again, in 2011, the UNSC referred the Libyan conflict to the ICC. The court issued warrants of arrest against Abdullah Al-Senussi, former head of the military intelligence, and against Saif Al-Islam Gaddafi, Muammar Gaddafi’s son. Al-Senussi’s case was declared inadmissible by the court. As for Saif Al-Islam, despite urgent calls from the court and from the international community, Libya refuses to extradite him to The Hague on the basis of the complementarity principle. Both referrals are struggling to go forward and are considered as failures for the time being.

Despite these difficulties, not only is a UNSC referral the most likely option for the Syrian conflict, but there is also UNSC movement on this front.  On 14 January 2013, Switzerland sent a letter to the UNSC on behalf of more than fifty countries, asking to refer the Syrian civil war to the ICC. While the referral was signed by a diverse set of countries, three permanent members of the UNSC (the United States, China, and Russia) were hostile to the idea of a referral at this time, stagnating the process.  Seven months later, on 21 August 2013, the Syrian regime perpetrated chemical weapons attacks in the Ghouta region of Damascus. Al-Assad effectively crossed President Obama’s “red line”.  As a result, the United States changed its position and decided to support an ICC referral by the UNSC.  At this point, the project finally took off.

The shift in the US position is significant.  In early 2013, then-Secretary of State Hillary Clinton held the view that treating al-Assad as a war criminal would “complicate” the situation. The United States as a result chose not to co-sign the Swiss letter initiating the draft resolution. The United States only changed its position upon the release of the UN report confirming the regime had used chemical weapons against its civilians. The United States’ change in attitude was surprising as it went as far as lobbying at the UN for co-sponsorship of the resolution. This case illustrates a broader shift in the United States’ position, becoming less and less hostile towards the ICC.

Nearly a year after the chemical weapons attack, on 22 May 2014, France presented the draft resolution S/2014/348, co-sponsored by sixty-five countries, to the UNSC. With thirteen votes in favor and two vetoes (Russia and China), the resolution was set aside.

Russia and China vetoed the resolution for three principle reasons.  First, Russia and China invoked the principle of non-intervention in the internal affairs of a state to justify their veto. Their attachment to the principle of sovereignty is well known and often repeated. Second, Russia and China argued that the resolution is one-sided, focusing solely on al-Assad’s regime and not on the crimes committed by non-state actors. Third, Russia and China feel as though they were fooled by the recent Libyan resolution 1973, on which they both abstained. The countries that intervened in Libya acted beyond their mandate in order to depose Muammar Gaddafi. Russia and China are therefore likely to be much more prudent regarding all resolutions on Syria that could lead to any further unwanted actions such as al-Assad’s deposing.

Nevertheless, if the Russian veto was expected in May 2014, the Chinese position was more ambiguous.  Ultimately, it stemmed from the above stated reasons, as well as a reaction to France’s decision to submit the resolution. There were no illusions regarding an immediate ICC referral, but France had other reasons to submit the draft resolution to a vote. First, it embarrasses, alienates, and isolates Russia and China in the UNSC. Second, it sets the basis for the day when al-Assad’s regime will eventually fall. Third, it shows that most countries in the UNSC are still concerned by the Syrian situation and continue to fight against impunity.

 Potential Positive and Negative Effects of an ICC Action

ICC action could foment several positive and negative effects for both Syria and the Court.  From the Syrian perspective, an ICC referral would have symbolic importance, as it would affirm the commitment of the international community towards accountability in Syria. An intervention from the ICC may also have a deterrent effect on the individuals perpetrating crimes falling under the ICC jurisdiction.  For the ICC, the referral would have strategic benefits beyond the noble and primary objective of fighting impunity within Syria. A referral that would lead to successful trials would give the opportunity for the ICC to play a role and hopefully have an impact in a major conflict. It would also help to dispel the criticism that the Court’s sole focus is Africa.

From the negative perspective, for Syrians, international tribunals are extremely expensive and so will be an ICC action. It is not clear that this is where Syrians want to see the international money spent. Moreover, the ICC would only indict a very small number of defendants.  Finally, Syrians may prefer a national trial that could lead to the death penalty, rather than an ICC trial, which does not use the death penalty and has comparatively “comfortable” prison conditions in The Hague.  For the ICC, there is a great chance that a trial will never come to fruition. Al-Assad could remain President after the war, he could possibly negotiate for the charges to be dropped against him, or the Syrian population could refuse to extradite him to the Netherlands. Referring the Syrian situation to the ICC before the end of the war and thus without being able to fully assess if it is the most suitable forum may therefore be harmful for the Court.

The ICC May Not be the Best Solution Per Se

Even though an ICC referral would have significant symbolic and political effects, it may not currently be a suitable solution for either Syria or the ICC. Referring a case to the ICC while the country remains in conflict could prove to be too risky of a bet. Choosing which accountability process is the best suited is a highly important and sensitive decision that has to be made on a case-by-case basis. The factors to be taken into account are innumerable and can often not be known before the end of the conflict: will Al-Assad still be President at the end of the conflict? What role does the Syrian National Coalition intend to play? Will the next regime be able to objectively prosecute perpetrators of mass atrocities on both sides? Moreover, the Libyan and Sudanese precedents proved that referring a situation to the ICC, without the consent and therefore the guarantee of the full commitment of a country, is often not ideal.

Finally, among all of these other concerns, the increase in power of ISIS radically changed the situation. Now, al-Assad and the members of the UNSC share a common enemy. There is unlikely to be another draft resolution presented to the UNSC any time soon. For now, the most important actions to take are documenting crimes and collecting ample evidence for later prosecution. Drafting statutes for potential ad hoc or hybrid tribunals is also useful in order to prepare for the day when the circumstances will allow action to be made towards Syrian accountability. This is precisely what the independent International Commission of Inquiry on the Syrian Arab Republic, mandated by the UN Human Rights Council as well as some NGOs are doing.

Martin Meeùs is a Belgian L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.

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