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Syria immune from being held accountable by ICC for atrocities

The International Criminal Court should act to bring Syrian officials to justice without Security Council authorisation.

By Charlotte Racha... Published 30 October 2012 11:05

Syrian rebel fighters celebrate on top of a captured tank

Syrian rebel fighters celebrate on top of a tank captured from the Syrian government forces. Photograph: Getty Images

More than 30,000 people have been killed in Syria since the uprising against President Bashar al-Assad in March 2011. Violations by government officials include indiscriminate shelling of civilian areas, targeted killings of activists and opposition supporters, arbitrary detentions, torture and rape, as well as attacks on hospitals and clinics and the use of health facilities for military operations, according to the UN.

A recent report by Human Rights Watch condemned the state-sanctioned atrocities in Syria and called on the United Nations Security Council to refer the matter to the International Criminal Court (ICC). Human Rights Watch as well as many other organisations expect the ICC to adopt targeted sanctions against Syrian officials involved in the crimes. The ICC has so far failed to bring the Syrian officials to justice.

One of the main reasons the ICC has not brought the officials to justice is because the the ICC prosecutor can only evoke the court’s jurisdiction if a referral is made from the Security Council - or from Syria itself. Senior officials from a number of countries and public and private sector organisations worldwide have lobbied the Security Council to refer Syria to the ICC. There is extraordinary agreement across the globe condemning the Syrian regime’s crimes, including a 137-12 General Assembly Vote, an overwhelming vote at the UN Human Rights Council.

Despite the increasing international pressure, it is highly unlikely the Security Council will authorise a referral when Russia and China continue to support Syria. Although the Russian and Chinese vetoes at the Security Council are not unconquerable. In the past China, on two occasions, changed its mind and later supported ICC referrals after originally rejecting such referrals. One occasion was in 2005 in relation to Darfur and the latest was the referral of Libya in 2011. History suggests that China could reverse its objection again – and Russia might follow suit.

If the Security Council refuse to refer Syria to the ICC, Syria itself could make a referral to the ICC. This would involve victims working with organisations such as Human Rights Watch to compile an evidentially solid and factual report on behalf of Syrian nationals, which could be presented as a referral to the ICC. Even with a referral to the ICC by Syria, the ICC’s jurisdiction cannot be evoked without the Security Council’s agreement. Pressure from Syria itself could sway the Security Council to concede and agree to evoke the ICC’s jurisdiction.

It is all too easy to get side tracked focusing on the political preferences of the Security Council while forgetting the vital role that the ICC plays in bringing Syrian officials to justice. At present the ICC has failed to hold such officials accountable for their actions. Instead it could appear to the outside world that the ICC is responsible for allowing such officials to carry out atrocities against innocent civilians with arrogant impunity.

The ICC’s failure to take action has wider ramifications on its function as a court established to deal with such atrocities. The ICC could be perceived as following the political agenda of the United States and the Security Council rather than upholding the rule of law. This will inevitably throw the court’s judicial autonomy and integrity into question. Failing to do justice could have long-term detrimental consequences for the ICC and international justice as a whole.

Ensuring countries all around the world are not immune from the consequences of committing such atrocities should be at the forefront of international policy. Particularly in this case, where there is an international consensus that the Syrian regime is responsible for war crimes. As mentioned above, the UN and Human Rights Watch among many other institutions have condemned Syrian’s official’s actions – and the ICC was created to deal with such situations. Rather than call into question the role of the ICC and international justice as a whole, the ICC should take action without Security Council authorisation. Bringing Syrian officials to justice will free the country from an oppressive regime and accelerate progress toward a political transition.

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Tags: Syria

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7 comments

Fri, 2012-11-09 19:47 — November (not verified)

Response to: FRI, 2012-11-02 09:33 — ICC (NOT VERIFIED)

I would like to point out this is a marginalized issue which has not been brought to the forefront of the political debate on Syria and the author has done an excellent job in explaining why. Due to concern that readers might actually believe your factual inaccuracies, I must state why you are wrong:

The ICC and the UN can “adopt targeted sanctions against Syrian officials" – both organisations have the power. The difference between the organisations lies in the different targeted sanctions that the ICC and the UN can adopt. You are wrong - the Security Council has found that the atrocities in Syria are a threat or breach to international peace and security – and yet they still fail to act.
The author has explained that the ICC depends on a referral from the Security Council.

It is not misleading to state: "it could appear... that the ICC is responsible for allowing such officials to carry out atrocities" – that is the author’s opinion and you have your own.

Perhaps you should remember that this is an opinion article and if you don’t value other people’s opinions then you shouldn’t read op-eds.

Wed, 2012-11-14 16:45 — FSC (not verified)

I am intrigued by your assertion that the ICC has the power to order "targeted sanctions". There is no such power under the Rome Statute. While the Court may freeze the assets of those under investigation, there must be jurisdiction to open an investigation in the first place. Moreover, these are not "sanctions" but steps in a judicial process. Sanctions are penalties to provide incentives for obedience with international law. The ICC has a different function.

Secondly, my comment did not state whether the Security Council had made a Chapter VII resolution in respect of Syria. Rather, it referred to its jurisdictional power to order sanctions on the basis of such a finding.

Thirdly, the author's view that the ICC appears to be responsible for allowing atrocities in Syria to continue does not sensibly follow from her acknowledgement that the ICC depends on a referral from the Security Council before it can act. While everyone is entitled to their opinion, where they choose to publish it, they should ensure that the factual basis for their opinion is sound.

Thu, 2012-11-08 22:07 — Coleridge (not verified)

The author's concerns are understandable. The difficulty lies in the composition of the UN which is dominated by totalitarian and Islamist tyrannies. They are powerless to bring Islamist mass murderers like Bashir the dictator of Sudan and butcher of 400,000 blacks to trial because Moslem regimes refuse to effect an arrest warrant issued against him whenever this mass murderer visits Moslem states. They cannot prosecute the leaders of Islamist Egypt for the persecution of Christian Copts because the Islamist dominated UN will not refer Egypt to the ICC. The cannot prosecute the leaders of apartheid Pakistan for the ethnic cleansing and killing of Christians because no lobby in the UN will refer apartheid Pakistan to the ICC. No one will refer Islamist Iraq to the ICC for the murder and ethnic cleansing of tens of thousands of Christians because of the Moslem backlash that would ensue. The same applies to the murderous Baathist Syrian regime. Both the UN and the ICC are however quite happy to regularly condemn democratic Israel because it is a beleaguered democracy that does not have the automatic support of the two third UN majority which is Moslem dominated or Moslem supported.
Time to replace the UN with a United Nations of democratic states.

Sat, 2012-11-03 10:20 — Mandy S (not verified)

Syria is not immune from being held accountable by the ICC nor does this article put forward a case that it is. What a highly misleading headline.

Fri, 2012-11-02 10:33 — ICC (not verified)

I would like to point out a few factual errors in this article. An understanding of the interrelationship between the UN and the ICC (which sits outside the UN system) is lacking in this article. First, it is the United Nations, not the ICC, which could "adopt targeted sanctions against Syrian officials". Sanctions can be adopted after the Security Council finds that there is a threat, or breach, to international peace and security. Secondly, it is not correct that the "ICC prosecutor can only evoke the court’s jurisdiction if a referral is made from the Security Council - or from Syria itself". The Prosecutor may also initiate investigations in states which have accepted the ICC's jurisdiction. Syria has not done so, which leaves the first two options on the table. A referral from Syria can only come from the Government - not individual victims or NGOs on their behalf. It is highly unlikely that Al-Assad, as current head of state, would make this referral, considering that he is likely to be one of the main targets of any prosecution. In these circumstances, the ICC depends on a referral from the Security Council for the situation in Syria to be able to be investigated. Presently, its hands are tied. It is misleading to state that "it could appear... that the ICC is responsible for allowing such officials to carry out atrocities" when in fact it is the Security Council which is failing to act.

Fri, 2012-11-09 19:49 — November (not verified)

It is not misleading to state: "it could appear... that the ICC is responsible for allowing such officials to carry out atrocities" – that is the author’s opinion and you have your own.

Perhaps you should remember that this is an opinion article and if you don’t value other people’s opinions then you shouldn’t read op-eds.

Wed, 2012-10-31 11:29 — JG (not verified)

"Violations..... include indiscriminate shelling of civilian areas, targeted killings of activists and opposition supporters, arbitrary detentions, torture and rape, as well as attacks on hospitals and clinics and the use of health facilities for military operations."

Many of those violations have also been committed by Israel against the Palestinians.

Could we please have a follow-up article calling for Israel to be brought before the ICC, too?