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.

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.

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

Charlotte is a barrister in human rights law.

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Carwyn Jones is preparing for a fight with the UK government

From Labour's soft-nationalist wing, Jones has thought carefully about constitutional politics. 

This week's 20th anniversary of the 1997 Yes vote on devolution in Wales was a rather low-key affair. But then while there are plenty of countries around the world that celebrate an Independence Day, few nations or regions around the world would make much fuss about "Partial Autonomy Day".

The most important single event of the day was, almost certainly, the address by First Minister Carwyn Jones at the Institute of Welsh Affairs’ 20th anniversary conference. The sometimes diffident-seeming Welsh Labour leader has rarely been on stronger form. Much of his speech was predictable: there were his own recollections of the 1997 referendum; some generous reflections on the legacy of his now-departed predecessor, Rhodri Morgan; and a lengthy list of identified achievement of devolved government in Wales. But two other features stood out.

One, which might have struck any observers from outside Wales was the strongly Welsh nationalistic tone of the speech. In truth this has long been typical for Jones, and was a very prominent element of the successful Labour general election campaign in Wales. A fluent Welsh-speaker and long a part of the soft-nationalist wing of Welsh Labour, the First Minister briefly considered what would have been the consequences of the achingly-close 1997 ballot having gone the other way. Wales, we were told, would no longer have had the right to be considered a nation – it might even (gasp!) have lost the right to have its own national football team. But this theme of the speech was also linked to devolution: why should Wales not have parity of treatment on devolved matters with Scotland?

The most striking feature of the speech, however, was the confidence and combativeness with which the First Minister set about attacking the UK government on constitutional matters. This territory has often appeared to be the area which most animates Jones, and on which he is most comfortable. He has clearly thought a great deal about how to protect and develop the constitutional status of devolved Wales. The First Minister was clearly deeply unimpressed by the UK government’s handling of Brexit as a whole, and he linked Brexit to broader problems with the UK government’s approach to the constitution. Brexit was declared in the speech to be the "biggest threat to devolution since its inception" – and the audience were left in no doubt as to where the blame for that lay. Jones was also clearly very comfortable defending the joint stance he has taken with the Scottish National Party First Minister of Scotland, in opposing the EU Withdrawal Bill and much of the UK government’s approach to Brexit negotiations. This high level Labour-SNP cooperation – extraordinary, given the otherwise utterly toxic relations between the two parties – was argued to be the necessary consequence of the UK government’s approach, and the threat of a power-grab by Westminster of powers that are currently devolved. 

Finally, the First Minister had one new card up his sleeve. He was able to announce a Commission on Justice in Wales, to be chaired by a figure of impeccable authority: the soon-to-retire Lord Chief Justice of England and Wales, John Thomas. The clear intention of the Welsh government seems to be to use this commission to advance their agenda of a distinct Welsh legal jurisdiction. This is another matter on which there appears to be little current common ground with the UK government.

Carwyn Jones emerged from the general election as a greatly strengthened figure: having led the Labour campaign in Wales when it appeared that the party might be in difficulty, he deservedly accrued much political capital from Welsh Labour’s success in June. The First Minister has been thinking imaginatively about the UK constitution for some years. But for a long time he failed even to carry much of the Welsh Labour party with him. However, he succeeded in having many of his ideas incorporated into the Labour UK manifesto for June’s election; he is no longer a voice crying out in the wilderness. On the anniversary of devolution, Jones said little that was wholly new. But the combination of everything that he said, and the tone and confidence with which he said it, was striking. This was not the speech of a man looking to back away from a confrontation with the UK government. Wales seems up for a fight.

Roger Scully is Professor of Political Science in the Wales Governance Centre at Cardiff University.