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.

Photo: Getty Images
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We don't need to build more prisons - we need to send fewer people there

The government talks a good game on prisons - but at the moment, the old failed policies hold sway

Some years ago the Howard League set up an independent expert review of what should happen to the penal system. We called it Do better, do less.

Too many governments have come in with enthusiasm for doing more, in the mistaken belief that this means better. We have ended up with more prisons, more prisoners, a bulging system that costs a fortune and blights lives. It is disappointing that the new regime appears to have fallen into the same old trap.

It is a big mistake to imagine that the justice system can be asked to sort out people’s lives. Prisons rarely, very rarely, turn people into model citizens able to get a great job and settle with a family. It is naïve to think that building huge new prisons with fewer staff but lots of classrooms will help to ‘rehabilitate’ people.

Let’s turn this on its head. There are more than 80,000 men in prison at any one time, and 40,000 of them are serving long sentences. Simply giving them a few extra courses or getting them to do a bit more work at £10 a week means they are still reliant on supplementary funding from families. Imagine you are the wife or partner of a man who is serving five to ten years. Why should you welcome him back to your home and your bed after all that time if you have hardly been able to see him, you got one phone call a week, and he’s spent all those years in a highly macho environment?

The message of new prisons providing the answer to all our problems has been repeated ad nauseam. New Labour embarked on a massive prison-building programme with exactly the same message that was trotted out in the Spending Review today – that new buildings will solve all our problems. Labour even looked at selling off Victorian prisons but found it too complicated as land ownership is opaque. It is no surprise that, despite trumpeting the sell-off of Victorian prisons, the one that was announced was in fact a jail totally rebuilt in the 1980s, Holloway.

The heart of the problem is that too many people are sent to prison, both on remand and under sentence. Some 70 per cent of the people remanded to prison by magistrates do not get a prison sentence and tens of thousands get sentenced to a few weeks or months. An erroneous diagnosis of the problem has led to expensive and ineffective policy responses. I am disappointed that yet again the Ministry of Justice is apparently embarking on expansion instead of stemming the flow into the system.

A welcome announcement is the court closure programme and investment in technology. Perhaps, in the end, fewer courts will choke the flow of people into the system, but I am not optimistic.

It is so seductive for well-meaning ministers to want to sort out people’s lives. But this is not the way to do it. Homeless people stealing because they are hungry (yes, it is happening more and more) are taking up police and court time and ending up in prison. We all know that mentally ill people comprise a substantial proportion of the prison population. It is cheaper, kinder and more efficacious to invest in front line services that prevent much of the crime that triggers a criminal justice intervention.

That does leave a cohort of men who have committed serious and violent crime and will be held in custody for public safety reasons. This is where I agree with recent announcements that prison needs to be transformed. The Howard League has developed a plan for this, allowing long-term prisoners to work and earn a real wage.

The spending review was an opportunity to do something different and to move away from repeating the mistakes of the past. There is still time; we have a radical Justice Secretary whose rhetoric is redemptive and compassionate. I hope that he has the courage of these convictions.

Frances Crook is the Chief Executive of the Howard League for Penal Reform.