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.

Getty Images.
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Theresa May knows she's talking nonsense - here's why she's doing it

The Prime Minister's argument increases the sense that this is a time to "lend" - in her words - the Tories your vote.

Good morning.  Angela Merkel and Theresa May are more similar politicians than people think, and that holds true for Brexit too. The German Chancellor gave a speech yesterday, and the message: Brexit means Brexit.

Of course, the emphasis is slightly different. When May says it, it's about reassuring the Brexit elite in SW1 that she isn't going to backslide, and anxious Remainers and soft Brexiteers in the country that it will work out okay in the end.

When Merkel says it, she's setting out what the EU wants and the reality of third country status outside the European Union.  She's also, as with May, tilting to her own party and public opinion in Germany, which thinks that the UK was an awkward partner in the EU and is being even more awkward in the manner of its leaving.

It's a measure of how poor the debate both during the referendum and its aftermath is that Merkel's bland statement of reality - "A third-party state - and that's what Britain will be - can't and won't be able to have the same rights, let alone a better position than a member of the European Union" - feels newsworthy.

In the short term, all this helps Theresa May. Her response - delivered to a carefully-selected audience of Leeds factory workers, the better to avoid awkward questions - that the EU is "ganging up" on Britain is ludicrous if you think about it. A bloc of nations acting in their own interest against their smaller partners - colour me surprised!

But in terms of what May wants out of this election - a massive majority that gives her carte blanche to implement her agenda and puts Labour out of contention for at least a decade - it's a great message. It increases the sense that this is a time to "lend" - in May's words - the Tories your vote. You may be unhappy about the referendum result, you may usually vote Labour - but on this occasion, what's needed is a one-off Tory vote to make Brexit a success.

May's message is silly if you pay any attention to how the EU works or indeed to the internal politics of the EU27. That doesn't mean it won't be effective.

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.

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