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
Show Hide image

Donald Trump vs Barack Obama: How the inauguration speeches compared

We compared the two presidents on trade, foreign affairs and climate change – so you (really, really) don't have to.

After watching Donald Trump's inaugural address, what better way to get rid of the last few dregs of hope than by comparing what he said with Barack Obama's address from 2009? 

Both thanked the previous President, with Trump calling the Obamas "magnificent", and pledged to reform Washington, but the comparison ended there. 

Here is what each of them said: 

On American jobs

Obama:

The state of our economy calls for action, bold and swift.  And we will act, not only to create new jobs, but to lay a new foundation for growth.  We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together.  We'll restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost.  We will harness the sun and the winds and the soil to fuel our cars and run our factories.  And we will transform our schools and colleges and universities to meet the demands of a new age.

Trump:

For many decades we've enriched foreign industry at the expense of American industry, subsidized the armies of other countries while allowing for the very sad depletion of our military.

One by one, the factories shuttered and left our shores with not even a thought about the millions and millions of American workers that were left behind.

Obama had a plan for growth. Trump just blames the rest of the world...

On global warming

Obama:

With old friends and former foes, we'll work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet.

Trump:

On the Middle East:

Obama:

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West, know that your people will judge you on what you can build, not what you destroy. 

Trump:

We will re-enforce old alliances and form new ones and unite the civilized world against radical Islamic terrorism, which we will eradicate completely from the face of the earth.

On “greatness”

Obama:

In reaffirming the greatness of our nation we understand that greatness is never a given. It must be earned.

Trump:

America will start winning again, winning like never before.

 

On trade

Obama:

This is the journey we continue today.  We remain the most prosperous, powerful nation on Earth.  Our workers are no less productive than when this crisis began.  Our minds are no less inventive, our goods and services no less needed than they were last week, or last month, or last year.  Our capacity remains undiminished.  

Trump:

We must protect our borders from the ravages of other countries making our product, stealing our companies and destroying our jobs.

Protection will lead to great prosperity and strength. I will fight for you with every breath in my body, and I will never ever let you down.

Stephanie Boland is digital assistant at the New Statesman. She tweets at @stephanieboland