Free Syrian Army members with a tank whose crew defected from government forces. Freedom House/Flickr. Some rights reserved.
In May 2014, two permanent members of the UN Security Council - Russia and China - vetoed a resolution to refer the situation in Syria to the International Criminal Court (ICC), thereby stopping dead in its tracks the growing international momentum for an investigation by international prosecutors into possible war crimes committed during the Syrian conflict. This represents a missed opportunity for international justice and raises serious questions of credibility – for the international justice system as whole but also for the UN, more generally. Since then, the situation in Syria remains bleak, as conflict is ongoing. Therefore, a trigger mechanism for universal jurisdiction should be incorporated into the Rome Statute, the founding treaty of the ICC, to allow the Court to act in specific cases of major international concern where all means of establishing jurisdiction are blocked and where it is imperative for the ICC to act. This would prevent international justice from becoming hostage to the politics of the UN Security Council.
It’s the politics, stupid
Today, the conflict in Syria challenges the relevance of the international justice system – as war crimes continue to be committed while the international community stands idle. According to recent UN estimates, since the conflict started over three years ago, 200,000 people have been killed in Syria, 3.2 million have fled to neighbouring countries and 6.4 million have been internally displaced. Considering the sheer magnitude of the atrocities, why has the UN Security Council not been able to address the conflict in Syria so far?
The answer is simple – politics! Put simply, China and Russia do not want to interfere in the sovereign affairs of another country, despite the broad international support behind the proposed resolution. This only shows – once more – that the practices of the UN Security Council – with veto powers for the permanent members – have become outdated and as such, prevent the international community from resolving major international crises. The reality is that in the twenty first century, politics should no longer be allowed to interfere in matters of (international) justice. The pursuit of justice requires a purely objective analysis of the facts in a given context. This becomes all the more important when the crimes committed amount to the level of war crimes, genocide or crimes against humanity. Therefore, the politicization of international justice does not serve its purpose – it only undermines it.
No backing, no justice
The UN Independent Commission of Inquiry on Syria, a body established by the UN Human Rights Council to document the crimes happening in Syria, has found that “the conduct of the warring parties in the Syrian Arab Republic has caused civilians immeasurable suffering”. Consequently, the Commission has repeatedly recommended that the situation in Syria be referred to the ICC. However, the absence of UN Security Council backing has made the pursuit of justice in Syria challenging, to say the least. Referral to the ICC would have established the court’s jurisdiction over the conflict in Syria and would have sent a strong message to end impunity.
The alternative ways of opening an investigation, in which either the chief prosecutor of the ICC takes the lead or a state party to the Rome Statute refers the situation to the Court, are also blocked. The reason is that Syria has not ratified the Rome Statute establishing the ICC. The remaining option would be for Syria to make a request directly to the ICC and agree to the ad hoc jurisdiction of the Court regarding crimes committed on its territory. However, this remains an unlikely scenario, not only because of the ongoing fighting in Syria but also because of the difficulty of establishing who would represent the Syrian government in a legitimate manner.
Power to the ICC
Therefore, the ICC needs a mechanism to trigger universal jurisdiction in cases which fall within the scope of the Rome Statute and where all means of establishing jurisdiction have been exhausted. Putting in place a mechanism to establish jurisdiction in those cases where it is otherwise not possible is completely in line with the philosophy of the Rome Statute, namely to not leave unpunished the perpetrators of the most serious crimes known to man, whether they enjoy political backing or not. In addition, having a trigger for universal jurisdiction applicable only in well-defined circumstances, where it is in the interest of international justice, would avoid a number of practical and legal problems posed by granting general universal jurisdiction to the ICC, which could easily prove to be counterproductive. Such action would prevent the scope of the court from becoming hostage to, for example, UN Security Council politics, which runs counter to the purpose of the Rome Statute to end impunity for international crimes. The case of Syria best illustrates that.