Syria and the International Criminal Court: justice denied

With Russia and China vetoing a UN Security Council resolution to refer the situation in Syria to the International Criminal Court, it is time once more to look for other avenues

Luke Moffett
22 May 2014
Girl in camp for internally displaced in mountains of Latakia

An exhausted society: a girl in an internal refugee camp in Latakia mountains. Demotix / Lens Young Hamwi. All rights reserved.In March the Syrian conflict entered its third year of relentless violence and suffering, with more than 150,000 killed and millions of refugees in neighbouring countries. Allegations abound of atrocities—chemical-weapons use, torture, mass executions, indiscriminate attacks on civilian populations and sexual violence—committed by state forces and rebel groups with impunity. Twenty years after the horrors of the Balkans and the Rwandan genocide, the calls of “never again” and billions invested in international criminal justice, one could be forgiven for expecting the international community to be more proactive in ensuring accountability.

The International Criminal Court (ICC) was established in 2003 to investigate and prosecute those most responsible for such crimes, and more generally to end impunity and deliver justice to victims. But Syria has not signed the founding Rome Statute as a state party and has not accepted the court’s jurisdiction, so international crimes there cannot be prosecuted before it. For victims there is thus no justice and those responsible have a free hand to descend into more brutal violence in the hope of winning an intractable conflict.

An alternative way to bring Syria before the ICC would be through a referral by the UN Security Council, under article 13(b) of the Rome Statute and Chapter VII of the UN Charter. The past few weeks saw growing support for a French motion to this effect, with Switzerland leading 58 favourable states and support even coming from the United States, which itself has not accepted the court’s jurisdiction. The ICC prosecutor, Fatou Bensouda, lent her voice in support of accountability for crimes in Syria but acknowledging that without a referral the court was powerless.

Justice for victims has been the rallying call of the ICC, invoked in the Syrian situation and others, but it means little in substance to victims of international crimes: it must include their effective and meaningful participation at the ICC to contribute to determining truth and justice, access to protection measures and ability to shape reparations to their needs. While the ICC has sought to be innovative in these regards, given the massive scale of international crimes and the handful of cases it can adjudicate with its resources, there is a large gap between the rhetoric of the court and victims’ ability to receive remedy for their harm.

Perhaps this is because the ICC and its proponents focus too much on what the court can do for victims, rather than what state parties should be doing in closing this gap. This reflects a wider concern that the ICC is not a panacea in effectively addressing international crimes but requires domestic and other states’ commitment to ending impunity and delivering justice to victims.

With Syria, the proposed resolution claims that the situation constitutes a threat to international peace and security on the basis of reports, by the Human Rights Council’s Independent International Commission of Inquiry on the Syrian Arab Republic, that war crimes and crimes against humanity have likely been committed. In terms of jurisdiction, the referral encompasses the duration of the conflict since March 2011 but excludes nationals from any state outside Syria—to avoid taking in Israeli forces in the Golan Heights or any future intervention by western or Arab states. A similar restriction was included in the Libyan referral to the ICC, despite allegations of war crimes in western airstrikes.

Previous resolutions

This was not the first call to refer the situation in Syria to the ICC but it was the first time a resolution to that effect had been brought before the Security Council. Three previous resolutions condemning the violence were vetoed by China and Russia. Given the need for unanimity in the Security Council behind a referral, it was expected that the proposal would be vetoed again—and so it proved.

Even if Russia and China had supported the referral of Syria to the ICC, past referrals have not resulted in justice for victims. The referrals of Darfur (2005) and Libya (2011) were made at the height of conflict, complicating the investigation and risking the security of ICC staff. In both cases state actors have yet to appear before the ICC, with only members of the rebel group Justice and Equality Movement in Darfur having submitted themselves to the court and only one proceeding to trial. In both situations, being brought within the jurisdiction of the ICC has done little to stem violence or build effective domestic accountability.

The Libyan and Sudanese governments have established investigations into allegations of international crimes, to avoid those indicted—including the Sudanese president, Omar al-Bashir—being prosecuted before the ICC. On the face of it this reflects the principle of complementarity, key to the ICC’s success, where state parties are meant to investigate and prosecute international crimes, with the court only acting as a last resort. But such investigative units and criminal trials are ineffective and serve only to promote impunity by absolving those responsible. Christopher Hall, one of the key proponents of the ICC during the drafting of the Rome Statute, called such complementarity ‘perverse’: politically-driven investigation and prosecutorial mechanisms do not end impunity but reinforce it.

This was apparent this week, when the ICC Appeals Chamber approved a decision by the Pre-Trial Chamber. The latter had found that, despite an ongoing Libyan trial for the ICC-indicted Saif al-Islam Gaddafi, the case did not address the international crimes for which he had been indicted by the ICC and the Libyan authorities were unable effectively to investigate such crimes.

Practical problems

There are practical problems about the ICC conducting investigations in continuing conflict situations with reluctant states. Of particular importance are the difficulties in obtaining evidence, given the conflict, control of territory by different groups, lack of access to crime scenes, destruction of evidence and intimidation of witnesses and victims—all likely to inhibit the ability of a prosecutor to prepare cases which have a reasonable prospect of a conviction. International criminal trials have succeeded for crimes committed in the former Yugoslavia. But, unlike in ex-Yugoslavia, the ICC enjoys no military force to protect and facilitate its investigators or to enforce arrest warrants, leaving the court dependant on the co-operation of state forces and rebel groups who are unlikely to hand over their commanders—although in Darfur the court has at least been able to relocate witnesses and victims at risk to neighbouring Chad.

These problems reflect the need for co-operation by a state and a willingness to ensure the success of the ICC’s investigations and prosecutions. In the absence of concerted and unanimous international support, impunity is thus likely to result—particularly if the state is responsible for committing international crimes. As Antonio Cassese famously stated, international criminal justice is “a giant without arms and legs”, reliant on state co-operation.

If the situation in Syria is unlikely ever to be referred to the ICC, then the best hope for justice for victims rests on domestic developments. The June 2012 Geneva Communiqué on resolving the conflict included a commitment by both parties to national reconciliation, accountability for crimes committed and a comprehensive package of transitional justice, including reparations for victims. But the continued violence has meant none of these commitments has been fulfilled or even attempted.

This was not the first call to refer the situation in Syria to the ICC but it was the first time a resolution to that effect had been brought before the Security Council.

To overcome the unwillingness of the state to ensure accountability and the lack of jurisdiction of the ICC, the third way of a hybrid tribunal—similar to that for Sierra Leone, Cambodia and Lebanon and involving local as well as international personnel—could be essayed. In the Democratic Republic of Congo, however, even such a hybrid body to address the violence in the east was rejected on the grounds that allowing international lawyers to intervene in the Congolese legal system violated state sovereignty.

Given the billions spent on the tribunals for former Yugoslavia and Rwanda, it is unlikely the international community would be keen to establish further tribunals or hybrid courts. Greater attention should be placed on trying to reach a peaceful solution and building domestic accountability that can deliver some justice to victims.

The ICC represents the hope that accountability for atrocities can be achieved. But Darfur, Libya and other situations suggest that achieving justice, particularly for victims, requires political co-operation within a state to make accountability work and pressure by the international community to keep it on track. With western military intervention in Syria also unlikely, the best hope is that the Security Council debate will at least highlight the need for accountability on the part of the belligerents.

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