Fifty-Seven
Countries Call for Referral of the Syria Situation to the ICC: analysis of the
merits of the referral and concerns as to its implementation
by Jennifer
Trahan January
14th, 2013
[Jennifer Trahan is associate
clinical professor at the Center for Global Affairs at the NYU School of
Continuing and Professional Studies (NYU-SCPS). She is also chair of the
American Branch of the International Law Association International Criminal
Court Committee and was a member of the American Bar Association’s 2010
International Criminal Court Task Force.]
Today,
January 14, 57 U.N. Member States from Africa, Asia, Europe and Latin America,
coordinated by Switzerland, sent a letter requesting the U.N. Security Council
to refer the situation in Syria to the International Criminal Court for
investigation and prosecution.
The
UN Security Council should make the referral; in fact, it should have done so
already months ago. Because Syria is not a party to the ICC’s Rome Statute,
the Court would not have jurisdiction over the crimes in Syria absent the
referral.
Mass
crimes
With
an estimated 60,000 fatalities, and reason to suspect both war crimes and
crimes against humanity have occurred, referral is clearly warranted. Underlying
crimes according to the UN’s independent international Commission of Inquiry on
Syria include “patterns of summary execution, arbitrary arrest, enforced
disappearance, torture, including sexual violence, as well as violations of
children’s rights…”
The
UN Security Council, which may refer “situations” to the ICC pursuant to Rome
Statute article 13(b), has previously referred both the situations in Darfur
(SC res. 1593) and Libya (SC res. 1970) to the ICC for investigation and
prosecution. The latter referral was made after far fewer fatalities had
occurred than have occurred in Syria. Security Council action is needed
if the Council is to retain institutional legitimacy and consistency in its
relationship with the ICC and to show its resolve in addressing large-scale
crimes.
Impunity
at the national level
The
Syrian judiciary is not addressing the crimes that are occurring, and there is
no reason to suspect that, under the current government, there would be
national court trials.
If
there were to be a future change of government, the ICC referral still makes
sense. If a future government were to contain vestiges of the past
regime, national court trials could be impeded by efforts to “shield”
perpetrators from justice. If a future government were to consist of an
entirely new regime, national trials could become vengeful affairs— overzealous
prosecutions lacking due process—such as Saddam Hussein’s trial before the
Iraqi High Tribunal.
If
there actually were to be future credible national trials, the referral would
have done no harm (it would not supplant good faith national investigations and
prosecutions under the “complementarity” provisions of Rome Statute article
17), and in fact could provide incentive for holding national trials.
As
in all referrals, the referral would be of the “situation” in Syria , so would
not be limited to crimes by the Assad government and military, but would
encompass opposing Syrian forces as well.
Whether
to exclude nationals from non-States Parties from the referral
The
Swiss letter states that the referral should be made “without
exceptions.” This is a reference to the fact that past referrals by the
UNSC excluded jurisdiction over nationals of non-States Parties (for instance,
should they become part of a troop deployments in the countries at
issue). This raises a complex question, but suffice is to say that such
automatic exclusion of nationals of non-States Parties appears to engender
resentment in the international community. To begin with, three permanent
members of the UN Security Council are non-States Parties to the ICC (Russia,
China and the U.S.), so there already exists the imbalance that these countries
have the power to vote for or veto ICC referrals, yet crimes committed on their
territories are not subject to ICC jurisdiction (and they have the power to
veto referrals involving their own nationals). A further level of
insulation of troops from non-States Parties as part of a referral increases
such imbalance, but also seems unnecessary in a situation such as the present
one, where no such troops are deployed. (Were there future deployments of
troops from non-States Parties, this issue would no doubt resurface and could
then be addressed.)
Whether
UN funding should accompany the referral
The
Swiss letter also asks that if the referral occur that the Security Council
“commit the necessary resources.” Past referrals of the Darfur and Libya
situations came with no funding. Given the ICC’s tight budget and
ever-expanding docket and expectations placed on it, such lack of funding is
indeed problematic for the Court. Investigating and prosecuting crimes
requires significant financial expenditures. A strong case can be made
that the UN Security Council should not preclude UN funding. While current
U.S. legislation precludes the US from directly funding the ICC, it is unclear
that this necessarily precludes use of UN dues.
The
need for Security Council follow-up
Finally,
the Swiss letter asks that if the Security Council makes the referral, that it
facilitate “execution of potential arrest warrants.” This is
significant. The past Darfur and Libya referrals were made without any
commitment by the Security Council to follow-up efforts to ensure that ICC
trials actually occur. (Thus, for example, none of the Darfur arrest
warrants have ever been executed). It is high time to ensure that when
the Security Council makes a referral that it undertakes some obligation to
conduct follow-up, including in the areas of arrests.
If
the crimes and violence occurring in Syria are going to be deterred to any
extent, that will not occur without a credible threat of prosecutions.
Right now, the only way to make that threat serious is through a UN Security
Council referral. The ICC would provide a reliable, fair and neutral
forum for prosecuting high level perpetrators.
