Will Referring the Case of Syria to the ICC Be of any Help in Resolving the Crisis?

Sunday, May 25, 2014

Masoud Rezaei
PhD of International Relations, Visiting Research Fellow at
the Institute for Middle East Strategic Studies

A total of 62 member states of the United Nations recently wrote a joint letter to the UN Security Council, which contained the text of a draft resolution asking the world body to refer the Syria’s case to the International Criminal Court (ICC) for investigation into possible war crimes and crimes against humanity during the Syria crisis. The proposed resolution had been drafted by France and voting on the draft resolution was carried out during the Security Council’s session on May 22, 2014. The proposed draft resolution had vehemently condemned widespread and blatant violation of human rights and the norms of international humanitarian law in Syria by both the government forces and nongovernmental armed groups.

Before that, the UN Human Rights Council (UNHRC) had reported the occurrence of war crimes and crimes against humanity during the ongoing crisis in Syria through a separate investigation. A commission mandated by the UNHRC to investigate war crimes in Syria said in its latest report last September that there had been enough evidence to prove at least eight massacres perpetrated by Assad forces and one by the opposition forces in the previous year and a half. The report added that a case had been built for the judicial prosecution of perpetrators of those crimes adding that a confidential list of suspected criminals was being produced by the commission and kept by the UN high commissioner for human rights, Navi Pillay.

When the draft resolution on referring the case of Syria to the ICC was put to vote at the Security Council, Russia and China vetoed the resolution. This was the fourth time that the two countries used their right of veto within the Security Council to prevent adoption of any measure against the government of the incumbent Syrian President Bashar Assad.

It should be noted that the ICC was established in 1998 on the basis of the Rome Statute of the International Criminal Court, which is commonly known as the Rome Statute. The Statute entered into force as of 2002. According to Article 5 of the Rome Statute, the ICC is qualified to see into four major international crimes, which include the crime of genocide, crime against humanity, war crimes and the crime of aggression. As a result, the prosecutors at the ICC can indict perpetrators of every one of the aforesaid four crimes after making sure that those crimes have been actually committed in any one of the signatory states of the Rome Statute, which are also considered as member states of the ICC. Syria, however, is not a signatory to the Rome Statute on the basis of which the ICC has been established. Therefore, the Security Council is the sole international body through which the ICC prosecutors may carry out their investigations on such crimes in Syria. This means that for countries that are not member states of the ICC, the initiation of the judicial process will be only possible after a relevant resolution is adopted by the UN Security Council.

At present, more than 120 countries have officially acceded to the Rome Statute. Like Sudan, which was the subject of the Security Council’s Resolution 1593 in 2005, Syria has not signed and adopted the Rome Statute yet. As a result, the decision made by Moscow and Beijing to veto the proposed anti-Syria text practically prevented the adoption by the Security Council of the draft resolution, which could have paved the way for referring the case of crimes against humanity in Syria to the International Criminal Court.

Two points are noteworthy in this regard:

Firstly, even if China and Russia had not vetoed the draft resolution and the case of Syria had been referred to the ICC the Syrian government, which is not a signatory to the Rome Statute could have cited Paragraph B, Article 13 of the Rome Statute to reject the competence of the ICC for seeing into this case. Of course, Chapter VII of the Charter of the United Nations has authorized the Security Council to take action and make appropriate decisions to counter those situations that are considered a major threat to international peace and security. However, even this issue has been subject to some criticism. Some analysts argue that the initiation of a judicial and legal procedure should not be made conditional on the decision of a political body. They say that such a state of affairs will actually extend the scope of the veto right in the Security Council to administration of justice at international level. In fact, they believe that giving such a privilege to the Security Council will undermine the credit and independence of the ICC.

Secondly, the countries that support referring of the Syria’s case to the ICC have come up with the proposed text right at a time that the government of Bashar Assad has taken the upper hand in domestic developments of the country and has been gaining increasing ground in its fight against armed and militia groups. For example, in the latest development, the Syria army forces managed to break the siege of Aleppo prison, which had been surrounded by the Al-Nusra Front forces during the past one and a half years. In fact, the effort made to refer the case of Syria to the ICC is a legal action, but existing evidence shows that the decision for doing this and, in general, the root cause of the crisis in Syria is basically political. Therefore, the only way to resolve the crisis in Syria is through political measures and political determination followed by agreements on ending the crisis among countries with real influence in this Arab country. On the other hand, it seems that under the present circumstances, adoption of such a resolution will greatly damage efforts made to find a political solution for the crisis and make the situation only more complicated. At the same time, hearing of cases that are referred to the ICC usually constitutes a lengthy and time-intensive process which may take years. Therefore, it will not be of much help in improving the situation on the ground or facilitating establishment of cease-fire between the belligerent sides in the short run.

In view of the above facts in addition to the existing uncertainties and other ambiguous strategic issues, the situation in Syria is such that even if Assad’s government is toppled, the possibility of more extensive changes and instability in the long run will be high due to further deepening of the existing gaps. In reality, the ongoing developments in the Middle East have led to the conclusion that regional issues would be better solved with due attention to regional and local realities. When it comes to the crisis in Syria, a regional solution will be an undoubtedly much more suitable solution than referring the country’s case to the ICC or launching a military strike, both of which are different components of an international solution. To do this, major regional players like Iran, Saudi Arabia and Turkey will be able to reach an agreement and understanding for the resolution of this crisis on the basis of their regional interests. On the other hand, after the election of the new Iranian administration, which gives priority to adopting new and trust building approaches, the Western countries, including the United States, can have a higher hope in the possibility of fateful, win-win cooperation with the Islamic Republic of Iran for the resolution of crisis in Syria.

Key Words: Case of Syria, ICC, Resolving the Crisis, United Nations, UN Human Rights Council, Russia and China, Rezaei

Source: Iranian International Relations
Translated By: Iran Review.Org

*Photo Credit: Washington Post