Human Rights Watch posted a useful Q and A about the International Criminal Court and Syria. The bottom line is this: the ICC has no jurisdiction in Syria, because Syria is not a member state. The only way crimes against humanity could fall under the ICC’s jurisdiction would be if the Security Council makes it so, and the Russians are very far from supporting such a referral.
Still, the current draft resolution being hammered out contains a reference to the ICC that Human Rights Watch very much wants to see included in the final version. Chances are, though, it will not survive.
6. Does an ICC referral feature in the current draft Security Council resolution on chemical weapons use?
Yes, a draft of the resolution prepared by France that was leaked to the media on September 13 includes an ICC referral. However, it is unclear whether this reference will survive revisions of the current draft. Remarks by the US secretary of state and the French and British foreign ministers on September 16 in Paris seemed to indicate that the next draft of the resolution would not contain a reference to the ICC.
7. How many countries have expressed support for an ICC referral?
On January 14, Switzerland presented a letter to the Security Council on behalf of 58 countries calling on the Security Council to refer the situation in Syria to the ICC. In March, 64 countries supported a cross-regional statement calling for an ICC referral during a UN Human Rights Council dialogue with the UN Commission of Inquiry on Syria.
8. Have other parts of the international community underlined the need for accountability for crimes in Syria?
Yes. The UN high commissioner for human rights has, on multiple occasions, recommended a Security Council referral of the Syria situation to the ICC. In February, UN Secretary-General Ban Ki-moon welcomed“the debate triggered by the call of some Member States for the Council to refer the situation in Syria to the International Criminal Court.”
Similarly, in conclusions adopted in December 2012, the European Union Foreign Affairs Council called on the Security Council to urgently address the situation in Syria, including the issue of an ICC referral.
9. Do any members of the League of Arab States support an ICC referral?
The League of Arab States has made strong calls for accountability in Syria, including a reference to international criminal justice in a July 2012 resolution and a recent ambiguous call for “fair international trials.” Tunisia and Libya are the only Arab states that have explicitly expressed support for an ICC referral. Four members of the League of Arab States have ratified the ICC treaty: Jordan, Tunisia, the Comoros, and Djibouti.
10. Has the Syrian National Coalition called for an ICC referral?
Yes, the Syrian National Coalition has expressed support for an ICC referral a number of times.
In remarks yesterday, Ambassador Samantha Power did not throw American support behind the idea of accountability through criminal justice. Rather, she expanded a definition of “accountability” beyond what has been traditionally been considered acceptable by the human rights community. Says Power:
I would note that if this framework is successful and if we can make progress in the first instance at the OPCW and then here at the Security Council, it is critical that Assad would be losing his chemical weapons program. And this is a weapon that he has used multiple times over the last year, and it has provided him – it’s no secret – not only with the ability to slaughter civilians but also with a tactical military advantage, so that too is a form of accountability.
My own take is that the single most important humanitarian and human rights prerogative right now is to somehow de-escalate the civil war. That, of course, does not seem likely in the near future. But I do believe that if the Security Council can find unity around authorizing weapons inspections the resolution could provide the foundation for a more comprehensive international diplomatic resolution to the conflict. We already saw some momentum for the Geneva Process last week in the Kerry-Lavrov meeting last week. To the extent that an ICC referral undermines council unity — which it most certainly does, considering Russia’s staunch objection — it should be jettisoned from the draft resolution.
The single, most urgent task is to pass this resolution, and use it to build momentum for a longer lasting internationally backed de-escalation of the civil war. Insisting on an ICC referral when we know that Russia would veto it an impediment to reaching that immediate goal.