A Few Thoughts on a Syria Referral

by Kevin Jon Heller

My thanks to Jennifer for contributing her post, which makes the case for referring the situation in Syria to the ICC.  I don’t necessarily disagree with her bottom line, but I have my hesitations.  And I want to offer a few thoughts about the idea of a referral in general.

First, as Jennifer notes, the letter states that a Security Council referral should not exempt nationals of non-States Parties from the Court’s jurisdiction.  I’m glad to see the letter take that position, but it is important to note that nothing in the Rome Statute suggests that the Security Council has the authority to refer only those individuals to the Court it thinks deserve punishment.  Indeed, as I have discussed before, I think such exceptions are inconsistent with Art. 13(b) of the Rome Statute, which provides (emphasis mine) that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”  Art. 13(b) makes clear that the ICC investigates situations, not individuals or individual cases — particularly not individuals or individual cases associated with only one side of a conflict.  If the Assembly of States Parties wants to amend Art. 13(b), it can. Until it does, though, the Security Council has no right to limit the personal jurisdiction of the Court as part of a referral.

Second, I don’t think the funding issue can be stressed strongly enough. As Jennifer notes, the letter explicitly calls for the UN to provide the Court with the funds it would need to investigate the Syria situation and to prosecute those it finds the most responsible for serious international crimes — something it failed to do with the Darfur and Libya referrals.  (Mark Kersten has written endlessly and well about this.)  I’d go farther than the letter: the Prosecutor should refuse to act on any Syria referral unless it is accompanied by the necessary funding.  Although there is much scholarly debate about whether the OTP is obligated to investigate a situation referred to the Court by the Security Council, the existence of any such obligation seems facially inconsistent with Art. 53(1) of the Rome Statute, which provides (emphasis mine) that “[t]he Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.”  One of the factors relevant to the “reasonable basis” inquiry is whether an investigation would serve “the interests of justice.”  In my view, it is not in the interests of justice — especially for the victims — for the OTP to conduct an inadequate investigation because of lack of resources.  An underfunded and understaffed investigation is a recipe for impunity.

Third — and this is my one point of disagreement with Jennifer — I am not completely convinced that now is the best time for the Security Council to refer the Syria situation to the Court.  I’m always skeptical of claims that the threat of an ICC prosecution will deter dictators like Assad from committing serious international crimes to stay in power, but I’m particularly skeptical that threats of prosecution have deterrent value long after the dictator in question has already committed those crimes.  The time for a referral was at the beginning of the conflict, when Assad could have avoided prosecution by choosing a different path; at this point, he really doesn’t have anything to lose by continuing to commit crimes, because he’s already facing life imprisonment if (by some small miracle) he ever ends up in the ICC’s dock.  So I think the Security Council might be better off waiting until after the conflict ends to refer the Syria situation, when we will have a much clearer idea of what the constellation of power in the country will be.

http://opiniojuris.org/2013/01/14/a-few-thoughts-on-a-syria-referral/

One Response

  1. To comment on Kevin’s points.
    I primarily disagree with Kevin’s first point.  While it may be objectionable to have an exemption of nationals of non-States Parties, I actually think that the UN Security Council can do this.  Kevin makes the point that under article 13(b) of the Rome Statute, the Security Council refers a full “situation” and not particular defendants.  Yes, 13(b) governs how the Prosecutors and Judges view a Security Council referral, and they might well take this position.  But ultimately the Security Council’s power comes not from 13(b) but from the UN Charter, and the Council has great leeway to act under Chapter VII.  Once it has found a “threat to the peace, breach of peace or act of aggression” under article 39, it has open-ended lists of what it is empowered to do under articles 40, 41 and 42, so I think the Security Council has the ability to do the exemption.  The problem then with Kevin’s reading is he is setting up a conflict where 13(b) is read to disallow something the Security Council arguably has power to do under Chapter VII.  In the event of a conflict between the Charter and a treaty, it is, under article 103 of the Charter, the Charter that prevails.  So, if we take Kevin’s reading, and there is such a conflict, it is the Security Council’s reading that I believe would prevail.  
     
    On funding, I think Kevin and I agree on the importance of it to the ICC, and I note it is a sad day when we are contemplating whether the Prosecutor should not pursue a meritorious case because she doesn’t have the money to do it correctly, and what would be the basis of her refusal to act.
     
    Finally, on timing, I am in full agreement with Kevin that referrals ought to come early in the day in order for there to be deterrence.  That point has clearly been missed in the Syria situation.  But I disagree that we can now wait for any referral.  Crimes may continue to get worse.  If there is going to be any deterrence (and Assad isn’t the only actor here), the referral should be done as soon as possible.
     

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