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

[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.