Implications of Security Council Veto on ICC Referral of Syrian Situation

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”