A Few Thoughts on a Syria Referral

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.