ICC and Syria

ICC’s involvement at this stage of conflict undermines interests of victims, may be ill-advised on statutory grounds.

With receding hope that a political solution in Syria is possible, some in the international community are advocating military intervention to depose the autocratic Syrian leader, Bashar al Assad. Some have suggested that Assad should be charged with crimes within the jurisdiction of the International Criminal Court (ICC) –– crimes against humanity being chief among them.

Of course, perpetrators of human rights violations cannot operate with impunity; they must be brought to justice. However, what is the most tactful way to help countries like Syria transition into a post-autocratic state: is it through foreign military intervention or hauling the Syrian regime through the ICC, or both? In our opinion, the ICC’s involvement at this stage of the conflict may not only undermine the interests of the victims, but it is also not advisable on statutory grounds.

Why hasn’t the Syrian case been referred to the ICC and what are the possible reasons for the prosecutor of the ICC to not have initiated an investigation as yet? Answering the first question in a systematic way is quite effortless: the UNSC has not referred the case because of a lack of consensus on the part of the P-5 on how to even approach the conflict in the first place, let alone refer the situation to the Court. Second, since the conflict is an internal conflict, no state –– other than Syria itself, which in this case is utterly unimaginable –– would refer the situation to the ICC. Thus, the last option for the ICC would be for its prosecutor to initiate an investigation on his own accord.

Although predicting prosecutorial policy toward Syria would be a stroll down a very vague and speculative path, it may be easier to shed light on why the ICC should not be involved –– at least at this point in time. There are two interrelated arguments that are warranted here. The first argument is underpinned by a provision in the Rome Statute (RS) of the Court. Article 53, paragraph c) of the RS states that the prosecutor, when initiating an investigation, needs to determine when “[T]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” The ICC involvement would most certainly be in the ‘interest of justice’, and the ‘gravity of crimes’ in this case also decries involvement. Yet, in the short-term, the interests of victims may be jeopardised by an involvement of the Court. An initiation of an investigation may, in fact, lead the Assad regime to intensify its assault on the population. In this event, the Syrians may be compelled to adopt a ‘nothing to lose’ mentality, which will obviously have dire consequences.

Further, there are already a number of stakeholders involved in the conflict: the EU, the US, Russia, China, the Arab League, certain regional powers such as Saudi Arabia, to name only a few. Therefore, in this case, it is important to determine not only when the ICC should act, but also in which situations it should not be involved. Thus, the ICC’s decision not to be involved in Syria seems not only to be legally, but also politically correct.

The second argument follows from this point: even though it may seem that the lack of involvement of the ICC may be against its overall mandate, however, if the ICC is involved, then that decision would more easily be construed as a political one. The primary mandate of the Court is to bring to justice those individuals who are responsible for the most heinous crimes in intra-states as well as inter-state conflicts. The ICC is an institution of last resort and is complementary to national jurisdictions. Involvement in Syria at this juncture would go very much against the basic tenets of the Court. In the preamble of the RS, it is clearly stated that, “nothing in this Statute shall be taken as authorising any State Party to intervene in an armed conflict or in the internal affairs of any State.” Along these lines, the Court’s involvement at this stage could more readily be construed as an extension of ‘Western’ meddling in internal affairs of a state, an argument that Russia and China have already been putting forth vis-à-vis other political avenues.

Clearly, the pressing issue at this juncture then is to end the conflict and most importantly help the victims, whose number is rapidly increasing. Once these immediate concerns are met, then the Court could also play a more constructive and transitional role in the country.

Published in The Express Tribune, March 16^th, 2012.