by Iveta Cherneva
The International Criminal Court (ICC) is often criticized for its limited reach and activity, especially in high-profile cases of mass violence and atrocities. The Court’s hands often seem to be tied due to lack of political will or enforcement mechanisms — but most importantly, due to related issues of legal jurisdiction. It can be very difficult to bring a case to the ICC.
As the first ICC conviction came through against Congolese warlord Thomas Lubanga Dyilo on 14 March 2012, the international community and legal specialists will increasingly look at the Court as a potential international criminal justice venue. But so far, the Court has not been able to take on the case of Syria’s Bashar al-Assad. This is a historic opportunity — one that warrants a close examination of the options available for the international community to refer Assad to the ICC.
The bases for establishing ICC jurisdiction
A few questions arise in the context of Syria and the Assad regime-led international crimes allegedly occurring on Syrian territory since March 2011. The UN High Commissioner for Human Rights, Navi Pillay, has officially stated that the situation in Syria since March 2011 amounts to “crimes against humanity.” on multiple occasions. More than 9,000 people have died in the Syrian uprising against President Bashar al-Assad, according to United Nations reports.
Pursuant to Art. 5 of the Rome Statute of the International Criminal Court, which is the Court’s constitutive instrument, ICC jurisdiction may be established with regard to crimes against humanity defined in Art. 7 of the Rome Statute, and war crimes defined in Art. 8 of the Rome Statute, among others. The nature of the crimes Assad and his aides could be tried for is fairly clear.
But generally, ICC procedural jurisdiction is grounded in states’ sovereign acceptance. A state needs to explicitly agree to give the international court the competence for trying international crimes allegedly occurring on the territory of that state (Art. 12. 2a, ICC Rome Statute), or allegedly perpetrated by a national of that state (Art. 12. 2b, ICC Rome Statute). A third jurisdictional route is related to a UN Security Council referral, as posited by Art. 13.b.
Syria has not accepted the Court’s competence. The state is not a party to the ICC Rome Statute, nor is it at all likely that Syria would voluntarily become a party now or accept its jurisdiction on an ad hoc basis. This raises the question as to whether other jurisdictional routes for bringing the Syrian leadership to justice can be identified.
Temporal limitations pursuant to Art. 11 make the territorial jurisdiction route an unlikely option. Even if a new government should come to power – one that decides to accept the international criminal jurisdiction of the Court retroactively – the temporal limitations of Art. 11 suggest the Court would be prevented from looking into crimes that took place prior to acceptance of jurisdiction. Territorial jurisdiction is thus the least likely route.
Perpetrator’s nationality jurisdiction
The Court may also exercise jurisdiction in cases when the accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; pursuant to 12.2b of the Rome Statute. (“The State of which the person accused of the crime is a national.”)
While Syria is not a party to the Rome Statute, international lawyers may seek the dual nationality route. Syria does allow dual nationality for its citizens. An individual involved in the planning and executing of international crimes holding a Syrian citizenship but also an ICC State Party citizenship (i.e. French or British) could be tried before the Court. The question raised, therefore, is whether an official with dual citizenship occupies a sufficiently high position in the Syrian government apparatus and can be identified as responsible for purposefully planning and executing international crimes, and directing them against civilian populations with knowledge and intent. This threshold usually proves legally cumbersome in the courtroom, even for the highest echelons of a government apparatus; but it nonetheless provides a possible alternative to targeting an Assad aide, although not Assad himself.
UN Security Council referral jurisdiction
A third and frequently debated option is to use a UN Security Council referral. Pursuant to Art 13.b of the Rome Statute, The United Nations Security Council has the option of referring a situation to the International Criminal Court Prosecutor, irrespective of the nationality of the accused or the location of the crime and based on the Security Council’s discretion. On 28 March 2012 UN Human Rights High Commissioner Navily Pillay told the BBC she believes that the UN Security Council has enough reliable information to warrant referring Syria to the ICC. Referral, as with any other Security Council resolution, is subject to a veto by any of the five Security Council Permanent Members.
In 2011, establishing ICC jurisdiction in the Libya case relied upon the UNSC referral route. The UNSC Resolution 1970 referral was based on article Art. 13b, in conjunction with the Security Council’s mandate under Chapter VII of the U.N. Charter that defines the Council’s role as one to determine threats to, and breaches of, peace, and to maintain or restore international peace and security (Art. 39 U.N. Charter).
In the Syria case, however, a veto exercised by Security Council Permanent Members Russia and China would likely prevent ICC referral. The Economist has recently argued that the Syrian protesters chanting “Assad to The Hague” may thus face a long wait.
Conclusion: the most likely jurisdictional scenario
While territorial and nationality jurisdictional routes seem unlikely or of little relevance in the case of Syria, the UNSC referral route is a hypothetically realistic and legally sound scenario.
While international lawyers may raise questions about the legality of an ICC referral on the grounds of relevance to international peace and security under Chapter VII mandate, analysts should not make much of this criticism, which is unlikely to stop an ICC referral should the P-5 agree. That political agreement among the key members is the crucial step.
The 2011 ICC Libya referral marked the first time in the history of the U.N. Security Council when China and the United States, neither of which are parties to, or particular supporters of, the ICC actually supported ICC referral. Art.13b is a limited route to international criminal justice. In fact, other than Libya, since the establishment of the Court in 2002 referral passed only once: in 2005, when the Council referred the situation in Darfur to the ICC by adopting resolution 1593. That time, the United States and China abstained.
Considering the institutional history of opposition to ICC referral, China’s support of a Syria ICC referral would be a great leap. The same is true of Russia, which has even stronger ties than Beijing to the Syrian leadership. On the other hand, the US, another frequent objector to the ICC, is likely to support an ICC referral in this particular case.
The humanitarian situation of Syrians is no less grave than the cases of Sudan and Libya. It remains to be seen whether the Assad-led leadership would be held accountable for committing international crimes if taken to the Court.
About the Author
Iveta Cherneva is an author and commentator on global governance and international organizations, security, human rights, and sustainability. Her career includes work for the UN, U.S. Congress, Oxford University, and think tanks in several of the world's diplomatic capitals. Iveta is the author of Trafficking for Begging (2011); The UN Security Council, the ICJ, and Judicial Review (2013); editor of The Business Case for Sustainable Finance (2012); and co-author of Regulating the Global Security Industry (2009). Appointed Atlantic Council young leader in 2012 and William H. Donner Human Rights Fellow in 2007, she is a frequent commentator in international news media. Iveta has testified before the UN Working Group on business and human rights.