French initiatives to refer Syria to the International Criminal Court (ICC) have prompted questions about the ICC, its procedures, and its efficacy. This post aims to demystify the ICC and explore its role in the Syrian crisis.

Why can’t the ICC prosecute now?

At present, the ICC does not have jurisdiction over Syria. Syria, like 71 UN Member states, is not a party to the Rome Statute—the ICC’s foundational document. As such, there are only three ways in which the ICC can gain jurisdiction in Syria: (1) via UN Security Council referral, (2) if Syria voluntarily submits to ICC jurisdiction on an ad hoc basis (for a particular situation only), or (3) if Syria joins the ICC by acceding to the Rome Statute. Options two and three are very unlikely because the Assad government has little incentive to join the ICC. The Syrian opposition cannot accept ICC jurisdiction on behalf of Syria because it has not achieved the status of government of the Syrian state.

Another method by which the ICC sometimes gains jurisdiction is (4) the ICC Prosecutor’s initiation of a proprio motu investigation (which means “on [the Prosecutor’s] own initiative”), but this option is unavailable in Syria unless it becomes a party to the Rome Statute or accepts the ICC’s ad hoc jurisdiction.

 What could a referral do?

If the referral succeeds, the ICC will investigate whether international crimes have been perpetrated in Syria. A UN Security Council referral to the ICC obligates the ICC to undertake an “investigation”—a pre-trial process which determines whether there is adequate evidence to pursue prosecutions. Though it prosecutes individuals, the ICC investigates “situations.”  Thus, rather than investigating Bashar al-Assad, for example, the ICC would investigate the entire Syrian situation, looking for evidence of international crimes committed by anyparties.

If the investigation finds evidence of crimes under ICC jurisdiction – which aregenocide, crimes against humanity, and/or war crimes – the ICC Prosecutor will initiate trials of those individuals who bear the greatest responsibility for these crimes.

Who could be prosecuted?

The new resolution stands apart from others because it explicitly encourages investigation of parties on all sides of the conflict, including Syrian authorities, pro-regime militias, and non-State armed groups. Nonetheless, as noted above, the ICC investigates situations (rather than specific individuals or groups), and accordingly this resolution refers “the situation in the Syrian Arab Republic” to the ICC.

If the ICC Prosecutor finds evidence that a person has committed genocide, crimes against humanity, and/or war crimes, the Court may indict (bring charges against) that person and then issue a summons or an arrest warrant to bring that person before the Court. However, confirmation of charges and trial can only proceed once the accused persons are in custody.

What are the punishments available and what are typical ICC sentences?

The ICC maximum sentence is 30 years imprisonment, although it can issue life sentences in extreme circumstances. The ICC can also extract fines from perpetrators and seize money, property, and other assets. The ICC does not issue the death penalty.

To date, 21 cases from 8 situations have been brought before the ICC. The ICC has accused 36 people of crimes.  In its 12-year history, the ICC has convicted  two individuals—one convicted of war crimes was sentenced to 14 years imprisonment, and the other will be sentenced in late May, 2014. Several trials are currently ongoing, whereas many other trials cannot proceed because the accused are still at-large.

How long does the process generally take?

The process takes years. There are multiple phases, including pre-trial investigations and the trial itself. Pre-trial investigations generally range from one month to four years. Trials generally take six or more years. The ICC issued its first and only sentence after a ten-year investigation and trial. The ICC’s forthcoming sentence will be delivered after similar timespan.

Although the complexity and challenging context of ICC trials require a lengthy process, the ICC is a young court and is striving to speed up its procedures (without compromising accuracy or effectiveness).[1]

What could ordinary Syrians get out of this?

In the short-term, Syrians are unlikely to receive tangible benefits from ICC action. ICC investigation can, however, offer symbolic significance: a successful referral and subsequent investigations would demonstrate that the international community takes Syrian’s plight seriously and is committed to accountability. Already, the resolution has gained support: 58 countries and over one hundred civil society groups from around the world have called on the UN Security Council to refer Syria to the ICC. The referral is unlikely to succeed, but international attention to the debate could pressure the international community to act differently in Syria. Though debatable, an ICC referral could also possibly have a deterrent effect on those perpetrating atrocity crimes.

In the long-term, an ICC trial could result in imprisoning and/or fining perpetrators.  Syrians could also be eligible financial reparations as a result of the ICC process. Lastly, on a more symbolic level, an ICC trial could authenticate truths about the conflict via extensive research and substantiation, publicized internationally.

Why hasn’t this happened already?

The last three referral attempts failed due to Russia’s veto. Any permanent member of the UN Security Council has the capacity to veto a proposal, and the veto cannot be overruled. (UN resolution 377 has been used in the past to enable General Assembly-backed actions after a Security Council veto, but,under ICC law, the General Assembly does not have the capacity to refer a situation to the ICC.)

Will the referral happen?

The referral is unlikely to succeed. The U.S. has voiced support for this initiative—unlike those prior—but Russia has made its opposition clear. Recently, Russia’s Ambassador to the UN asserted, “our position has not changed,” and on May 20 vowed to veto the resolution if it comes to vote.

France hopes the Security Council will consider the proposed resolution on Thursday.

[1] Richard Goldstone, ABA-ICC Project Event: “International Criminal Justice: Mass Atrocities, the International Criminal Court, and the Role of States.” 10 April 2014.

By Kathryn Maureen Ryan
Impunity Watch Reporter, Middle East

UNITED NATIONS SECURITY COUNCIL, United Nations Headquarters – On Thursday Russia and China exercised their veto power as permanent members of the Security Council by vetoing a resolution to refer the crisis in Syria to the International Criminal Court for possible prosecution of war crimes and crimes against humanity committed by actors on both sides of the conflict during the country’s three-year civil war. The remaining 13 members of the United Nations Security Council voted in favor of the resolution.

 

More than 60 UN Member states have signed on to support the French-drafted measure before the vote was held, Gerard Araud, the French Ambassador to the United Nations said that a potential veto would “cover up all crimes. A veto, he said, would be “vetoing justice.”

The resolution would have condemned the “widespread violation” of human rights and international humanitarian law by both Syrian officials and non-state armed groups over the past three years and would have referred Syria’s crisis to the world’s permanent war crimes tribunal for investigation of possible war crimes and crimes against humanity.

The veto’s marked the fourth time Russia, a close ally of the Assad Regime, has used its power as a permanent member of the United Nations Security Council to block resolutions related to the Syrian Civil War which has left more than 150,000 people dead over the past three years.

Prior to the vote, Vitaly Churkin, Russia’s Ambassador to the United Nations, questioned why the resolution was put to a vote. He told the press that his counties shares the “emotions” shared by the states who supported the resolution bud said that his country’s vote would be “boringly predictable” and claimed the resolution was a “publicity stunt.” Churkin told the Security Council “the draft resolution rejected today reveals an attempt to use the ICC to further inflame political passions and lay the groundwork in the end for eventual outside military intervention.”

The Chinese Deputy Ambassador to the United Nations, Wang Min, defended his country’s veto saying that Beijing had reservations about the council referring conflicts to the International Criminal Court.

In response to the veto British Ambassador Mark Lyall Grant criticized the action saying “It is to Russia and China’s shame that they have chosen to block efforts to achieve justice for the Syrian people.”

Samantha Power, the United States’ Ambassador to the United Nations also condemned the veto saying the victims of the deadly conflict “deserve to have history record those who stood with them and those who were willing to raise their hands to deny them a chance at justice.”

After the vote Powers addressed the council condemning the veto and asking how future generations will judge the way the international community has responded to the three year crisis. She said; “our grandchildren will ask us years from now how we could have failed to bring justice to people living in hell on earth.”

For more information please see:

ABC News – Russia, China Veto UN Move to Refer Syria to ICC – 22 May 2014

CNN International – Russia, China Block Syria from Facing International Criminal Court – 22 May

Amnesty International – UN: Russian and Chinese Vetoes of Syria ICC Resolution ‘Callous’ – 22 May 2014

The Guardian – Russia and China Veto UN Move to Refer Syria to International Criminal Court – 22 May 2014