The conflict in Syria shows no signs of abating. Thousands remain besieged in cities across the country. Government forces and pro-Assad militias continue to bombard populated areas with barrel bombs and other explosive weapons. Gross violations of human rights are being committed by both government forces and the many non-state armed groups now active in the country. International humanitarian law is being routinely violated by all sides in the conflict.
The most recent report of the UN’s independent international commission of inquiry on Syria details the ‘most egregious violations’ committed by state and non-state actors between 20 January 2014 and 10 March 2014. In the update, the commission specifically considers a number of violations committed by one of the most radical and violent groups active in Syria, the Islamic State of Iraq and the Levant (ISIS), a jihadist group which has recently been disavowed by Al-Qaeda.
ISIS has lately become extremely active in northern and north eastern Syria. Although they are a rebel group and as such are against the Syrian government, they are also in conflict with other rebel groups in the country, including the Free Syrian Army. The group has imposed radical Sharia law in areas under its control, and is known to be extremely violent.
The UN update reports that, in January 2014, inter-non-state armed group hostilities resulted in attacks on ISIS strongholds in northern and north-eastern Syrian provinces. In advance of these attacks, ISIS fighters ’conducted mass executions of detainees,’ including members of rival rebel groups and civilians. Information collected by the commission of inquiry indicates that in anticipation of ’military loss, ISIS fighters selected detainees and killed them at their place of detention or took them to a nearby execution site.’ The killings were said to have occurred ‘hastily’. The numbers killed by the ISIS is not clear, and the commission is currently investigating this, as well as allegations of mass graves of more people having been killed. These acts are specifically stated to be violations of international humanitarian law and constitute murder as a war crime.
ISIS fighters have also been identified as having carried out suicide bombings aiming to ’spread terror among civilians, a violation of international humanitarian law.’
The commission of inquiry also details violations of human rights and international humanitarian law committed by other non-state groups, and government forces, and has identified a list of those suspected of carrying out war crimes. The chairman of the commission, Paulo Sergio Pinheiro, stated that they ‘have an enormous volume of testimony,’ from over 2,700 interviews and documentary material.
Crucially, however, ‘what we lack is a means by which to achieve justice and accountability.’
One means by which it has been suggested that such justice and accountability could be achieved is through investigation and prosecution by the International Criminal Court (ICC).
The independent UN investigators have repeatedly called for the situation in Syria to be referred to the ICC. This call has been supported by the UK, France, Switzerland and the European Union, among others.
But does the ICC even have jurisdiction over the crimes committed in Syria? And if so, is this the appropriate means through which to achieve justice for the thousands of victims of the ongoing violence?
Referral to the International Criminal Court
Calls for the ICC to become involved have been echoed by other groups. Richard Dicker, international justice director at Human Rights Watch, has stated that referral is “essential for justice”, and Navi Pillay, the UN High Commissioner for Human Rights and a former judge of the International Criminal Court, has stressed the need to ensure accountability for the serious abuses committed by both sides in the conflict. Such a referral could conceivably act as a deterrent to further violence, or pressure government officials and leaders of non-state armed groups to stop violating human rights and international humanitarian law.
However, the process through which the ICC could consider international crimes committed in Syria is fraught with difficulties, both practically and politically.
There are only two ways by which the ICC may exercise jurisdiction over a situation in which international crimes have occurred. Firstly, the Court possesses jurisdiction over crimes committed by nationals of, or on the territory of, States Parties to the Rome Statute of the ICC. Syria, however, is not a State Party.
The only way through which the Court may exercise its jurisdiction over a non-State Party is through referral to the ICC Prosecutor by the UN Security Council. In order for the Security Council to do this, there should be evidence that war crimes, crimes against humanity or genocide have been committed, and the Security Council must act under Chapter VII of the UN Charter. Broadly speaking, this means that the situation being referred must have been termed as a threat to or breach of international peace and security. Territorially, the referral can apply to an entire state, or to a region within a state. Once a referral has been made to the Court, the ICC Prosecutor, currently Fatou Bensouda, will determine who to investigate and subsequently prosecute for the commission of any serious crimes under the ICC Statute.
The Security Council has previously referred only two situations to the ICC since the Court’s establishment in 2002: Darfur and Libya. The referral of Darfur in 2005 led to the ICC issuing an arrest warrant for Omar al-Bashir, the Head of State of Sudan. He is, of course, still Sudan’s head of state, and the probability of his arrest and transfer to the ICC is low. The referral of Libya in 2011 led to arrest warrants for Colonel Gaddafi, his son, and the current head of military intelligence in Libya. Col. Gaddafi was killed shortly after his arrest warrant was issued, and no other arrests or transfers to the ICC have occurred.
Referral of Syria
It is important to note that the Security Council has the authority to refer a ‘situation’ to the ICC. They cannot refer an individual or a specific group to the Court. A ‘situation’ can be temporally and territorially limited by the Security Council. Assuming that any referral would confer jurisdiction to the Court over the state of Syria only since the start of the conflict in 2011, it would then be up to the ICC Prosecutor to determine how the subsequent investigation was carried out. The Prosecutor would then be free to investigate the situation, indict, arrest and prosecute whoever is considered to be responsible for crimes under the ICC Statute. Given that crimes have been committed by both government and non-state forces, it is likely that any referral would lead to arrest warrants for both government and rebel leaders. This could, given the crimes outlined in the most recent inquiry report, quite plausibly include the leaders of ISIS.
However, although ICC referral for Syria has been called for on numerous occasions, it is highly unlikely that it will happen any time soon.
While the UN independent inquiry has labelled some of the violence in Syria ‘war crimes,’ which would fall under the ICC Statute, the Security Council itself has avoided suggesting referral to the ICC. While some Security Council member states have spoken of their support of referral, it is unlikely to happen for a number of reasons.
Firstly, all five permanent members of the Security Council (China, France, Russia, the UK and the US) must favour referral. Any one of those members could veto the entire process.
In the case of Syria, it is unlikely that all five permanent members would support any such resolution. While the UK and France publicly support ICC referral, Russia would almost certainly utilise its veto, and the US and China, neither of whom are States Parties themselves, have not indicated any support towards referral. Russia has consistently backed the Assad regime, and is not likely to support a resolution which would almost certainly lead to an arrest warrant for the current Syrian president.
Other Western states may also be opposed to referral, although not as vocally. The Security Council cannot limit any referral to specific individuals, so it would open the door to the indictment and prosecution of Western-supported rebel leaders. It is likely that the West has supported Syrian rebels who have committed crimes through the provision of training and equipment. Western powers would likely prefer that no international judicial intervention targets individuals they may have supported during the conflict. At the moment, due to Russia’s staunch support of the Assad regime, countries are safe to vocally support referral to the ICC, while at the same time hiding behind the knowledge that any such move would be vetoed.
Additionally, as with most discussions of the ICC and its relationship with the Security Council, there are arguments about the politicised nature of any ICC referral. The Syrian permanent representative to the UN, Faysal al-Hamawi, denounced the commission’s calls for referral, saying that it is ‘a politicised and unlawful step.’ This thinking was mirrored by the Iranian delegation, who called any referral of Syrian ‘highly politicised and illegitimate incitement.’ Any concerns of politicisation can generally be mitigated by the fact that once a referral has been made to the ICC the Security Council’s role stops: the UN body plays no role in any subsequent investigation, decision to prosecute, or any role in the Court proceedings themselves.
Alternative international criminal justice?
There is general agreement that the Syrian situation will not be referred to the ICC, at least for the moment. However, there is equal agreement that the culture of impunity currently in existence in Syria cannot continue. As Pinheiro says, ‘no one can claim ignorance of what is occurring in Syria.’ He adds, ’compassion does not, and should not, suffice. We cannot continue to sit for years in these rooms writing reports and making speeches lamenting the blood that is running in Syria’s streets.’ It is difficult, however, to envisage an alternative. Syrian national criminal justice systems are almost entirely non-functional, and ICC referral seems extremely unlikely at the moment. So does an alternative exist?
Carla Del Ponte, an investigator on the UN’s independent inquiry commission and former prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY/ICTR), suggested an alternative solution after the publication of the commission’s most recent report. She is a strong believer in the utility of an ad hoc, Syria specific, tribunal.
Del Ponte stated that referral to justice is an urgent need, but one which is not going to happen through referral to the ICC. She believes that the best alternative is the establishment of an ad hoc tribunal, similar to those which were established by the UN after the Rwandan genocide and the human rights violations seen in the Former Yugoslavia. She argues that the commission’s evidence could be used to prepare indictments and has said that she would be happy to act as the prosecutor in such a tribunal.
The establishment of an ad hoc tribunal would provide the opportunity for more accountability for the crimes committed in Syria. Previous ad hoc tribunals have been credited with shifting impunity to accountability, helping to establish the facts surrounding the commission of international crimes, and allowing victims themselves to tell their story and witnesses. Such tribunals are presided over by judges appointed for their impartiality, so accusations of politicisation are more limited than they otherwise might be. A number of criminal tribunals have been established by the UN, either unilaterally or in agreement with the affected state, so the establishment of an ad hoc tribunal is seen to be less controversial than referral to the ICC. Special tribunals have been established in relation to human rights violations in Rwanda, the Former Yugoslavia, Cambodia, Iraq, Lebanon and Sierra Leone, with different levels of success and criticisms.
However, it is unlikely that the Syrian government would agree to the establishment of such a tribunal. It then, again, falls to the Security Council to authorise the establishment of any ad hoc tribunal with jurisdiction to prosecute crimes which have been committed in Syria since March 2011. The same issues which are evident surrounding referral to the ICC are then relevant to the establishment of an ad hoc tribunal. Existing ad hoc tribunals have been fraught with difficulties, accusations of politicisation, logistical problems, and dissatisfaction with their outcomes. Any Syrian ad hoc tribunal is likely to face these same problems.
Ultimately, in the event of either an ICC referral or the establishment of an independent tribunal, only a limited number of individuals would be able to be investigated and prosecuted. On the basis of situations currently before the ICC, it is likely that less than five individuals would be prosecuted. Under the Rome Statute, the ICC seeks to prosecute those most responsible for the commission of the crimes under its jurisdiction. The Darfur referral resulted in arrest warrants being issued for six individuals, while the Libya referral resulted in arrest warrants for only three individuals.
Ad hoc tribunals, while able to investigate more individuals and crimes, are likely to be incapable of fully addressing the crimes which have been committed in Syria. They are extremely expensive to establish and run, and the sheer number of violations in Syria would likely overwhelm any tribunal. A large number of people who have committed, and who will commit, human rights abuses and violations of international humanitarian law are likely never to be held accountable. In order to achieve more comprehensive accountability, the Syrian judicial system itself will ultimately have to carry out credible and independent investigations and trials. Again, this is not likely to happen any time in the near future, and any future trials would be plagued with difficulties and claims of bias.
While it is crucial that justice is achieved in regards to the human rights violations and international crimes which have been, and continue to be, committed in Syria, it appears as though the international community does not as yet have a solution. With so much power in the hands of the Security Council, and Russia likely to veto any attempts to use international criminal justice to stop the immunity in Syria, it is difficult to see at this stage what role the international community will have in bringing perpetrators of gross violations to justice.
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