Category Archives: syria

Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…


Draft Statute for Syria War Crimes Tribunal: A first commentary on a disappointing effort

Cross posted on Invisible College
Today, a prestigious group of experts publicly “unveiled” a draft statute for a Syrian Tribunal. The list of contributors is quite impressive, including leading scholars in the field (Scharf, Bassiouni, Schabas, Newton), former international Prosecutors (Crane, Desmond da Silva, Goldstone) and such prestigious personalities as David Scheffer (whose influence is obvious from the expression “atrocity crimes” in the proposed name of the tribunal) and Patricia Wild.
The text of the draft statute, including commentary, was made available to interested readers, and warrants some commentary of itself.
CAVEAT: It should be noted that the following commentary is based on a publicly available version of the text that is dated 27 August 2013. I have not been able to find any new version that might have been unveiled this morning. Should there be any new version which might include any changes relating to the points I discuss below, I’d be happy to amend my views accordingly.
  • On the context of the setting up of the Tribunal
From a technical perspective, the draft statute seems to only consider and prefers the option of domestic enactment of the law (Introduction and footnote 1). This has been a debated issue for all hybrid tribunals, which have been set up through a diversity of mechanisms (Treaty for Sierra Leone, UN Territorial Administration regulations for East Timor and Kosovo, UNSC Resolution for Lebanon, Treaty and national legislation for Cambodia, Provisional authority then national law for Iraq). Technically, this should lead to different situations in terms of relationship with national authorities and application of international law, but generally, these issues have tended to be ignored by all hybrid courts in favor of a common “we’re just different” approach. The current draft is no different, as there seems to be no notable impact on the language used in discussing the tribunal framework, other than the suggestions to “import” domestic procedural provisions (see below).
More generally, the introduction to the draft statute illustrates the form of illusionary neutrality of some promoters of international criminal law by suggesting on the one hand that all sides of the conflict would be prosecuted, but suggesting that the tribunal would be set up “presumably following a change of regime”. This is problematic because it seems to suggest that international justice mechanisms are compatible with political transitions. I’m not entirely sure that is true, or at least believe that this assumption needs to be questioned. Calling for accountability on all sides of the conflict might be a nice slogan, but it then leads to the question of who will then be in charge, given the fact that there is probably no one in this kind of situation with clean hands? I raised the same question a few years ago on Ivory Coast and have since then gotten my answer: only one side of the conflict is effectively being prosecuted, whether in Ivory Coast or at the ICC. The same would undoubtedly happen here, to a more or less big extent.
This in turn raises the question of adopting a more comprehensive approach to justice and peace-building that does not impose pre-conceived models of international justice on a given situation, as suggested by Carsten Stahn over at EJIL Tallk!.
  • On the relationship with the ICC
Discussions on the setting up of accountability mechanisms for Syria generally present things in a binary way. It’s either the ICC, or a special tribunal for Syria. Interestingly the draft statute considers that the two are not mutually exclusive. Indeed, in discussing the proposed personal jurisdiction of the tribunal, it mentions the fact that Syria could join the ICC and give retroactive jurisdiction to cover the civil war, but concludes that “the ICC traditionally takes jurisdiction over only a handful of highest level defendants, so there would still be a need for the Syria Tribunal to prosecute the next level of culpable civilian and military leaders” (footnote 4).
This hypothetical scenario would be interesting in relation to how complementarity would work when a hybrid tribunal is involved, given that Article 17 only explicitly considers the situation where a “state” is exercising jurisdiction as a trigger for complementarity.

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressedby the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelledchemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventionaland customaryinternational law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?
Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.