Laura Rozen reported on a piece of Syria-related chinstroking by Marc Lynch at the Center for a New American Security titled Pressure Not War: A Pragmatic and Principled Policy Towards Syria.
The CNAS page promoting the study tells us:
Dr. Lynch recommends specific actions for policymakers grappling with the crisis, including:
• Present Asad with an ultimatum: resign, or be referred to the International Criminal Court for War Crimes.
(plus a variety of other sanction/diplomacy squeeze tactics).
In the report, the ICC option is presented as follows:
The time has come to demand a clear choice from Syrian regime officials. They should be clearly warned that their names are about to be referred to the ICC on charges of war crimes. It should be made clear that failure to participate in the political transition process will lead to an institutionalized legal straightjacket that would make it impossible for them to return to the international community.This should be feasible, even without Security Council agreement. Top regime officials should be left with no doubt that the window is rapidly closing on their ability to defect from the regime and avoid international prosecution. To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no signs of being willing to take a political deal, and in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice…
Unfortunately for Dr. Lynch, Syria signed but did not ratify the Rome Statute setting up the International Criminal Court.
Therefore, Syria is not a “state party” under the statute; it cannot make referrals to the court for crimes by other states, but the treaty is also not binding upon it, except in a rather vague way under international law: to abstain from “acts which would defeat the object and purpose” of the treaty.
In other words, it is in the same situation as Libya was; and a referral from the UN Security Council trumping the ordinary procedures and jurisdiction of the Rome Treaty on the basis of an overriding threat to world peace and security was needed in order to enable the ICC indictment of Gaddafi and two other Libyans that quickly followed.
We can, perhaps, forgive Dr. Lynch for his ignorance concerning the statutory functions of the ICC.
After all, the United States signed, then declined to ratify, then “unsigned” the Treaty of Rome setting up the International Criminal Court, so that busy US government officials can engage in their various escapades beyond ICC jurisdiction…unless the UNSC (on which the US itself holds a veto) decides to make a referral.
Absent a UNSC resolution on Syria (certainly not forthcoming for the time being as Russia and China are both pushing for negotiation between the opposition and Assad on a non-coercive basis), the ICC is not going to get the UNSC referral it needs to pursue the Syrian government and Assad.
For the sake of argument, let’s say that somebody comes up with a new legal justification for subjecting non-state party signatories like Syria to indictment by the ICC that doesn’t require a UNSC referral (and also doesn’t accidentally subject the United States--a non-ratifier and now also a non-signatory--to unwelcome legal jeopardy).
Is an ICC war crimes prosecution something that can be turned on or off like a tap in order to serve the diplomatic/strategic objectives of a certain coalition of states?
I think not, Dr. Lynch.
The ICC prosecutor is required to launch an investigation if he receives a referral from a “state party” or the UNSC.
But that’s not all.
The prosecutor must also open an investigation if the “Pre-Trial Chamber”, a panel of ICC poobahs, decides that a complaint by victims justifies a case.
Per Wikipedia, which I think can be leaned on as a reliable source on this subject:
The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It is headed by the Chief Prosecutor, who is assisted by one or more Deputy Prosecutors. The Prosecutor may open an investigation under three circumstances:
• when a situation is referred to him by a state party [i.e. a signatory to the Treaty of Rome setting up the ICC];
• when a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or
• when the Pre-Trial Chamber authorises him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.
When one considers that Navi Pillay, head of the UN Human Rights Commission, has declared that “it appears likely that war crimes have been committed” in Syria, it would be, to say the least, interesting if the ICC Pre-Trial Chamber and the Prosecutor decided that, based on the merits, an investigation was not called for:
The Fact-Finding Mission, the Commission of Inquiry on Syria, and I myself have all concluded that crimes against humanity are likely to have been committed in Syria. I have encouraged the Security Council to refer the situation to the International Criminal Court.
Under these circumstances, it would appear that an ICC investigation of Assad, if demanded by his victims inside Syria, is not an option; it’s an obligation.
Not something that Assad’s antagonists in the West and Arab world can instigate at their discretion…or squelch if negotiating Assad’s exit demands it.
Recalling Dr. Lynch's confidence that an ICC indictment can be ordered up like a pizza with a choice of prosecutorial toppings at the discretion of the great powers, I particularly enjoyed this declaration:
The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.
Noble pronouncements aside, could it be that the ICC really is a compliant tool of Western interests?
Fortunately, a quick review of ICC indictments gives a clear picture of even-handed global justice:
Five guys from the DR Congo; five more from Uganda; one guy from the Central African Republic; six from Sudan, including Bashir; seven from Kenya; three from Libya, including Gaddafi; and one from Cote d’Ivoire.
To be fair, several of these luminaries were referred by successor governments of their own states.
Even so, if Assad is indicted, he will be the first defendant in the court’s history that didn't hail from the continent of Africa (if you, like I, wondered where Milosevic was tried, he was tried in an ad hoc court, the International Criminal Tribunal for the former Yugoslavia).