The Security Council is poised today to vote on a resolution referring the situation in Syria to the International Criminal Court (ICC). This would be the third such referral following its prior action on Darfur and Libya to the Court.
By way of background, in 2012, Switzerland launched a petition drive in an effort to convince the Security Council to refer the situation in Syria to the ICC. The Swiss explained that their effort reflected the fact that political solutions had proven elusive and the Syrian authorities, who possess primary responsibility for ensuring accountability, have instead allowed perpetrators to enjoy impunity for the international crimes being committed during the war. As the Swiss Foreign Ministry explained:
the letter sends a strong signal against impunity and shows that a significant number of countries are not willing to tolerate crimes against humanity and war crimes.
The letter calling for the referral eventually garnered upwards of 60 signatories, representing a degree of geographic diversity. Signatories included most European states as well as Australia, Botswana, Costa Rica, Côte d’Ivoire, Japan, Korea, Libya, New Zealand, Panama, Samoa, Tunisia, and Uruguay. Seven signatories are current members of the Council (Australia, Chile, France, Lithuania, Luxembourg, Korea, and the United Kingdom). Although the United States did not sign the letter by the time it was officially conveyed to the Security Council in January 2013, it does now support a French effort to refer the situation in Syria to the ICC. Over 100 NGOs have also called for a Council referral as has the Syrian Commission of Inquiry and the U.N. High Commissioner for Human Rights.
The Security Council is set to vote on the resolution on today. It is assumed that Russia and China will exercise their veto, and so the referral will not go forward. If things go as expected, what other options exist for accountability? [UPDATE: This morning the Security Council did vote on the resolution to refer the situation in Syria to the ICC. Despite 13 votes in favor of referral, as expected, Russia and China exercised their veto, blocking the adoption of the resolution.]
The General Assembly—Although the ICC Statute does not envision referrals from the General Assembly (GA), another option would be for the GA to endeavor to create an ad hoc tribunal devoted to the Syrian conflict. Derek Jinks discusses this option at greater length below. (Ken Roth of Human Rights Watch has advocated this solution). The UN Charter (Articles 10-11, 13-14) empowers the GA to “discuss” any matter within the scope of the Charter, “make recommendations” to members of the UN or the Security Council regarding such matters, and “initiate studies” to promote international cooperation. Article 12 indicates that while the Security Council is exercising its powers with respect to a situation, the GA is to refrain from acting absent a request from the Security Council. Most relevantly, Article 22 envisions the GA establishing
subsidiary organs deemed necessary for the performance of its functions.
The GA has been involved in the creation of prior ad hoc tribunals (such as the Special Court for Sierra Leone (SCSL)), but always with the involvement and consent of the target state. Without a credible Syrian opposition, enjoying the recognition of the international community and exercising some measure of consolidated control over liberated areas, it is difficult to identify an entity that could offer its consent other than the Assad government. So, in moving forward with the creation of a tribunal, the GA would break new ground.
The Uniting For Peace Resolution (GA Res. 377A, which was adopted by 2/3 of member states in 1950 at the initiative of the United States in the early months of the Korean War) suggests that in cases in which the Security Council has failed to act to maintain international peace and security due to a lack of unanimity amongst the permanent 5 members, the GA shall consider the matter immediately in an emergency special session, which can be called through a procedural vote of the Council (which cannot be blocked by the veto but which must garner 9 votes) or at the request of a majority of UN members. The heart of the resolution states:
Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.
The Uniting for Peace resolution has been invoked a number of times (and 10 ESSs have been called) and has resulted in the GA authorizing sanctions (against South Africa for its acts of aggression in Namibia), referring a matter to the International Court of Justice (on the legal consequences of the construction of a wall in occupied Palestinian territory), and other coercive measures.
Any such effort would be a direct challenge to the notion of Security Council primacy in international peace and security, although there has arguably been acquiescence to such action in the past. Presumably, any defendant prosecuted before such a tribunal would immediately challenge the legality of the tribunal under the Charter just as the first defendant before the ICTY (Dusko Tadić) did, unsuccessfully. Pursuant to the principle of compétence sur la compétence, international and hybrid tribunals regularly consider the legality of their own provenance, although none has, to date, declared itself illegal and shut itself down.
The Secretary General—With the blessing of the GA, the Secretary General has been involved with negotiations leading to the creation of hybrid tribunals (such as the Extraordinary Chambers in the Courts of Cambodia (ECCC)), but always with the involvement and consent of the host state. In the context of Cambodia, the SG acted with the consent and at the behest of the GA. (At one point, he was even asked by the Assembly to re-start negotiations against his better judgment after he had determined that the Cambodian officials were not acting in good faith).
The International Court of Justice—Although the ICJ does not have criminal jurisdiction, it does have jurisdiction over states and can pronounce upon states’ compliance with international criminal law treaties. For example, Belgium instituted proceedings against Senegal before the ICJ in February 2009 seeking to compel Senegal to either prosecute Hissène Habré of Chad, who was at the time enjoying safe haven in Senegal, or extradite him to Belgium in keeping with Senegal’s obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and customary international law. The ICJ found that Senegal had breached its obligations under the Convention to conduct a preliminary inquiry and ultimately submit the case to its competent authorities for the purpose of prosecution for acts of torture committed after the treaty entered into force in 1987 if it chose not to extradite him. In particular, it held at para. 58 that:
The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present.
States could initiate similar suits against Syria based upon the latter’s treaty commitments.
A Hybrid Tribunal— Hybrid courts are “mixed” tribunals that consist of both international and domestic judges, prosecutors, and staff and that can apply both international and domestic law to prosecute individuals for atrocity crimes or other crimes as defined in the tribunal’s charter. Historically, these have been created by agreement between the UN and the affected country and are located within the latter. Examples include the Special Court for Sierra Leone; Cambodia’s Extraordinary Chambers in the Courts of Cambodia, which are currently trying former high-ranking Khmer Rouge regime officials for genocide and crimes against humanity; and the Special Tribunal for Lebanon, which is prosecuting individuals in absentia for the assassination of Lebanese Prime Minister Rafic Hariri and related terrorist acts. Usually these tribunals exercise jurisdiction over nationals of the host state; however, the SCSL also prosecuted Charles Taylor who never set foot in Sierra Leone during the war but was complicit in international crimes committed there from his perch in neighboring Liberia.
In the absence of a compliant host state, a group of concerned states could, conceivably, create a hybrid tribunal outside of the United Nations framework that could be empowered to exercise international jurisdiction or even a delegated form of domestic jurisdiction (e.g., universal, passive personality, or protective jurisdiction). The conflict in Syria has impacted upon Turkey, Lebanon, and Jordan in particular, who might have grounds to invoke protective jurisdiction given the acute destabilization created by waves of refugees across their borders as well as cross-border violence. Presumably even NATO or another regional organization such as the Organization of Islamic Cooperation or the Arab League could create such a tribunal. The Arab League has issued strong and unprecedented resolutions calling for accountability in Syria and has also supported the imposition of peacekeepers in Syria and other forms of coercive action—all drawing the ire of Syria. To date, however, this rhetorical support has not translated into concrete institution building in the accountability space.
ICC Prosecutor Fatou Bensouda has expressed support for such a hybrid effort in the event that a Syria referral is not forthcoming.
Security Council—If an ICC referral is a bridge too far, presumably no unanimity can be achieved toward the establishment of another ad hoc tribunal along the lines of the International Criminal Tribunal for the former Yugoslavia and Rwanda, both of which enjoyed a Chapter VII provenance. Short of this, however, Russia may be willing to consent to interim steps, such as ordering the Assad government to “consent” to a GA-established ad hoc tribunal or to participate in negotiations with an eye toward creating an accountability mechanism.
The Special Tribunal for Lebanon offers an interesting precedent in this regard; the Council did not create the tribunal, but it blessed its creation by other United Nations bodies. It seems unlikely, however, that Russia would consent to even this degree of coercive action against its Syrian ally, especially after being pushed to exercise its veto again and again in the Syrian context. That said, exploring interim steps may allow Russia a face-saving route out of its current corner and an opportunity to express support for accountability in a less confrontational manner. China is likely to follow Russia’s lead in any such effort, given that its own direct interests in Syria are minimal and its resistance to such efforts is primarily based upon its ideological fealty to the principle of non-intervention.
Inspired by events in Syria, and long-simmering disappointment in the Security Council, a number of states and NGOs have backed a proposal, taken up by France, that would encourage members of the Security Council not the exercise their veto in the face of crimes against humanity or other atrocity crimes. France explained its initiative as follows:
Our suggestion is that the five permanent members of the Security Council — China, France, Russia, Britain and the United States — themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple: at the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.
Such a pledge could be accomplished through a formal rule of procedure (which can be adopted pursuant to Article 30 of the Charter) or some other informal code of conduct or statement of intent by the Council. This initiative, which many consider compelled by the responsibility to protect imperative, has not yet resulted in any concrete action by the Council, however, and is unlikely to do so in the heat of a live controversy such as Syria.
Domestic Prosecutions—As we have discussed, many states have penal statutes enabling their courts to prosecute individuals for war crimes or crimes against humanity under an array of jurisdictional principles. This jurisdictional competency exists in situations in which the victim is a national or resident of the prosecuting state under the passive personality principle. Conversely, if individual perpetrators are dual nationals (or nationals of other states), the co-nationality state may be able to exercise jurisdiction under the active nationality principle. Finally, under the principle of universal jurisdiction, many states have laws enabling the prosecution of war crimes, crimes against humanity, or genocide even in the absence of any nexus to the prosecuting state other than the ability to exercise personal jurisdiction over the defendant (e.g., through extradition or in light of the defendant’s presence—even if transitory—in the prosecuting state). States can seek the extradition of perpetrators pursuant to any of these bases of jurisdiction, although the majority of such cases go forward because the defendant has traveled to the prosecuting state.
Gaining personal jurisdiction over responsible individuals is likely to be a challenge. Many states are empowered to prosecute individuals in absentia; even absent this, states are empowered to—at a minimum—initiate domestic investigations into the commission of international crimes in anticipation of obtaining custody of the accused or for the purpose of providing mutual legal assistance to other states that might move forward with a case. Such efforts would be decentralized, but multilateral organizations such as INTERPOL’s war crimes unit could help coordinate joint action.
Empowering the Commission of Inquiry—Syria already has a Commission of Inquiry that is investigating the commission of international crimes in Syria. The mandate of this body could be plussed up to include the creation and dissemination of criminal dossiers on responsible individuals on all sides of the conflict. Although some such commissions have “named names” in the past, the Syria Commission so far has provided its confidential list of responsible individuals only to the High Commissioner on Human Rights, Navi Pillay. The Human Rights Council could revamp the Commission’s mandate to be more aggressively penal in nature. The Lebanon Commission of Inquiry, for example, basically transformed itself into the Office of the Prosecutor of the Special Tribunal for Lebanon.
Continue to tee everything up—In the absence of any existing accountability mechanisms, the international community has largely adopted this option: document crimes and prepare criminal dossiers on the most important potential defendants in anticipate of accountability. A number of international conferences have been held by organizations such as the Syria Justice & Accountability Centre and the Syrian Center for Political and Strategic Studies to train Syrian jurists on international criminal law and procedure and on transitional justice more broadly. The Syrian Commission on Justice & Accountability (SCAJ), under the leadership of Dr. Bill Wiley (formerly of the ICTY, ICC, and Iraqi High Tribunal among other efforts) and with a team of experienced war crimes investigators working alongside a group of dedicated and courageous Syrians, is also gathering and preserving key incriminating and corroborating “evidence” as well as developing the technological platforms necessary to make this information trial ready. (Disclosure: I am on SCAJ’s advisory board). Prof. David Crane, former Chief Prosecutor of the SCSL, has also initiated a project to gather information on the commission of international crimes and to draft a notional tribunal statute.
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The current intransigence in the Security Council provides concrete proof of the wisdom of the architects of the ICC in not requiring Council approval before a case could go forward at the Court. In particular, the so-called Singapore Compromise reversed a presumption that had appeared in early drafts of the ICC Statute. Rather than requiring Council approval to move forward with a prosecution, the Council has been empowered to defer (for one year on a renewable basis under Chapter VII) a prosecution currently underway before the Court. In the face of mounting crimes, and 150,000 dead, the international community must think creatively about how to ensure accountability in Syria—with or without the Council.
Update: U.S. Ambassador for War Crimes Issues Stephen J. Rapp (disclosure: my former boss) discussed on NPR this morning the emergence of new, and deeply troubling, evidence of the abuse of individuals in Syrian government custody in the form of photographs apparently taken by a defector from the regime. Some of the photos were presented to the Security Council this morning along with a report generated by Professor Crane.