Expert Comment: Human rights abuses in SyriaWednesday 25 April 2012
John Sawyer, Award Co-ordinator in Liverpool Hope University's Law Department
The statement made to the UN General Assembly1 by Navanethem (Navi) Pillay, High Commissioner for Human Rights on 13th February 2012 in the General Assembly Hall, U.N. Building, New York2 has received widespread reportage. It followed the failure of the fifteen member Security Council3 to agree on firm collective action against Syrian President Bashar al-Assad on 4th February 2012 due to the Russian and Chinese vetos.4
In diplomatic but robust terms Navi Pillay stated that the situation in Syria should be referred to the International Criminal Court (ICC). She reported that several inquiries had concluded it was “highly likely” crimes against humanity were occurring in the country. These crimes included a ‘shoot-to-kill’ policy to crush peaceful protests, the imposition of blockades and curfews on the population and the use of sexual violence,
Thereafter and by an overwhelmingly majority, the 193-nation U.N. General Assembly approved a resolution drafted by Saudi Arabia and submitted by Egypt on behalf of Arab U.N. delegations endorsed an Arab League plan calling for President Bashar al-Assad to step aside.5
The adoption of the resolution was subsequently welcomed by General Assembly President Nassir Abdulaziz Al-Nasser and Secretary-General Ban Ki-moon, who both issued statements through their spokespersons.
Any formal reference to the International Criminal Court however is not within the gift of the General Assembly but requires unanimity ( or at least absent a veto) from the Security Council. There have been previous failed attempts within the Security Council to adopt similarly worded draft resolutions condemning Syria’ s crackdown on anti-government protestors the first dated 24th April 2011.6 In September 2011 the Council failed to adopt a presidential statement condemning human rights violations and the use of force by Syrian authorities, calling for end to violence and a commitment to reform. There was a further vote within the Security Council on 4th October 2011 which was again blocked by Russia and China. After the vote, opponents of the text stressed their concern over the violence in Syria, but said that the threat of sanctions was counterproductive, maintaining that instead the Council should prioritize dialogue between the parties.7 They also stressed the importance of the principle of non-intervention in domestic affairs and respect for the sovereignty and territorial integrity of Syria. These earlier draft resolutions had previously condemned “grave and systematic human rights violations” in Syria, and had warned of options for action to be considered against the Government of President Bashar al-Assad if the unfolding situation warranted, including measures under the section of the United Nations Charter. Through the texts (dropped in the February 2012 text) the Council would have expressed its intention to consider its options, “including measures under Article 41 of the Charter of the United Nations”8 which would have considered of further sanctions.
The reference by Navi Pillay in her submission to a possible referral to the International Criminal Court is a step change to previous communiques (eg 6th December) and perhaps a welcome new path but it is no less fraught with legal and diplomatic obstacles.
The ICC’s statutes9 let it prosecute people (Heads of State?) for “crimes against humanity” committed in any member state when that state is “unwilling or unable” to do so. Hitherto, this has usually been done at the request of the state itself, as in Uganda, the Central African Republic (CAR) and Congo. However this process applies on to those states who have ratified the Rome Statute.10
There are 120 state signatories behind the setting up of the ICC but not all states have ratified the court’s founding treaty – the Rome Statute. Two of the Security Council’s five permanent members—Russia and China—have never signed up to the ICC. Although the US adopted of the Rome Statute on 31 December 2000 on President Bill Clinton’s watch it was subsequently "unsigned" by George W Bush indicating that the US no longer intended to be state parties and, as such, to have no legal obligations arising from their former representatives' signature of the Statute.
The Syrian Arab Republic although a signatory11 has not ratified the statute. In this situation the ICC can only investigate atrocities in non-member states at the request of the UN Security Council if deemed to threaten regional or international peace and security.12 There are two recent precedents. This is what happened with Darfur, where the Security Council first drew the court’s attention to the atrocities and latterly to the situation in Libya under the leadership of (the then) President Muammar Gaddafi.
Even so Ms. Pillay has a mountain to climb if she is to seek to persuade these three members to unite behind the ICC.
Whilst a threatened veto by just one of the members is enough to block a mooted referral. It must be remembered that with Darfur, international alarm over the spreading rape and bloodshed persuaded America and China to abstain rather than oppose Sudan’s referral in 2005.
The ICC13 itself lives directly on a fault line between the concept of international criminal justice and UN power-politics. Although China’s main reason for not signing the Treaty of Rome Statute (curiously) was it’s fear of the political pressure that could be put on the Prosecutor14, the main perception (certainly among African Nations) is a perspective that there is a potential for diminishing legitimacy of justice when prosecutions are secured through a referral from an overtly political body such as the Security Council that may have a dislike to the independent political positions of some independent sovereign states.
The ICC’s has further big weaknesses. Apart from its huge cost and drawn-out procedures, it is dependent on others to help arrest suspects. Any referral to the ICC would come at a time when Syria is in a state of domestic chaos. One wonders therefore how or when President Bashar al-Assad would be physically brought before such a tribunal and whether such a referral is a useful device in a “transitional” situation that is currently observed in Syria? In the past effective “executive action” against a suspect has been brought about only in a post conflict situation.
Finally the current rhetoric again raises the issue of the precise role of the court in an “on going peace and human security process” and raises the question of whether the inclusion of a judicial process will help or hinder the processes within the U.N. Is Navi Pillay suggesting and outsourcing responsibility for peace or using an independent court as a political weapon?
There can be no doubt the role justice can play in conflict situations but there are different means to securing justice. The ICC is a vital part of the “morally impressive” international effort to eliminate the persistent climate of impunity for those state actors who have previously committed the very worst atrocities against their own people behind the shield of national sovereignty. Also individual accountability remains perhaps one of the most enduring legal elements of the post 1945 legal world. But there are situations where prosecution may defer to national programs of non-prosecutorial alternatives (Truth Commissions or other democratically adopted good faith programs that creatively advance accountability objectives). A prosecution before the ICC is only one of the many means of assisting post conflict countries to come to terms with their own pasts.
While many side with the view that no international institution is, or possibly can be, beyond the pale of politics, the ICC clearly views its judicial work as apolitical. In a 2007 policy paper, Luis Moreno-Ocampo, the Court’s Chief Prosecutor wrote that “there is a difference between the concepts of the interests of justice and the interests of peace and…[the] matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions.”
Ultimately responsibility for peace must lay directly at the feet of the Security Council, not the Court. There is little doubt that a large part of the Syrian civil population need the commitment and solidarity of the international community and especially the UN Security Council. However, what Syrians do not need is the Security Council outsourcing responsibility to the ICC at the expense of on-going political engagement.
 The Council is composed of five permanent members — China, France, Russian Federation, the United Kingdom and the United States — and ten non-permanent members, currently: Azerbaijan, Colombia, Germany, Guatemala, India, Morocco, Pakistan, Portugal, South Africa and Togo
 Each Council member has one vote. Decisions on procedural matters are made by an affirmative vote of at least nine of the 15 members. Decisions on substantive matters require nine votes, including the concurring votes of all five permanent members. This is the rule of "great Power unanimity", often referred to as the "veto" power. The exercise of the veto was roundly condemned by the American ambassador to the United Nations Susan Rice and UK ambassador to the UN Lyall Grant who insisted every effort had been made to ease Russian and Chinese misgivings over the wording of the resolution
 The initial count showed that the resolution, which is similar to one Russia and China vetoed in the Security Council on February 4, received 137 votes in favour, 12 against and 17 abstentions, though three delegations said their votes failed to register on the electronic board http://www.un.org/apps/news/story.asp?NewsID=41265&Cr=syria&Cr1=
 Within the text of the report of Security Council 6627th Meeting (Night) BASHAR JA’AFARI (Syria) said that “the unprecedented, aggressive language resorted to by certain representatives against the leaders of his country underscored what he had previously said — that Syria was being targeted, not because of any humanitarian concerns, but because of the prejudice in certain Western capitals against his country’s independent political positions”. He listed assassinations of prominent Syrians, including university deans, which had been carried out by what he called “terrorist armed groups” in his country. He also cited some 800 officials and citizens that had been killed by such groups, which had targeted the State and important institutions.
 Article 41 States The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations
 The Rome Statute of the International Criminal Court (International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002.
 The ICC is a treaty-based Court. The ICC only has jurisdiction over those states which sign and ratify the Rome Statute. In practice, this means that the ICC can only independently open investigations into situations in those states which have agreed to open their territory to the jurisdiction of the Court. Where this is not the case, the ICC requires the UN Security Council to refer the situation, as has been the case with Darfur and Libya.
 29 November 2000