Using international criminal law to find a legal solution to the situation in Syria
By Meghna Kumar / Wordpress blog post September 19 2013
Here’s an idea: how about we work within the current international legal framework to find a suitable solution to the situation in Syria?
The international community had finally decided to do just that in 2013.
A UN Security Council resolution was tabled on 17 September 2013 by the UK, France and the US in order to test whether Russia’s support for a proposal to force Syria to make public its chemical weapons program is serious or a “ruse”.
In the meantime France was still pushing for a UN Security Council Chapter VII Resolution, which would enable a legal obligation for the Syrian regime to open up its chemical weapons arsenal for inspection and dismantlement. France had stipulated five conditions which it hoped would be approved by the UN Security Council. Other than the logistical stipulations for the disarmament of the chemical weapons program in Syria, France also put forth a condition for the “authors” of the chemical weapons massacre of 21 August 2013 to be referred to the International Criminal Court (“ICC”).
Now it is important to understand exactly why France had requested the UN Security Council to pass a legally binding resolution (under Article 25 of the UN Charter) referring the case to the ICC – it is because Syria has not yet signed/ratified the Rome Statute 2002 (which established the ICC). Thus without a UN Security Council referral the ICC would lack the jurisdiction to prosecute any such claims.
It is important to note two points at this stage:
First, the fact that the Syrian government has not yet signed and ratified the Rome Statute reveals the regime’s attitude towards the ICC. While it is procedurally necessary in international law to attain UN Security Council approval in such situations, much of the international judicial process relies on diplomacy and cooperation. And since it is unlikely the ICC will secure such cooperation from the Syrian regime, it is questionable whether the matter would be adequately resolved in such a forum.
Secondly, the US has not yet ratified the Rome Statute themselves. Surely this implies that the US do actually realise the gravity of submitting a nation’s sovereignty to that of an international judicial body. So arguments put forward by the US for this reason (especially considering the allegations of war crimes committed in Iraq under the Bush regime) open the US up to criticisms of hypocrisy. It would mean the US would have to work that much harder to convince opponents of the ICC referral (like Russia and China) why permitting the ICC to act in this particular situation is such a great idea.
In fact, it’s probably a realisation of the second point that led a bipartisan group of U.S. congressmen to introduce a resolution calling for the UN Security Council to create a “Syrian War Crimes Tribunal” on 12 September 2013.
While not much can be done to secure Syrian cooperation (as the Special Tribunal in Lebanon (“STL”) has unfortunately had to experience over the last few years), at the very least some kind of customary international law needs to begin developing to create an international legal forum for such matters to be adjudicated upon in the future.
Granted, international criminal justice does not come cheap. In fact the budget for the STL in 2011 was an astounding USD 65,710,550, and the ICTY’s budget for 2012-2013 was USD 250,814,000. Moreover, the time frame for such international criminal proceedings is very long (for example, the ICTY was established in May 1993, and now 20 years on the proceedings of the Court have not yet drawn to a close).
However the creation of such a international criminal tribunal to prosecute war crimes and crimes against humanity in Syria is probably the only option for the international community, working within the existing framework of international law, and hence should not be dismissed unless we can find a better (and still legal) solution to the Syrian situation.