Syria and the International Criminal Court: Taking Justice Seriously

Syria Justice

The situation in Syria has deteriorated rapidly. Hundreds have been reported killed by Government forces

Syria has gone from bad to worse. According to reports, hundreds of peaceful, pro-democracy protesters have now been killed by authorities cracking down on any attempt to undermine the regime. This statement, or something approximating it, has probably been written and read thousands of times in the past few months as citizens across the Middle East and the Arab world have agitated against long-standing regimes in what has now been dubbed the Arab Spring.

The pattern in Egypt, Tunisia and Libya has been remarkably similar. While each, of course, are context-specific, all have experienced popular protests followed by significant levels of violence against, and repression of, citizens. All have seen subsequent calls for international criminal justice. Tunisia and Egypt have declared their intention to ratify the Rome Statute, while Libya was referred to the ICC by the UN Security Council. All of this seems to set a transformational precedence about the role of international criminal justice in the region.

This brings us to the question: should the ICC become involved in Syria? For some, it is a no-brainer.

Prof. William Harris argues that the actions of Syrian President Bashar Assad clearly constitute crimes against humanity and thus fall within the mandate of the ICC:

“It would be hard to find a clearer case of such offenses than the Syrian regime’s systematic repression of peaceful demonstrations through the past six weeks, with indiscriminate use of live ammunition against its own people on a countrywide scale.”

Barry Rubin, the director of the Global Research in International Affairs Centre adds that the Syrian regime has:

“gone to the third level…heavy repression and killing people in order to destroy the protests and intimidate people from participation.” 

Amnesty International has explicitly called on the UN Security Council to refer the situation to the ICC. Further, while no reference to the ICC was made, the International Commission of Jurists recently issued a statement imploring the UN to act in the case of Syria and that:

“Those ordering and carrying out these attacks, including those firing live rounds into crowds, must be held criminally accountable.”

It’s hard to argue with Harris’s claims that crimes against humanity have occurred after seeing the horrifically graphic video, linked at Max Boot’s blog, of what appears to be indiscriminate attacks on peaceful Syrian protesters. (I cannot stress enough that not everyone should watch the video – it is perhaps the most gruesome video I have seen to date).

Gaddafi Assad

The international community set a precedence in the past three months concerning justice and accountability

But will the international community do anything about Syria? As a number of commentators have pointed out, the international community has been eager to intervene in Libya but painfully slow to do anything more than condemn Assad for the atrocities in Syria. Adrian Blomfield of the Telegraph, for example, notes that:

“Critics complained that while the West has been comparatively quick to go to the aid of the Libyan people, Syrians struggling against one of the Middle East’s most repressive regimes had largely been abandoned to their fate.”

Regarding the ICC’s involvement, Dominic Waghorn writes:

“It took just two weeks for the International Criminal Court to begin investigating Gaddafi, his sons and commanders over allegations their security forces had attacked peaceful demonstrators.

More than six weeks into Syria’s unrest, Assad’s security forces are gunning down their own people in their hundreds and the west still has not moved beyond words of condemnation.”

So will the international community seek the involvement of the ICC? While it is increasingly evident that it should, it is not yet clear whether it will.

Syria is not a member of the ICC, and thus outside of the jurisdiction of the Court. As Tobias Hanson reminded me (see comment below), the only way for the Court to achieve jurisdiction would be for the UN Security Council to refer the situation in Syria to the ICC, à la Darfur and Libya.

It is unclear what the zest for international criminal justice is among the Security Council members. Some states expressed reservations about referring Libya to the ICC. India, Brazil, Gabon and Portugal expressed concerns regarding the sequencing of peace and justice.

At the moment, the conflict in Libya looks far from resolved. America’s most senior military officer, Mike Mullen, admitted that despite NATO efforts, Libya is “moving towards a stalemate.” Some states, for better or worse, may believe that the referral of Libya to the Court has complicated efforts to find a political resolution to the crisis.

Another issue is the question of judicial overstretch: can the ICC handle its case load? In the first eight years of its existence, the Court opened four official investigations (Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan). In the April 2010, the Court opened an investigation in Kenya and this past February, the ICC added Libya to its growing list of cases. Ivory Coast seems likely to be investigated as well.

Syria justice

Some have called the reluctance to act in Syria hypocritical (Photo:

Despite these issues, if the international community is to avert its inaction being characterized as “hypocrisy at the expense of civilian life”, a referral needs to be seriously contemplated. If the UN Security Council decides that the ICC should not be involved, states must make absolutely clear why alleged atrocities committed against civilians in Syria are different and less deserving of accountability than those committed in Libya and Ivory Coast.

As for judicial overstretch, it has never been made clear how much the ICC can take on. If taking on Syria would over-burden the Court, then there needs to be a major rethink of the material resources at the Court’s disposal. In any case, an assertion that the Court should not be involved in Syria because of justice fatigue is neither a morally nor politically sufficient reason.

The past few months have seen an important precedent set: when civilians, protesting against their undemocratic regimes are viciously attacked, calls for justice and accountability have been taken seriously. This precedence should not end with Syria.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Egypt, International Criminal Court (ICC), Middle East, Syria, Transitional Justice, Tunisia. Bookmark the permalink.

6 Responses to Syria and the International Criminal Court: Taking Justice Seriously

  1. Tobias Hanson says:

    Not sure I agree with you on the option of a proprio motu investigation being open to Ocampo. The Prosecutor can only initiate proprio motu investigations into crimes within jurisdiction of the court (ie those committed on the territory of a state party or by a state party national), presuming this is a situaiton of Syrian’s committing crimes against other Syrians, because Syria is not a state party, nothing can happen until there is a Security Council referral of the situation to the Prosecutor like UNSCR 1970 in Libya.

  2. Mark Kersten says:

    Many thanks for your reminder and correction Tobias – a very important point indeed.

    You are absolutely right and I have made the appropriate change above with reference to your comment.

  3. Mathias Holvoet says:

    I’m also amazed to see so many calls for international criminal justice. The pro-democracy movement in the Middle East and Northern Africa is obviously linked the pro-justice movement.
    In my opinion the situations in Syria and Libya are very comparable, in the ‘criminal’ sense. The crimes committed in both situations amount to crimes against humanity. However, in the situation of Libya, there was much more support of the Arab world (probably because Kadhafi is considered as an outlaw by his Arab colleagues) for an interventionist international community and there was the request of (at least a part) of the Libyan population itself. Until today, there has been no request for intervention by the Syrian population, at least to my knowledge. I think also Assad has more support in the Arab World.
    We need to be honest, if the Security Council will intervene or not will depend mostly on geopolitical considerations. I think the EU for example has less interest in intervening (beit militarily, or by the means of international criminal justice) in Syria than in Libya (Oil, immigration…). Maybe the United States are more interested, since the toppling of the Assad Government could end the support by Syria to terrorist organisations as Hezbollah and Hamas. The standpoint of Russia and China is even less clear, but since we’ll know that they are the champions of sovereignity, you’ll need very strong arguments to convince them not to use their veto rights at the Security Council.
    One thing is for sure, the fact that the ICC is overburdened financially these days cannot be an argument for non-intervention. But it’s a fact that the ICC has already a lot on his plate, with Kenya, Libya, Ivory Coast, not to mention the ongoing trials.
    In fact, article 115 b) prescribes that funds of the United Nations should be used when a situation is referred to the ICC by the Security Council. Unfortunately, in the 2 referring resolutions up to date, it was agreed that none of the expenses would be borne by the United Nations.
    It seems to me that states like to use international criminal justice as a beautiful rhetorical gesture, but they don’t want to share any burdens it involves. This will have to change if the ICC wants to accomplish it’s very challenging mission.

  4. Mark Kersten says:

    Mathias – thank you for your very insightful and thought-provoking comment.

    I largely agree with your analysis about the real differences between Libya and Syria as well as the differences in interests among states. To add to your analysis, regarding China and Russia, they have both worked to dilute any strong statement by the UN Security Council regarding Syria. They are likely to be very suspicious of allowing the UN to be too active in what they see as the internal issues of sovereign states. Further, both have expressed unease at the increased role of NATO and EU states in Libya as well as the potential targeting of Gaddafi.

    Your point on funds is important and well-taken. Funding is indeed a problem and an under-examined one at that. I still believe it is unacceptable for the UN to refer a situation to the ICC and not foot the bill.

    What I would like to see, and what I attempted to get across in the post, is that the decision-making of states must be made clear. If they have no interest in getting involved in Syria or referring the situation there to the ICC, states must make explicitly clear why. Yesterday Sarkozy said they would not intervene because not all conflicts are the same. That’s not good enough.

  5. Pingback: International Human Rights Law: Weekly Roundup (4/24/11-4/31/11) « The Lex Specialis

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