The ICC in Syria: A Ticking-Time Security Council Referral?

A protestor in front of anti-Assad graffiti in Idlib, Syria (Photo: Rodrigo Abd / AP)

Like so many others, I find myself in the morally and politically ambiguous position of having no clue what the international community should do to stop the ongoing violence in Syria, recently described as descending into “a sectarian wasteland”. The options are unsavory. The Libya-intervention-recipe seems out of the question, but doing nothing seems morally abhorrent. The status quo is brutal but changing it could conceivably be worse. The only thing that seems clear, to me at least, is that some creative thinking is needed.

Before I lay out my thinking on a possible way to contribute to a cessation of violence in Syria, I should add a disclaimer to avoid confusion. This post is a thought exercise based on an idea that I have been mulling recently. As such, it does not represent any rigid conviction on my part nor a policy solution. Nevertheless, I think it is worth discussing and considering.

A Ticking-Time ICC Referral

My proposal is that the Security Council legally bind itself to a “ticking-time ICC referral”. In practice, this would require the Council to legally declare that they will refer Syria to the ICC by, say, August 1st, 2012 (it could be sooner or later). Once set in motion, the only way to stop the referral would be through a subsequent affirmative vote by the Security Council, following the advice of the UN Observer Mission and UN-Arab League Envoy Kofi Annan. Syrian and opposition forces would have until August 1st to stop the commission of atrocities. If indiscriminate violence on the part of the Syrian regime and the opposition forces did not cease, the referral to the ICC would go ahead automatically.

Why it might be worth it

If the ICC has any specific deterrent effect, this would be an opportunity to see it in action. The idea here is simple and oft-repeated (and oft-criticized): the ICC can have an effect on the willingness of actors to continue committing atrocities. A problem, that many scholars have pointed out, is that when the ICC intervenes in ongoing conflicts, the incentives to put down the guns and silence the tanks may be removed. Both of these positions are over-simplified and tenuous in that the empirical evidence across contexts is weak. But a delayed referral would theoretically allow for both a specific deterrent effect to change the calculus of the Assad regime without removing the incentive to cease the commission of human rights abuses. Of course, the ICC’s deterrence capacity is unclear and its record questionable. Nevertheless, in such instances, I’m not sure it’s useful to know whether the ICC can have a deterrence effect. It might be sufficient to believe it might or could.

Importantly, under this proposal, the Syrian regime would not be able to escalate violence until the end of July and then claim that they have stopped committing atrocities in the 11th hour. In order for the Council to stop the referral, all actors would have to show restraint and a commitment to a cessation of crimes in the time between the Security Council resolution and August 1.

(Cartoon: Kal / The Economist)

It is important to note that the reason that Syria has not been referred to the ICC is not because of the Security Council member states’ ambivalence to the Court itself. As Mark Leon Goldberg reminds us, past cases and practice indicates that “Russia and China are not intrinsically opposed to the ICC.” Thus, if the right political climate and guarantees were in place, it would be possible to get Russia and China on board (or at least abstain) with such a resolution – at least theoretically.

One political guarantee of the hypothetical Security Council resolution could be to make it clear that the ICC’s jurisdiction would be restricted to investigating crimes committed after August 1st, 2012. Crimes committed before this time would thus be beyond the ICC’s jurisdiction. In addition to providing the Assad regime with an incentive to stop committing atrocities, this could also assuage concerns of UN Security Council states that they would be targets of investigation. In particular, Russia would have time to halt its well-documented and dubious material support to the Assad regime without having to worry that it would be investigated by the ICC. For Russia, which seems to be increasingly amenable to the position that Assad needs to step down, the delayed referral could offer a ‘soft landing’. Notably, in Libya, Western states similarly ensured that the ICC could only investigate incidents after February 15, ensuring that their close political, economic and intelligence relations with the Gaddafi regime were outside the Court’s spectre.

Why it perhaps shouldn’t work

First of all, it isn’t clear whether or not issuing a delayed Security Council referral would be legal. It certainly has no precedence. As such, it might be thinking too far outside of the international law box.

Second, there are concerns that the relationship between the Security Council and the ICC isn’t a particularly healthy one. As I have written extensively, the Security Council appears happy to use the ICC in cases where the Court serves its political interests and abandon the Court when it doesn’t. Libya is a perfect example. There is every risk this could repeat itself with a Syrian referral. In a nutshell, the dilemma facing the Court and its champions is that, while there is a legitimate sense that anything should be done to stop atrocities, no single case should mortgage the future legitimacy and capacity of the ICC to pursue and achieve justice.

Third, knowing the motivations of the Assad regime is a guessing-game at best. As Bajeera McCorkle and Wronging Rights point out, it is entirely possible that the Assad regime wouldn’t be affected by the threat of an ICC referral at all, as its primary concern is maintaining and defending its grip on power. Again, a similar tale appears to be true for Libya.

Lastly, there is good reason to be skeptical of referrals which restrict the temporal jurisdiction of the ICC. Saying that only crimes after August 1st (or whichever date is chosen) can be investigated virtually denies that justice for those who have suffered and lost before that date will be served.

Russian Foreign Minister, Sergei Lavrov and Syrian President Bashar al-Assad (Photo: Reuters)

A Necessary Evil?

Sadly, no matter what decision is ultimately made to address the unrest and ongoing violence in Syria, it will have costs – likely in the lives of civilians. The question is really about which costs are acceptable and which aren’t.

It is obvious that this proposal confronts and perhaps even creates as many controversies and challenges as it seeks to overcome; there would be obvious drawbacks with a ticking-time ICC referral. But, the question remains: should we not at least explore every possibility – even imperfect ones – to end the bloodshed? Admittedly, this is not a particularly sophisticated place to end. But what other choice do we have?


For other takes on the ICC and Syria, see Marc Lynch’s Can the ICC take on Syria?, Bernard Kouchner’s Bring Syria to Justice, Ian Black’s Syria need not fear the international criminal court – for now, David Scheffer’s Fanning the Flames of Justice in Syria, and Mark Leon Goldberg’s Is it time for ICC in Syria?

UPDATE: Readers may also be interested in this piece by Robert Marquand on the ICC and Syria. Here’s a taste:

“After 16 months of carnage in Syria, enough evidence and reports of systematic brutality and crimes against humanity exist to send the case to the International Criminal Court at The Hague, according to diplomats. The reports, including names of Syrian officials and details on massacres, amount to a mass tipping point, they say, and allow a “referral” by the UN Security Council to the ICC that would result in indictments…

…This week, France’s top human rights diplomat told the Monitor there is “definitely” enough evidence of Syrian war crimes and torture to refer the case: “The raw material is there,” says Ambassador François Zimeray…

…But Syria has now come to represent a case of Russia’s Vladimir Putin playing cards in a larger game. A Security Council referral is likely to occur only as part of satisfying broader goals that Mr. Putin has in mind, analysts say…

…Moreover, if the ICC is seen as weak and ineffectual, the blame for this is not to be thrown on the court, says Mark Ellis, director of the International Bar Association in London. The ICC, like the UN that established it, is merely an extension of the political will and sensibility of the world powers that make it up.”


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 International Criminal Court (ICC), Justice, Syria, UN Security Council and tagged , . Bookmark the permalink.

6 Responses to The ICC in Syria: A Ticking-Time Security Council Referral?

  1. User 123 says:

    I like your idea – hopeful it will spawn som additional ideas – The grass roots are working 🙂

  2. I have much more trust in the Syrian rebels. They seem to get the job done, respect!

  3. Maya says:

    The interesting question — and it’s one that’s been raised on this blog before — is whether there are any legal ramifications to time limits drawn around the jurisdiction of the ICC.

    Everyone knows that the Court cannot do anything about crimes committed before 2002; this is not disputed as far as I know. But as those atrocities slowly fade from memory, the more interesting question is what authority the Court has over crimes committed after 2002 in countries that do not recognize the ICC’s jurisdiction.

    In the context of Libya, there have supposedly been proposals — and questionable outrage at this not being implemented — to retroactively push back the date of the referral. I believe there was an interesting debate about that on this very blog.

    The same is true for Cote d’Ivoire, though there the situation is more muddled because of the country’s auto-proclamation from 2003. There Ouattara gave the ICC jurisdiction over crimes committed in CdI after he had been propelled into the presidential palace by French commandos.

    But is it also possible for the new Syrian government — assuming this happens — to come to power and then retroactively grant the ICC jurisdiction over all crimes committed from Feb 2011 onwards? If so, then the debate really is about deterrence and nothing else — an interesting academic debate but of less significance to the victims — because the ICC will get its hand on Assad anyway. Sooner or later.

  4. Mark Kersten says:

    Thanks for all of the comments.

    Maya – after speaking with a very good international criminal law scholar, I understand that there is no legal problem with either a state (in the case of a self-referral) or the Security Council from restricting the ICC’s jurisdiction. There are, in my view, political issues especially when the roots and causes of the conflict reach far back before the jurisdictional limitation. My criticism of the Libyan referral was not that it was illegal to restrict the ICC’s jurisdiction to February 15, 2011 but that doing so obfuscated the role of external states in propping up the Gaddafi regime and even, in some cases, being complicit in international crimes – namely torture and extraordinary rendition.

    On your last point, yes, it is possible that a new Syrian government could retroactively grant the ICC jurisdiction. From what I am hearing about allegation of atrocities being committed, this seems very unlikely to happen but, you’re right, it could. I tried to subtly make the point in the post that a delayed UNSC referral would put pressure on both the Syrian regime *and* the rebels, as well as any external parties supporting them.

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