A Syrian opposition fighter and his son in Aleppo (Photo: Odd Andersen / AFP / Getty Images)

The world is abuzz with the news that that the Obama administration is finally willing to back a referral of Syria to the International Criminal Court (ICC). Will the US’s volte face on an ICC intervention in Syria create ripe conditions for a UN Security Council referral? Probably not – or at least not yet. But there is also another issue at hand: if the Security Council does manage to refer Syria to the Court, should the ICC accept?

The ICC’s relationship with the UN Security Council goes to the very heart of the politics of international justice. As I have written in a draft article on the subject (see here), the Court was originally created as an independent institution in the hopes that it could – and would – transcend the power-politics of the Council. However, in its first ten years, the Court has instead become increasingly close to the Council and affirmed its authority. Former Prosecutor Luis Moreno-Ocampo has gone so far as to claim that the ICC should be seen as a “new power for the Security Council”.

This proximate relationship has come at a cost to the Court’s independence and legitimacy. Drawing on the work of William Schabas, I have previously argued that it is the ICC’s affirmation of Security Council power politics that lies at the root of the perception that the Court is biased against African states. Former senior ICC officials are also deeply concerned about the relationship between the Council and the Court. Christian Wenaweser, the former Assembly of States Party President, for example, argues that because of how damaging the relationship has been to the Court, the ICC should at least consider saying no to another Security Council referral.

There is a belief – the wisdom of which can be debated – that Council referrals bestow legitimacy to the Court. Such referrals are seen as a recognition that the ICC’s work matters to the mightiest of players in international politics. Again, though, this comes at a cost.

The ICC may not be able (or want) to say no to a Security Council referral. But here are three “red lines” that the Court should be wary of.

You, Not Us

Any referral of Syria to the ICC is likely to include an operative paragraph declaring that, with the exception of Syrians, no citizens of states that are not members of the ICC can be investigated or prosecuted by the Court. In all likelihood, it will be a copy-and-paste job from previous Security Council referrals. Both the referrals of Darfur (Resolution 1593 (2005)) and Libya (Resolution 1970 (2011)) included precisely this unfortunate stipulation. It has long bee recognized that placing such exemptions on the Court violates key principles of international law and politicizes the ICC. As Robert Cryer observed in an article on Resolution 1593,

“the legitimacy of the referral is impaired by the a-priori exclusion of non-party state nationals from the jurisdiction of the ICC…the point is not that the jurisdiction of the ICC will be significantly limited in a practical fashion, but that the exclusion of some states’ nationals fails to respect the Prosecutor’s independence and makes it difficult to reconcile the resolution with the principle of equality before the law. Some states’ nationals, it would appear, are more equal than others.”

It has also been debated whether the ICC would actually be bound to respect such exemptions. If the same exclusion is included in a Syria referral (and, given US insistence it surely will), the Prosecutor may be wise to finally come out and declare that this violates the very principles upon which international criminal law rests and clarify whether the Court considers itself legally bound by such exemptions.

The Azaz refugee camp in Syria, in 2012 (Photo: Manu Brabo / AP)

And Specifically You

There is an ongoing danger that referrals – whether from states or the Security Council – represent attempts to focus the ICC’s Prosecutor on specific groups or actors. This has happened on a number of occasions. The most blatant example came with the first-ever referral to the ICC. In 2003, the Government of Uganda referred the Lord’s Resistance Army – and not the situation in Northern Uganda – to the ICC. Notably, then Chief Prosecutor Luis Moreno-Ocampo requested that the referral be clarified. However, the Office of the Prosecutor still only targeted LRA commanders.

There are similar fears that the restrictions placed on Ukraine’s acceptance of ICC jurisdiction may focus the Court on the current Government’s adversaries. Ukraine’s declaration accepting ICC jurisdiction restricts the ICC to investigating crimes between 21 November 2013 and 22 February 2014. Placing limits on the temporal jurisdiction of the ICC (i.e. the time period which the Court can examine) also helped shield Western states from scrutiny over their rather nefarious and possibly criminal political and intelligence relationships with the regime of Muammar Gaddafi.

There is every possibility that a potential referral of Syria will seek to do the same. There is no consensus on who the ICC should target in Syria. But every major power on the UN Security Council is backing someone – and someone they don’t want to see ending up in The Hague.

Money, Money, Money

Both previous Security Council referrals to the ICC have explicitly prohibited  the UN from providing any funds to the Court for its subsequent investigations. In other words, the ICC did the Council’s bidding and was asked to foot the bill. This wouldn’t be as offensive to proponents of the Court if the ICC didn’t end up being virtually empty handed, without any major players from Darfur or Libya in its dock. As Louise Arbour recently observed,

This triumph of political weight could perhaps be overlooked if the justice dividends were overwhelming. But we’re far from that. With the ICC receiving no additional support – financial, political or operational – even in cases which are brought into its jurisdiction by the might of the Security Council, I believe that in the end such politically tainted referrals do more harm than good. Expected to expand the reach of accountability, they in fact undermine it.

Importantly, domestic legislation (the American Servicemembers’ Protection Act) explicitly prevents the US from providing funding to the ICC. Still, there should be a way to get around this by allowing the UN to fund any ICC investigation in Syria without any of that funding stemming from US contributions.

Syrian opposition fighters in Aleppo in 2012 (Photo: Associated Press)

Fool Me Thrice?

It is understandable that the ICC previously welcomed two referrals from the Security Council. The Darfur referral represented a huge and positive step in the US’s relationship with the Court. The Libya referral was seen as an opportunity for the ICC to tap into widespread international interest and attention – and perhaps have an immediate impact on the conflict. But, again, in both instances the ICC got fleeced. International interest in having anyone from Libya or any of the ‘big fish’ in Sudan in the ICC’s dock is virtually non-existent.

Can the ICC afford to be used and abused by the Council again? Is there anything it can do to avoid being fooled into accepting a politically poisonous referral for a third time?

Schabas suggests that the ICC Prosecutor should “make a statement reminding the Security Council of the importance of neutrality in any resolution.” However, this may be a risky proposition. As Alex Whiting argues, “there is a risk that if the Prosecutor starts talking about what the resolution should look like, she will (1) end up killing the momentum towards the resolution or (2) be accused of being political.”

Still, unlike Darfur and Libya, the Office of the Prosecutor now has the time to develop a coherent and rigorous position regarding a Syria referral. And if the Prosecutor can’t be proactive in ascertaining the political risks in accepting certain referrals, perhaps it is time that an independent referral review panel be set up advise the Court.

While it is extremely unlikely that the ICC would reject a referral of Syria, the ICC has a problem when it comes to its relationship with the Security Council. A potential Syria referral offers the opportunity to think critically and clearly about what, exactly, the Court wants that relationship to look like.

Officials and proponents of the ICC consistently reiterate that states need to respect the independence of the Court. But the ICC needs to respect its own independence too. Syria is a big test – not just for justice but the ICC itself.