Why ICC justice for the Assad regime and Russia remains a fleeting possibility

By Alexandra Barkhaus

An International Criminal Court (ICC) trial for alleged war crimes or crimes against humanity perpetrated by the Assad regime in the Syrian Civil War is unlikely to materialize in the near future. To do so, the ICC must be able to broach the situation through three possible mechanisms: 1) the ICC Prosecutor’s own initiative; 2) UN Security Council referral; and 3) state referral. Pressure from the international community may enable justice for these alleged war crimes through other means beyond the scope of the ICC. All the same, this case speaks to the limits of the international criminal justice framework when a state like Russia simultaneously fulfills a leadership role in the UN and a role of ally and aggressor in a civil war.

Conflict-embroiled societies do not always have the capability to handle major proceedings independently due to destruction of infrastructure, divided loyalties to a former regime, or simply a lack of legal resources. The current state of Syria’s civil society and government reflect the unlikelihood of a trial by Syrians, of Syrians, and for Syrians in the near future.

The ICC operates as the court of last resort in any situation, when domestic courts cannot accommodate such a legal undertaking. This analysis only points to alleged war crimes and crimes against humanity on the part of the Assad regime and Russia, excluding alleged crimes committed by the Syrian rebel factions, their allies or Daesh. Syrian rebel groups are not recognized states and their political sponsorship complicates their position, though several fighters have been tried abroad under the principle of universal jurisdiction. Daesh remains excluded from this analysis because out of all actors it is the most widely condemned in the international community. Whether or not in the ICC, members of Daesh are the most likely to see their day in court (particularly to answer for the Yazidi genocide).

In regard to the ICC’s three triggering mechanisms, it must first be acknowledged that Syria is a signatory, not a party, to the Rome Statute (the treaty that created the ICC). This results in the ICC’s primary incapacity to directly exercise its jurisdiction over the country through the Prosecutor’s own choosing- proprio motu. Given its complicity in the ongoing Syrian Civil War, it is, of course, not in the interests of the Assad regime to join the Rome Treaty. While neither Russia nor the United States has ratified the treaty, Russia only recently decided to cut ties with the court, distancing itself from accusations of its involvement in Crimea, Georgia, and most recently, Syria.

The Rome Statute alternatively allows for a UN Security Council referral of a “situation” to the ICC in order for the international community to circumvent non-cooperation and intervene in the most serious situations, whether a state is party or nonparty to the treaty. This second possibility has already proved futile. The Russian Federation, a permanent member of the Security Council (the P5), vetoed a critical 2014 resolution to refer the Syrian situation to the ICC (China vetoed it as well).

Although the UN General Assembly can override Security Council vetoes under the “Uniting for Peace” resolution 377, it cannot legally do so in ICC affairs. Though one might think that the Syrian conflict could prompt reform of the ICC’s Rome Statute to allow referrals through a General Assembly veto-override of the Security Council, the P5 would never allow this as it could ultimately pose a threat of ICC incursion into their own sovereignty and self-interests.

The third possible way in which the ICC could gain jurisdiction over a situation is by state referral. Even a non-state party can do so but that would be unlikely as long as Assad is in power. Should a decisive military victory unseat the Assad regime (an unlikely prospect as of today), an emergent Syrian state could invite it to investigate crimes committed during the war.

The Assad regime remains in power, supported by Russia since its military intervention in September 2015. France and the United States, calling for war crime prosecutions, condemn the impunity of the Assad regime’s and Russia’s airstrikes targeting civilians in rebel-held East Aleppo. This might change with the new U.S. administration which has shown signs to be sympathetic to Russia’s involvement in Syria. It is needless to mention that as a P5 member (much less a non-party to the Rome Statute), Russia’s role in the Syrian Civil War will never fall within the jurisdiction of the ICC.

In a more grassroots initiative, the nonprofit organization Commission for International Justice and Accountability (CIJA) has enlisted Syrians to smuggle documents out of the country since 2012. CIJA hopes to implicate the Assad regime for alleged war crimes through its tedious collection of papers supposedly authorizing such actions. In doing so, it is the first international war-crimes investigation without a court mandate but with government funding. This initiative answers to the frustration of politics inhibiting justice. Although the international community may struggle to raise justice in Syria through the ICC, this nonprofit enterprise lays the foundation for a future trial of the Assad regime, wherever it may be.

This hypothetical case study of justice in Syria ultimately questions the efficacy of our international criminal justice system when an alleged perpetrator of war crimes or crimes against humanity aligns itself with a powerful state sponsor, particularly one whose disproportionate influence in our international governing body hinders cessation of, and justice in, such terrible conflicts.

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