On January 14, 2012, 58 UN Member States coordinated by Switzerland petitioned the UN Security Council to refer the current crisis in Syria to the International Criminal Court for investigation and possible prosecution. Over 60,000 Syrians have died since the uprising begun in March 2011 and 600,000 have become refugees. War crimes and crimes against humanity have clearly been committed by both sides; a referral to the ICC is long overdue. Why does the ICC need the UN Security Council’s referral? Syria is not a party to the ICC and thus, the court has no jurisdiction to indict its citizens, including Bashar al-Assad and other members of his regime, without referral by the UN Security Council.
With Russian, Chinese and even American vetoes standing in the way, would an ICC referral even happen? The short answer is not likely. However, there might be light at the end of that tunnel. China has reversed its objection to ICC referrals twice in the past, allowing the referral of Sudan over Darfur in 2005 and allowing the referral of Libya in 2011.
China might be persuaded once again to reverse its position if lobbied by the Gulf States whom China relies on for oil and energy. Some analysts note that the Russian evacuation of its civilians marks a turning point in its policies towards Syria. It signifies a growing distrust in Assad’s ability to hold onto power. With enough time and international pressure Russia might at least abstain from voting if a resolution on a Syrian referral is voted upon. Last of all, The United States has not openly supported a referral to the ICC. This is mainly due to senior government officials feeling uneasy about the speed in which the ICC prosecutor dealt with the Libyan case. The United States has taken many steps in improving relations with the ICC, abstaining from the Sudan referral and voting in favor of the Libyan referral. With enough time and persuasion, its reservations will subside.
The question should not be if Syria would be referred to the ICC, the question is when. The UN Security Council, might not pass if put to a vote today but, given the deteriorating situation in Syria and enough international pressure, Assad will be indicted by the ICC by the end of the year at the latest. If the ICC indicts Assad or even a prospect of an arrest warrant would have a significant impact. It would encourage greater number of defectors from Assad’s regime thus weakening it of core supporters and expertise. It would discourage the use of chemical and biological weapons. The use of these weapons would raise criminality to a whole new level warranting high level prosecutions. The prospect of an ICC referral would act as a deterrence for both sides to commit further crimes and force military leaders to take greater care in supervising operations to make sure they don’t become the center of investigations.
Critics would say an ICC referral wouldn’t make a difference. They have a point. Syria has completely ignored calls from the international community to tone down the violence and work towards a transitional government. The ICC is just another insignificant voice calling for change. There is a significant time lag between indictment and prosecution and even if that happens, Assad and his entourage could escape to a country who has not signed the Rome Statute. He and his cohorts could escape to Latin America where he would be untouchable.
Many Syria observers have great faith in humanity and truly believe even a prospect of an ICC referral could mark the turning point in building peace in Syria. Peace building is not the work of one nation; it requires the contributions from all nations united by our multilateral institutions.