Syria Regime & Disposable Commitments/Promises:
If Ms. Pillay’s briefing is in any way accurate then the Syrian regime’s recent overtures and promises to the Arab League also seem false. To its credit, the Arab League has maintained the pressure along with Turkey and the EU. (Read: - “http://diplomaticallyincorrect.org/films/blog_post/arab-league-sanctions-on-syria-assad-regime-by-ambassador-mo/42079). However, the UN Security Council has not acted held back by veto wielding China and Russia – a referral to the ICC by the Council appears unlikely. (Read: - “Syria Must be Referred to the ICC” - diplomaticallyincorrect.org/films/blog_post/syria-must-be-referred-to-icc-criminal-court-by-ambassador-mo/42101).
Can Syria be Referred to ICC Without the UN Security Council?
The ICC would apparently not have jurisdiction in this instance unless the UN Security Council referred the matter to it: (From the ICC Definition of its Jurisdiction: “The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:
* The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
* The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
* The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.”
However, there may be other options that can be evaluated in terms of how jurisdiction may be exercised with respect to the Syrian regime or by some other national court:
---Have crimes been effectively committed on the territory of a neighboring state that is member of the ICC? – Unfortunately though only Jordan is state party to the ICC.
---Have crimes been committed (probably against Syrian opposition members/groups) within borders of state parties to ICC? Would though such constitute a grave violation of international humanitarian law covered by the Rome Statue? – Probably yes if substantive and part of systematic abuse.
---National courts that effectively claim “universal jurisdiction” (as in precedent of crimes committed by Argentine, Chile and other juntas and despots) could proceed with investigation/indictments especially if their own nationals, including dual-citizens, may have been victimized by the Assad regime.
All of the above options may appear either tenuous or unsatisfying. However, they could be effective means to deliver pressure upon both the Syrian regime and the UN Security Council to act. As a signatory to the Rome Statue, I also remain frustrated by the limitations. However, I would suggest that the ICC consider opening an investigation even if its jurisdiction may be held aside, until and unless the UN Security Council refers the matter. This could serve to pressure to the UN Security Council to act and perhaps even as deterrent to the Assad regime’s violations of international humanitarian law.
(Top PHOTO – Navi Pillay)
(Middle PHOTO - Members of the Security Council brief the press following the Council’s closed-door session on Syria, which included a briefing from the UN High Commissioner for Human Rights, Navanethem Pillay. Pictured from left: João Maria Cabral, Deputy Permanent Representative of Portugal to the UN; Mark Lyall Grant, Permanent Representative of the United Kingdom to the UN; Gérard Araud, Permanent Representative of France to the UN; Peter Wittig, Permanent Representative of Germany to the UN; and Rosemary A. DiCarlo, Deputy Permanent Representative of the United States to the UN).
(Bottom PHOTO – Syria Ambassador to UN Bashar Ja’afari)
By Ambassador Muhamed Sacirbey
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