THE BLOG
05/27/2014 10:48 am ET Updated Jul 23, 2014

The UN Security Council and the ICC: No Accountability in Syria for Now

With great concern, the international community has been witnessing the violence that has ravaged in Syria since March 2011. There have been continued international attempts to broker a deal to end the violence. Additional negotiations are ongoing to obtain increased access to deliver humanitarian assistance. In February 2014 the Council finally unanimously agreed that "those who have committed or are otherwise responsible for such violations and abuses in Syria must be brought to justice".

The need for accountability and the role of the International Criminal Court (ICC or "the Court") have been continuously recognized outside the UN Security Council. The Independent International Commission of Inquiry on Syria, established by the UN Human Rights Council in 2011, and the UN High Commissioner for Human Rights have concluded that crimes against humanity and war crimes are being committed in Syria by the Government and certain armed forces. Thus, there have been consistent calls for the involvement of the ICC as the Court of last resort, since no investigations have been taking place domestically.

But Syria is not a State Party to the Rome Statute, and the ICC would only have jurisdiction over the situation in Syria if the UN Security Council refers the situation to the ICC. Since 2011, many have called on the Security Council to use its power to refer the situation in Syria to the Court; these voices have included the UN High Commissioner for Human Rights, the UN Secretary General's Special Adviser on the Prevention of Genocide, 58 countries led by Switzerland - expressed through a letter in 2013 -- and NGOs such as Amnesty International, FIDH and Human Rights Watch.

With increasing worldwide outrage about the scale of crimes committed, France decisively stepped forward and introduced a Security Council resolution referring the situation in Syria to the ICC. The resolution was co-sponsored by 65 states, including several States not Parties to the Rome Statute.

On May 22, under the Korean presidency of the Council, the proposal was considered and all eleven Rome Statute States Parties in the Council (Australia, Argentina, Chad, Chile, France, Jordan, Lithuania, Luxembourg, Republic of Korea, Nigeria and the UK) and two States not Parties (the U.S. and Rwanda) voted for its adoption. Nevertheless, the resolution did not pass. As was predicted, the Russian Federation and China vetoed it, preventing an ICC investigation in the foreseeable future.

This marks the first occasion when a referral to the ICC has been vetoed. In the past the Council has referred two situations in States not Parties to the Court: the situation in Darfur, Sudan in 2005, and the situation in Libya in 2011. These referrals have been widely recognized as the only chance for accountability in those particular circumstances.

States Parties continue to support referrals by the Council, but many have also questioned whether these referrals have duly empowered the Court to carry out its difficult and at times almost impossible mandate. Concerns over the limitations that the Court faces in dealing with these referrals have been thoroughly discussed, and it is laudable that the Syria proposal shows improvements over the previous referrals.

First, the Syria proposal includes a commitment to an "effective follow up" -- an important development given the criticism that the Council has received for failing to effectively follow up on its previous referrals. Second, the resolution recalls the guidelines issued by the UN Secretary General on avoiding non-essential contacts with persons who are the subject of ICC arrest warrants. Third, it calls on the Government of Syria to fully implement the Agreement on Privileges and Immunities of the ICC -- an effort to ensure unhindered work of ICC staff in the country and an attempt to stave off a crisis similar to that in 2012 when ICC staff were held in captivity for a whole month. And fourth, it mentions the UN General Assembly resolution on the ICC, adopted in 2013, which acknowledges the UN-ICC Relationship Agreement as the basis for the financial cooperation between these two organizations.

Despite these improvements, the vetoed resolution still contains significant caveats that would replicate the problems in the Council's two previous referrals. As Argentina stated in its explanation of vote, the referral obliges only the government of Syria and non-State armed groups in Syria to cooperate with the ICC. While States Parties to the Rome Statute are under the obligation to cooperate with the Court, the proposed text recognizes that other UN members have no obligation to cooperate and fails to impose it, even though the Council did impose such an obligation in order to empower the ad hoc tribunals for Yugoslavia and Rwanda. The outstanding arrest warrants arising from situations referred by the Council to the Court show how much the ICC needs the cooperation from of all states, particularly in situations serious enough to constitute a threat to international peace and security.

Second, the vetoed resolution purports to prohibit the UN from bearing any of the financial costs of the referral -- despite the specific provisions in the Rome Statute that provide for UN funding of Council-referred situations, and the prerogative of the UN General Assembly to approve the budget of the UN. Third, as has been the case previously, and as Chad mentioned after the vote, the vetoed resolution specifically purports to exclude from ICC jurisdiction nationals of States not Parties other than Syria if participating in operations established or authorized by the Council.

In presenting the draft resolution for vote to the Council, France indicated that the text was drafted to be acceptable to all members of the Council. Following its regrettable veto, I am confident that States Parties in the Council and outside will continue to work towards ending impunity for atrocity crimes and the further strengthening of the International Criminal Court.

Justice for the victims in Syria will not be possible for now but the resolute and principled action of States Parties has brought a discussion of accountability to the table. As the United Kingdom stated, the collection and preservation of evidence will allow justice to be done -- eventually.

I am also certain that States and victims will continue to call on the Security Council to use the power to refer situations where crimes occur and there is no domestic investigation or prosecution. I am hopeful that these referrals will be done in a way that strengthens the Court's ability to meet its mandate to contribute to putting an end to impunity.