France is currently preparing a Security Council resolution referring the situation in Syria to the InternationalCriminal Court. If adopted, it will be the third referral of a situation by the Security Council under article 13(b), and the first referral of a State outside Africa.
Previously, such an effort seemed to have no chance of success because Russia would not support it. But it seems that the difficulty now is finding language for a referral that will satisfy the United States. It would be happy enough to see the current regime in Syria threatened with prosecution. However, it is concerned that a referral of Syria would include Golan, which is Syrian territory occupied by Israel for nearly fifty years.
According to the New York Times, the proposed resolution will define the ‘situation’ narrowly, describing it as ‘involving the Syrian government of President Bashar al-Assad, its allied militias, and armed opposition forces between March 2011 and the present’ and to exempt ‘current or former officials or personnel’ of countries that have not ratified the Rome Statute, except Syria.
If the resolution is ever adopted, it will provide the Court with the opportunity to pronounce itself on the legality of such restrictions. In 2004, when Uganda attempted to limit the scope of a referral to the enemies of the regime rather than to the ‘situation’ in general, the Prosecutor insisted that this be reformulated in a more neutral way. With discussions underway in New York about the resolution, it might be a good occasion for the Prosecutor of the Court to make a statement reminding the Security Council of the importance of neutrality in any resolution.
The Prosecutor is required to undertake an investigation when a situation is referred to the Court by the Security Council. She can decline to do so if it is not in the ‘interests of justice’. Perhaps such a one-sided referral would fall into such a category. An alternative approach would be to consider a targetted referral like the one currently being proposed by France as being simply inconsistent with the terms of article 13 and therefore of no legal effect. The Security Council’s powers are circumscribed by article 13 of the Statute. If it does not refer a ‘situation’ but rather a ‘situation within a situation’, then it has not complied with article 13 and the resolution does not therefore trigger the jurisdiction of the Court.