Friday, 16 March 2012

Referring Syria to the International Criminal Court

As David Scheffer points out in a recent op-ed, referral of Syria to the International Criminal Court by the Security Council has already been called for by the High Commissioner for Human Rights and by France.
As things now stand, the Court cannot exercise jurisdiction over Syrian nationals for crimes committed in Syria. But the Security Council can change that situation by a resolution referring the situation in Syria to the Court, as it did with respect to Libya last February.
Professor Scheffer argues for a tailored approach to referral that some may find controversial. He proposes the following:
If, for example, the Security Council gave Assad and his colleagues one week to quit power and leave the country for asylum in, say, Tunisia (or perhaps Russia), the Council would explicitly omit their names from its referral of the Syrian situation to the Court.  Such officials would have to demonstrate indefinitely their complete withdrawal from political and military power in Syria in order to qualify for continued omission from the Court’s jurisdiction.
I’m still mulling over the viability of the proposal, and perhaps it can be fine-tuned. What is controversial is the idea that a tyrant like Assad would be given a “get out of jail free” card in exchange for leaving power. Many now take the view that amnesty is prohibited by international law, and allowing Assad to obtain asylum somewhere amounts to an amnesty.
London launch of All the Missing Souls at 9 Bedford Row. From left, Penelope Soteriou, Nadia Bernaz, David Scheffer, Paul Schabas, Julia Schabas, Giulia Pecorella.
It sounds a bit like what was done with Charles Taylor in 2003. Assad would probably want to know what kind of guarantees he would have to prevent a Charles Taylor scenario, whereby such an asylum deal in exchange for leaving power turned out to be a bit of a trick. Nigeria eventually revoked the asylum and handed Taylor over to the Special Court for Sierra Leone. His judgment is due next month.
Chapter 7 of my new book, Unimaginable Atrocities, discusses this “amnesty quandary”. I contest the view that amnesty is prohibited by international law, and argue for a more nuanced approach whereby it is retained as an option for peacemakers. And as I read David Scheffer’s proposal, this is precisely the sort of situation where a trade-off between justice and peace, such as he is proposing, is in everyone’s best interests.
David Scheffer is on a book tour throughout Europe speaking about All the Missing Souls, and was in London last week for a series of events, including a launch at the chambers of 9 Bedford Row that was co-sponsored by Middlesex University.


Stian Øby Johansen said...

Interesting idea indeed. But this presupposes that the Security Council can actually omit certain persons from a referral. The text of the ICC statute does not seem to envisage such referrals - the UNSC may only refer a "situation in which one or more crimes have been committed" (art. 13(b)). It would be interesting to see what the ICC's response would be to such a referral. There are several questions that arise following a referral of a situation with instructions to exclude certain individuals.

Firstly, if the prosecutor considers the limitations/instructions to be invalid, he could potentially indict Assad. It would then be up to the judges to decide whether the ICC has jurisdiction - and thus whether the instruction are invalid. I would not be surprised if they were to find that the instructions were incompatible with art. 13(b).

Secondly, there is a question of the legal effect of such incompatability. To me, it seems to be at least three possible solutions. The first option would be to find that a referral with limitations is invalid, and that the ICC may only act on an unconditional referral of a situation. The second option would be to find that the UNSC resolution referring the situation overrides the ICC treaty under art. 103 of the UN charter. Thus, the ICC would have to accept limitations that are in violations of its charter. The third, and most dramatic option would be for the ICC to state something in the ballpark of: (a) that when the UNSC refer situations under the ICC, it must act within the framework of the competences given to it under the ICC statute, and that (b) if it does put down limitations, the will be overlooked by the court. If this third option is chosen the ICC would thus assert jurisdiction over Assad - a bold statement that would probably invoke strong reactions from the 5 veto powers at the UNSC.

Finally, the prosecutor may of course decide to loyally follow the instructions in the referral. Due to his prosecutorial discretion, no case against Assad would be put forward, and the exciting questions mentioned above would not be answered...

Dov Jacobs said...

It's an interesting proposal, but I don't think it's viable in its actual format because the Security Council does not refer cases (i.e, a list of names), it refers situations. The OTP would therefore not be bound, in my opinion, by a limitation of the possible people that can or cannot be prosecuted.

There is a way for it to work, but it would have to be a two-step approach from the UNSC: 1) refer the Syrian situation as a whole 2) promise to use an Article 16 deferral, should the ICC Prosecutor decide to open a case against Assad.

The problem is that, while I agree with you that amnesties might not and should not always be illegal under international law, the political pressure against them means that any leader who followed what happened in Liberia will never trust such a promise anyway, or at least would be stupid to do so...

Professor Charles C. Jalloh said...

Great points, I agree, especially with the idea that Art 16 (not Art. 13) of the Rome Statute is the better legal and political vehicle for such ‘poisoned chalice’ exceptions.

Key issue, as Dov Jacobs suggested, if you were Assad, would you believe the UNSC? Especially given what happened in Liberia? I know, I wouldn’t!

This, to me, raises practical problems with amnesties that will be of concern to the Syrian leadership. Will they be offered in good faith? Amnesty for now and prosecute you later tricks may work well in the short term. And perhaps, depending on each situation, may be justified to get some, rather than no, justice.

But, I wonder: aren't we foreclosing the amnesty option in the long term by actually sanctioning such practices?

In other words, even if we accept Bill’s argument that limited amnesties should be available in the UN toolkit as a way to perhaps resolve crisis situations like Syria’s, don’t we actually make them practically unavailable because only the fools will ever take them?

Of course, though many of us would wish for strong UNSC action showing that we hear the loud cries of ordinary Syrians for international help, including an ICC referral, Assad and the likes of him, such as Uganda’s Kony, tend to be savvier than we think….