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.