The ICC is a permanent and central part of the international landscape and should be a part of any effort to combat impunity in Syria.
On March 15, the US House of Representatives adopted a non-binding resolution (H Con Res 121) calling on the administration to pursue UN Security Council (UNSC) support for an ad hoc regional or international hybrid tribunal to investigate and prosecute war crimes and crimes against humanity in Syria. The push for accountability in Syria gained additional momentum when Secretary of State John Kerry deemed ISIS’s attacks on the Yazidis and other minority groups to be a genocide.
The action by the House is a step in the right direction but promotes an incomplete solution. The Resolution correctly notes that Syria is not a member of the International Criminal Court (ICC), and hence that Court lacks jurisdiction over international crimes committed there, but it fails to acknowledge that the UNSC could, by precisely the same mechanism by which it would establish an ad hoc tribunal, send the investigation to the ICC. The UNSC has twice before referred cases to the ICC, in Sudan in 2005 and Libya in 2011. The Obama administration supports a UN referral to the ICC, but Security Council action has been blocked by Russia and China.
So why does the Resolution promote an ad hoc solution rather than the ICC? After all, a primary motivation in constructing the ICC was to create a permanent court that could adjudicate international crimes henceforth, rather than having to build and fund at great expense a new ad hoc tribunal each time a conflict arises. One clue to the House’s rationale is found in the speech of the resolution’s sponsor, Representative Chris Smith of New Jersey, who argued that an ad hoc tribunal has “significant advantages over the ICC,” noting that the ICC has had only two convictions to date while the ad hoc tribunals (for the former Yugoslavia, Rwanda, and Sierra Leone) have had many more.
But this is a false comparison and the House’s rejection of a role for the ICC is both bad policy and contrary to the US’s approach to the ICC under both the Obama and Bush administrations. Unlike the ad hoc tribunals that could focus on one conflict for years and sometimes decades, the ICC must investigate in multiple countries at once (currently nine). While the ICC has required some start-up time to adjust to this new model, it is now working at full capacity with numerous investigations and prosecutions ongoing from nine different countries with more on the way.
The ICC is a permanent and central part of the international landscape and should be a part of any effort to combat impunity in Syria. The Court presently has 124 members, including some of this country’s oldest and most trusted allies. Although the US was hostile to the Court during its initial years of operation, it pivoted during the second half of the Bush administration, recognizing that the Court is here to stay and can promote key US interests. The Obama administration has expanded its engagement, providing critical support for individual cases. At this juncture, a move by the UNSC to create an ad hoc court for Syria without any role for the ICC would undermine both the US’s constructive approach toward the Court and the institution itself.
At the same time, a referral to the ICC would not be enough. The ICC has the capacity to prosecute only a relatively small number of individuals from each situation and given the widespread criminality committed in Syria, such a result would be woefully inadequate. Therefore, the US should promote both a UNSC referral to the ICC and the establishment of a judicial mechanism comprised of domestic, regional and international actors that would prosecute additional cases in coordination with the ICC. Such an approach is entirely in keeping with a central objective of the ICC, which aims to promote national prosecutions of crimes in the first instance, and has been pursued elsewhere, such as in the Central African Republic where a special hybrid court has been created to work alongside the ICC.
The massive crimes committed in Syria demand a comprehensive and thorough solution, but it would be a mistake to adopt an approach that undermines the ICC, an institution that should remain at the forefront of the global fight against impunity. Combining an ICC referral with the creation of a hybrid court to work with the ICC would best achieve all goals: providing justice for Syria while maintaining critical support for the ICC, the only international criminal institution that will be permanent.
Michael S. Greco (Chair)