Culminating the ad hoc international criminal tribunals at Nuremberg, Yugoslavia and Rwanda, the Rome Statute of 1998 established the International Criminal Court (ICC) to deal with “the most serious crimes of concern to the international community as a whole” (Article 5). These include crimes against humanity, war crimes, the crime of genocide and the crime of aggression.1
The crimes discussed in this report fall under the first two. They are therefore within the ICC’s jurisdiction in principle. “In principle” because neither Syria nor Iran are party to the Statute, so the Court cannot exercise jurisdiction over crimes committed in Syria unless the case is referred to it by the UN Security Council.
There are four ways, set out in Articles 12 and 13 of the Statute, in which the ICC can initiate proceedings in respect of one or more of the four types of crimes under its jurisdiction:
1. A state which is, or becomes, a party to the Statute refers the alleged crime(s) to the Prosecutor;
2. A state which is not party to the Statute accepts the Court’s jurisdiction by means of a unilateral declaration lodged with the Registrar;
3. The Prosecutor initiates an investigation of his or her own initiative (proprio motu) on the basis of information that he or she receives concerning crimes within the jurisdiction of the Court;
4. The case is referred to the Prosecutor by the Security Council under Chapter VII of the Charter of the United Nations.2
In the first three scenarios, the alleged crime(s) must not only be within the Court’s jurisdiction in terms of the qualification and gravity of the crime, they must also have been committed on the territory of or by nationals of a state that is party to the Rome Statute (or a non-party state that has agreed to the ICC exercising its jurisdiction in regard to crimes committed by its nationals or over its territory). This is not a requirement in the fourth scenario.
Neither Syria nor Iran are parties to the Rome Statute (Iran signed it in 2000 but has not ratified it), and neither of them is likely to make a unilateral declaration allowing the ICC to exercise its jurisdiction in respect of war crimes and crimes against humanity committed on Syrian soil by Syrian and/or Iranian nationals. It follows that such crimes are not technically within the ICC’s jurisdiction, unless the case is referred to the Prosecutor by the Security Council, as it did in the cases of Darfur in 2005 and Libya in 2011. But this also seems unlikely at the moment due to the almost-certain Russian and/or Chinese veto.
Indeed, in May 2014, France proposed a draft Security Council resolution 3 that would give the ICC a mandate over crimes against humanity and war crimes committed in Syria. Russia and China vetoed the resolution despite a majority of the 15 Security Council members backing it, arguing that the referral was “ill-timed”, “counterproductive” and “not a good idea.” This was the fourth time that Russia and China had jointly vetoed resolutions on Syria.
58 countries had issued a statement calling on the Security Council to adopt the French resolution, as did over 100 NGO’s from around the world. The UN High Commissioner for Human Rights has also, on multiple occasions, recommended a Security Council referral to the ICC.
There may be, however, two ways around this impasse. The first relates to crimes committed in Syria by nationals of states that are parties to the Rome Statute. There are tens of thousands of foreign militiamen fighting in Syria alongside the Syrian regime forces and under Iranian command. Many of them would have probably committed war crimes and crimes against humanity there, and some of them are nationals of states that are parties to the Rome Statute or may agree to the ICC exercising its jurisdiction over its nationals. Afghan Shia militiamen are a good example (Afghanistan is a signatory).
Of course this requires gathering and submitting concrete and reliable evidence related specifically to such nationals, and it may restrict the investigation to these people and these crimes – unless superior responsibility is also considered as part of the investigation, as discussed above.
The other possibility is for a Syrian opposition body, such as the National Coalition of Syrian Revolutionary and Opposition Forces, that is recognised as a legitimate representative of the Syrian people, to join the Rome Statute and refer the case to the ICC Prosecutor.
The National Coalition – or any other Syrian opposition umbrella group, for that matter – is not a conventional government, but the ICC may nonetheless accept its membership as a legitimate representative of the Syrian people, as it did with the Palestinian Authority in early 2015 (more on this below).
It should be noted, however, that even if the Syrian opposition were to be accepted as a party to the Rome Statute, the ICC can exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that party (Article 11).
The Geneva Conventions
As mentioned above, Article 1(4) of Protocol I Additional to the Geneva Conventions provides that conflicts shall be qualified as international when they occur between a state and an authority representing a people “fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”4
This is arguably the case in Syria. However, to trigger the application of this Article – i.e. to recognise the conflict in Syria as an international conflict between a foreign occupation and a people struggling for freedom and independence – a recognised authority representing the Syrian people who are struggling for freedom and independence, such as the Syrian National Coalition or any other Syrian opposition umbrella group, needs to make a formal, unilateral declaration addressed to the Swiss Federal Council (the official depositary of the Geneva Conventions) to this effect, expressing its willingness to sign and ratify the Protocol and the four Geneva Conventions.5
Such a declaration, upon its receipt by the depositary, would have the following effects, set out in Article 96 of Additional Protocol I, in relation to the conflict in question:
(a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;
(b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and
(c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.
It should be noted that Iran has signed but not ratified Protocol I, which means it is not legally bound by it. Syria has, however, and both countries are parties to the four Geneva Conventions. Moreover, Article 99 of Additional Protocol I provides that:
1. In case a High Contracting Party should denounce this Protocol, the denunciation shall only take effect one year after receipt of the instrument of denunciation. If, however, on the expiry of that year the denouncing Party is engaged in one of the situations referred to in Article 1, the denunciation shall not take effect before the end of the armed conflict or occupation and not, in any case, before operations connected with the final release, repatriation or re-establishment of the persons protected by the Conventions or this Protocol have been terminated.
Regarding the question of representativeness, in its resolution no. 67/262 on 15 May 2013, the UN General Assembly
welcome[d] the establishment of the National Coalition for Syrian Revolutionary and Opposition Forces on 11 November 2012 in Doha as effective representative interlocutors needed for a political transition, as well as its commitment, expressed in its communiqués dated 15 and 23 February 2013 and 20 April 2013, to the principle of a political transition leading to a civil, democratic and pluralistic Syrian Arab Republic… (emphasis added).
The fourth Ministerial Meeting of the Friends of the Syrian People group, representing some 130 states, had already recognised the National Coalition as “the legitimate representative of the Syrian people.” The North Atlantic Treaty Organisation (NATO) and the European Union (EU) soon followed suit, as did many other countries. The question of whether the National Coalition is recognised as the only legitimate representative remains a matter of dispute.
There may be easier ways of bringing lawsuits against Syrian and Iranian officials complicit in war crimes and crimes against humanity than going to the International Criminal Court in The Hague.
For instance, any European citizen or resident who had been a victim of any specific human rights violation or crime against humanity in Syria may bring a lawsuit in European domestic courts under universal jurisdiction, which allows the prosecution of people regardless of where the alleged crime was committed and regardless of the accused’s nationality and country of residence. Or they may bring a lawsuit against certain low-level soldiers or militiamen who allegedly committed the crime and attempt to prove their link to higher-ranking commanders and even the Syrian or Iranian regime’s top leadership, using the arguments of complicity, aiding and abetting, direct orders, superior responsibility and so on.
Notes & References:
1. The crime of aggressions was recognised as an international crime at the Rome Conference but the second step allowing the Court to act could only be taken after certain conditions, set out in Articles 121 and 123, are met. There must be a near-consensus agreement on a definition of aggression and the relationship between the ICC and the Security Council has to be clarified. As a third and final step, the proposed new definition and clarification will only be considered for adoption at an amendment conference that will not take place until more than seven years have elapsed since the Rome Statute came into effect (in 2002) and following ratification by at least sixty nations. The new provisions require a two-thirds majority and acceptance by seven-eighths of the Parties. The issue is currently under discussion between States in the Special Working Group on the Crime of Aggression.
2. In contrast to the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the ICC is not an organ of the United Nations. Therefore the General Convention of Privileges and Immunities of the UN (1945) does not apply. On 4 October 2004, the Negotiated Relationship Agreement between the International Criminal Court and the United Nations was adopted and entered into force.
3. Available here.
4. Available here.
5. An example of such a declaration can be found here.