Since 2011, Syria has been immersed in a bloody civil war. Seven years of war, seven years of civilian deaths and seven years of international law breaches. However, evidentially this war is a complete mess making it extremely difficult to implement international law amidst this complete and utter chaos.
Nevertheless, there have been countless remarks for the Syrian case to be referred to the International Criminal Court, more commonly known as the ICC. In March, the UN High Commissioner for Human Rights stated that “Syria must be referred to the International Criminal Court” . Yet, scratching the surface it seems that a referral is not imminent despite clear breaches to international law regarding the use of chemical weapons.
There is no denying that Syria does fit the profile for an ICC case, nonetheless, there are strong rationales that justify why the Syrian case has not progressed.
A Hopelessly Split Security Council
Essentially, since the Syrian Government is not prosecuting crimes against humanity, for an example the chemical weapons attacks, this could be a case for the ICC. However, as Syria is not a member of the ICC it would require that Security Council members would need to push and vote for this, likewise to the Libyan case.
Regarding the Syria War, the Security Council is hopelessly split both internally and externally, which is most certainly holding the Syrian case back from advancing to the ICC . There is essentially a stalemate situation with Russia, a permanent Security Council member. The five permanent Security Council members China, Russia, UK, US and France are evidentially on different sides of the Syrian War, with Russia a powerful support of the Syrian Regime and of Assad himself whilst unitedly the UK, US and France are strongly against Assad and the recent US-led airstrikes further demonstrate this.
For the International Criminal Court to intervene the Security Council would need to vote, for it to advance Russia would need to abstain from voting or vote in favour of a referral, which seems beyond the bounds of possibility. It is clear if the United States, United Kingdom and France pursued an ICC referral Russia would vote against. Russia has supplied Syria with missiles and has continuingly defended Assad from aggressive acts by the Security Council. Logically speaking, Russia is a nation that doesn’t change its mind very often and therefore they will most likely stick by the Syrian Regime .
An Israeli and Golan Heights Hurdle
The area of the Golan Heights is Syrian Territory yet it is occupied by Israel and this area creates an obstruction for the Syrian case going forward into the ICC as a Syrian referral would place Israel in the ICC’s jurisdiction .
If Western countries were to refer Syria to the ICC, it would prompt Israel to be referred to the ICC. Therefore, a complex domino-case that would contrast Western states intensely upheld mentality that Israel should not fall under the jurisdiction of the ICC. Moreover, all permanent Security Council members recognize Israel’s sovereignty, despite their side within the Syrian War. It is important to understand that Israel is not a member of the ICC and have declared that they have no intention to ratify the treaty .
Essentially, the United States would be extremely reluctant to refer the Syrian case as it would throw Israel within arm’s length of the court’s jurisdiction. The United States and Israel have stabilized a stronger partnership through the Trump administration with the relocation of the US Embassy to Jerusalem, therefore, it seems that the US would not be in any position to risk their ally being prosecuted.
War Crimes On Both Sides
Although it seems counterproductive, the US-led air strikes demonstrated a strong sanction against the use of chemical weapons, nonetheless, there are questions surrounding these strikes and if they overstepped the UN charter. The UN charter lays clear rules out for military force and simultaneously highlights when use is permitted.
Article 2 of the UN charter states “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. However, the exceptions to this lie in articles 42 and 51.
Article 42 specifies that there is an exception when then Security Council authorises a state to restore international peace and security or concurrently a responsibility to maintain peace and security. Whilst article 51 creates an exception when a state is acting in self-defence, whether that be individual or collective. Theoretically, the United States cannot claim Article 42 nor Article 51, there was no threat to the US or its allies nor was there any authorisation. Analysing the war, there has been no direct target from the Syrian regime to US military forces such as their air fleet.
Whilst there is the probability that War Crimes have been committed by Western-supported Rebels. The Western International actors have essentially refrained from referring Syria to the ICC as it could ignite complications and addressed that West could be held accountable for Rebel crimes. The ICC is a tool that could most definitely hurt the Assad regime, but it would be a huge risk for Western countries, especially the US who issued CIA operations to train Rebels . Accountability is an aspect of international law that is yet again holding back the advancing of the Syrian case.
Crimes committed in Syria are screaming for action from the ICC. However, for now, Syria and the ICC will not meet. Essentially, if these obstacles have been bypassed or cleared, then perhaps it will be time.