How much violence can a government inflict in seeking to stay in power before the acts of its officials amount to "a widespread or systematic attack" against a civilian population? If the government is reacting to efforts to force it from power and uses extreme violence against large numbers, is that violence an "attack," or is it law enforcement action that has gone a bit over the top? When does police excess become a crime against humanity?
These are questions that the International Criminal Court (ICC) has not squarely faced, but UN High Commissioner for Human Rights Navi Pillay thinks it should in relation to the situation in Syria. Because Syria is not a party to the Rome Statute, referral by the UN Security Council is the only likely mechanism whereby the Court could gain jurisdiction. Pillay is proposing to the Security Council that it issue such a referral, as it did several years ago for the situation in Sudan.
An investigation would require a potentially difficult assessment of the facts in relation to the terms "widespread" and "systematic." A "crime against humanity" investigation is fairly well advanced in relation to acts by Kenyan officials over election violence, and another in relation to figures involved in the Sudan conflict. So this would not be the first investigation of crimes against humanity in relation to a domestic situation. Investigation also has begun in relation to former government figures in Libya. Prosecution of Syrians, though, would stretch the Court's jurisdiction to the limit. In Kenya at least the state was a party to the statute. But Syria not being a party, Syrian suspects would have the not implausible argument that a treaty cannot impose obligations beyond the circle of the states party.
Pillay has invoked the Universal Declaration of Human Rights to say that the rule of law must be observed "if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression." The question is whether one should consider observing the rule of law in absolutist terms, or whether one needs to account for the situation.
Specifically, if the political situation is in flux in a country, the question arises whether prosecutions should be pursued even if they alter the political equation and, potentially, even if they impede a political settlement. What if, for example, the government of Syria were to be giving serious consideration to the Arab League plan, which was taken up by the Security Council but vetoed, for a transition of power. If figures in the Syrian leadership were to be under investigation by the ICC, they might be less willing to cede power. The Syrian opposition might well oppose ICC action, as an ICC investigation might keep them from getting the voluntary departure of the top leadership. Were an ICC investigation in process at that point, the ICC would be presented with the dilemma of continuing the investigation or dropping it.
The decision to act ultimately belongs to the Court since a referral by the Security Council is simply a conferral of jurisdiction. The Prosecutor is not ordered to prosecute anyone, or even to investigate. Rome Statute Article 13 says that the Court "may" exercise jurisdiction if a situation is referred by the Security Council.
The Office of the Prosecutor has shown itself capable of avoiding an investigation even if one appears to be warranted. To date, the prosecutor has not sought authorization from a pre-trial chamber to investigate allegations stemming from Operation Cast Lead, the Israeli military action in Gaza in 2008-2009. Pillay's deputy, by a letter of December 14, 2009, pointedly asked the Office of the Prosecutor why it was not moving forward. Her office's view was evidently that a reasonable basis to proceed was present. The prosecutor in reply [PDF] expressed concern over Palestine's statehood, and hence whether it was legally capable of conferring jurisdiction as it had purported to do in the case. Even after Palestine's admission to UNESCO in November an overwhelming vote to recognize a Palestinian state the prosecutor has taken no action, for reasons it has not explained publicly. The prosecutor evidently has some consideration keeping it from proceeding.
Were the Syria situation to be referred by the Security Council, the Court and the Office of the Prosecutor could, similarly, either delay action or formally drop the investigation if it appeared to be doing more harm than good.
Absolutism is a desideratum, to be sure, in dealing with crimes against humanity. Ignoring practicalities may come with a cost, however. Pillay's own country did not take the route of unswerving prosecution for offenses related to the apartheid system. South Africa accommodated to the outgoing leadership in order to get it to step down. In Syria, one could see the emergence of a new government oriented to reconciliation. A new government might think that non-prosecution would better serve the country. The ICC could find itself acting counter to the views of all the major political elements in Syria. One might see Syrians of various stripes petitioning the prosecutor to stop.
The facts of repressive measures against the population may well satisfy the criteria required for investigation of potential crimes against humanity by figures in the Government of Syria. If Pillay's proposal finds its way onto the Security Council's agenda, the council should consider the circumstances obtaining at that time. If a referral is made, the Office of the Prosecutor should similarly consider the situation as it develops to ensure that an investigation is not counter-productive. ICC action during a developing political situation must be handled with caution.
John Quigley is the President's Club Professor of Law at the Ohio State University Moritz College of Law, where he teaches international and comparative law. He also holds an adjunct appointment in the Political Science Department. Quigley has published numerous books and articles on human rights, the UN, war and peace, east European law, African law and the conflict in the Middle East. In 1995, he received The Ohio State University Distinguished Scholar Award.
Suggested citation: John Quigley, ICC Action in Syria: The Need for Caution, JURIST - Forum, Feb. 23, 2012, http://jurist.org/forum/2012/02/john-quigley-icc-syria.php.
This article was prepared for publication by Michael Kalis, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org