Tied Hands: The Problem with Syria

A protestor burns an image of Syrian
President Bashar al-Assad  --Associated Press

The conflict in Syria has escalated out of control.  Death toll estimates since the conflict started range from 17,000 to 25,000, many of them children and civilians.  Peace talks have broken down and states are left with few options in dealing with the rogue state.  Syrian protestors and global advocates are calling for Assad to be brought before the International Criminal Court in the Hague.

So the question is: why hasn't he been?  After all, the action taken by the Assad government is exactly the sort of case the ICC was created to prosecute.  A special UN commission has even concluded that Syria's military actions amount to war crimes under international law.  Misconceptions abound about why the ICC hasn't taken action (a biased court, lack of functionality), but ultimately it's a question of jurisdiction.

According to the Rome Statute, on its own the ICC can prosecute under 3 circumstances:

1. The individual who committed the crimes is a national of a State Party (A State Party is one that has ratified the Rome Statute and submitted to the ICC's jurisdiction)
2. The individual committed the crimes on the territory of a State Party
3. A non-State Party has accepted the jurisdiction of the court in a certain case

This presents a problem for the court: how to prosecute crimes committed by a belligerent non-State Party such as Syria?  In an instance such as this, jurisdiction must be handed to the court by a UN Security Council Resolution, meaning that all 5 permanent members of the Council must agree unanimously.

This is not impossible.  It's happened twice before, in the cases of Libya and Darfur, Sudan.  But in the Syrian situation, Russia, a member of the Council, has insisted on avoiding condemnation of its close Middle Eastern ally, even amid accusations of propping up the corrupt regime.

yourmiddleeast.com

The humanitarian crisis in Syria points out the flaws of our current international system.  For decades, reformers have pointed out the inherent bias in the UN Security Council.  Close allies of the 5 permanent members (China, Russia, US, France, and Britain) are rarely held accountable.  And while the ICC and its supporters have fought hard (with some success) to escape the bias of the Council, its hands will continue to be tied until all states sign on to the court.

121 countries are currently parties to the ICC, and the largest proportion of unbound states reside in the Middle East.  Many of these (like Syria) are unlikely to sign on until further democratization occurs.  But the big players must set an example.  Europe has been a staunch supporter of the court from the outset; so have Japan, Brazil, and South Africa.  Still, some of the most important supporters are missing: Russia, China, and the United States.  The US has warmed up to the court since the days of the Bush administration, but the time has come to set an example.  The time has come to embrace international justice and move a little bit closer toward preventing another Syria.