Ending Impunity in Syria
The Possibilities of Internationally Prosecuting Individual
Perpetrators for Regime Core Crimes in an Ongoing
Conflict
Submitted by: Estelle Zirn Student number: 12305162
E-Mail address: estelle.zirn@student.uva.nl
Master Track: International and European Law: Public International Law Supervisor: Prof. Kevin Jon Heller
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Abstract
With ever-rising amounts of evidence proving that large-scale and systematic core crimes are being committed by the Syrian regime, the inactivity of the majority of the international community regarding the prosecution of individuals for such crimes is becoming increasingly critical. This thesis aims to shed light on the options available under international law to prosecute the regime perpetrators of core crimes in Syria as well as on the little activity that has so far been undertaken on the international level and the reasons for this reluctance to act. It will find that individual states exercising universal jurisdiction have been more successful in contributing to ending impunity in Syria than international justice mechanisms. The deadlock in the United Nations Security Council with respect to international criminal prosecutions of the crimes in Syria will be identified as the central current impediment of accountability for regime crimes in Syria on the international level. This will lead to the conclusion that such a dependence of justice on politics illustrates a central deficiency in the system of international criminal justice, which needs to be remedied.
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Contents
List of Abbreviations ... 3
I. Introduction ... 4
II. What Are the Possible Binding International Judicial Mechanisms to Prosecute Crimes Being Committed by the Syrian Regime? ... 6
i. The International Criminal Court ... 6
ii. The Possibility of Establishing an ad hoc Tribunal for Syria ... 8
III. Is There a Way Around a UN Security Council Mandate? ... 12
i. Action by the UN General Assembly: The IIIM ... 12
ii. Action by Third States: Universal Jurisdiction in National Proceedings ... 16
iii. Action by the International Civil Society ... 18
IV. Which Mechanism for Justice in Syria? – A Comparison ... 20
i. Structural Issues: The Mechanisms in the International System ... 21
ii. Jurisdictional Issues: The Reach of the Mechanisms ... 23
iii. Political Legitimacy Issues: The Acceptance of the Mechanisms ... 27
V. Conclusion ... 32
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List of Abbreviations
CAT UN Convention Against Torture (1984)
CIJA Commission for International Justice and Accountability DRC Democratic Republic of the Congo
ECCHR European Centre for Constitutional and Human Rights ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia IIIM International Impartial and Independent Mechanism ILC International Law Commission
UN United Nations
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I. Introduction
Over half a decade has passed since a former military photographer from the Syrian army, code-named “Caesar”, smuggled over 50,000 photographs documenting thousands of contemporary cases of systematic torture committed by the regime of the current president Bashar al-Assad out of Syria and made them available to the international community, in the hope that it would take action.1 Since then, the authenticity of these photographs has been confirmed and numerous accounts of individuals, the media and human rights organisations corroborate extensive war crimes and crimes against humanity by the regime in the Syrian conflict.2 There is a widespread consensus about the systematic approach of the current regime in suppressing and imprisoning individuals, submitting them to the most serious human rights violations. Yet, one thing is so far inexistent: an encompassing international judicial response to these crimes.
The following thesis aims to shed light on the possibilities available on the international level to contribute to, or to effectively take judicial action to prosecute individual perpetrators of these crimes during the ongoing conflict, as well as on the reasons for the scarce actions in this respect on the international level. The underlying research question of this thesis will be:
What are the possibilities of internationally prosecuting individual perpetrators for the crimes currently being committed by the Syrian regime?
The thesis will be subdivided into three parts aiming to provide a comprehensive answer to this question. The first two parts (II and III) will contrast the possibilities available with and without a United Nations (UN) Security Council mandate, whilst the third part (IV) will consider two options, one from each of the previous parts, more closely. The first part (II) will examine possible binding international judicial mechanisms, looking at the International Criminal Court (ICC) as an existing venue and considering the possibility of establishing an
ad hoc tribunal for Syria. The finding that both of these options are contingent upon a
currently non-existent UN Security Council mandate will lead on to the second part (III),
1 UN Security Council, A report into the credibility of certain evidence with regard to torture and execution of
persons incarcerated by the current Syrian regime: Annex to the letter dated 2 April 2014 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council. S/2014/244
(2014) https://undocs.org/en/S/2014/244 accessed 13 June 2019 p 3-4.
2 ibid p 11. See for example Anne Barnard, ‘Inside Syria's Secret Torture Prisons: How Bashar al-Assad Crushed Dissent’ The New York Times (11 May 2019) https://www.nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html accessed 13 June 2019.
5 which will examine actions that have been developed, to some extent, as a result of the lack of such a mandate. Considering alternatives within the UN, the competence of the General Assembly will be analysed before expanding the examination to actions by third states in the form of universal jurisdiction. A brief insight into some significant actions taken by the international civil society with regard to ending impunity in Syria will complete the second part. The final part of this thesis (IV) will be dedicated to a closer scrutiny of two possibilities, the ICC and universal jurisdiction exercised by third states, examining in particular structural, jurisdictional and political legitimacy issues surrounding these venues, finding that both options face challenges yet equally have significant potential in contributing to an end of impunity for regime crimes in Syria.
Throughout this thesis, the focus will lie on procedural aspects and the feasibility of prosecutions during an ongoing conflict as well as on the crimes committed by the current Assad regime. It is however undeniable that other parties involved in the Syrian conflict are also committing crimes of an equal gravity3 and that these will likewise have to be prosecuted to ensure a full and encompassing judicial rehabilitation of all crimes. While some of the options discussed below may be applicable to other actors, the nature of regime crimes, to which the scope of this thesis is limited, entails specific considerations to be made.
Various legal documents will be used throughout this thesis to understand the framework and the conditions of the mechanisms. Practice will be underlined by references to cases, treaty commentaries as well as current scholarly research and debates. While the sections II and III will take a more evaluative approach to considering the available mechanisms, section IV will aim to provide an in-depth analysis and comparison of the ICC and universal jurisdiction. Prior to any discussion on the suitability of international procedures for the prosecution of regime crimes in Syria, it is important to note that article 1 Rome Statute provides for prosecutions by the ICC to be complementary to national proceedings. Any action at the ICC thus remain subsidiary to national prosecutions in Syria. However, as the following focuses on crimes committed by the regime itself, a regime change would be an evident prerequisite for such national proceedings. The current unlikelihood of this situation explains the relevance of international prosecutions, which will be discussed below.
3 UN Security Council, Draft Resolution S/2014/348 (2014) https://undocs.org/en/S/2014/348 accessed 07 May 2019 acting para 1.
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II. What Are the Possible Binding International Judicial
Mechanisms to Prosecute Crimes Being Committe d by the
Syrian Regime?
This section will focus on two frequently discussed4 international venues to carry out binding criminal prosecutions of individuals for the crimes currently being committed by the regime in Syria. In a first part (i), the possibilities available for a referral of the Syrian situation to the ICC, an existing mechanism, will be analysed. In contrast, part ii will focus on the possibility of establishing an ad hoc tribunal dedicated to prosecuting the crimes being committed in Syria and compare this option to the ICC. Finding that binding action on the international level is contingent upon a currently non-existent UN Security Council mandate, the conclusion of this section will offer a short insight into a scholarly approach to resolve this dilemma.
i. The International Criminal Court
The ICC, according to the preamble of its founding treaty, the 1998 Rome Statute, was created to “put an end to impunity for the perpetrators of […] [the most serious] crimes [of
concern to the international community as a whole]”.5 It has jurisdiction over genocide,
crimes against humanity, war crimes and the crime of aggression6 and is thus an obvious
potential mechanism for the prosecution of individuals for crimes such as the ones being committed in Syria.
There are generally three ways in which the ICC’s jurisdiction may be triggered, according to article 13 Rome Statute. The first possibility would be a referral of the situation to the Court by the UN Security Council according to article 13(b) Rome Statute. This states that the Security Council may refer a situation acting under its powers contained in Chapter VII of the Charter of the UN,7 which provides that the organ may take action “to maintain or restore
international peace and security” in cases of “threat[s] to peace, breach[es] of peace and
4 cf Seema Kassab, ‘Justice in Syria: Individual Criminal Liability for Highest Officials in the Assad Regime’ (2018) Michigan Journal of International Law https://heinonline.org/HOL/P?h=hein.journals/mjil39&i=295 accessed 24 September 2018 p 289-291. cf Annika Jones, ‘Seeking International Criminal Justice in Syria’ (2013) International Law Studies https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1019 &context=ils accessed 10 January 2019 p 803. cf Alex Whiting, ‘An Investigation Mechanism for Syria, The General Assembly Steps into the Breach’ (2017) 15 Journal of International Criminal Justice 231 p 235.
5 Preambular paragraphs 4 and 5 of the 1998 Rome Statute of the International Criminal Court (Rome Statute). 6 cf article 5 Rome Statute.
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act[s] of aggression”.8 Such a referral has previously been attempted by the Security Council in May 2014 but was vetoed by Russia and China, two of the five permanent members of the organ.9 All other members of the Security Council voted in favour of the referral.10 The resolution would have referred the “widespread violations of human rights and international
humanitarian law by the Syrian authorities and pro-government militias, […] committed in the course of the ongoing conflict in the Syrian Arab Republic since March 2011” as well as
crimes committed by non-State armed groups to the ICC.11 Furthermore, the resolution would
have bound the Syrian authorities to cooperate with the Court, despite the state not being a party to the Rome Statute.12 The Security Council is competent to oblige Syria to such a
cooperation by virtue of the powers granted to it under Chapter VII UN Charter in conjunction with article 13(b) Rome Statute.
As Syria is not a party to the Rome Statute, the other two possibilities essentially require one necessary criterion: acquiescence and cooperation by Syria itself.13 Pursuant to article 13(a) Rome Statute any state party may refer to the Prosecutor, a situation in which crimes within the Court’s jurisdiction appear to have been committed. However, in cases where neither the State on whose territory the crimes are alleged to have taken place, nor the State of nationality of the alleged perpetrator is a party to the Rome Statute, the ICC can only acquire jurisdiction if one of the affected non-state parties explicitly agrees to the Court’s jurisdiction according to article 12(2) and (3) Rome Statute. Pursuant to these provisions, in case of a potential referral of the situation in Syria by a state party to the Rome Statute, where the accused are of Syrian nationality and the crimes have been committed on Syrian territory, an explicit ad hoc acceptance on the part of Syria of the ICC’s jurisdiction for the crime(s) in question would be necessary. Such an acceptance also entails the cooperation with the Court according to the second sentence of article 12(3) Rome Statute. Yet an attempt to refer the situation in Syria to the ICC by a State Party not involved in the conflict is unlikely, given the infringement upon the sovereignty of Syria and the political implications that can be expected from such an individual action. Furthermore, there is currently no prospect of success for such a referral, as a Syrian ad hoc agreement to the ICC’s jurisdiction for such cases is more than unlikely.
8 Article 39 UN Charter.
9 UN Security Council, S/PV.7180: 7180th meeting record - The Situation in the Middle East (2014) https://undocs.org/en/S/PV.7180 accessed 07 May 2019 p 4.
10 ibid.
11 UN Security Council (n 3) emphasis added. 12 ibid para 3.
8 Finally, according to article 13(c) Rome Statute, the Prosecutor of the ICC may, upon his or her own initiative, start investigations into a situation. However, as in the case of a referral by a third state, in situations where the targeted state is not a party to the Rome Statute, the latter’s explicit acceptance of the ICC’s jurisdiction with respect to the crime(s) in question is required according to article 12(2) and (3) Rome Statute. Just as in the second scenario, Syria would thus explicitly have to accept the ICC’s jurisdiction for the specific crimes and cooperate according to article 12(3) Rome Statute. Such an acquiescence and cooperation on the part of Syria, as is necessary for the last two scenarios laid out above, is currently highly unlikely, especially with regard to prosecuting crimes committed by the regime in an ongoing conflict.14 As long as there is no regime change towards a government that is willing to establish accountability for the crimes committed, a Syrian acceptance of the ICC’s jurisdiction appears to be excluded. It remains a potential long-term option after the termination of the conflict and a regime change, yet such a scenario goes beyond the scope of this paper. Consequently, the only feasible path to the ICC for the prosecution of crimes being committed in Syria, currently leads through the UN Security Council.
ii. The Possibility of Establishing an ad hoc Tribunal for Syria
Considering the scale of the crimes being committed in Syria and the fact that the state is not a party to the Rome Statute, the question arises whether an ad hoc tribunal created specifically to prosecute the crimes committed in Syria, similar to the International Criminal Tribunals for the Former Yugoslavia or Rwanda (ICTY and ICTR respectively), would be a way to secure accountability, despite the ongoing nature of the conflict. The ICTY is an example of a mechanism that was created while the conflict in the former Yugoslavia was still ongoing.15 It could thus serve as a precedent as it not only shows, as Zacklin notes, “that an international
criminal tribunal [can], in fact, work”,16 but it also illustrates that international justice can
come into play during an ongoing conflict. However, a significant difference in the international climate surrounding the conflict in former Yugoslavia and the current climate
14 A recent submission to the Prosecutor of the ICC by a group of lawyers has however identified a potential loophole for ICC jurisdiction without a Syrian ad hoc declaration. Following the Court’s reasoning in Myanmar/Bangladesh situation the submission argues for jurisdiction of the Court for crimes committed in the context of the Syrian conflict yet partly on the territory of Jordan, a state party to the Rome Statute. See section (IV) for a more detailed discussion of this submission.
15 UN Security Council, S/RES/827 (1993) acting para 2.
16 Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice https://heinonline.org/HOL/P?h=hein.journals/jicj2&i=555&a=dXZhLm5s accessed 17 January 2019 p 542.
9 with respect to Syria was the Security Council consensus on the necessity to take action. The creation of a binding international criminal justice mechanism to prosecute the crimes in former Yugoslavia was made possible through the UN Charter Chapter VII powers of the Security Council.17 In other words, just as with the referral to the ICC, a UN Security Council mandate would be necessary to establish a binding ad hoc tribunal for the crimes being committed in Syria, which however, as described above, is currently precluded by Russia and China.
Furthermore, the feasibility of creating an ad hoc tribunal is generally contested. Opponents argue that with the creation of the ICC ad hoc tribunals are no longer required, as the former was created as one central global criminal court intended to be able to universally prosecute individuals for all cases of core crimes.18 Additionally, they highlight the high financial and bureaucratic burden that ad hoc tribunals brought with them,19 an issue that the creation of a central mechanism like the ICC was intended to solve. It was further hoped that the ICC would be less susceptible to the political interests of the five veto powers in the Security Council as a referral by the organ is not mandatory to start an investigation, whereas it is in order to create a binding ad hoc tribunal.20 However, as becomes clear from the above, in cases where the concerned state is not a party to the Rome Statute, the referral by the Security Council is likely to be of significant importance to begin the process of international judicial rehabilitation, even in front of the ICC. Thus, in the case of Syria, the existence of the ICC does not prevent political interests from influencing the path to international justice.
Nevertheless, the effectiveness of the ICTY and ICTR in prosecuting a comparatively high number of cases in a short amount of time cannot be denied.21 The ICC on the other hand, is frequently criticised for its extremely slow process and the little amount of cases and convictions in its 17 years of existence.22 Although the creation of an ad hoc tribunal entails
17 UN Security Council (n 15) acting para 2.
18 cf Stuart Ford, ‘The Impact of the Ad Hoc Tribunals on the International Criminal Court’ in Milena Sterio and Michael P Scharf (eds), The legacy of ad hoc tribunals in international criminal law: Assessing the ICTY's and
the ICTR's most significant legal accomplishments (Cambridge University Press, Cambridge, United Kingdom
2019) p 16-18. 19 Zacklin (n 16) p 545. 20 Ford (n 18) p 5. 21 cf ibid p 6.
22 See for example Douglas Guilfoyle, ‘Part I- This is not fine: The International Criminal Court in Trouble’ EJIL Talk (21 March 2019) https://www.ejiltalk.org/part-i-this-is-not-fine-the-international-criminal-court-in-trouble/ accessed 12 June 2019. Guilfoyle notes: “There have been eight convictions, one overturned on appeal,
10 significant financial and bureaucratic efforts, the question arises as to whether such efforts would not be worthwhile. Considering the extent of the crimes that are being committed in Syria, the idea of a mechanism that specialises on the specific case at hand appears promising with regard to effectiveness of prosecution, focusing resources and uncovering patterns in the systematic committing of crimes.
Considering that a UN Security Council mandate would be indispensable to establish an ad
hoc tribunal for Syria in the first place, the discussion on the plausibility of such a mechanism
becomes secondary. What can thus be concluded is that both of the discussed potential options of internationally prosecuting the crimes committed in Syria with binding legal consequences essentially require a Security Council mandate, as long as Syria itself is not willing to cooperate. As such a mandate is currently precluded by the veto powers of the Security Council, namely Russia and China, questions on the legality of vetoes with such far reaching consequences might be raised.
The power inherent in the veto of the five permanent members of the Security Council is a much-disputed topic. John Heieck, for example, has argued that the veto powers have a “legal duty not to veto” a resolution aimed at preventing the crime of genocide.23 He finds this duty to be inherent in the responsibility not to veto which, in turn, is contained in the concept of the responsibility to protect.24 Arguing that once the permanent members of the Security Council can be considered to be aware of the crimes, they fulfil the due diligence threshold, given the
jus cogens nature of genocide. Consequently, Heieck finds this to impose upon the permanent
Security Council members a legal duty not to veto.25 By analogy, Heieck’s ideas could be applied to the case of Syria. Crimes against humanity and war crimes are also widely
23 John Heieck, ‘The Responsibility Not to Veto Revisited: How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council’ in Richard Barnes and Vassilis P Tzevelekos (eds), Beyond responsibility to protect: Generating change in international
law (International Law, 1st ed Intersentia, Cambridge 2016).
24 The concept of the responsibility to protect was recognised by the UN General Assembly, A/RES/60/1: 2005
World Summit Outcome (2005) paras 138 139. According to para 138 of this resolution the concept entails that
“Every individual State has the responsibility to protect its populations from geocide, war crimes, ethnic
cleansing and crimes against humanity” and that “[t]he international community should, as appropriate encourage and help States to exercise this responsibility […]”.
11 recognised as jus cogens,26 which would mean that as a result of their undeniable awareness of the crimes being committed in Syria, the veto powers would have a duty not to veto under the concept of due diligence. Such ideas would however limit the freedom the permanent members of the Security Council currently enjoy when exercising their veto.27
Meanwhile, the question remains: are there any options of international justice for the crimes being committed in Syria that do not require the approval of the UN Security Council?
26 M. C Bassiouni, ‘International Crimes, Jus Cogens and Obligation Erga Omnes’ (1996) 59 Law and Contemporary Problems https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1016&context=lcp accessed 08 June 2019 p 68.
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III. Is There a Way Around a UN Security Council Mandate?
As described above, the possibilities available on the international level to prosecute the regime crimes in Syria while the conflict is still ongoing are essentially dependent on a UN Security Council mandate. However, there is currently little prospect of an agreement within the organ regarding this topic. This raises the question as to what alternatives there are to end impunity in Syria under international law. In the following, three different venues will be considered in light of this question. In a first part (i), the possibilities available within the mandate of the UN General Assembly to contribute to ending impunity in Syria will be analysed using the example of the International Impartial and Independent Mechanism (IIIM) and the controversies surrounding it. Secondly (ii), prosecutions in third states under the principle of universal jurisdiction will be put forward before thirdly (iii) ending with a brief mention of significant initiatives that have developed within the international civil society.
i. Action by the UN General Assembly: The IIIM
While the UN Security Council holds the primary responsibility for the maintenance of international peace and security according to article 24(1) UN Charter, this responsibility is not exclusive.28 The provisions on the functions and powers of the General Assembly contained in Chapter IV UN Charter make clear that the latter organ possesses the secondary, and thus subsidiary with regards to the Security Council, responsibility in maintaining international peace and security.29 Thus, the question arises as to what extent the General Assembly is able contribute to ending impunity for the crimes being committed in Syria. A significant step taken by the General Assembly in this regard was the creation of the IIIM in December 2016 through the resolution A/Res/71/248 (2016). At a time of increasing pressure on international institutions to address the crimes being committed in Syria and following failed attempts to consider these issues within the UN Security Council,30 the IIIM
was created to “[assist] the investigation and prosecution of the most serious crimes under
international law, in particular […], crimes against humanity and war crimes”.31 Pursuant to
28 Eckart Klein and Stefanie Schmahl, ‘Article 10’ in Bruno Simma (ed), The Charter of the United Nations: A
commentary (Oxford commentaries on international law, 3. ed. Oxford University Press, Oxford 2012) p 474.
29 ibid. cf in particular articles 10, 11 and 14 UN Charter. 30 cf Whiting (n 4) p 232 235.
31 UN Secretary General, A/71/755: Report of the Secretary General Implementation of the resolution
13 the provisions contained in its founding resolution and confirmed in the Secretary General’s report, the IIIM’s mandate consists of two principal tasks. It is called (1)
to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses […] [as well as (2) to] prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.32
The mechanism’s mandate thus aims to contribute to the process of international justice and ending impunity for the crimes being committed in Syria, preparing cases, ready to be used in potential future criminal proceedings by competent courts.33
The General Assembly’s competence in creating the IIIM has however not remained uncriticised. Russia and Syria have persistently objected the legitimacy of the mechanism and questioned the General Assembly’s authority to establish it.34 Yet, Whiting maintains that this opposition appears at its core to be rather politically than legally motivated,35 an argument that is supported in Wenaweser and Cockayne’s findings following their detailed analysis and rejection of arguments opposing the IIIM’s legitimacy.36
The General Assembly’s mandate comprises the competence to issue non-binding recommendations37 on “measures for the peaceful adjustments of any situation, […], which it
deems likely to impair the general welfare or friendly relations amongst nations, including situations resulting from a violation of the provisions of the […] [UN] Charter”.38 In Bruno Simma’s commentary on the UN Charter, the term “situation” is described as “imply[ing] a
Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (2017) para 10.
32 UN General Assembly, A/RES/71/248 (2016) para 4. cf UN Secretary General (n 31) para 11. 33 cf UN General Assembly (n 32) para 4.
34 Whiting (n 4) p 235. For a more detailed analysis of the arguments of the IIIM’s opponents see Christian Wenaweser and James Cockayne, ‘Justice for Syria?, The International, Impartial and Independent Mechanism and the Emergence of the UN General Assembly in the Realm of International Criminal Justice’ (2017) 15 Journal of International Criminal Justice 211 p 218-229.
35 Whiting (n 4) p 235.
36 Wenaweser and Cockayne (n 34).
37 cf Article 10 UN Charter limits the General Assembly’s competence to “recommendations” whilst the Security Council decisions are binding upon UN member states in accordance with articles 24(1) and 25 UN Charter. 38 Article 14 UN Charter.
14
concrete issue that at least threatens international peace and security”.39 The situation in Syria would thus clearly fall under this article 14 UN Charter as it evidently disrupts international peace and security provided for in article 1(1) UN Charter.40 Furthermore, the current climate of impunity is contrary to the principles of justice and international law, which are equally contained in this provision.
The General Assembly’s mandate must however be read in light of article 12(1) UN Charter, which provides that “[w]hile the Security Council is exercising in respect of any […] situation
the functions assigned to it in the […] [UN] Charter, the General Assembly shall not make any recommendations with regard to that […] situation unless the Security Council so requests”.41 This raises the question as to what qualifies as the Security Council “exercising functions”. The Simma commentary offers some clarification on this. It notes that originally, the provisions contained in article 12(1) UN Charter were understood as prohibiting the General Assembly from making recommendations on a topic from the moment that it was included on the Security Council’s agenda but that this view has evolved into the understanding that the “exercise of functions” by the Security Council, as contained in the provision, must be understood as meaning “simultaneous, actual and active consideration”.42 Putting forward past examples, the commentary notes that, in practice, the General Assembly has made recommendations on situations discussed by the Security Council but has avoided any direct contradictions to decisions made by the latter, in the sense of recommending actions that have been expressly rejected.43 Pursuant to this practice, the argument can be made that the General Assembly is competent to make recommendations on the case of Syria, more specifically on the question of ending impunity for the crimes being committed in Syria, as long as this issue is not actively being considered by the Security Council and the recommendations made by the General Assembly do not contradict specific decisions that have been made by the Security Council. Although the latter organ vetoed the referral to the ICC in 2014, it did not specifically reject the possibility of establishing accountability for the crimes being committed in Syria.44 Wenaweser and Cockayne rely on these arguments in their
39 Eckart Klein and Stefanie Schmahl, ‘Article 12’ in Bruno Simma (ed), The Charter of the United Nations: A
commentary (Oxford commentaries on international law, 3. ed. Oxford University Press, Oxford 2012) 510.
40 Article 1(1) UN Charter holds that “[t]he Purposes of the United Nations are to maintain international peace
and security […]”.
41 Article 12 (1) UN Charter. 42 Klein and Schmahl (n 39) 510–11. 43 ibid p 511 514.
15 defending of the General Assembly’s competence to create the IIIM, claiming that the Security Council has not explicitly rejected the possibility of accountability for the crimes being committed in Syria and that consequently, action on the part of the General Assembly, with the objective of advancing the prosecution of these crimes, is not prohibited by article 12(1) UN Charter.45
Article 22 UN Charter provides that “[t]he General Assembly may establish such subsidiary
organs as it deems necessary for the performance of its functions”. Considering this in
conjunction with the General Assembly’s power to discuss and make recommendations, as contained in article 10 UN Charter, Whiting concludes that the powers granted to the General Assembly are sufficient to legitimise the organ’s creation of the IIIM.46 This finding is further enhanced by Wenaweser and Cockayne who use the examples of the Israeli Wall47 and the
Kosovo48 International Court of Justice (ICJ) Advisory Opinions to confirm their argument that “the General Assembly has the power to make recommendations initiating at least one
kind of judicial process […] pertaining to a certain dispute or situation, even as the Security Council retains a related item on its agenda”.49 Furthermore, the IIIM is not a court in itself but rather, as a result of its method of working, preparing cases in such a way that they are ready to be taken to a court and used as evidence, a “quasi-procedural” mechanism, as described in the report of the UN Secretary General on the implementation of the mechanism.50
There thus appear to be sufficient arguments to refute the criticism of the General Assembly’s authority to create the IIIM. Wenaweser and Cockayne rightly conclude that the creation of the IIIM reflects a strengthened role of the General Assembly to take independent action with regard to international justice and accountability for grave crimes, which they describe as “creative and innovative”.51 It further implies that there are ways in which action is being
taken on the UN level, despite the blockage of the Security Council. Yet, as described above,
45 ibid.
46 Whiting (n 4) p 234.
47 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) I.C.J. Reports 2004 (ICJ).
48 Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo (2008) I.C.J. Reports 2008 (ICJ).
49 Wenaweser and Cockayne (n 34) p 222. In both of these cases, the Security Council was actively discussing issues that were related to the questions put to the ICJ in the General Assembly’s request for an advisory opinion. Nevertheless, the Court found that such a request was consistent with the provisions in the UN Charter. 50 UN Secretary General (n 31) para 32 as quoted in Wenaweser and Cockayne (n 34) p 214 225.
16 the actions that can be taken by the General Assembly remain non-binding. Consequently, what can be concluded is that as long as there is no consensus in the Security Council on the necessity of an international judicial mechanism in charge of prosecuting the regime crimes being committed in Syria, no binding action on the UN level can be taken in this respect. Whiting aptly sums this issue up by describing the IIIM as “a temporary Band-Aid […] [or] a
bridge to a future moment when the conditions and political will exist to provide for accountability in Syria”.52
ii. Action by Third States: Universal Jurisdiction in National Proceedings
Domestic prosecutions on the basis of universal jurisdiction present an alternative for internationally prosecuting the crimes in Syria that neither requires Security Council nor Syrian approval and has so far proven to be most effective in this regard. Universal jurisdiction is the jurisdiction over crimes without a nationality or territorial nexus to the prosecuting state.53 Whereas some national legal orders provide for a form of universal jurisdiction without any connection to their state, practice shows that the exercise of this principle is frequently limited by the requirement of some form of nexus to the prosecuting state.54 The concept of universal jurisdiction is justified through the idea that “certain crimes
are so grave that they affect the international community as a whole” for which there should
be no impunity.55 In particular, universal jurisdiction is widely recognised to apply to the prosecution of war crimes56 and is based on customary international law as well as on international treaties.57 The four 1949 Geneva Conventions all provide for an unrestricted duty on states to prosecute grave breaches58 and are thus considered to impose a mandatory
52 Whiting (n 4) p 236.
53 cf ICRC Advisory Service on International Humanitarian Law, Universal jurisdiction over war crimes (2014) https://www.icrc.org/eng/assets/files/2014/universal-jurisdiction-icrc-eng.pdf accessed 16 November 2017. 54 An example of such a limited nexus is the requirement under national law, of the accused’s presence on the territory of the prosecuting state for the exercise of universal jurisdiction. The revised principle of jurisdiction under Belgian law contains such a requirement. cf Malcom N Shaw, International Law (8th edn Cambridge University Press, Cambridge 2017) p 503. A further example is contained in the French Code of Criminal Procedure, as will be described below.
55 ICRC Advisory Service on International Humanitarian Law (n 53). 56 Shaw (n 54) p 500.
57 ICRC Advisory Service on International Humanitarian Law (n 53).
58 Articles 49, 50, 129, 146 respectively of the four 1949 Geneva Conventions all oblige contracting parties “to
enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the […] Convention defined [therein] […]”. They further require the
state parties “to search for persons alleged to have committed, or to have ordered to be committed, such grave
breaches, and […] [to] bring such persons, regardless of their nationality, before [their] […] own courts. [States] […] may also, […] in accordance with the provisions of [their] own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a
17 exercise of universal jurisdiction.59 However, commentaries on the Conventions acknowledge that this mandatory nature is rarely effectively implemented in practice.60 This is also reflected by the fact that many states have restricted the exercise of universal jurisdiction in their national law.
The prosecution of the crimes being committed in Syria through universal jurisdiction is evidently highly dependent on a state’s willingness to engage in prosecuting crimes to which it has no prior nexus. Furthermore, the practice may lead to structural and political challenges, which will be examined more thoroughly below in section IV. Despite these issues, a number of states are currently investigating crimes and successfully prosecuting individuals based on universal jurisdiction with respect to the Syrian conflict61 and thus, in contrast to the other actions on the international level described above, taking action that leads to binding legal consequences.
Investigations into crimes committed in Syria, by the regime as well as by opposition forces, have been opened in France and Germany. France has restricted the exercise of universal jurisdiction in its national legal system requiring the perpetrators either to be present (for the prosecution of crimes of torture) or to reside on French territory (for the prosecution of genocide, crimes against humanity or war crimes as contained in the Rome Statute) in order for a prosecution to be opened.62 Thus, the investigations in France have been opened on the basis that perpetrators of torture may have entered French territory to apply for asylum.63 In
'prima facie' case.”, emphasis added. The individual definitions of grave breaches are contained in the respective
consecutive articles (articles 50, 51, 130 and 147 respectively of the four 1949 Geneva Conventions) and all contain the following common crimes: “wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health”.
59 cf ICRC Advisory Service on International Humanitarian Law (n 53). cf Luc Walleyn, ‘Universal Jurisdiction: Lessons from the Belgian experience’ (2002) 5 Yearbook of International Humanitarian Law https://doi.org/10.1017/S1389135900001161 accessed 19 January 2018 p 395.
60 cf ICRC, ‘Article 49: Penal sanctions’ in ICRC (ed), Commentary on the First Geneva Convention:
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2nd
edn 2016) paras 2890-2891.
61 cf TRIAL International, Evidentiary challenges in universal jurisdiction cases: Universal Jurisdiction Annual
Review 2019 #UJAR (2019). Some examples of German and French prosecutions will be discussed more in
detail in section IV below.
62 The requirement of the presence of a perpetrator on French territory for the exercise of universal jurisdiction over crimes of torture is contained in article 689(2) in conjunction with article 689(1) of the French Code of Criminal Procedure. Article 689(11) contains the requirement of residence of perpetrators of genocide, crimes against humanity or war crimes, as contained in the Rome Statute, for the French exercise of universal jurisdiction over these crimes. Code de procédure pénale (French Code of Criminal Procedure) (1959) https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006071154 accessed 11 June 2019. cf also TRIAL International (n 61) p 23.
18 Germany, the national Code of Crimes Against International Law (Völkerstrafgesetzbuch, VStGb) provides for prosecutions of the four core crimes contained in article 5 Rome Statute on the basis of universal jurisdiction and requires no nexus to the state.64
The examples of France and Germany illustrate concrete legal action being taken to establish accountability for the crimes being committed by the Syrian regime.
iii. Action by the International Civil Society
What should not go unmentioned in a chapter about actions that are being undertaken on the international level, are the efforts of the international civil society in advancing the process of justice for the crimes being committed in Syria. Following the long period of inaction of the international community with regard to these crimes, a number of initiatives have developed within the civil society to contribute to ending impunity. In contrast to human rights organisations that focus on raising awareness for and putting an end to violations of human rights, some mechanisms have emerged that explicitly dedicate their efforts criminal accountability for the crimes being committed. The Commission for International Justice and Accountability (CIJA) is an example of such an organisation. The international state-funded non-profit mechanism, which was created in 2012 as a reaction to the outbreak of the Syrian conflict, investigates war crimes collecting evidence to a forensic and criminal law standard and preparing cases ready to be used in criminal proceedings against individual perpetrators.65 This method of proactively collecting evidence for the purpose of future individual criminal proceedings instead of merely documenting human rights violations to raise awareness of the atrocities, has been described as a “novel approach”66 and the mandate of the IIIM appears to
have followed this example. The CIJA’s aim is to make the evidence available to prosecuting states or international legal mechanisms. In 2016 the organisation published a 400-page legal brief known as “The Assad Files” confirming the extensive scope of evidence available to it and unravelling the links between the crimes committed and the Assad regime. CIJA claims
64 Section 1 of the 2002 VStGb provides that these crimes can be prosecuted “even when the offence was
committed abroad and bears no relation to Germany”. An unofficial translation of the Code can be found under:
https://ihl-databases.icrc.org/ihl-nat/0/09889d9f415e031341256c770033e2d9/$FILE/Act%20to%20Introduce% 20the%20Code%20of%20Crimes%20against%20International%20Law%20of%2026%20June%202002%20%5 B1%5D.pdf accessed 20 May 2019.
65 Ben Taub, ‘The Assad Files’ The New Yorker (2016) https://www.newyorker.com/ magazine/2016/04/18/bashar-al-assads-war-crimes-exposed accessed 10 January 2019. Julian Borger, ‘Syria's Truth Smugglers’ The Guardian (12 May 2015) https://www.theguardian.com/world/2015/may/12/syria-truth-smugglers-bashar-al-assad-war-crimes accessed 10 January 2019.
19 to have sufficient evidence to convict Assad and high-ranking officials on several counts of crimes against humanity.67
In addition to such specifically established initiatives like the CIJA, other previously existing organisations have contributed to advancing processes of universal jurisdiction in individual states by collecting evidence, amongst others with the help of victims of the crimes in Syria, and initiated investigations in individual states. An example of such an organisation is the European Centre for Constitutional and Human Rights (ECCHR), whose work will be referred to in section IV below.
This section has shown that there has been action on the international level with respect to prosecuting crimes being committed by the regime in Syria, despite the lack of a Security Council mandate. However, as a consequence of this lack, action by the UN is restricted to measures taken by the General Assembly, which is only able to make non-binding recommendations. The actions the latter organ can take with respect to prosecuting crimes in Syria are thus considerably limited in their contribution to an active criminal prosecution. Nevertheless, the General Assembly has established the IIIM to collect evidence of crimes and compile cases for future criminal proceedings. In doing so, it followed the approach of the CIJA, one of the many mechanisms established within the international civil society with the aim of contributing to accountability for the crimes being committed in Syria. The most effective and concrete action in ending impunity in Syria has been taken by individual states who are investigating and successfully prosecuting individual perpetrators under the principle universal jurisdiction.
Having examined the available mechanisms and actions that have been taken on the international level to bring accountability for the crimes being committed by the regime in Syria, the following section will consider two of these venues more in detail, asking “which mechanism for justice in Syria?”.
67 ibid. Borger (n 65).
20
IV. Which Mechanism for Justice in Syria? – A Comparison
Having considered possibilities available to bring international justice for the crimes being committed by the regime in Syria, the following section will analyse which mechanism is best suited to bring accountability for these crimes. Following the structure of this paper, a mechanism dependent on a Security Council mandate, the ICC, and one that is independent of such a mandate, universal jurisdiction, will now be considered more closely. Out of the possibilities presented above, these two venues appear most probable and most promising in their effectiveness to bring justice for Syria while the conflict is still ongoing. As described above, ad hoc tribunals were thought to become redundant through the establishing of the ICC, a permanent mechanism created to try precisely the types of crimes being committed in Syria. It thus follows that the ICC would be a well-suited mechanism for the international prosecution of the crimes in Syria, which is why it has been chosen as one of the mechanisms to be examined in more detail.
While it will be argued below that universal jurisdiction encounters some challenges in the prosecution of international crimes that would not be faced in case of prosecutions at the ICC, universal jurisdiction, in contrast to the latter court, is already contributing to ending impunity in Syria. As has been indicated above, states such as Germany and France are engaging in universal jurisdiction to prosecute crimes committed in the Syrian conflict. These examples will further be used to illustrate some of the challenges and advantages addressed below. Universal jurisdiction exercised by individual states has thus far been more successful in advancing the process of Syrian justice than any international mechanism. The individual third states are able to make binding judicial decisions as well as to enforce them, something that, in the case of Syria, an international mechanism without a UN Security Council mandate, cannot. The contribution of third states to advancing the process of international accountability should therefore not be underestimated. For these reasons, universal jurisdiction has been chosen as the second mechanism to be examined and compared to the ICC below. In order to do so, three broad categories of issues, (i) structural, (ii) jurisdictional and (iii) political legitimacy, have been identified under which the effectiveness of the two venues for justice in Syria will be compared below.
21
i. Structural Issues: The Mechanisms in the International System
On a structural level, the ICC is an established and widely recognised venue. Despite significant controversies surrounding the Court68 and Syria not being a party to the Rome Statute, there is little doubt that a ruling by the ICC convicting regime perpetrators of crimes in Syria would generally be internationally recognised. The Court has a clear mandate with defined provisions on its jurisdiction, organisation and functioning contained in the Rome Statute, which all reinforce its established structure.
Universal jurisdiction on the other hand, despite being contained in significant international treaties, is internationally less widely accepted in practice as it implies an individual state interfering in the sovereignty of another. Due to the fundamental nature of the principle of non-interference in a state’s sovereignty in international law,69 states have been reluctant to engage in the practice of universal jurisdiction.70 The exercise of this practice has thus been described as revolutionary in the context of international law.71 While some international treaties contain provisions on universal jurisdiction, requiring state parties to prosecute crimes even without a nexus,72 the procedural rules regulating the exercise of universal jurisdiction emerge from national law and thus differ depending on the legal order. As described in section III.ii, some states provide for universal jurisdiction without any nexus in their national legal orders,73 whilst others apply a more restricted form of universal jurisdiction, imposing the requirement of some kind of nexus to the state, usually in the form of nationality or the perpetrator’s presence on the territory of the prosecuting state.74 Consequently, there is no
internationally unified process of universal jurisdiction, making the practice somewhat hard to predict and more difficult to supervise. Universal jurisdiction thus lies at the intersection of international and national law.
This intersection further becomes evident when considering the role of other states in the process of justice through the two venues in question. Both the ICC and national states exercising universal jurisdiction rely, to a certain extent, on international cooperation. This
68 See for example Zeid R Al Hussein and others, ‘The International Criminal Court Needs Fixing’ Atlantic Council (24 April 2019) https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing accessed 11 June 2019.
69 Contained for example in Article 2(4) UN Charter. 70 cf ICRC (n 60) para 2891.
71 cf Ruti Teitel, Humanity's Law (1st edn Oxford University Press, Oxford 2011) p 5-11 61. 72 cf ibid (n 58).
73 See (n 64) Germany does not require a nexus for the exercise of universal jurisdiction. 74 See (n 62) for the restrictions contained in the French Code of Criminal Procedure.
22 becomes particularly clear with regard to the execution of arrest warrants. These are necessary as a result of the international context of the prosecutions as, in the majority of cases, the alleged perpetrators of the crimes in question will not be present on the territory on which they are to be prosecuted. However, the current influx of migrants from Syria to Europe and the ongoing investigations into cases under universal jurisdiction, have led to situations where an international arrest warrant was no longer required as the accused was already present on the prosecuting state’s territory. This has been the case in Germany in February 2019, where two former officials of the Syrian secret service, who had come to Germany to apply for asylum in 2012, were arrested on allegations of participating in torture and other crimes against humanity.75
Although the cooperation by other third states remains beneficial to both venues, a difference can be observed with regard to the role of Syria in the prosecution. As described above, an alternative to a referral by the Security Council to activate the ICC’s jurisdiction would be cooperation by the Syrian government in the prosecution of crimes. Universal jurisdiction, on the other hand, is entirely independent of Syrian cooperation and only requires the willingness of the prosecuting state to initiate proceedings. While the ICC is thus dependent either on an agreement on the international level or on a Syrian willingness to initiate proceedings, the opening of an investigation and proceedings under universal jurisdiction solely lies in the hands of the prosecuting third state. This evidently lowers the procedural barrier for universal jurisdiction compared to the ICC as a mechanism for justice in an ongoing conflict and is certainly a reason for the contrast between the significant advancement the exercise of universal jurisdiction has brought in the process of justice for Syria and the ICC’s inactivity in this respect.
A significant advantage of prosecutions through the ICC is that the Court provides for one central venue with a unified and consistent approach to prosecution according to internationally developed laws. The individual approaches to universal jurisdiction of the states exercising this practice risk obscuring the transparency and the international accessibility to understanding the progress of international accountability. Furthermore, it increases the issue of duplication of work. If a number of states are simultaneously working
75 Jörg Diehl and Fidelius Schmid, ‘Zugriffe in Deutschland: Ermittler fassen mutmaßliche Folterer des Assad-Regimes’ Spiegel Online (13 February 2019) https://www.spiegel.de/politik/deutschland/syrien-geheimdienstler-des-assad-regimes-in-deutschland-festgenommen-a-1252852.html accessed 18 February 2019.
23 on the same conflict, possibly even preparing cases against the same perpetrators, there is a risk of duplication of work that could be avoided if the case were to be investigated in front of one central mechanism, such as the ICC. To a certain extent, such duplication might be reduced by international mechanisms or initiatives in the civil society, such as the CIJA or the IIIM. Yet, it does not prevent two states from launching investigations against the same alleged perpetrator. This issue appears to have been recognised by the UN General Assembly. In its resolution establishing the IIIM, it explicitly refers to individual states engaging in the prosecution of crimes being committed in Syria and underlines the importance of cooperation between such states. It
welcomes the efforts by States to investigate and prosecute crimes within their jurisdiction committed in the Syrian Arab Republic, in accordance with their national legislation and international law, and encourages other States to consider doing the same and to share relevant information to that end with other States.76
Such cooperation has taken place between France and Germany.77 For this purpose, the two states have set up a joint investigations team to facilitate the exchange of information and to reduce the risk of duplication of work.78 One of the results of this cooperation were the simultaneous arrests in February 2019, two in Germany, as mentioned above, and one in France, of former members of the Syrian regime suspected of having been involved in the commission of torture and crimes against humanity.79
ii. Jurisdictional Issues: The Reach of the Mechanisms
The ICC and universal jurisdiction as mechanisms to prosecute the crimes being committed in Syria can further be compared on the level of the extent of their jurisdiction. The ICC has been established to try the highest-ranking perpetrators of “the most serious crimes of
international concern” and is intended to be “complementary to national criminal jurisdictions”, as described in article 1 Rome Statute. Therefore, even in the case of
prosecutions by the ICC, Syrian legal action on the national level will eventually be necessary to ensure large-scale justice and accountability for the crimes committed in the conflict, as the Court is not established to offer encompassing rehabilitation of the crimes committed.
76 UN General Assembly (n 32) para 3 emphasis added. 77 TRIAL International (n 61) p 40.
78 Diehl and Schmid (n 75). 79 ibid.
24 Similarly, universal jurisdiction remains a complementary method of prosecuting the crimes committed in Syria, possibly even more so than the ICC. The ECCHR infers the complementary nature of universal jurisdiction to the ICC from the fourth preambular paragraph of the Rome Statute, which reads that “the most serious crimes of concern to the
international community as a whole must not go unpunished and […] their effective prosecution must be ensured by taking measures at the national level…”.80
Unlike the ICC however, national courts exercising universal jurisdiction also prosecute lower-level perpetrators, for example following the presence of suspects on their territory, which, as described above, has recently been the case in Germany and France. High-level perpetrators on the other hand, are likely to avoid travel to states that actively engage in universal jurisdiction or that are likely to execute arrest warrants to extradite to other states, an issue also relevant with regard to prosecutions at the ICC. Such difficulties can be illustrated with the cases of Mladić and Karadžić who both succeeded in hiding for many years between their initial indictment and their arrest and rendition to the ICTY.81 Furthermore, the trial of such high-ranking individuals by a single state would bear a higher risk of political hostility. Therefore, whilst universal jurisdiction helps to emphasise that other states are not a safe haven for perpetrators of core crimes and thus contributes to a sense of global justice, it cannot be expected to be an encompassing judicial remedy for the crimes committed in Syria either. Nevertheless, both Germany and France have issued international arrest warrants for Jamil Hassan, head of the Syrian Air Force Intelligence Service, on the basis of investigations they have conducted into the crimes in Syria, believing to have collected sufficient evidence to convict him of joint responsibility in torture, killings and arbitrary detention.82 Hassan’s recent travel to Lebanon for medical treatment led Germany to demand his extradition, a request that has so far remained unanswered.83
80 Fourth preambular paragraph Rome Statute. cf ECCHR, Universal Jurisdiction in Germany?: The Congo War
Crimes Trial: First Case under the Code of Crimes against International Law (Berlin 2016)
https://www.ecchr.eu/fileadmin/Juristische_Dokumente/Report_Executive_Summary_FDLR_EN.pdf accessed 10 May 2019 p 3-4.
81 cf Jennifer Trahan, ‘An Overview of Justice in the Former Yugoslavia and Reflections for Accountability in
Syria’ (2013) 23 ILSA Journal of International & Comparative Law
https://nsuworks.nova.edu/ilsajournal/vol23/iss2/4/ accessed 24 September 2018 p 304-305.
82 ECCHR, Dossier Human Rights Violations in Syria Part I: Torture Under Assad (Berlin 2019) https://www.ecchr.eu/fileadmin/Sondernewsletter_Dossiers/Dossier_Syria_ArrestWarrant_Austria_Sweden_Laf arge_2019April.pdf accessed 01 May 2019 p 9-10.
83 The Hezbollah, a close ally of the Assad regime, has significant influence on Lebanese power politics, thus reducing the likelihood of an execution of the German request for extradition. cf Spiegel Online, ‘Deutschland fordert Auslieferung von Assads Geheimdienst-Boss’ Spiegel Online (17 February 2019)
25 Considering immunities of state officials, the ICC is better equipped to prosecute high-level officials. Article 27(2) Rome Statute explicitly provides that immunities awarded to a person by virtue of their official capacity, whether of national or international law origin, do not bar the Court’s jurisdiction being exercised over the individual. However, as Syria is not a party to the Rome Statute, it cannot be bound by this provision, an issue that has been recognised by the Court.84 Nevertheless, the latter has argued that by virtue of the referral of a situation by the Security Council, the personal immunity of the accused can be lifted, even in cases where the state of the accused is not a party to the Rome Statute. This is so where the referral provides for the full cooperation of that third state.85 Following this line of argument the ICC,
with the support of the UN Security Council, would be able to initiate proceedings against the sitting president Assad during the ongoing conflict in Syria, as a Security Council referral to the ICC providing for full cooperation of Syria, could render article 27(2) Rome Statute applicable to the latter state with regard to the situation at hand. As indicated in section II.i, such a clause was contained in the 2014 vetoed draft resolution of the Security Council to refer the situation in Syria to the ICC. Moreover, the Court has implied that there is no rule of customary international law that provides for head of state immunity to protect from the execution of an arrest warrant issued by an international court.86 Controversially, provided that the Court had jurisdiction, the argument could thus be made that the personal immunity of president Assad would not protect him from the execution of an arrest warrant issued by
https://www.spiegel.de/politik/ausland/syrien-bundesregierung-fordert-auslieferung-von-maechtigem-geheimdienst-boss-a-1253662.html accessed 18 February 2019.
84 cf ICC Pre-Trial Chamber II in The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-195:
Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF accessed 05 June
2019 para 26. The ICC’s Pre-Trial Chamber II in the al-Bashir case, referring to article 34 of the 1969 Vienna Convention on the Law of Treaties, noted that in principle, only state parties to the Rome Statute can be bound by its provisions.
85 ICC Appeals Chamber in The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-397-Corr:
Judgement in the Jordan Referral re Al-Bashir Appeal (2019) https://www.icc-cpi.int/CourtRecords/CR2019_02856.PDF accessed 17 July 2019 para 149.
86 ibid paras 113, 115-117. However, this decision has been highly criticised by a number of scholars, see for example: Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’ EJIL Talk (06 May 2019) https://www.ejiltalk.org/icc-appeals- chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/ accessed 16 July 2019. Kevin J Heller, ‘A Thought Experiment About Complementarity and the Jordan Appeal Decision’ Opinio Juris (09 May 2019) http://opiniojuris.org/2019/05/09/a-thought-experiment-about-complementarity-and-the-jordan-appeal-decision/ accessed 16 July 2019. Dov Jacobs, ‘You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case’ Spreading the Jam (06 May 2019) https://dovjacobs.com/2019/05/06/you-have-just-entered-narnia-icc-appeals-chamber-adopts-the-worst-possible-solution-on-immunities-in-the-bashir-case/ accessed 16 July 2019.
