Draft UN Security Council Referral of Syria to the ICC—and US Exemptions

Colum Lynch reported yesterday at Foreign Policy that the Obama administration now supports France’s draft resolution to refer the situation in Syria to the International Criminal Court.

First question this raises: Is it conceivable that Russia would go along?

I don’t think so. But that may not be the point if part of the effort is to isolate Russia diplomatically. Nor is it the point if the idea is simply to inject some greater form of deterrence – showing Syrian senior officials and even ground soldiers that the prospect of war crimes trials are higher on the international agenda. David Kaye makes the latter point more eloquently in the Lynch article. That said, others believe that Russia could, under the right circumstances, go along. Consider, for example, Luis Moreno Ocampo’s guest post on Just Security back in September.

Second question: What assurances does the US need to support France’s initiative?

1. Israel

Key to getting the administration on board, Lynch reports, is draft language that would exempt Israel and the Golan Heights from the ICC’s jurisdiction. In a post in October, Fionnuala Ní Aoláin anticipated that very concern, and she suggested the “referral could be drafted sufficiently narrowly by the Security Council to capture particular types of international crimes and confined to particular periods of time.” Those devices (how they work) seem relatively straightforward.

2. US soldiers

The New York Times suggests that another US concern may be to exempt US service members in the event of an armed intervention in Syria. According to the Times:

“The second way in which it addresses American concerns is that it exempts ‘current or former officials or personnel’ of countries that have not ratified the Rome Statute — except Syria. That way, if American soldiers are ever involved in the Syrian conflict, they would be immune from prosecution.”

That exemption might also have pluses and minuses for Russia. On the minus side, why would Russia ever go along with text that made it easier for the US to use force in Syria?

On the plus side, I have to wonder whether the exemption might also alleviate some concerns back in Moscow (assuming there is even a chance that Russia would ever back a referral). Indeed, Russia fits the profile of a country that has not ratified the Rome Statute but finds itself in the mix inside Syria. In that regard, Russia might have specific concerns. For example, is helping cover up the massacre of civilians through the use of chemical weapons a war crime under the Rome Statute? It’s a question worth dwelling over. 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.