Update: French Text Referring Syria to ICC Said to Replicate Standard Exemptions for US

In a post this morning, I discussed the language reported in the press of a draft Security Council resolution referring Syria to the International Criminal Court. The question was, in part, whether the exemption for US personnel in the draft text was broad enough to meet US interests in the event of US military intervention in Syria—and, as a result, far broader than prior Security Council resolutions that included such exemptions only for US personnel acting pursuant to UN authorized operations. The news reports at least left this question open.

In a tweet directed to David Kaye, Colum Lynch, and me, France’s Ambassador to the United Nations Gérard Araud has said that the draft text is no more expansive than past Security Council resolutions, and, indeed, essentially replicates the text in the Darfur and Libyan resolutions:

Colum Lynch has posted key parts of the French text on tumblr. It reads:

“decides that nationals, current or former officials, or personnel from a state outside the Syrian Arab Republic which is not a party to the Rome Statute of the ICC shall be subject to the exclusive jurisdiction of that state for all alleged acts or omissions arising out of or related to operations in the Syrian Arab Republic, established or authorized by the council unless such jurisdiction has been expressly waived by the state.” (my emphasis added)

The text, therefore, does essentially repeat the same basic elements of the Darfur and Libya referrals by the Security Council.

This text raises some new questions of course. Does that draft text meet US interests? Why would the US demand such an exemption given that any future US military intervention in Syria is unlikely to obtain Security Council authorization? Indeed, the exemption might be taken as a strong indication that US military action in Syria without Security Council authorization would be subject to the jurisdiction of the ICC.

Whatever the answer to those sobering questions, a more lighthearted lesson is clear. Especially since it’s Friday, Just Security readers should #FF Ambassador Araud’s Twitter accountC’est fantastique! 

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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.