Why the US Failure to Support an ICC Referral for Syria does not Protect Israel (or American Interests)

As we watch and wait for the outcome of the destruction and disposal of the chemical weapons in Syria, the issue of accountability for war crimes and/or crimes against humanity committed during the Syrian conflict continues to percolate. A number of leading human rights organizations, have advocated for the Security Council to refer the situation in Syria to the International Criminal Court (ICC). The UN High Commissioner for Human Rights has repeatedly sought to have the Security Council refer allegations of war crimes committed in the Syrian civil war to the ICC, and the UN Secretary-General Ban Ki-moon “welcome[d] the debate triggered by the call” of some Security Council members for an ICC referral. Furthermore, former ICC Prosecutor Luis Moreno Ocampo advocated in an earlier post on Just Security that ICC referral could “provide the most efficient option to manage the current Syrian violence and contribute to the prevention of future crimes.”

And it is important to remember that because Syria is not a party to the ICC, the Court may only exercise jurisdiction over the crimes committed during the hostilities in Syria if there is a referral from the Security Council. Therefore, as these organizations, individuals, and some states continue to press for the rights of victims of the conflict to achieve justice and to advance broader accountability for crimes committed during the course of hostilities, it would appear an ICC referral may be the best available avenue for redress.

While France included an ICC referral in an early draft of the recent Security Council resolution, there seems to be continuing U.S. resistance to this means of achieving accountability in Syria. On the face of it, the opposition seems ill conceived. There are good reasons why the U.S. would want to send a strong signal to all parties to the conflict that war crimes and crimes against humanity will not be tolerated. There is a certain obvious equality to holding all sides responsible given the devastating toll of the conflict on civilians. The latest report from the UN Syria Commission of Inquiry found that, during the nearly four-year old conflict, the Assad regime and rebel forces committed war crimes and that the government committed crimes against humanity. Yet resistance by the U.S. for an ICC referral appears to persist.

The U.S. position is all the more striking when one takes a quick look at recent positioning by the U.S. on ICC referrals. Three recent examples are particularly telling: (i) U.S. support for referral to the ICC of the crisis in Libya in 2011; (ii) U.S. (indirectly through the Security Council Resolution 2000) recognition that the ICC Prosecutor was seeking authorization to investigate war crimes and crimes against humanity committed after the 2010 Ivorian elections; and (iii) abstention by the U.S. on Resolution 1593, which referred the situation in Darfur to the ICC.

And yet, in a situation that seems as compelling as any of these positive Security Council (and U.S.) responses, there seems to be a political brick wall on Syrian referral. Why? One element of that answer may be the Golan Heights and the complicated relationship of that territory with neighboring Israel. Following the Six-Day War of 1967, Israel occupied substantial parts of the Golan Heights. And Israel’s subsequent annexation of the Golan Heights in 1980 has not been recognized by any state and was disavowed under UN Security Council Resolution 497. There may be unintended consequences in referring a state to the ICC, when a portion of that state’s territory is broadly recognized to be occupied by one of its near neighbors. Recall that under Article 8(2)(b)(viii) of the 1998 ICC Statute, “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts. One might conclude that part of the U.S. reluctance to make the ICC referral is intimately connected to a fear that this will inadvertently trigger scrutiny of the Israeli occupation of the Golan Heights. Is the Israel red-line brighter than the uncertainty of enforcing the chemical weapons red-line through an ICC referral?

This non-referral positioning is neither in the U.S. nor Israel’s interests. The U.S. retains all the vital interests that it has consistently claimed in ensuring that certain kinds of crimes do not de facto receive impunity. If accountability really matters, Syria is a test case with implications for the tenacity of the claims to end impunity by states who say they care about human rights. If this message was important in Libya and Darfur, it is doubly so where there is general agreement that chemical weapons have been used against a civilian population. Israel as a democratic state retains similar anti-impunity interests, not least when the crimes alleged occur on its own doorstep. There is no doubt that even if there are fears of a runaway Prosecutor (which are in this view unjustified) referral could be drafted sufficiently narrowly by the Security Council to capture particular types of international crimes and confined to particular periods of time. Protecting Israel in this neighborhood has been and will remain vital for U.S. regional interests, but to do so by providing impunity to serial human rights abusers is a bad tradeoff for two states who claim that human rights matter. There is no necessary tradeoff to supporting Israel and making an ICC referral on Syria. The devil may well be in the details of the referral itself but a blanket unwillingness to seek formal accountability is an easy pass for those who continue to violate the most basic humanitarian norms in Syria. The U.S. can and should do better.

[Editor’s Note: This post has been revised to include attributions for certain factual statements to Human Rights Watch, UN Security Council: Seize Chance for Justice in Syria, Sept. 17, 2013]

  

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).