Why French President’s Threat of War Crimes Prosecutions against Russia, Syria Rings Hollow—But Needn’t

CNN is reporting that Russian President Vladimir Putin has canceled a visit to France next week following French President Francois Hollande’s statement that he would tell Putin “those who commit those acts [in Aleppo] will have to pay for their responsibility in front of the International Criminal Court.” The French President’s statement rings hollow because the international court in The Hague simply does not have jurisdiction over Russian or Syrian government actions in Syria. However, an earlier post I wrote on Just Security shows another legal path for Hollande and other political leaders to pursue against Putin along this front.

First, why is the International Criminal Court a nonstarter? The court would not have jurisdiction since neither Russia nor Syria has ratified the court’s statute, and the Security Council will never be able to refer the situation in Syria to the court due to the Russian veto. Recall France itself tried to get the Security Council to refer the Syrian situation to the Court in 2014, but failed due to a Russian and Chinese veto. And that was even before Putin’s forces were inside Syria like they are today. Putin now, more than ever, has every reason to block any prospect of such a referral.

Second, what about other legal pathways to achieve the same objective? Well, what is the objective?

President Hollande explained the reason for his statement was to incentivize Putin to stop assisting Assad in the commission of war crimes. In prefacing his statement on the International Criminal Court, Hollande remarked: “Could we do something that pushes [Putin] as well and stop what they’re doing with the Syrian regime — that is to say the help they are providing to the Syrian regime, which sends bombs to the population of Aleppo?”

As I explained in my post this morning, one major move that political leaders might pursue is to acknowledge that an “international armed conflict” exists in Syria. Such a legal condition would trigger the universal jurisdiction provisions of the Geneva Conventions—which places an obligation on national jurisdictions to apprehend suspected war criminals who pass through their territory. As I wrote: “Think what that might mean for Syrian officials, and for handing diplomats a new stick in efforts to confront Damascus and Moscow.” The threat of such criminal proceedings—accentuated by the fact that state parties to the Geneva Conventions are required to initiate them—can provide special leverage.

Two final points worth mentioning.

First, my post this morning explained why an international armed conflict currently exists in Syria even under a conservative approach to the application of the Geneva Conventions. Another approach to the Conventions, indeed the one supported by the International Committee of the Red Cross (see analysis by Prof. Adil Haque), would lead to the conclusion that an international armed conflict has existed since the moment US, French, and other foreign forces crossed into Syria to bomb ISIL.

Second, the International Criminal Court and national prosecutions do not exhaust all the options in this space. As Beth Van Schaack has outlined (here and here), the creation of a hybrid tribunal can, as a legal matter, also address the commission of war crimes in Syria. The political will for such a tribunal is a different story. 

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.