Eight Questions about the International Criminal Court

French initiatives to refer Syria to the International Criminal Court (ICC) have prompted questions about the ICC, its procedures, and its efficacy. This post aims to demystify the ICC and explore its role in the Syrian crisis.

Why can’t the ICC prosecute now?

At present, the ICC does not have jurisdiction over Syria. Syria, like 71 UN Member states, is not a party to the Rome Statute — the ICC’s foundational document. As such, there are only three ways in which the ICC can gain jurisdiction in Syria: (1) via UN Security Council referral, (2) if Syria voluntarily submits to ICC jurisdiction on an ad hoc basis (for a particular situation only), or (3) if Syria joins the ICC by acceding to the Rome Statute. Options two and three are very unlikely because the Assad government has little incentive to join the ICC. The Syrian opposition cannot accept ICC jurisdiction on behalf of Syria because it has not achieved the status of government of the Syrian state. Another method by which the ICC sometimes gains jurisdiction is (4) the ICC Prosecutor’s initiation of a proprio motu investigation (which means “on [the Prosecutor’s] own initiative”), but this option is unavailable in Syria unless it becomes a party to the Rome Statute or accepts the ICC’s ad hoc jurisdiction.

What could a referral do?

If the referral succeeds, the ICC will investigate whether international crimes have been perpetrated in Syria. A UN Security Council referral to the ICC obligates the ICC to undertake an “investigation” — a pre-trial process which determines whether there is adequate evidence to pursue prosecutions. Though it prosecutes individuals, the ICC investigates “situations.” Thus, rather than investigating Bashar al-Assad, for example, the ICC would investigate the entire Syrian situation, looking for evidence of international crimes committed by any parties. If the investigation finds evidence of crimes under ICC jurisdiction — which are genocide, crimes against humanity, and/or war crimes — the ICC Prosecutor will initiate trials of those individuals who bear the greatest responsibility for these crimes.

Who could be prosecuted?

The new resolution stands apart from others because it explicitly encourages investigation of parties on all sides of the conflict, including Syrian authorities, pro-regime militias, and non-State armed groups. Nonetheless, as noted above, the ICC investigates situations (rather than specific individuals or groups), and accordingly this resolution refers “the situation in the Syrian Arab Republic” to the ICC. If the ICC Prosecutor finds evidence that a person has committed genocide, crimes against humanity, and/or war crimes, the Court may indict (bring charges against) that person and then issue a summons or an arrest warrant to bring that person before the Court. However, confirmation of charges and trial can only proceed once the accused persons are in custody.

What are the punishments available and what are typical ICC sentences?

The ICC maximum sentence is 30 years imprisonment, although it can issue life sentences in extreme circumstances. The ICC can also extract fines from perpetrators and seize money, property, and other assets. The ICC does not issue the death penalty. To date, 21 cases from 8 situations have been brought before the ICC. The ICC has accused 36 people of crimes. In its 12-year history, the ICC has convicted two individuals — one convicted of war crimes was sentenced to 14 years imprisonment, and the other will be sentenced in late May, 2014. Several trials are currently ongoing, whereas many other trials cannot proceed because the accused are still at-large.

How long does the process generally take?

The process takes years. There are multiple phases, including pre-trial investigations and the trial itself. Pre-trial investigations generally range from one month to four years. Trials generally take six or more years. The ICC issued its first and only sentence after a ten-year investigation and trial. The ICC’s forthcoming sentence will be delivered after similar timespan. Although the complexity and challenging context of ICC trials require a lengthy process, the ICC is a young court and is striving to speed up its procedures (without compromising accuracy or effectiveness).  ¹

What could ordinary Syrians get out of this?

In the short-term, Syrians are unlikely to receive tangible benefits from ICC action. ICC investigation can, however, offer symbolic significance: a successful referral and subsequent investigations would demonstrate that the international community takes Syrian’s plight seriously and is committed to accountability. Already, the resolution has gained support: 58 countries and over one hundred civil society groups from around the world have called on the UN Security Council to refer Syria to the ICC. The referral is unlikely to succeed, but international attention to the debate could pressure the international community to act differently in Syria. Though debatable, an ICC referral could also possibly have a deterrent effect on those perpetrating atrocity crimes. In the long-term, an ICC trial could result in imprisoning and/or fining perpetrators. Syrians could also be eligible financial reparations as a result of the ICC process. Lastly, on a more symbolic level, an ICC trial could authenticate truths about the conflict via extensive research and substantiation, publicized internationally.

Why hasn’t this happened already?

The last three referral attempts failed due to Russia’s veto. Any permanent member of the UN Security Council has the capacity to veto a proposal, and the veto cannot be overruled. (UN resolution 377 has been used in the past to enable General Assembly-backed actions after a Security Council veto, but, under ICC law, the General Assembly does not have the capacity to refer a situation to the ICC.)

Will the referral happen?

The referral is unlikely to succeed. The U.S. has voiced support for this initiative — unlike those prior — but Russia has made its opposition clear. Recently, Russia’s Ambassador to the UN asserted, “our position has not changed,” and on May 20 vowed to veto the resolution if it comes to vote. France hopes the Security Council will consider the proposed resolution on Thursday.

Notes:

1. Richard Goldstone, ABA-ICC Project Event: “International Criminal Justice: Mass Atrocities, the International Criminal Court, and the Role of States.” 10 April 2014. ↩