Eamon Aloyo and Joris Larik are senior researchers at The Hague Institute for Global Justice.
Many have lamented that because the International Criminal Court (ICC) does not have jurisdiction over Syria, there is little the Hague-based court can do to hold to account those responsible for the slaughter of 150,000 people, sexual abuse, purposive starvation, and other ongoing horrors. According to the U.N., many of these human rights abuses very likely constitute war crimes and crimes against humanity. Proposals such as France’s to have the U.N. Security Council refer the situation in Syria to the ICC are likely to fail because Russia supports Bashar al-Assad and can veto any such referral.
Yet there is another way for the ICC to gain jurisdiction over the situation in Syria. The ICC can and should recognize the main Syrian opposition group, the National Coalition for Syrian Revolutionary and Opposition Forces, as the legitimate government of Syria on the condition that the opposition lodges a declaration recognizing jurisdiction of the ICC.
The ICC has this authority. According to Article 12 of the Rome Statute, states that are not parties to the ICC can still accept its jurisdiction via a special declaration. In order to have jurisdiction in this way, a government must send this declaration to the Registrar of the ICC and the latter must accept it. There have been two prior cases of such declarations: from the Ivory Coast in 2003, which was accepted by the Registrar, and from the Palestinian National Authority in 2009, receipt of which was acknowledged in The Hague but with important caveats. Additionally, but not alternatively, opposition representatives could ratify the Rome Statute and send an instrument of accession to the U.N. secretary general. Accepting either the declaration or the instrument of accession amounts to recognizing the opposition as the legitimate government of Syria. Upon being granted jurisdiction, the ICC should immediately open an initial investigation and declare publicly that it is interested in indicting anyone – rebel, member of the Assad regime, or foreign actor – who allegedly commits any core crime.
These bold steps would have numerous benefits. It would give the ICC prospective jurisdiction over war crimes and crimes against humanity in Syria. This might deter some belligerents. Even if Assad and his senior aides were not deterred, some rebels, foreign actors, and mid-level Assad regime commanders might be. Although some rebels might fear indictment, the main Syrian opposition coalition has strong incentives to grant the ICC jurisdiction. Doing so could increase the opposition’s legitimacy and signal their commitment to fight within the bounds of international law. It could also increase their domestic support, and ensure that their foes are held to account. Such a deal would bolster the ICC’s independence, contribute to the ideal of universal rule of law, and deflect criticism that the court unduly focuses on Africans. Finally, it could help powerful states, who have done too little too late for innocent Syrians, save face without having to create another expensive ad hoc tribunal.
Some might criticize “recognition for jurisdiction” by accusing the ICC as acting unduly politically. This objection is weak for three reasons. First, the ICC would be acting within its mandate. Second, this controversy is outweighed by the possibility of deterrence and ending impunity in Syria. Third, the ICC would not be alone in its recognition of the opposition. Over 100 countries have already recognized Syria’s main opposition coalition either as the legitimate government, the legitimate representative of the Syrian people, or support it otherwise.
This is not about recognizing a new state. Rather, we argue the ICC should recognize a government as the legitimate representative of an existing state. Our proposal would be far less controversial than recognizing new states such as Northern Cyprus, Croatia, Kosovo, Abkhazia, South Ossetia, or recently the short-lived ‘Republic of Crimea.’ Recognizing governments as the legitimate representatives of an existing country is not governed by hard and fast rules. According to state practice, such a decision usually takes into account the effectiveness of the new government, but also other factors such as acquiescence by the people and the willingness to comply with international law. Abiding by some of the most basic tenets of international law – protecting individuals from heinous war crimes and crimes against humanity – consequently should factor into such a decision by governments and international organizations.
Such action by the ICC could be a novel way for the international community to contribute to fulfilling its responsibility to protect (R2P). Setting this precedent would reinforce the idea that sitting governments and their leaders can forfeit some of their rights if they manifestly fail in their R2P. Some might object that our proposal could undermine R2P by making Assad less likely to accept any peace deal. However, the peace vs. justice tradeoff requires the possibility of a negotiated peace, which appears unlikely given the repeated failures of high level negotiations. In fact, our proposal might increase the chances of protecting civilians from mass atrocities through deterrence and increasing the chances of accountability.