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Unusual currents have been swirling around the United Nations Security Council’s shameful paralysis on Syria, a product of repeated vetoes by Russia and China. On January 14, a group of 58 governments urged the council to ask the International Criminal Court (ICC) to prosecute those responsible for the egregious crimes in Syria. In the face of the spiraling carnage on the ground, these governments, in an unprecedented act of “justice diplomacy,” insisted that the time for Security Council silence is long past.

Then on January 18, the top UN human rights official appealed to the Security Council for justice on behalf of the Syrian people. Afterward, ambassadors from five Security Council member countries that have joined the court made a joint public statement calling for a criminal investigation.

These actions may signal a significant sea change that challenges the prerogatives of the five permanent members of the Security Council when atrocity crimes are the issue and justice is at stake.

The 58-state appeal on Syria, initiated by Switzerland, was prompted by the council’s authority to refer crises that would otherwise be beyond the ICC’s reach to the court. This power would seem to be a good thing, but in practice the council has used its authority poorly. Syria is the starkest example of the failure, but hardly the first, and changes are urgently needed in the Security Council’s policy. A big part of the problem is the influence the three permanent council members that have not joined the court – the US, Russia and China – have exerted on the process, and this is generating backlash.

The Security Council has used its referral authority twice. In March 2005, a divided council referred the situation in Darfur to the court. This decision subjected Sudan, which had not joined the court, to an ICC investigation. In February 2011, a unanimous council mandated the court to investigate the deteriorating situation in Libya, another ICC non-state party, as Muammar Gaddafi’s forces gunned down peaceful protesters.

The fit between the Security Council, a political body mandated to maintain international peace and security, and the ICC is an inherently uneasy one. Judicial independence, essential to the ICC’s credibility, depends in part on the court’s separation from the appearance and reality of political influence. Some have characterized the Security Council’s ICC “referral” authority as a political taint on the court’s subsequent investigations. This risk of politicization, however, is offset by the requirement that when the Security Council does refer, the court’s prosecutor and judges apply the court’s procedure to the facts. The problem lies in the flawed manner in which the Security Council has used its referral power.

The council’s permanent members have been highly selective about the crises they deem worthy of ICC attention. An almost-guaranteed US veto precludes any action on crimes allegedly committed by Israeli security forces, for example. And due to the Russian and Chinese obstructionism the Security Council has been AWOL on Syria. China and Russia have also made it clear that the crimes committed in Sri Lanka’s conflict will not be going to the ICC. This selectivity, by which the council’s three permanent members that are not court members shield themselves and their favored clients, directly undercuts the equal application of the law to all, a basic norm of justice.

In addition, following its Darfur and Libya referrals, the council has failed to give the court any diplomatic back-up for its investigations. After bringing the court in, the council has treated the ICC like a bad blind date. This has contributed to the perception of referrals as an empty gesture and the court as a hapless institution to be used at will by the council.

The Security Council has also included deeply problematic provisions in what should be straightforward resolutions. If there is a Syria referral, these need to change. First, contradicting what many states see as the UN Charter’s own division of responsibilities, the council has barred any United Nations funding for ICC prosecutions that result from council referrals. The US government, citing congressional anti-ICC legislation, has insisted on this free ride. This shifts the financial burden onto the court’s 121 member countries, risking capsizing the court financially at a time when its judicial docket is expanding and its budget faces a crunch from its economically hard-pressed big-paying states, such as Germany, the UK and France.

The referral resolutions have also enshrined a hypocritical double standard that undermines justice while providing ammunition to opponents of accountability. Because Russia, China and the US have not joined the court and can use their veto as permanent members to prevent a referral, the court is effectively prevented from investigating allegations against their citizens. Again, at US insistence in both the Darfur and Libya referrals, there were explicit exemptions for citizens of non-states parties on charges arising from the referred crisis.

The two referral resolutions also failed to obligate all UN member states to cooperate with the court in the resulting investigations. In other words, even though the council has mandated court action because of a threat to international peace and security, it simultaneously fails to require any UN member, other than the referred state, to cooperate. One needn’t be a seasoned diplomat to foresee the result of that mixed messaging in Syria.

This approach by the council generated last week’s pushback, but the views expressed by the justice-supporting states first took articulate expression during a Security Council debate in October. To its credit, Guatemala, the most recent state to join the court, used its one-month presidency of the Security Council to convene a special session on the relationship between the council and court. This was the first time in the court’s 10 years that the council had ever publicly discussed its overall relationship with the court. ICC states weighed in with thoughtful statements and several key recommendations. They called on the council for greater coherence, if not consistency, in the crises it refers to the court.

The Swiss-led letter on Syria took that request to the next level. The countries uniformly called for council support for the court’s resulting arrest warrants when countries do not cooperate. They also called for UN funding through the General Assembly for the court’s referrals. Many urged an end to the exemption that allows the three permanent members not subject to the court to enshrine immunity for themselves and their allies in a blatant double standard. Many called for the council-court relationship to become a regular item on the council’s agenda and for expansion of a council working group to take up the technical challenges relating to council back-up for the court.
Whether anything comes of this activism, a few things are certain.

First, any changes will be hard won. The council’s permanent members will fiercely resist the appearance of acquiescing to influence from outsiders.

Second, it would be simplistic to lay all this at the doorstep of the permanent members.

A lot will depend on how the court’s 121 states parties play their cards. To be more effective, they will need to overcome some insidious attitudes and begin to act as stakeholders with interest when the council considers accountability for the most serious crimes.

There is a widespread belief among these governments that nothing will ever change when it comes to what the permanent members do, and that expending political capital on behalf of the ICC is a poor investment. Certainly, the disparity of power in the council can’t be waved away, but the resulting passivity buys into a loser’s logic that guarantees things will stay just the way they are.

There is also broad acceptance that the most powerful states use the court as merely another diplomatic instrument, like travel bans, arms embargoes and peacekeeping forces. The council draws these from its diplomatic toolbox as a means to desired diplomatic and political ends. According to this view, once those objectives are achieved, then justice, like sanctions, becomes expendable, if not an outright obstruction. This approach fails to treat justice as a good in itself that once set in motion runs on its own independent track. Putting justice in the service of politics provides rhetorical ammunition to governments and officials to mask their own opposition to accountability.

Finally, the engagement of African and Latin America ICC states that have relied on justice to propel their transitions from dictatorship to the rule of law is absolutely crucial. These governments, which should be actively opposing council misuse of the court, have been all too silent on an ICC investigation in Syria. They are on the sidelines on account of their simmering anger over the inequality inherent in the veto, the double standards on justice, and the apparent use of the court by some states as a hoped-for means to achieve regime change in particular countries. These justice-supporting governments want Security Council reform, and nothing short of that is in their view meaningful. By making the perfect the enemy of the good, they risk marginalizing themselves further.

The relationship between the Security Council and the ICC is still in its infancy. The problems need to be fixed, but to consider them beyond repair is cementing the status quo. Steps need to be taken to improve the use of the council’s referral power of which a strong Syria referral would be a step. If not, a valuable tool for justice will be squandered.

Richard Dickeris director of the international justice division at Human Rights Watch.


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