A Single Comment — Permalink

Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”

karen.kwok
3953
October 17, 2013
11:51 am

Syria: a Case Study of the ICC’s Limited Jurisdiction

Since its inception in 2002, all situations under investigation or prosecution have been in Africa. Critics have claimed that the ICC’s focus on Africa has been inappropriate. In particular, the ICC has been accused of having an African-bias in situation selection. However, such critiques regarding ICC’s unfair targeting of Africa needs to be considered with the understanding of ICC’s limited jurisdiction. Using Syria as a case study, I will demonstrate that situation selection is often not in the hands of the ICC. In the case of Syria, situation selection is in the hands of the UN Security Council. The ICC has no jurisdiction or power to even “target” Syria. Thus, ICC’s apparent focus on Africa has thus far been a direct result of the court’s jurisdictional limits.

Assuming that the ICC has established subject matter jurisdiction and temporal jurisdiction, its jurisdiction is still limited in two ways. First, there is an issue of complementarity. The Court cannot exercise jurisdiction in a case where a state is currently investigating or prosecuting the case, where a state has investigated and decided not to prosecute, and where a state has completed investigation or prosecution.1 The Court is unable to take on a case unless the state was unwilling or unable to carry out the investigation or prosecution. In essence, the ICC is meant to be a court of last resort, only intervening when domestic enforcement is not possible.

Second, the ICC is further limited in gaining jurisdiction over a case to instances of (1) a state’s self-referral, (2) a UN Security Council referral, or (3) the ICC prosecutor proprio motu for violations in the territory of a signatory state. As of date, 122 states have signed on and ratified the Rome Statue, over one quarter of which are African.

Syria

For over two years, a brutal civil war in Syria has destroyed homes and claimed thousands of lives. Since the crisis began, the international community has consistently called on the Security Council to refer the situation to the ICC. Some of the bodies and States that have advocated for action by the ICC include: the UN Secretary General2, the EU3 (advocating for a “possible” referral), Switzerland4, and Amnesty International.5 Within the last few months, the crisis in Syria has significantly worsened. In particular, the use of chemical weapons in Syria has been characterized as a war crime, a crime qualified for ICC investigation.6

Syria has not ratified the Rome Statute. Thus, the ICC prosecutor cannot launch into investigation in Syria proprio motu. The ICC can only exercise jurisdiction in Syria if Syria voluntarily submits itself to the ICC or by UN Security Council referral. As evident, recommendations for UN Security Council referral and Security Council draft resolutions to do so have consistently been unfruitful because of the opposition by Russia and China (two of the veto powers of the Security Council). Russia and China have actively blocked draft Security Council resolutions in regards to Syria.7 If the five veto powers of the Security Council can’t agree, any proposal for referral will reach a deadlock.

However, the current standstill in the Syria situation and the ICC’s inability to hold perpetrators of war crimes in Syria accountable demonstrates the ICC prosecutor’s overall limit of power, authority, and control over the cases she can investigate and prosecute, even when there are obvious violations of international law that are equally severe as the African cases that are under investigation and prosecution by the Court. Even though the ICC has never made a statement about Syria, Syria is clearly a situation that is under ICC’s radar. Yet, despite the clear violations of international law and the concern of the international community, the Rome Statute restricts the ICC’s ability to take any action in Syria until an official referral by the UN Security Council has been made.

Conclusion

Thus, even though to date all of the ICC’s cases and indictees so far are Africans, it seems unfair to blame the ICC when the UN Security Council has an equally active, and arguably more significant role, in situation selection. In order for the ICC to continue to bring perpetrators to justice for serious international crimes effectively, our energy should be channeled to strengthening the ICC’s jurisdictional reach, rather than solely focusing on its “target” on Africa.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 17: Issues of Admissibility. ↩
2.
See Ban Ki-moon, UN Secretary General’s briefing to the General Assembly on the Report of the UN’s Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic: Report on the Incident of 21 August 2013 in the Ghouta Area of Damascus, September 17, 2013, available online. (“There must be a robust effort to bring perpetrators to justice for the serious international crimes that have been committed since the beginning by all parties to the conflict.”) ↩
3.
See European Union, European External Action Service, Interactive Dialogues on Syria, Iran, Burma/Myanmar, North Korea: Item 4—Interactive Dialogue with the Commission of Inquiry on Syria, Human Rights Council 19, December 3, 2012, available online. (“Those responsible must be held to account, and a referral of the situation in Syria to the International Criminal Court would be a logical step.”) ↩
4.
See Thomas Gurber, Letter to H.E. Mr. Mohammed Masood Khan, January 14, 2013. (Joint letter with 56 other countries calling on the Security Council to “ensure accountability for the crimes that seem to have been and continue to be committed in the Syrian Arab Republic…[by] referral of the situation to the Court.”) ↩
5.
See Press Release, Amnesty International, Security Council must refer Syria to the ICC, (April 26, 2011), available online ↩
6.
UN Secretary General’s briefing, supra note 2. ↩
7.
Andre Viollaz, Syria Carnage Reopens Debate Over ‘Responsibility to Protect’, AFP, August 27, 2013, available online. (“Syria is not a member [of the ICC], only the Security Council could refer the case, and Russia is sure to block such a move.”) ↩

Home Page for This Issue

Issue Background Materials Page

Featured Comments

miltonlaw: Africa and the Concept of Positive Complementarity The answer to the allegation that Africa is inappropriately targeted by international criminal court could as well lie in the sui generis concept of positive complementary. My doctoral thesis research title is: The international criminal court and positive complementarity: Institutional and legal framework. I. Introduction It is the... (more)
almariam: Saving the ICC: A Proposal for a Witness Protection Program Justice delayed, again? In late January of this year, I wrote a commentary entitled, “Kenyatta at the ICC: Is Justice Deferred, Justice Denied?” In that commentary I openly expressed my angst over the endless delays, postponements and backpedalling talk about “false evidence” and “lying witnesses” surrounding the Uhuru Kenyatta trial at The Hague. I felt there was perhaps... (more)
almariam: Kenyatta at the ICC: Is Justice Deferred, Justice Denied? I am getting a little jittery over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” in the Uhuru Muigai Kenyatta International Criminal court trial. I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook? There has been feverish... (more)
Marius_: How can we choose to hide behind claims of moral inappropriateness when - in fact - these crimes are indeed taking place on sacred African soil!? Yes! It is imperative that the ICC should, despite the influence of the 'Powers-that-be', focus on initiating proceedings on crimes within its jurisdiction taking place outside the African continent, so as to meet the dictates of fairness. But that is not to say that the ongoing cases in Africa are without their individual basis. The victims of those... (more)
ecalmeyer: Mass African Withdrawal from the ICC: Far from Reality Introduction One hundred and twenty two countries are States Parties to the Rome Statute of the International Criminal Court (“ICC”).1 Thirty-four are in Africa, making African states the largest continental bloc of ICC signatory countries.2 Many African nations believe that the International Criminal... (more)
John Litwin: The International Criminal Court and African Politics Introduction Given the recent vote by the Kenyan parliament to withdraw from the Rome Statute,1 it is necessary to examine the non-meritorious, political reasons that may be motivating the proposed African boycott of the International Criminal Court (ICC).2 Comprising over a quarter of all member-states,3 a withdrawal from the ICC by... (more)
Jenevieve Discar: Potential ICC Responses to Kenya’s Proposed Withdrawal Introduction Kenya’s recent, precedent-setting vote to withdraw from the ICC highlights the critical nature of this debate; regardless of whether the ICC is actually unfairly biased towards Africa or not, the perceived bias is greatly affecting its reputation and its ability to operate effectively. Kenya’s withdrawal should... (more)
emilygiven: Complementarity: Too Stringent a Test? While critics claim that the ICC’s focus on crimes committed in Africa is inappropriate, its defenders cite the Prosecutor’s preliminary examinations of non-African crimes as evidence to the contrary. Because the Office of the Prosecutor is evaluating situations outside Africa with an even hand, defenders argue, the Court exhibits no bias against Africa. Several preliminary examinations of non-African... (more)
karen.kwok: Syria: a Case Study of the ICC’s Limited Jurisdiction Since its inception in 2002, all situations under investigation or prosecution have been in Africa. Critics have claimed that the ICC’s focus on Africa has been inappropriate. In particular, the ICC has been accused of having an African-bias in situation selection. However, such critiques regarding ICC’s unfair targeting of Africa... (more)
kennygbite: The question “Is the International Criminal Court targeting Africa inappropriately?” is influenced obviously by the fact that all the cases so far being handled by the ICC fall within Africa as if crimes within the jurisdiction of the Court are not taking place in other continents. However, assuming Africans so far indicted by the Court actually committed these crimes, should the question still arise simply because their counterparts in other continents are not being investigated nor prosecuted... (more)