The ICC Catch-22

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Today, a UN panel accused the Assad regime for perpetrating crimes that rise to the level of crimes against humanity. In reality, both the roles of the Assad regime in its continued killings of civilians and the Mullahs of Iran in aiding and abetting Assad against the Syrian people must be considered as crimes against humanity by the UN. Syria has criminal partners and they must be held accountable to the same standards as Assad.

But upon a closer look at the ICC website, the Court has “14 cases in 7 situations” that have been brought to its attention. None of which involves Syria or Iran so far even though both regimes have since 1970 and 1979 committed atrocities, including torturing children and women. There is a reason for this.

Both Iran and Syria are only Signatories to the Rome Statute of the ICC but neither is a State Party. As Signatories, their only obligation is “engagement”. In essence, the Signatory role is not to defeat the object and purpose of the Rome Statue, that is all. These are the conditions stated in the Vienna Convention, which laid the principles upon which Treaties and Statutes must abide by (Article 18).

Because of this settled difference between Signatory and State Party, experts in this field cite the following opinion:

The treaty provides that the ICC may exercise jurisdiction even over nationals of states that are not parties to the Treaty and have not otherwise consented to the court”™s jurisdiction. Article 12 provides that, in addition to jurisdiction based on Security Council action under Chapter VII of the United Nations Charter and jurisdiction based on consent by the defendant”™s state of nationality, the ICC will have jurisdiction to prosecute the national of any state when crimes within the court”™s subject-matter jurisdiction are committed on the territory of a state that is a party to the treaty or that consents to ICC jurisdiction for that case. That territorial basis would empower the court to exercise jurisdiction even in cases where the defendant”™s state of nationality is not a party to the treaty and does not consent to the exercise of jurisdiction.”

In essence,

“If a crime is committed by a non-party national on that non-party”™s territory, then the ICC may not exercise jurisdiction.”

This excludes Syria and Iran until both regimes consent  to the ICC jurisdictional powers over the territory of their non-State Party status.

The ICC is not supposed to be the only answer to crimes against humanity but it is supposed to complement national laws in existence. The deficiency of the system is demonstrated amply when violent crimes are perpetrated by violent regimes who are either Signatories to the Rome Statute or are unwilling to adopt any national laws aimed at self-prosecution. The ICC, under this scenario, has no jurisdiction; this limits the capacity of the ICC to act in cases where it is most needed to act.

In other words, crimes committed by the Assad regime are not prosecutable because they were committed in Syria and because Syria is not a State Party that ratified the Rome Statute.

The ICC will have an impact when a new government is elected in Syria and it is able to move swiftly to ratify the ICC Statute as a State Party. I would imagine the US drones over Syria, the thousands of videos taken by young Syrians, and the collected testimonies of hundreds of Syrians will be essential data to be used against many of the regime men who were involved directly in the massacres of innocent civilians, including children and women.


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