Monday, August 14, 2017

Carla Del Ponte: her resignation and why

On Sunday 6 August 2017, Carla Del Ponte resigned from the United Nations (UN) Independent International Commission of Inquiry on the Syrian Arab Republic (Commission). Her departure has been widely reported in the New York Times and other major news outlets, and is part of the trend in the American news media to report more widely on the continued conflict in Syria and more generally on situations the International Criminal Court (ICC) is trying to address.

Del Ponte’s rationale for leaving the Commission highlights one barrier in attaining international justice through the ICC. The powers of the UN Security Council, specifically the Permanent Fives veto power provided by the UN Charter, can either stall or accelerate the process of international justice. This power held by United States, Russia, China, France and the United Kingdom is wide, thereby leaving international justice vulnerable to political will.  This blog will discuss how the Syrian situation demonstrates the damaging role of veto powers in the work of the ICC.

Carla Del Ponte, Commissioner on the UN Independent International 
Commission of Inquiry on the Syrian Arab Republic. 
Image sources from Justice Info Net. 

Human Rights Council (HRC) Resolution on 22 August 2011 established the Commission, and the UN General Assembly has since repeatedly endorsed it. The Commission’s mandate is to investigate all alleged violations of international human rights law in the Syrian Arab Republic, and to establish the facts and circumstances of any violations and crimes committed and to identify those responsible.  Further HRC resolutions expanded the Commission’s mandate including preserving evidence of crimes for possible future criminal prosecutions, with an emphasis on transparency and independence in holding those responsible to account. Over the years, the Commission has published several reports on the alleged atrocities committed by the Islamic State (IS), the Syrian Government and the opposition to the Government.

The Commission was the result of the growing international pressure to address the situation in Syria.  Mainstream media have widely reported that Syrian people are suffering from abuses perpetrated by IS, the Syrian Government and the Government opposition. The 2016 reception of the critically acclaimed documentary White Helmets testifies to the international community has continued concern. Amid this pressure, which does not appear to be subsiding any time soon, it has come as a shock to many that top war crimes expert, Del Ponte, has resigned from the Commission. With Del Ponte’s departure, the Commission is left with two Commissioners, Paulo Sergio Pinherio from Brazil and Karen Koning Abuzayd from the United States. Vitit Muntarbhorn from Thailand and Yakin Erturk from Turkey formerly sat upon the Commission. 

Del Ponte’s departure is a significant loss to the Commission, having served as a prosecutor in Switzerland and internationally. Del Ponte is a former Attorney-general of Switzerland, and acted as Prosecutor for both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). One of her most notable prosecutions was the indictment against acting Head of State Slobodan Milosevic in the ICTY, a prosecution that at the time seemed inconceivable.  Strong international criticisms of the Commission’s effectiveness and international inaction regarding the continued atrocities committed in Syria accompanied Del Ponte’s decision to leave the Commission. She particularly highlighted the inaction of the UN Security Council; the New York Times quoted Del Ponte as saying, “I was expecting to persuade the Security Council to do something for justice… Nothing happened for seven years. Now I resigned.”

It appears that the lack of support from the UN Security Council was the deciding factor for her resignation. Del Ponte is further quoted to have said “[t]he states in the Security Council don’t want justice… I can’t any longer be part of this commission which simply doesn’t do anything.” Supporting Del Ponte’s claim is the lack of intervention or action by the UN Security Council over the past seven years. In a recent interview, Del Ponte pointed the finger at Russia, noting that it supports the Bashar al-Assad Government. Del Ponte also acknowledged the failures of other states to put enough pressure on Russia to change its stance on Syria. CNN reported in April 2017 that Russia has blocked eight resolutions on Syria since 2011. In all instances Russia’s veto has either been accompanied by China, or China has abstained in the vote. These resolutions have attempted to address a variety of issues from the more mundane expression of ‘grave concern for the situation in Syria’, to clear condemnations of gas attacks on civilians. The Commission’s mandate is to research, report and collect evidence, but without the support of the UN Security Council, the Commission is rendered a toothless tiger. 

One of the UN Security Council’s major failings with respect to Syria was the Russian and Chinese veto of a resolution to refer the situation to the ICC in March 2014. This veto was condemned by Washington. Many Americans had already been shocked by the photographic evidence from Syrian defector Caesar, showing the deaths of 11,000 Government detainees .The draft resolution had also gained popular support among the international community with support from 65 states in the General Assembly. In 2014, it was estimated by the Syrian Observatory for Human Rights that the Syrian conflict had resulted in the deaths of 160,000 people and displaced millions of Syrian citizens since 2011. The organization I Am Syria estimated in August 2017 that a total of 470,000 people have died in the conflict. The 2014 draft resolution called for the ICC to have jurisdiction over crimes against humanity and war crimes committed in Syria, and was deliberately drafted to emphasize that all atrocities committed would be investigated, irrespective of the perpetrator. Although there have been continued calls within the international community to refer the situation to the ICC, no such subsequent resolution has been drafted by the UN Security Council.

Although the ICC does have limited capacity to investigate the situation in Syria through its  personal jurisdiction over  foreign fighters in Syria from ICC member states, this will not provide the international community and the Syrian people justice for the breadth of the atrocities. The successful prosecution of foreign fighters would send a message that the international community will not tolerate impunity. However, it is unlikely to affect those alleged criminals with command responsibility. This also resembles the limited impact of domestic trials based on the concept of universal jurisdiction. One such trial was pursued in Spain, although subsequently dropped in July 2017 for lack of a clear Spanish connection. These trials may provide the international community with some reassurance that we are working towards ending impunity, however those most responsible remain out of the reach of justice.

Del Ponte’s resignation signals to the world that the dysfunction and politics within the UN Security Council has a severe impact on the struggle for international peace and justice. As in this case, these severe failings of the UN Security Council restrict the ICC’s ability to provide the Syrian people with justice for the atrocities committed against them and to fulfill its mandate to end impunity for international crimes. It serves as a reminder of the grave responsibility of the UN Security Council to put aside its politics when atrocity crimes are before it and thus to sustain its legitimacy.

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Written by Ally L. Pettitt.
*For further analysis of the ICC's jurisdiction over foreign fighters, please refer to our last blog. <> 

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