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.
<http://www.justiceinfo.net/en/component/k2/34285-syria-and-the-lessons-to-be-learned-from-carla-del-ponte-s-resignation.html>
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.
Reference list:
Written by Ally L. Pettitt.
*For further analysis of the ICC's jurisdiction over foreign fighters, please refer to our last blog. <http://amicc.blogspot.com/2017/08/accountability-of-foreign-fighters.html>
