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Should the International Criminal Court Investigate the Syrian Chemical Attack?

Yes, argues a Human Rights Watch document.
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Human Rights Watch just waded into the legal mire around international responses to Syria's war. The organization published a brief pushing hard for criminal charges against those responsible for the chemical attack on Syrian civilians by their own government last month. In theory, the United Nations investigation that confirmed the use of poison gas opens the door for the U.N. to also define a response—the world body would be taking action on an investigation it conducted, with its own inspectors.

The next move, argues HRW, would be for the U.N. to refer the case to the International Criminal Court, which handles severe human rights cases.

Would that matter? The ICC has received its share of criticism for operating less as a place to try war criminals, and more as a convenient arena for politicians to harass each other.

The scale of the Syria event could, in theory, fly above that sort of thing. Last month's sarin assault is the largest of its kind since the infamous 1988 chemical attack by the then-government of Iraq against the Kurdish city of Halabja. As in Halabja, where a Doctors Without Borders team was inside within a week, the Syrian attack has resulted in horrific images viewed worldwide. The Syrian event seems to rise to the level of other cases resulting in ICC referrals, notably Darfur.

At the same time the HRW seems to acknowledge that the legal situation is shaky. Essentially a rogue state, Syria hasn't signed on to the international treaty that created the ICC, and in theory doesn't participate in the ICC process. (Syria has a similar relationship to the world's key chemical weapons treaty, which it also, conveniently enough, never signed.)

That means the ICC would need a workaround to bring any indictment. Could they get at members of the chain of command behind the sarin attack? HRW acknowledges that it doesn't look good—unless the U.N. Security Council acts.

For now, the answer is no. Syria is not a member state of the Rome Statute, the treaty that established the ICC. Unless the Syrian government ratifies the treaty or accepts the jurisdiction of the court through a declaration, the ICC could only obtain jurisdiction if the United Nations Security Council refers the situation there to the court. The Security Council, with what is called an “ICC referral,” could give the court jurisdiction stretching back to the day the Rome Statute entered into force, on July 1, 2002.

The Security Council has referred situations to the ICC only twice, for the Darfur region of Sudan in 2005 and Libya in 2011.

Russia at least has made clear it doesn't intend to play ball with any such effort. The ICC proposal itself is Hail Mary-ish on its face: We'd like the world's great powers to stop writing editorials against each other, to refer a case to a court that has very little power, and generally fails to use what power it has, to bring charges against people we can't quite identify, and would need handed over to us willingly, by the same people we suspect are behind one of the gravest mass murders of the new century. So what is HRW up to here?

Rather than pretend no one realizes how odd their plan sounds, the group has commented on the longshot nature of it all:

The ICC is by no means a panacea for the situation in Syria, and nobody claims that the court’s involvement will stop the killing overnight. Others will have vital parallel roles in resolving the crisis there, including through diplomatic and humanitarian activities. But a Security Council decision to support a role for the ICC in Syria would signal that the body and its individual members are serious about ending the current state of impunity.

Why report this? Largely because HRWs proposal is among the few (or at least the loudest) to propose an alternative view of the Syrian war, defining it as primarily a human rights event rather than a military event. Of course it's a war, and the geopolitics matter—the HRW text doesn't argue that. Yet it does present a version of this story canted toward its pre-military origins, as the suppression of a pro-democracy protest. Importantly, as a civilian event. If Syria is ICC jurisdiction, it joins the company of cases from Sudan, the Balkans, and Qaddafi's Libya, where the focus wasn't on the legitimacy of the local government or the geopolitical math of the military alliances, but on the murder of non-combatants, including young children, as the thing that matters the most. That's not a common argument heard (at least not in English) over these past few turbulent weeks.