Given the allegations currently being leveled at Syrian President Bashar al-Assad, readers might be wondering why Assad and his senior commanders have not been charged with war crimes by the International Criminal Court like leaders such as Libya’s Muammar Qaddafi and Sudan’s Omar al-Bashir. After all, the court was specifically set up to “have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” and last month’s chemical attacks certainly fit the bill. A number of NGOs and dozens of countries have called for such a prosecution.
Unfortunately, international law is once again protecting Assad’s violations of international law. Syria is not a state party to the ICC (neither, for what it’s worth, is the United States) and therefore its prosecutors don’t have jurisdiction over crimes committed there. For Assad to be charged by the ICC, he would have to be referred by the U.N. Security Council which, as with an authorization for military intervention, isn’t going to happen as long as Russia and China have seats. Marc Lynch discussed a few other possible avenues for Assad’s prosecution a few weeks ago, but for now, a prosecution seems extremely unlikely, even as the Syrian government commits exactly the sort of crimes the court was set up to deal with.
All in all, it’s not a great time for the ICC’s credibility. Kenya’s parliament voted today to remove the country from the court’s jurisdiction, just days before the trial-in-absentia of its president, Uhurua Kenyatta, is scheduled to begin. Kenyatta was elected in April, despite the fact that he and one of his deputies have been charged by the court with orchestrating post-election violence that killed about 1,200 people in 2007. The court is proceeding with the case anyway.
The ICC has been criticized by some as merely a mechanism by which Western countries judge African crimes, and indeed the court has never indicted a non-African. (Accused war criminals from Yugoslavia’s civil war and Cambodia’s Khmer Rouge regime were tried in separately organized international tribunals.) The court’s current chief prosecutor, Fatou Bensouda, who is from the Gambia, has been working to combat this image, but the Kenyan case combined with the court’s inability to address the most high-profile war crime being committed in the world right now isn’t really going to bolster her case.