Shane Farrell

In mid-May, British Minister of State for the Armed Forces Nick Harvey said that it was “highly likely” that an arrest warrant would be issued by the International Criminal Court (ICC) for Syrian President Bashar al-Assad over his role in the violent crackdown on protesters in his country. This is a serious charge. The ICC investigates individuals suspected of committing “the most serious crimes of concern to the international community,” including genocide, war crimes and crimes against humanity.

Since Harvey’s statement, the death toll in Syria has risen from “at least 600” to more than 1,100, and over 10,000 have been imprisoned, according to human rights groups. Moreover, accusations of torture and forced disappearances abound, and calls for Assad and other prominent members of the Syrian regime to be referred to the ICC have mounted.

Human rights watchdog Amnesty International, for instance, issued a press release earlier this month repeating calls made in April for the UN Security Council to refer the situation in Syria to the International Criminal Court.

Human Rights Watch, meanwhile, recently released a report that stated that the nature and scale of the abuses caused by the Assad regime “strongly suggest these abuses qualify as crimes against humanity.”
Crimes against humanity, according to the Rome Statute, the treaty that established the ICC, include murder, torture or enforced disappearances that are “committed as part of a widespread or systematic attack directed against any civilian population.”

Were the international community to deem events in Syria crimes against humanity, how could the perpetrators be brought to justice?
Since Syria is not a signatory of the ICC, the court does not have jurisdiction in the country, and cases cannot be referred to it by signatory states or the court prosecutor. Instead, the only way a case can be brought to the ICC is if the United Nations Security Council refers it to the Hague-based court. This occurred with Sudan in 2009 and Libya earlier this year.

Once a case is referred to the ICC, the Office of the Prosecutor conducts a preliminary examination to determine whether the crimes at hand are being committed under ICC jurisdiction and whether to open an investigation. Based on the evidence collected, the prosecutor may request a summons for individuals to appear before the court or issue an arrest warrant for them.

Last Tuesday, a delegation comprised of representatives from Syrian and international human rights groups visited the ICC and sent a request calling for an investigation into human rights abuses in Syria to be opened up. According to Yaser Tabbara, a Chicago attorney who works with human rights groups, in an interview with CNN, Syrian opposition members met with the head of the ICC Information and Evidence Unit, provided him with evidence of abuses and asked the court to pursue the "necessary preliminary examinations and analysis" of alleged crimes.
If the prosecutor determines that what is occurring in Syria amounts to crimes against humanity, it may pressure the Security Council to refer the case to the ICC.

Yet many experts are dubious that this would occur, due to opposition within the UN Security Council. They cite, for instance, the two draft resolutions condemning violence in Syria that have failed to pass in the last month because of Russian and Chinese opposition.
According to a Russian Foreign Ministry spokesperson, speaking to journalists at a briefing in Moscow last Thursday, “We do not believe that the Syrian issue is a subject for consideration by the Security Council, let alone the adoption of some kind of resolution.”

“I think it will be blocked because the stakes for either Russia or China in losing the Syrian regime to a democratic, Western-backed regime will have extreme strategic repercussions for both countries, particularly Russia,” said Lebanese-American University Political Science professor Imad Salemeh in an interview with NOW Lebanon. “It will change the strategic orientation of the Middle East completely.”

“Russia provides Syria with significant armaments, and Syria continues to be one of Russia’s closest allies in the Middle East. It is a foothold for Russia to maintain itself as a strategic player in Middle Eastern affairs… If that breaks down, Russia will no longer have much political leverage in the Middle East,” he added.

However, according to a Moscow-based analyst who spoke to NOW Lebanon last week, Russia's geopolitical interests in the Middle East died with the Soviet Union. According to Dmitri Trenin, head of the Carnegie Endowment for International Peace in Moscow, the Russian government believes that a resolution on Syria is the first step toward military intervention against the Assad regime, which would lead to a regional conflagration, something Russia wants to avoid.

Whatever their motivations, Russia, and to a lesser extent China, have so far been reluctant to publically criticize the Syrian regime. That said, Russian President Dmitry Medvedev’s special envoy said in a press conference last Friday that he would "in the very near future" meet with a delegation from the Syrian opposition in Moscow.
Whether or not this marks a new direction in Syrian foreign policy remains to be seen.
To date, however, it would appear that Nick Harvey’s comments were extremely premature, if not wishful thinking.