Written by Lana Walaa
BA. Political Science and Sociology, University of Toronto, Canada
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The decades after the Nuremberg Trials saw a rise in the principle of individual accountability within the international system. This development rendered it necessary to establish an international institution that adjudicates individuals over matters related to the violation of human rights under international law. The International Criminal Court (ICC) was established in July 1998 through the Rome Statute with this mission and has been active with over 120 member-states since July 2002 (Orakhelashvili, 2019, p. 444). While the International Court of Justice (ICJ) settles disputes between countries, the ICC prosecutes individuals for committing international crimes of genocide, crimes against humanity, and war crimes (Schemenauer, 2016, 4).
The Syrian Crisis is an ongoing civil war in Syria since March 2011, with complex power dynamics at play both domestically and internationally. The violations of human rights in Syria involve crimes of aggression and terrorism . In the United Nations Security Council, the United States and Russia both uphold clashing diplomatic interests towards their interventions in Syria.
According to the Rome Statute, all referrals to the ICC for potential trials are to be approved via the United Nations Security Council (UNSC).
As permanent members of the UNSC, the United States and Russia have ‘veto power’ over any ICC referrals (Singh et al., 2019). China can also veto Security Council Resolutions on Syria; however, it is not involved on-ground similar to the US and Russia with the Syria conflict.
A crucial fact to notice in this dynamic is that the US, Russia, and China are not parties to the Rome Statute of the ICC.
How does the issue of ICC membership apply to crimes of aggression, terrorism, and the scope of armed conflict under international law for the Syrian Crisis? There are institutional problems in the ICC that do not allow for the three powers to be held accountable for their actions in the region. The actions taken by the ICC depend on the distinction between crimes of aggression and terrorism. The ICC requires greater collaboration from the international community, and any potential solutions must take into account the different ways that the United States, China, and Russia approach the Syrian Crisis. The perspectives of the US, China, and Russia should be taken into consideration as they have been concerned with Syria’s issues in various ways and are powerful enough to bring about positive or negative change in Syria as well as other regions.
There are several implications of not ratifying the Rome Statute of the International Criminal Court, the first being that the three Great Powers’ associations with Syria do not involve direct jurisdiction with the Court.
The UNSC resolution that prevented Syria’s referral to the ICC  raises issues of jurisdiction and immunity under international law, as related to the scope of the armed conflict raging in Syria.
There are issues surrounding the prosecution of terrorist organizations (e.g. ISIS), which differ from crimes of aggression. Lastly, the ICC’s response to Syria is impacted by the workings of other international organizations such as the ICJ and the UN Security Council (UNSC).
The various institutional challenges include: i) differences in approaches to the Syrian crisis; ii) lack of formal ICC jurisdiction over the countries involved in the Syrian crisis; iii) issues of enforcement jurisdiction in Syria; iv) issues of immunity; v) armed conflict-related to crimes of aggression and terrorism; and vi) ICC’s challenging task to combat terrorism.
The International Criminal Court (ICC)
Although China, Russia, Syria, and the United States are members of the UN Security Council , they have not endorsed the enacting Rome Statute of the ICC (Fehl & Mocková, 2017; Jackson & Sorensen, 2016, p. 142). The success of the ICC depends on institutional reinforcement within the international community (Koh & Buchwald, 2015, p. 295). This raises the controversial question of why eminent great powers like the US, Russia, and China have not ratified the ICC treaty. The potential prosecution by the ICC would place them at a competitive disadvantage in maintaining their international status. This preconceived notion poses a greater risk to the international community because of non-accountability to the consequences of any potential crimes committed at the international level. The absence of formal ICC jurisdiction over the US, China, and Russia contributes to division within international society and limited solidarity on issues of humanitarian law enforcement (Jackson & Sorensen, 2016, p. 142). However, this absence does not necessarily reduce the three countries’ significant influence on the Court’s operations.
Countries that are not members of the ICC rely on vetoing UN Security Council resolutions as an alternative mechanism of expressing disagreement (Patey, 2016). Russia and the US have informed the UN Secretary-General of their decision to not ratify the Rome Statute (Koh & Buchwald, 2015, p. 258). The US believes that ratifying the treaty would be unconstitutional by the US Supreme Court , while China argues that signing the treaty is against the sovereignty of nation-states. According to Article 18 of the Vienna Convention on the Law of Treaties (VCLT), “a State is obliged to refrain from acts which would defeat the object and purpose of a treaty” when it has signed but not ratified a treaty (The United Nations, 1969, art. 18). However, a State does not have to abide by the obligations of a treaty if it has indicated its refusal to do so (The United Nations, 1969, art. 18). Rather than formulating reservations and recognizing the ICC in some respects, the US, Russia, and China have avoided becoming parties to the Rome Statute of the ICC completely. They can indirectly instigate potential ICC prosecutions for other States while they remain relatively immune to prosecutions as non-signatory States.
Three Distinct Approaches to the Syrian Crisis
China, Russia, and the US have different hegemonic visions, approaches, and ideologies towards the implementation or deconstruction of international law in Syria.
China implements its global agenda as an emerging great power by gearing the “global normative agenda” towards prioritizing political settlements and state sovereignty, rather than encouraging foreign military intervention in Syria’s domestic conflict (Patey, 2016).
Prior to the Syrian conflict, it maintained its presence and diplomatic relations in Syria by being a major arms supplier (Patey, 2016). Compared to Moscow or Washington, Beijing has less economic interests and political stakes invested in Syria (Patey, 2016). Rather, its stand on Syria secures its background involvement and presence in the most pressing international issues in the Middle East.
The role of the US involves an Armed Forces presence as part of the intervention in the Syrian Civil War.
By not being part of the ICC, the US is immune to accusations and prosecution from other States.
While municipal law binds individuals (i.e. persons, groups, and organizations), international law binds States that voluntarily sign a treaty. This contributes to global inequality in terms of security and the balance of power.
Russia provides a diplomatic shield and some arms supplies to the Assad regime, although Moscow recognizes the need to ‘balance’ the conflicting sides in Syria (Allison, 2013, p. 796).
Since September 2015, the potential collapse of Assad's regime corresponds with Russia’s increasing military involvement . Assad’s governmental instability negatively affects Russia’s critical interests in the Middle East, the global arena (i.e., the rivalry between Russia and the US), and domestically in Russia (Magen et al., 2015, p. 1). As demonstrated in the 1998-9 conflict in Kosovo, there is a question of whether Russia’s involvement is merely about securing its own interests in both Europe (Kosovo’s case) and the Middle East (Syria’s case) (Radeljic, 2017, pp. 273-300). The Kosovo case set a bad precedent for conflict management because it falsely justifies the internationalization of conflicts and the inability to settle disputes through negotiation (Jolicoeur & Labarre, 2014; Landler & Gordon, 2013). Nonetheless, it demonstrates the global aspect of the rationale behind Russia’s consistent military involvement with Syria.
“Russia [...] has not been dragged into a full-fledged ground operation, which is carried out by the Syrian army itself, with the help of the Iranian taskforce, Hezbollah forces, and fighters from Shiite militias. Russia’s activity has been accompanied by intensive media coverage and a comprehensive public relations campaign. This initial airborne stage seems to have achieved, at least partly, the goals of halting the Assad regime’s slide toward collapse and raising Russia’s profile in the Middle East” (Magen et al., 2015, p. 2).
Given the depth and breadth of their involvement in Syria, it is unsurprising that the three major great powers of the twenty-first century are not active members held accountable by the ICC.
Issues of Jurisdiction
In responding to the conflict in Syria, there are jurisdictional challenges between the competing sides of the US and Russia. Jurisdiction is about the power, or legal authority, to regulate persons, places, and conduct or events (Orakhelashvili & Akehurst, 213). Since Syria is not an ICC member, the ICC cannot take direct action on that case and, therefore, the Court’s jurisdiction is dependent on a referral by the UN Security Council (Fehl & Mocková, 2017). The Syrian Crisis highlights Syria’s jurisdiction and power to regulate territory that has been occupied by ISIS. Russia’s supply of military resources and weapons may grant Russia jurisdiction to participate only in an air war over Syria (Singh et al., 2019, p. 30). Syria’s jurisdiction over its territory complicates the involvement of the US and Russia because the defeat of ISIS involves both the Russian Armed Forces and the US-led coalition.
There is an enforcement jurisdiction issue as Syria deals with foreign states’ “power to interfere with [Syria’s conduct] through the use of physical force or other interferences” (Orakhelashvili & Akehurst, 2019, p. 213). As demonstrated in the S.S. Lotus case  between France and Turkey, a State requires a permissive basis to enforce its laws on the territory of another State (Orakhelashvili & Akehurst, 2019, pp. 213-218). This is one of the general rules of international law, and a similar principle is articulated in Judge Anne MacTavish’s decision in the Afghan detainee case (Roach, 2010, pp. 115-155). The Lotus principle is applicable to Syria’s situation because, in theory, Syria could exercise jurisdiction over its people and territory (Hurd, 2013). Consequently, this has posed obstacles for international humanitarian intervention. The US and Russia’s involvement in Syria can therefore potentially lead to allegations that they are illegally enforcing their laws on Syria’s territory.
Issues of Immunity
Moreover, immunity is applicable to the Syrian Crisis when a State or its servants are not affected by jurisdictional power (Orakhelashvili, 2019, 213). Immunity problems arise when States are held accountable in foreign courts for “acts committed while the [State-affiliated] individual was acting in an official capacity [in a foreign State]” (Orakhelashvili & Akehurst, 2019, pp. 230-232).
There has to be a distinction between holding States liable versus individuals liable in legal proceedings (Orakhelashvili, 2019, p. 231).
Immunity has in some ways extended and exacerbated the conflict in Syria, rather than resolving it earlier when the Syrian Civil War started in 2011.
In 2014, Russia and China vetoed the UN proposal to refer the Syrian Question to the ICC (Singh et al., 2019).
The US and Russia conducted military operations in Iraq and Syria, and each of those four parties was likely “concerned that the Court’s scrutiny [might] expose their troops to prosecution” if they were parties to the Rome Statute (Schemenauer, 2016, p. 9).
Therefore, immunity ends up protecting States from international legal culpability; this effect is more pronounced in the case of countries like Russia, the US, and China, who do not fully recognize or abide by the authority of the ICC.
Scope of Armed Conflict in Syria
The ICC evaluates the scope of the armed conflict in Syria by assessing and trying to capture and prosecute foreign fighters from terrorist organizations like ISIS. The ICC protects groups that are engaged in lawful conduct. By contrast, in terms of international peace and security, ISIS is an “unprecedented threat”(Schemenauer, 2016, pp. 1-3). As of 2016, this terrorist group had 9,000 to 200,000 local members, over 30,000 foreign fighters from more than 100 countries, and 1,000 new fighters recruited every month (Schemenauer, 2016, p. 4). Under international law, ISIS does not have the elements of “statehood,” despite various UN resolutions calling for its prosecution over the “Islamic State’s claim to a caliphate and ‘effective control’ over territory in Iraq and Syria” (Schemenauer, 2016, pp. 9-10).
The crises caused by terrorist groups like ISIS prove that current regional wars and any potential global wars of the future would likely be focused on counter-insurgency and counter-terrorism. Furthermore, the ICC’s jurisdiction requires that either Syria or neighboring Iraq formally agree to ICC referral through the UN Security Council (Schemenauer, 2016, p. 9). The ongoing Syrian conflict and the challenges posed in combating the Islamic State reveal the ICC’s various deficiencies in investigating and prosecuting crimes in the international justice system (Schemenauer, 2016, pp. 2-3).
Crimes of Aggression vs. Terrorism
The distinction between crimes of aggression and terrorism is an important factor in the course of action taken by the ICC. A crime of aggression involves “any illegal use of armed force” that violates Article 2(4) of the UN Charter, is of sufficient “gravity,” involves “other relevant circumstances,” and has a “purpose” (Koh & Buchwald, 2015, pp. 255-266). Terrorism can be opposed by all parties except for the terrorist group itself, while crimes of aggression can be committed by the official armed forces of a State. This means that the involvement of the US, Russia, and China in the Syrian Crisis puts them at risk of potentially committing crimes of aggression.
Supporters of ICC jurisdiction over the crime of aggression would argue that individual responsibility increases the overall sense of responsibility that prevents resorting to the use of military force (Koh & Buchwald, 2015, p. 272). The significance of the distinction between crimes of aggression and terrorism is that, despite veto to the UN Security Council, the ICC cannot fully act on the premise of justice without the ratification of all involved parties to the Rome Statute.
In dealing with crimes of aggression and terrorism, Article 51 of the UN Charter gives States a right to collective self-defense (Orakhelashvili & Akehurst, 2019, p. 531). If the conditions of Article 51 are met, the General Assembly can advise member-states to “defend [victims] of aggression or even [establish] or [endorse] a force to perform that task”(Orakhelashvili, 2019, p. 531). This could succeed in Syria’s situation if there was reconciliation between opposing forces to collectively work to defeat ISIS. Unfortunately, since the Cold War period, the USSR had a significant yet ambiguous role in encouraging Syrian terrorism. Assad was given the confidence and the support by the Soviet bloc support to take risks, knowing that his enemies would think twice before “taking on the missile batteries around Damascus or provoking Soviet anger” (Pipes, 1989, p. 19).
The post-9/11 “war on terror” had a self-defeating effect by creating a cycle of events (i.e. the US invasions of Afghanistan and Iraq) that led to the rise of ISIS terrorism. Subsequently, the many attacks and attempts by ISIS include 12 separate events in the US, various attacks in Paris, a Russian plane crash over the Sinai Peninsula, and suicide bombings in Beirut (Schemenauer, 2016, p. 4). The inhumane brutality of ISIS represents some of the most egregious crimes ever known, which can be classified as crimes against humanity, war crimes, ethnic cleansing, and genocide. The evidence of atrocities in Syria is not unlike the “Nuremberg crimes against peace, [which] covered wars of aggression, or wars in violation of international treaties, agreements, or assurances” (Ferencz, 2016, p. 196). The Global Terrorism Index reported 6,073 terrorism-related deaths and at least 20,000 ‘battlefield deaths’ linked to ISIS in 2014 (Schemenauer, 2016, p. 4). Despite the United States’ assertion of defeating ISIS in March 2019, the re-emergence of ISIS as an insurgency that continues to plan attacks in Syria as well as other regions still remains a critical issue (Singh et al., 2019, pp. 18-39).
ICC’s Response to Terrorism
In the twenty-first century, it is crucial, and still possible, for the ICC to find a way to stop and prevent terrorism through the power of international law. There are technical issues that restrict the ICC from opening an investigation and prosecuting the Islamic State. However, even if the technical issues are dealt with, there is a significant financial burden on the Court and an immense enforcement challenge in confronting “the sheer volume of cases and geographic scope” of the crimes by ISIS (Schemenauer, 2016, p. 10). Therefore, a mechanism must be developed to deal with the issues of the financial burden and enforcement challenges.
The US, China, and Russia can exert a major role over Syria and combat terrorism through the UN Security Council (Orakhelashvili & Akehurst, 2019, p. 507). According to Article 24 of the UN Charter, the UNSC has the power and responsibility to maintain international peace and security (U.N. Charter, art. 24, para. 1). According to Article 25 of the UN Charter, member-states have to act according to the decision of the Security Council, which has binding resolutions (Orakhelashvili & Akehurst, 2019, p. 507). Based on Chapter VII of the UN Charter, the Security Council has the power to manage threats to peace and security through enforcement action (Orakhelashvili & Akehurst, 2019, p. 514).
Furthermore, the ICC can deal with terrorism by the dispute settlement mechanism of the International Court of Justice (ICJ). As the principal judicial organ of the UN, the ICJ is composed of 15 judges with different nationalities, who are elected by the UN General Assembly and Security Council (Orakhelashvili & Akehurst, 2019, p. 542). According to Article 96(a) of the UN Charter, the ICJ may be requested to provide advisory opinions to the General Assembly and the Security Council (Orakhelashvili & Akehurst, 2019, p. 551). The ICJ can therefore deal with dispute settlement in the Syrian Crisis by examining the use of self-defense to combat terrorism and the multiple opposing forces in the Crisis.
In 2015-2016, some States claimed that measures of self-defense are permissible against ISIS specifically, rather than against the Syrian government (Orakhelashvili & Akehurst, 2019, p. 462). However, these claims were not enough to change the existing customary and conventional law, which asserts that self-defense “can be exercised only in response to attacks perpetrated by one State against another State” (Orakhelashvili & Akehurst, 2019, p. 462). To resolve the complexity and magnitude of the issues posed by ISIS, the ICJ system’s current mechanisms have to be developed more effectively. The UNSC must improve its institutional response, operate within the legal frameworks of member-states, and effectively investigate and prosecute members of the Islamic State worldwide (Schemenauer, 2016, p. 12).
Overall, there is controversy presented by Russia, China, and the US not ratifying the Rome Statute treaty, thus avoiding accountability with the ICC. This is more discernible in dire situations like the Syrian Crisis, where Russia and Syria engage in a bilateral relationship, China has some military presence and diplomatic relations in Syria and the diplomatic relations between the US and Syria have been severed by the ongoing Syrian war.
There are many interconnected factors that keep the Syrian Crisis ablaze. Rather than inflicting an equally complex cycle of failed “remedies” or enforcement, the ICC, the ICJ, and the UNSC must tackle institutional barriers and fulfill their roles as peace-making institutions to resolve the conflict.
Notwithstanding other Middle Eastern conflicts, the participation of the US, China, and Russia in “peaceful” or constructive coherence is crucial for Syria.
 See UN Commission of Inquiry on Syria report on evidence of war crimes in the Syrian conflict. Available at https://news.un.org/en/story/2020/07/1067761
 See UNSC Meetings Coverage report on referral of Syria to ICC. Available at https://www.un.org/press/en/2014/sc11407.doc.htm
 The UNSC is an international organization closely associated with the ICC. There are 15 member states in the UNSC, of which ten are elected on a rotating basis for two-year terms. The five permanent members include China, France, Russia, the United Kingdom, and the United States (Orakhelashvili & Akehurst, 2019, p. 507).
 See journal article on the ICC and the US foreign policies. Available at https://www.jstor.org/stable/40203935: "American ratification of the Rome Statute would imply that the United States government is a party to any prosecution of an American citizen by the ICC. Unlike an extradition treaty, the American ratification of the Rome Statute would mean that the United States government is subjecting its citizens to threats of double jeopardy and trials without juries. As a result, the Rome statute would likely be deemed unconstitutional by the United States Supreme Court" (Lagassé, 2004, p. 435).
 See article on Russia’s intervention in Syria in September 2015. Available at: https://www.e-ir.info/2016/02/28/explaining-russias-intervention-in-syria-in-september-2015/
 See The Case of the S.S. Lotus (France v. Turkey) (1927), P.C.I.J. (Series A) No. 10. Para. 41-54. Available at http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm
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