A Security Council Resolution referring Syria to the International Criminal Court would only serve to highlight the Court’s deficiencies when dealing with an uncooperative state.

In late May, Russia and China vetoed a French-led draft proposal to the United Nations Security Council (UNSC), effectively blocking a referral of the Syrian situation to the International Criminal Court (ICC).  The double veto was heralded as disgraceful, and described as an affront to justice in the mainstream media.  However, these critics have misunderstood the operational capacity of the permanent International Court.

ICC Investigations consist of capturing as much evidence as possible, a thorough examination of sources, the neutralisation and analysis of polarised evidence as well as verification of its origins. Although, devoid of a proper police force, the Court still requires the highest standard of evidence in order to attain convictions. Without a state’s willingness and total cooperation, the ICC is unable to conduct a proper investigation, collect evidence and carry out the detailed examination necessary for criminal conviction.

A request for assistance by the ICC is legally binding on all states party to the Rome Statute, as well as any state referred to the Court by the UNSC.  This makes cooperation with the Court mandatory and a legal obligation. However, the ICC needs the full cooperation of states and indeed great powers in order for actual cooperation to be effective. States can process requests incrementally and only partially execute them, typically without the most critical component, which in some cases would be the vital article or crucial detail actually required by the prosecution. Such activity is commonplace and difficult to categorise as non-cooperation, particularly in post-war situations with devastated bureaucratic systems and state apparatus.

ICC staff are required to give prior notifications when sending investigators on missions to collect evidence. This allows states to have the time to enact measures designed to guide an investigation’s activities in a complementary manner. In this way, states can instrumentalise an investigation to be conducted in their favour and use it to target opponents, while protecting their allies. Moreover, governments are capable of paying-off, threatening or even killing hostile witnesses while simultaneously, coaching and supporting favourable ones which will corroborate a version of events in line with the state’s narrative.

On 31 March 2005, Sudan was referred to the ICC by UNSC for international crimes committed within Darfur. Subsequently, President Omar Al-Bashir was indicted by the Court, 14 July 2008, for his alleged criminal responsibility, as stipulated within the Rome Statute, on the basis of his part as (co)perpetrator on 5 counts of crimes against humanity (Article 7(1)), two counts of war crimes (Article 8(2)) and three counts of genocide (Article 6). However, Bashir has simply refused to go and stand trial in The Hague and has since travelled freely to several African countries without fear of arrest. This demonstrates the sheer weakness of the Court when working with an uncooperative country and particularly when attempting to prosecute a sitting head of state. The UNSC has done nothing to support the Court since its referral of Sudan. Thus the ICC was for all ostensive purposes used in order to excuse Western inaction over Darfur and give the impression that the great powers would actively support justice thereafter. However, in effect, the ICC referral only signalled their desire to distance themselves from the crisis.

The ICC cannot function adequately within the state-centric international system without state power enabling it to command cooperation whenever necessary. The Court has its own agency, however despite its best volition, its lack of power renders it a tool within the international system rather than an actor capable of operating independently vis-a-vis states.

The Mali prosecutions are expected to be exemplary cases demonstrating the Court’s capacity for fulfilling its righteous mandate to end impunity for the individuals most responsible for the planning and commissioning of international crimes. This is only possible in this case because of the French military intervention into Mali, which with the ICC in mind, conscientiously collected all the necessary evidence during and just after the combat phase of its operations. This evidence has been handed over to the Court and is expected to enable the ICC to act decisively. The Court is therefore subject to the interest of great powers and at present doomed to be effective only in selective cases when it is working complementary to discreet foreign policies.

Additionally, a sample list of 20 indictments has been created, with Bashar al-Assad, the President of Syria, topping the list. If Assad were to be indicted for war crimes during the conflict, this would effectively remove him from participation in any future negotiations as a credible partner for peace. This could end the prospects for a political solution of an already intractable conflict. The threat of criminal prosecutions would only embolden the regime to fight for a total victory by any means necessary in order to shield itself from legal proceedings.

A Syrian referral to the Court, already at full capacity, with an overworked and disenchanted staff, dependent on unpaid intern labour, with a limited number of court rooms and judges as well as budget cuts across the board, would be totally ineffective and allow Western powers to wash their hands off Syria, while also displaying the ICC’s stark deficiencies when dealing with an uncooperative state.