U.N. Security Council Referral of Syria to the International Criminal Court?

The New York Times reports that France has drafted a U.N. Security Council resolution referring the “situation” in Syria to the International Criminal Court that has been tailored “specifically to address American sensitivities” about the ICC. The Bush and Obama Administrations negotiated similar compromises when they agreed to Security Council referrals of human rights violations in Sudan and Libya to the ICC. These compromises demonstrate both the continuity in U.S. policy towards the ICC from administration to administration and how the U.S., while not a party to the Rome Statute, can work cooperatively with Rome Statute members to make use of the ICC in certain situations. The draft resolution on Syria would purportedly limit the referral to the conflict between the Assad government, its allied militias, and armed opposition groups in order to avoid giving the ICC jurisdiction over potential Israeli activities in the Golan Heights. The resolution would also exempt “current or former officials or personnel” of countries that are not party to the Rome Statute (except Syria) in order to avoid covering any U.S. personnel that might ever be involved in humanitarian activities in Syria. Similar language exempting U.S. personnel was also included in UNSCR 1970 (2011), which referred Qadaffi’s human rights abuses in Libya to the ICC, and in UNSCR 1593, which referred the human rights atrocities in Darfur to the Court.  UNSCR 1593, adopted in March 2005, reflected the beginning of the pivot towards a more pragmatic approach towards the ICC in the Administration’s second term. Although some Administration officials opposed making any use of the ICC, President Bush concluded that he was more concerned about the atrocities in Darfur than by any theoretical risk to U.S. personnel. When UNSCR 1593 was adopted, several Security Council members (including France) expressed their desire that the exemption for non-ICC members not be included in future resolutions. Later, many European governments expected that the Obama Administration would adopt a much warmer attitude towards the ICC; they had forgotten, however, that the United States during the Clinton Administration was one of only seven countries to vote against the Rome Statute and that President Clinton had said that he would not send it to the Senate for approval until U.S. concerns were addressed. Even if the United States and other Security Council members can agree on language referring Syria to the ICC, Russia may still veto the resolution (and it may be the intention of France and the Obama Administration to force Russia to do so).  Still, the Security Council referrals of Sudan and Libya (and potentially Syria) show that the U.S. can work with ICC members in appropriate situations to pursue international justice. Two years ago, on the tenth anniversary of the Rome Statute, I urged in the Washington Post that Congress amend the American Servicemembers Protection Act (including removing the silly authorization to use force to free U.S. servicemembers who might be imprisoned in the Hague) to provide more support to the Court in cases where justice for international atrocities cannot be achieved through other means.