Getting the necessary consensus to pursue an ICC referral is difficult for many of the same reasons the Security Council has been stifled in its other efforts to do something about Syria. Russia does not support an ICC referral. It also does not appear as if the United States would support a referral either. It did not sign the letter requesting the Security Council to advance an ICC referral, and Hillary Clinton, as Secretary of State, said calling Assad a war criminal would “complicate” matters.
However, if the Security Council were able to muster the necessary votes to actually get the ICC involved, would this necessarily be a good idea? From an international law perspective, it might not be. If the Security Council did issue a referral, it might look very similar to its referral of the Libyan situation. That case shared a similarity with the Syrian case in that the ICC did not have jurisdiction over Libya without a Security Council referral. However, in that instance, the Security Council managed to coalesce around the idea of a referral, enabling the ICC to investigate violations of international law committed in the Libyan conflict. Yet, for the ICC, this referral was problematic because it limited its jurisdiction. For one thing, the ICC could not investigate the actions of non-States parties, which included some of the countries participating in NATO’s Libyan operation. As Mark Kersten argues, accepting restrictions like this compromises the ICC’s independence and integrity by weakening the notion of equality before the law. If the SecurityCouncil manages to agree to an ICC referral, it may well impose similar types of restrictions because of concerns that the actions taken by its veto-wielding members in Syria might open them up to ICC prosecution. Accepting such a restricted referral potentially undermines the idea of rule of law. Advancing an ICC referral as a way to end the conflict when the international community is paralyzed to do so also undermines the rule of law. Passing the buck on to the ICC to do what the international community is unable or unwilling to do can cause serious long term damage not only to the ICC itself, but to the effectiveness of international law more broadly.
The AC (Appeals Chamber) has stated that: If the suspect or conduct has not been investigated by the national jurisdiction, there is no legal basis for the Court to find the case inadmissible.
The Defense acknowledges and accepts the reasoning in Katanga that this Court must have regard to whether or not an investigation has taken place before examining the question of unwillingness and inability. However, the Defense submits that in situations where jurisdiction is triggered by a UNSC referral this Court must have a lower threshold for an ‘investigation’ and place greater emphasis on whether or not a State is unwilling or unable to genuinely carry out an investigation or prosecution.
The AC in Muthaura, Kenyatta and Ali held that ‘national investigations must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.’
The Defense’s case is that given a UNSC referral the relevant Syrian authorities would react and initiate investigations. This is because Syria would wish to exercise its own jurisdiction over its nationals, especially its head of State.
The Defense submits that there is no evidence that when the accused is eventually tried before the Syrian courts, it will be sham proceedings (Art 17 a) or lead to an unjustified delay (Art. 17 b)
It is important to state that Syria, since the beginning of the crisis it is passing through, a major media misleading campaign assumed by both Arab and foreign information media. That has dedicated themselves as an information arm for the armed terrorist groups covering up their terrorist attacks against the Syrian people, both civilians and soldiers, and coordinating with them in fabricating and photographing massacres committed by those armed groups against Syrian citizens with a view to accusing the Syrian Arab army, order-keeping forces and the government.
None of these media channels bought it to notice that Al Jazeera, Reuters published the news of massacre in East Ghouta, Damascus one day before the massacre happened. Terrorists in Syria uploaded (20. 08. 2013) the video of their crimes in East Ghouta, Damascus and then blamed Syrian Government for the attack at early time of 21. 08. 2013. If the crime had been committed on 21.08.2013, then how did they upload the video on YouTube a day before the crime? That is only possible if the rebels travelled to the future with a video camera and recorded the government forces killing innocent civilians!
In early 2012, U.S. officials stated that the violence and disorder paralyzing Syria was creating opportunities for Al Qaeda operatives and other violent Islamist extremists to infiltrate the country and conduct or plan attacks. They say armed Terrorist groups such as Al-Nusra Front, Syrian Islamic Front (SIF), the Saquour al Sham brigades, the Abdullah Azzam Brigades etc. More than 1700 schools have been attacked, 38 hospitals and 132 health centers have been attacked and damaged by armed terrorist groups, which is a violation of Article 18 of the Geneva Convention. Yet, every single day Bashar Al Assad strives to protect his citizens from these terrorists and he has been called a murderer! What’s ironical is that the countries who claim that they are fighting terrorism and are blaming the Syrian Government for mass killings are actually the ones who are funding these terrorists.
The terrorists are the ones responsible for the crimes and not the Syrian Army. They have been impersonating Syrian officials, killing innocent people and then blaming it on the government. Yes, there might have been a few human right violations by the Syrian army however Basher Al Assad cannot be help responsible under Art. 28
If we look at Article 11 of Syrian Constitution which reads -
The army and the armed forces shall be a national institution responsible for defending the security of the homeland and its territorial integrity. This institution shall be in the service of the people’s interests and the protection of its objectives and national security.
Clearly, we see that the acts of Syrian Army personnel are not due to direct command of Bashar Al Assad, which has been reaffirmed in his interview with Barbara Walters. Furthermore, President George Bush was not held responsible for the human rights violations committed by US soldiers in Afghanistan or Iraq. Similarly, Bashar Al Assad cannot be held responsible. He gives broad orders and military officers formulate the specific strategies and tactics.
If we look at article 24(a)(i) it says he should have known. Basher Al Assad is the president of Syria. He cannot know about every incident that takes place in his country. There is no proof to indicate that he gave orders to the army to kill innocent civilians. Also we can look at Article 24(a)(ii) which states that – “That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress the crimes” He has taken actions and those held responsible have been tried in the Syrian courts. For example, the Governor of Daara was accused of giving orders to kill civilians and he was penalized. It applies for article 28(b) as well.
Now regarding the Independent Inquiry into Syria; to begin with, the report lacks credibility because the investigators, by their own admission, did not have, or did not obtain, the relatively free access to the country that the U.N. Observer Mission had enjoyed before them. (Completely free access is always impossible in war zones) This restriction, in the words of the Commission itself, “significantly hindered the Commission’s ability to fulfill its mandate. “Randomly chosen and geographically widely distributed “victims and eye witnesses could not be interviewed in person.” In particular the “access to the victims of opposition violence was limited” and “access to the Syrian army and to members of the Syrian government was almost nonexistent.” Civil or religious groups in Syria could have furnished witnesses and victims of violence to be interrogated by the Commission even by phone, and also an alternative version of many events.
On the basis of an analysis ( by The NoWar Network – Italy and the Research Centre for the Truth against the Wars )of the geographical distribution of the calls and taking into consideration the previous reports by the same Commission, it seems highly likely that the Commission interviewed mostly those Syrians who belong to the opposition movement. Even if we did not take this analysis into account it should be noted that most of the ‘witnesses’ are not living in Syria which increases the possibility of them being fake and bias. Let us look at the report on the Houla Massacre. In the oral update it gave three alternatives as to who could be responsible for the killings. Yet less than a month later the final report blames the Syrian Government. The report was to be submitted to UNSC but the Security Council never received the report. Thus, it appears that by the time the UNSMIS Report on Houla was submitted to UN Headquarters, some decision had been made that it would not be presented to the Security Council, but instead the CoI would create a substitute report, despite the fact that this body had no direct access to the facts or to witnesses to the massacre. In conclusion, given the Commission’s international mandate, the partiality and one-sidedness of the CoI report is both flabbergasting and disconcerting. The inquiry is being used by an imperial tool, which cannot be trusted.
Everybody uses the term Syrian ‘Revolution’, but in fact it has nothing to do with revolutions. A revolution needs thinkers. A revolution is built on thought. Where are their thinkers? A revolution needs leaders. Who is its leader? Revolutions are built on science and thought not on ignorance, on pushing the country ahead not taking it centuries back, on spreading light not cutting power lines. A revolution is usually done by the people not by importing foreigners to rebel against the people. A revolution is in the interest of people not against the interests of people. Is this a revolution? Are those revolutionaries? No, they are a bunch of criminals and terrorists.
If Bashar Al-Assad must be found guilty for fighting terrorism in his own country then every American president should be found guilty for fighting it in another country!