SYRIA AND THE ICC: NEW PHASE OF MILITARY AND DIPLOMATIC STAND-OFF

Monday, 21 January 2013

SYRIA AND THE ICC: NEW PHASE OF MILITARY AND DIPLOMATIC STAND-OFF

Posted on January 21, 2013 by Alexandra Valiente

Alexander Mezyaev

The situation in Syria is evolving according to the most unfavorable scenario. The opposition has met the President Bashar Assad’s proposals for peaceful resolution of the crisis with Aleppo University bomb attacks. A new diplomatic provocation against Russia is in the works in response to its diplomatic efforts aimed at finding ways for peaceful crisis management.

On January 14, 2013 Switzerland asked the United Nations Security Council to refer Syria to the International Criminal Court (ICC), which prosecutes people for genocide and war crimes. It had applied great effort to make 54 more states join the move (1), including five members of United Nations Security Council (Great Britain, France, Australia, Korea, and Luxemburg). Though the major part of other Security Council members abstained from putting their signatures on the letter, it was more of a ruse on their part because they had called for the referral before.

Let’s note: Brazil, South Africa and India are no more UN Security Council members since January 2013. These countries had stood for peaceful solution, perhaps not always very consistently, but they had. (2) Thus there are two states left that oppose the idea – Russia and China. The letter has been submitted to the UN Security Council for consideration and the move is aimed at launching a phase of diplomatic provocation against two Council’s members – the Russian Federation and the Chinese People’s Republic.

Let’s have a look at the legal arguments used to support the move urging the referral of the Syrian crisis to the International Criminal Court. The major legal problem is that Syria is not a party to the Rome Statute, which set up the International Criminal Court, so the only way the court can investigate the situation is if it receives a referral from the Security Council. But this right is established by the International Criminal Court’s Statute, not by the United Nations Charter. It signifies that the United Nations Security Council can refer to the International Criminal Court only the parties to the Statute. Any other interpretation contradicts the norms of interstate legal relations, especially the principle of sovereign equality. To recognize that article 13b of the International Criminal Court’s Statute can be applied against the state that is not a party to it is tantamount to shaking the very foundation of international law. Recognizing as legal an action making an independent state become a party to an international agreement (the International Criminal Court’s Statute) against its will is a flagrant violation. It should be noted that the United Nations Security Council has been involved twice in such acts of coercion – against Sudan and Libya. It has done it on purpose, not because it failed to go into «legal details».

Today we are facing the situation when global legal norms are being intentionally trampled on. This is a committed policy of the West aimed at creating a parallel international law. It’s a pity Russia also participates in the destructive process, for instance, before the motion on Syria, it had supported the resolutions to refer Sudan and Libya to the International Criminal Court. Legally Russia is even more vulnerable here, than, say, Great Britain or France, for instance, because, these states are parties to the Statute unlike the Russian Federation! (3) Thus, being a non-party to the international agreement, Russia actually has made other states, which are not members of the ICC, comply with the ICC’s Statute provisions. Fortunately, some mistakes are never too late to correct. Now, when President Vladimir Putin is back to reign supreme in the Russia’s foreign policy, the Russian Federation rejects the referral of Syria to the International Criminal Court. Today it stands to defend the Syrian people and global legal norms as one of the most important values of the contemporary civilization.

The diplomatic provocations are accompanied by new military preparations… On January 10, 2013 British Foreign Secretary William Hague said the European Union must start arms deliveries to the Syrian «opposition». According to him, such deliveries would not violate neither internal legislations of the European Union members, nor international law. Actually it is not true. Today a ban on arms deliveries to Syria is valid in Europe. That is, the actions Mr. Hague is calling for constitute a blatant violation of the European Union members’ home rules. Though there is a proposal made that envisages the way to get rid of the impediment: it suggests that the established embargo be reconsidered not in 12 months (as conditioned previously) but in 3 months – that is this March.

Dealing with international law is a more complicated task. It’s not as easy to change as the countries’ home legislations. Arms deliveries are forbidden by a number of the United Nations General Assembly’s resolutions, for instance: the resolution N 2625 (1970), which states that, «Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force». In 1986 the International Court of Justice ruled in favor of Nicaragua and against the United States. The Court held that the U.S. had violated international law by supporting the Contras. It unambiguously ruled that the fact of arms deliveries to rebel groups by another state was an act of violation. The ruling said there was no global norm allowing an armed intervention of a state pursuing the goal of supporting opposition forces in another country. It’s not without a reason the «theories» like «the concept of humanitarian intervention» or «the concept of responsibility to protect» started to appear and multiply. All these speculative concoctions have no legal ground whatsoever – this view is supported by the majority of the countries in the world expressed in the Joint Declaration of the 130 member strong Group of 77 adopted in 2000, that says, «We reject the so-called «right» of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law».

Reading the foreign publications devoted to international law one can see the intensive search for getting around the global norms is already underway. For instance, it is suggested that the civil war in Syria be considered as «a struggle of the Syrian people for self-determination». A weak argument if you take into account the international definition of self-determination. It would be more correct to talk about the Arab people, who have realized their right for self-determination a long time ago. Talking about the Syrian people, no way can they fight for self-determination possessing their own state. There is one more proposal on how to go around the rules. It calls for enhancing the level of Syrian opposition recognition by the European Union from the «the legitimate representative of the Syrian people» to «legitimate government of Syria». It’s obvious, these «exercises» are amoral, and they call for illegitimate actions. But is it the first time they try to use international law for justification of their nefarious actions?

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Syria is to continue its fight against foreign aggression, as well as Russia is to stand up to the new provocation in the United Nations Security Council. Russia’s stance is supported by international law. It has everything it needs to prove it in case another draft resolution, though doomed in advance to get adopted, is submitted to the United Nations Security Council.
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(1) Albania, Andorra, Austria, Belgium, Botswana, Bulgaria, Cabo Verde, Chili, the Cook Islands, Costa Rica, Cote D’Ivoire, Croatia, Cyprus, the Czech Republic, the Kingdom of Denmark, Estonia, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Libya, the Principality of Liechtenstein, the Grand Duchy of Luxembourg, the Republic of the Maldives, Malta, the Marshall Islands, the Principality of Monaco, Montenegro, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Portugal, the Democratic People’s Republic of Korea, the Republic of Moldova, Romania, the Republic of San-Marino, the Independent State of Samoa, the Republic of Seychelles, Slovakia, Slovenia, Spain, Macedonia, Tunisia, the United Kingdom of Great Britain and Northern Ireland and Uruguay.

(2) Brazil, India and South Africa abstained on October 4, 2011, when the United Nations Security Council voted on the West-proposed draft resolution. Besides, South Africa abstained while voting on the draft resolution on July 19, 2012. Russia and China have voted against draft resolutions in the both cases (the texts of all the United Nations Security Council draft resolutions against Syria initiated by the West are published by “Kazan Journal of International Law” (2012, №5, p. 38 – 67). The draft resolutions have failed to be adopted being opposed by Russia and China).

(3) There are other violations of international law basic provisions by the United Nations Security Council members, which are parties to the Rome Statute. For instance, upon the insistence of these very countries, the United Nations Security Council’s draft resolutions contained clauses stipulating that the International Criminal Court was forbidden to spread its jurisdiction upon their citizens. If the International Criminal Court were really independent it would be obliged to ignore the clauses and to launch a really impartial investigation into the issue according to the Court’s Statute. Inevitably the inquiry would have led to bringing charges against the NATO members responsible for mass bombings of civilians in Libya.