International Criminal Court a Tool for Regime Change in Syria?

Jenny Mulder

On Thursday, 22 May 2014, two of the five permanent members of the United Nations Security Council (UNSC) with veto power, have vetoed the French draft resolution to refer Syria to the International Criminal Court (ICC) in The Hague to investigate allegations of serious violations of international humanitarian law.

The ICC prosecutor cannot investigate the situation in Syria without a referral from the Security Council because Syria is not a state party. Syria has signed, but not ratified The Rome Statute, the treaty that established the International Criminal Court. The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party. An exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.

It was to be expected and foreseen that Russia (and China) would block the passage of the draft resolution, so what are the reasons France initiated this draft and put it to vote?

Although Syria has not ratified the Rome Statute, this can be overcome given that Syria is a signatory to the Rome Statute. Signature of a treaty does not create legally binding obligations for the signatory state, however, according to Article 18 of the Vienna Convention on the Law of Treaties (1969), a signatory who intends to ratify is bound to refrain from acts which would defeat the object and purpose of a treaty. Thus, Syria must comply with interim obligations under the Rome Statute. Technically speaking, the ICC Prosecutor can initiate a criminal investigation in Syria on these grounds.

In the past weeks, several non-governmental organizations (NGO’s) have done their utmost to help build a case against the government in Damascus.

Human Rights Watch (HRW), funded by convicted criminal George Soros through his Open Society Institute and used as a tool to undermine national governments around the world, claims that over the last three years, Human Rights Watch has extensively documented abuses by Syrian government and pro-government forces and concluded that they have committed crimes against humanity and war crimes. According to HRW, the Syrian government continues to carry out indiscriminate air and artillery attacks hitting civilian areas and to arbitrarily detain, torture, and extra-judicially execute civilians and combatants.

Physicians for Human Rights (PHR), an NGO that receives funding from the UK government, claims that although clinics, hospitals, ambulances, and medical service providers are protected under the laws of war, the Syrian government is repeatedly bombing hospitals until they are destroyed, and that doctors, nurses, pharmacists, medics, ambulance drivers, and medical students are also under fire. According to Physicians for Human Rights, as of April 2014, PHR had confirmed the death of 468 medical service providers, some of whom were killed during attacks on hospitals, clinics, and ambulances, while others were detained and tortured to death in Syrian prisons. Moreover, according to PHR, in violation of the standards of the Geneva Convention, civilians are actively being targeted and then denied life-saving medical care.

According to The Telegraph (UK), a specialist team from the UN’s Organisation for the Prohibition of Chemical Weapons is investigating the use of chlorine bombs against opposition fighters. The Telegraph also mentions that the Israeli military website Debkafile, which has close ties to Israel’s Defence Ministry, reported earlier this month that Iran was supplying Syria with the new Chinese-made chlorine bombs that are being used against the rebels. In one attack at Kafr Zita, on the outskirts of Hama, regime loyalists were said to have used Chinese-manufactured chlorine gas canisters rigged with explosive detonators.

After the liberation of Homs, the third largest city of Syria, earlier this month and the recapture of the Aleppo prison and its surroundings, it is clear that Syrian President Bashar al-Assad is heading for a victory not only in the terrorist war against Syria, but also in the coming elections of 3 June.

NATO and friends realize that the only possibility to achieve their goals, is to discredit the Syrian President, government and military by fabricating a case against them based on lies, thus creating a pretext for a humanitarian intervention, which can be prevented or stopped in exchange for regime change.

Syria has signed the Rome Statute, the treaty that established the International Criminal Court, and is according to Article 18 of the Vienna Convention on the Law of Treaties (1969) bound to refrain from acts which would defeat the object and purpose of the treaty. It is therefore very well possible that in the coming weeks the International Criminal Court will initiate a criminal investigation in Syria for non-compliance with interim obligations under the Rome Statute.

In this context, it is worth mentioning that on 6 May 2002, the administration of US President George W. Bush sent a note to the United Nations Secretary-General Kofi Annan,“nullifying” the Clinton signature to the Rome Statute of the International Criminal Court. US Undersecretary of State for Arms Control and International Security John Bolton, in a simple three-sentence letter to UN Secretary-General Kofi Annan, formally ended US participation in the International Criminal Court, asserting that Washington “does not intend to become a party (to the Rome Statute of the ICC)” and that it “has no legal obligations arising from its signature (to the treaty)”

I strongly recommend that Syria follows in the footsteps of the US and “un-signs” the Rome Statute, making use of Article 25 of the Vienna Convention on the Law of Treaties, according to which, unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.