DECONSTRUCTING SYRIA'S WOULD-BE INTERNATIONAL CRIMINAL COURT REFERRAL: THE POLITICS OF INTERNATIONAL JUSTICE.

• Author: Van Schaack, Beth

1. THE SECURITY COUNCIL, INTERNATIONAL JUSTICE, AND THE ICC: A SHORT HISTORY II. THE DRAFT SYRIA RESOLUTION A. Condemnation of Abuses by Certain Actors Across Syrian Territory B. Referral of "the Situation" to the Court C. Duties of Cooperation on U.N. Member States D. The Possibility of Asserting Jurisdiction over Personnel Hailing from Nonparty States 1. Origins of the Exclusionary Language 2. A Reprise in Libya 3. U.S. Domestic Law 4. The Mali Work Around 5. Legality of Such Provisions E. Article 98 Agreements F. Failure to Eliminate any Customary International Law Immunities 1. The Scope of Defendants' Immunities Before the Court 2. The Scope of Defendants' Immunity Vis-a-vis Other States. 3. The Court's Jumbled Jurisprudence 4. Interactions with ICC Indictees G. Lack of Dedicated Funding 1. U.N. Charter-based Concerns with Restricting U.N. Funding 2. Policy Arguments 3. Idiosyncratic U.S. Rationales for Restricting U.N. Funding H. Lack of Follow Up. I. Sanctions Coordination Introduction

   Since the "Arab Spring" arrived in Syria in 2011, virtually every international crime that forms part of the international penal code--a melange of customary international law and treaty provisions--has been committed in and around Syria. (1) The Syrian people have witnessed and been subjected to deliberate, indiscriminate, and disproportionate attacks; the misuse of conventional, unconventional, and improvised weapon systems; industrial-grade custodial abuses in a vast network of formal and informal prisons; (2) unrelenting siege warfare; the denial of humanitarian aid and what appears to be the deliberate use of starvation as a weapon of war; sexual violence, including the sexual enslavement of Yezidi women and girls trafficked from Iraq and the sexual torture of detained men and boys; (3) and the intentional destruction of an irreplaceable cultural heritage. (4) Thousands of Syrians are missing, many of them victims of enforced disappearances. (5) The long-standing taboo against the use of chemical weapons has been repeatedly flouted, (6) and the sectarian nature of the violence has raised the specter of genocide against ethnoreligious minorities. (7) Violence in the region has contributed to the biggest exodus of refugees since World War 11.

   Even early in the Syrian conflict, it was clear that these tragic events would easily surpass the gravity threshold operative at the International Criminal Court (ICC). As Syria is not a party to the treaty establishing the ICC, the only way the full conflict could come before the Court is via a Security Council referral. (8) Even before a concrete referral proposal finally emerged in 2014, many states began to express their support for an ICC referral in their interventions in the Council. (9) As such, the Council came under considerable pressure to refer the situation in Syria to the ICC, particularly as detailed information about the systemic commission of international crimes began to emerge from multiple authoritative sources. France ultimately tabled a draft referral resolution, but it proved dead on arrival, defeated by a Russian/Chinese double veto. (10)

   This Article deconstructs France's draft referral resolution with an eye towards understanding the complex interplay between the Security Council, the ICC, and the impact of the situation in Syria on that evolving relationship. After briefly surveying the history of the Council's engagement with international justice, the Article gives a close read to several provisions in the draft referral resolution that have proved to be sharply controversial in prior ICC referral resolutions but that were showcased in an effort to achieve consensus as the Syria referral effort was underway. These include various jurisdictional carveouts, the scope of states' duties of cooperation toward the Court, the endurance of any immunities potential ICC defendants might enjoy, and perennial funding issues. Because many of the most contentious provisions in the referral resolutions owe their provenance to concerns of the United States, the draft resolution also presents a microcosm of the United States' Security Council practice when it comes to advancing international justice. The divisive provisions in the prior ICC referral resolutions, coupled with a regrettable lack of progress on prior Council referrals, have contributed to a profound ambivalence about the role of the Security Council in the system of international justice and helped revitalize the movement towards Security Council reform.

   All told, this story of the Security Council's engagement with the ICC around the Syrian crisis illuminates the enduring tension between many states' aspirations to end impunity for international crimes and their reticence to jeopardize state sovereignty in the abstract or their own idiosyncratic interests in the particular. Although the international community has made measurable progress towards the establishment of a global system of international justice, geo-politics remain a powerful and often countervailing force. At the same time, while France's failed draft still contained many of the contentious elements found in previous referral resolutions, in subtle ways, the text manifests the potential to tip--ever so slightly--the Council's balance of competing imperatives towards justice. The willingness of the United States to make slight textual concessions on these provisions in the face of Russia's intransigence also signals the changing political game within the Council chambers.

1. THE SECURITY COUNCIL, INTERNATIONAL JUSTICE, AND THE ICC: A SHORT HISTORY

   The U.N. Security Council has played a central, if contested, role in the revival of the Nuremberg promise of individual criminal accountability for the commission of grave international crimes. Since the 1990s, the Security Council has increasingly executed its peace and security mandate in a range of atrocity and postwar transitional justice contexts. (11) This is the case even in situations involving abuses occurring exclusively within the borders of a single state. (12) Although the Council has repeatedly acknowledged the value of the whole range of transitional justice responses, (13) Council members evince a distinct preference for criminal justice measures when it comes time to exercise their enforcement powers.

   Starting with the establishment under Chapter VII of the U.N. Charter of the two ad hoc international tribunals for the former Yugoslavia (14) and Rwanda (15) as subsidiary organs, (16) the Council has launched and supported a number of criminal justice institutions. To be sure, as the costs of the ad hoc tribunals mounted, "tribunal fatigue" eventually set in in the Council. Nonetheless, Council members continued to sponsor the establishment of justice institutions in other ways. For example, the Council was instrumental in launching the Special Court for Sierra Leone (SCSL)--which was the product of negotiations between the U.N. Secretary-General and the Government of Sierra Leone initiated at the behest of the Council (17)--and the Special Tribunal for Lebanon. The latter entity may not have come into being at all without a firm nudge from the Council since the domestic political debate around establishing a tribunal to address domestic terrorism had become indelibly deadlocked. (18) Likewise, the Council established the U.N. Transitional Authority in East Timor (UNTAET), which took it upon itself to establish Special Panels under its law-andorder mandate in order to provide a forum to prosecute international crimes committed in connection with the country's incendiary independence referendum. (19)

   Besides these concrete institutional initiatives, the Council regularly calls for accountability for perpetrators and the initiation of other transitional justice projects in its varied pronouncements. (20) For example, in its resolution referring the situation in Darfur, Sudan, to the ICC, the Council also emphasized:

   the need to promote healing and reconciliation and encouragefd] in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary.... (21) In a 2006 Presidential Statement issued in connection with the Council's consideration of the theme of "Strengthening International Law," Council members denounced impunity and recognized the value of transitional justice processes:

   The Security Council emphasizes the responsibility of States to comply with their obligations to end impunity and to prosecute those responsible for genocide, crimes against humanity and serious violations of international humanitarian law. [...] The Council intends to continue forcefully to fight impunity with appropriate means and draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and 'mixed' criminal courts and tribunals and truth and reconciliation commissions. (22) The Council continues to echo these themes in its pronouncements. (23)

   As the ICC was being conceptualized, there was intense debate over what role the Security Council would play vis-a-vis the Court--a question that remained open until the end of the treaty negotiations. Some stakeholders wanted to maintain a complete separation between the two institutions to avoid any politicization of the Court. By contrast, some members of the P-5 argued that the Council should serve as a gatekeeper for the ICC, controlling which matters went forward. Ultimately, a compromise was reached. As a result, the Rome Statute grants the Council several formal roles in the Court's operations: both referring (24) and deferring (25) potential investigations and cases; (26) compelling state cooperation following its referrals; (27) and--as a...