The International Criminal Court and State Referrals

Background

On the 25^th of April, the head of legal commission for the Syrian National Coalition (of Syrian Revolution and Opposition Forces – SNC) indicated that the International Criminal Court (ICC) had accepted the lawsuit brought by the SNC against Bashar Al-Assad and other high-ranking officials.[1] At the same time, the ICC issued a statement denying this, claiming that the court does not have jurisdiction over the situation in Syria.[2]

The debacle has again raised questions about referral to the ICC of crimes related to the Syrian conflict. The following report highlights the legal framework regarding the ICC’s capacity and jurisdiction regarding the Syrian conflict, and proposes an explanation of the SNC spokesman’s announcement.

The ICC’s jurisdiction

The International Criminal Court can only accept cases over which it has jurisdiction. Jurisdiction comprises three routes: temporal jurisdiction, subject matter-based jurisdiction, and territorial/personal jurisdiction.[3] The question of subject-matter jurisdiction pertains to the nature of the crime, based on article 5 of the Rome Statute, and this is outside the scope of this report.[4] The question of referrals falls within the territorial/personal category, which is governed by article 12 (preconditions to the exercise of jurisdiction)[5] and article 13 (exercise of jurisdiction)[6] of the Rome Statute, the founding document for the ICC.

Per these articles, the ICC has jurisdiction in the following cases:

• The crime has been or is being committed on the territory or by a national of a State Party or
• A State not Party that has lodged a declaration accepting the jurisdiction of the Court, or
• It arises from a situation referred by the Security Council

There is a fourth alternative, through which the Prosecutor is empowered by article 15 to initiate a preliminary examination into a situation, but only after the receipt of evidence of crimes under the jurisdiction of the ICC. The preliminary examination is activated by virtue of article 15 and is a precondition to launching an investigation.

According to the “Policy Paper on Preliminary Examinations,”[7] the preliminary examination may be initiated on the basis of:

a) information sent by individuals or groups, States, intergovernmental or non-governmental organisations;

b) a referral from a State Party or the Security Council; or

(c) a declaration accepting the exercise of jurisdiction by the Court pursuant to Article 12(3) lodged by a State that is not a Party to the Statute.

In separating the first element from the latter two, it appears as though the preliminary examination may circumvent territorial/personal jurisdiction issues presented by the Syrian conflict. However, the policy paper makes clear that:

“It should be recalled that the Prosecutor’s proprio motu powers under article 15 of the Statute can be exercised only within the statutory parameters of the Court’s jurisdiction, meaning with respect to crimes allegedly committed on the territory or by nationals of States Parties or States that have lodged a declaration accepting the exercise of jurisdiction by the Court; article 12(2)-(3), Statute. The Prosecutor cannot act on information concerning crimes allegedly committed outside of these parameters unless the Security Council has referred the situation.”[8]

In practice, the exercise of these powers is highly politicized and holds significant consequences. It also rests largely on the subjective position of the Office of the Prosecutor (OTP), through whose discretion these powers are exercised. As such, if the prosecutor believes that the impartiality of the ICC is furthered by self-referrals only, as was the case with former ICC Prosecutor Ocampo, they might withhold the use of the proprio motu powers. Preliminary examinations are also extremely costly, so where the OTP expects that a territorial jurisdiction issue may arise, it may decide to forego acting through a preliminary examination to save human and financial resources.

So why would the SNC issue a statement declaring that the ICC has preliminarily accepted its submission?

It could be a procedural matter. As stated above, the court would accept information sent by individuals or groups, separate from direct referrals. In the first phase of preliminary investigations, the court conducts an initial assessment to filter out communications outside the jurisdiction of the court. Before doing so, the OTP sends an acknowledgement of receipt to all senders of communications.[9] Sometimes, the Court may also send another message indicating that it is considering the suitability of the Court system (the Rome Statute). The acknowledgement does not represent intent by the OTP to undertake anything regarding the communication beyond the first phase.

Source: Syrian Legal Development Project – SLDP