May 13, 2014 – The draft Security Council resolution circulated by France that calls for referring the situation in Syria to the International Criminal Court would exempt the bulk of foreign forces on both sides from investigation and prosecution.
An operative paragraph in the draft Syria text states that the resolution “decides that nationals, current or former officials, or personnel from a state outside the Syrian Arab Republic which is not a party to the Rome Statute of the ICC shall be subject to the exclusive jurisdiction of that state for all alleged acts or omissions arising out of or related to operations in the Syrian Arab Republic, established or authorized by the Council unless such jurisdiction has been expressly waived by the state.”
In both cases, and also with the current draft Syria text, it is understood that the exemption paragraph is included at the insistence of the US.
But the paragraph exempts all non-Syrians from countries that are not party to the Rome Statute. That includes Iran, Iraq, Lebanon, Saudi Arabia and Qatar as well as the US, China and Russia.
When former US ambassador to the UN, Susan Rice, was asked about the exemption clause in 2011 as it related to non-Libyans fighting for Gaddafi, she said the ICC would focus on the “big fish” and not the “foot soldiers.”
ICC Prosecutor Fatou Bensouda, who refused to take questions on Syria during a press conference at UN headquarters on Tuesday, could assert her independence if – and it seems unlikely at this stage – the French-drafted resolution is adopted, she accepts the referral but rejects the limitations imposed on her investigation.
– Denis Fitzgerald
On Twitter @denisfitz