A/HRC/22/59
mechanism that is imposed on Syria likewise fails to convince. The general inconveniences
of ad hoc tribunals and the existence of the International Criminal Court as a permanent
institution speak against this solution.
In conclusion, the creation of an international or internationalized ad hoc tribunal does not
adequately ensure accountability for crimes committed in Syria.
V.
Investigation and prosecution by the International Criminal
Court
The biggest advantage of the ICC is that it is an established structure that could
immediately initiate investigations regarding serious crimes in Syria. The ICC can rely on
highly experienced and competent personnel, an established legal framework and long-term
funding secured through mandatory contributions of States Parties. It is noteworthy that an
important reason for the creation of the ICC was the wish to avoid some of the abovementioned difficulties associated with ad hoc tribunals by creating a permanent mechanism.
The right to refer situations was included in the Rome Statute notably to give the UN
Security Council the possibility to resort to the ICC as a permanent institution instead of
establishing further ad hoc tribunals.
Syria is not a State Party to the Rome Statute. Accordingly, jurisdiction of the ICC can only
be established if the competent Syrian authorities accept the jurisdiction ad hoc,f if Syria
adheres to the Rome Statuteg or if the UN Security Council refers the situation to the ICC.h
In order to address violations that have been committed since the beginning of the conflict
in Syria in 2011, it would be crucial that the ICC can exercise its jurisdiction retroactively.
Jurisdiction since 2011 would only be possible if Syria or the Security Council specify it
when referring the situation to the Court. Given the lack of willingness by the current
Syrian authorities to initiate credible prosecutions, the only conceivable option for ICC
jurisdiction at this point in time seems to be a referral of the Security Council. If the
opposition should take over power at a later stage it could accept the jurisdiction the ICC ad
hoc in the name of Syria.
It is important to highlight the possible deterrent effect the establishment of ICC
jurisdiction could have on the commission of crimes in Syria. It would be a message to all
parties involved in the conflict that crimes are not only monitored by the International
Community but also sanctioned. As opposed to an ad hoc mechanism that has yet to be
created, the ICC is a well-known, fully functioning institution that could immediately
initiate investigations. ICC jurisdiction over Syria could especially have an effect on the
opposition that seeks international legitimization. Finally, the existence of ICC jurisdiction
contributes to political negotiations because it moves the fundamental issue of
accountability to the fore.
The establishment of jurisdiction of the ICC does in no way rule out parallel or subsequent
national proceedings. According to the principle of complementarity enshrined in the Rome
Statute, a case is inadmissible if national authorities carry out genuine investigations and
prosecutions.i In fact, it is clear that the ICC will never be in a position to prosecute all
authors of serious crimes. The bulk of prosecutions will have to take place on a national
level, whether the ICC is seized or not.
f
g
h
i
126
Article 12 (3) Rome Statute.
Article 12 (1) Rome Statute.
Article 13 (b) Rome Statute.
Article 17(1)(a) Rome Statute.
GE.13-10627
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