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We need an ICJ ruling on Syria

Gates to the Peace Palace in the Hague. Klev.Victor/Shutterstock. All rights reserved.

A year
has now passed since Russia and China vetoed a resolution at the UN Security
Council, proposed by 65 countries, which would have referred the situation in
Syria to the International Criminal Court. Back then, 160,000 Syrians had
already died in three years of brutal war launched by Bashar al-Assad against
his own citizens. Now, 60,000 more Syrians have been killed, and more than a
million more have been forced to leave the country.

Russia’s
UN Ambassador, Vitaly Churkin, dismissed the UN vote at the time as a
"publicity stunt" that threatened peace negotiations. Despite the
lack of progress on those negotiations, it seems unlikely that Vladimir Putin
is about to allow his Syrian ally to be sent to the ICC anytime soon.

And yet,
neither the US nor the UK, who vociferously condemned the Russian and Chinese
vetoes, nor any other government, has brought the atrocities in Syria before
another tribunal in the Hague that could well address them—the International
Court of Justice.

Created in the aftermath of the Second
World War, the ICJ, also known as the World Court, adjudicates disputes between
states. Unlike the ICC, the ICJ does not prosecute or try individuals. But it
is the most authoritative judge of what international law says—and therein lies
its power.

The prospect of taking Syria before the world court has already been floated in diplomatic circles, with two potential
routes open for action.

First, more than 30 states have ratified
the necessary instruments to bring a “contentious proceeding”, or lawsuit,
against Syria for the Assad regime’s violations of the Convention against
Torture through its systematic abuse of thousands of persons in detention.

Alternatively, the UN General Assembly,
by majority vote, could request the Court to issue an advisory opinion on “any
legal question” relating to Syria. Such questions, which would ultimately have
to be agreed by the Court’s judges, could conceivably include whether, in
the course of the civil war, crimes against humanity have been committed by the
Syrian regime, and/or opposition armed groups, as well as what legal
consequences might flow from such potential findings.

In
considering such questions, the Court would have access to the wealth of
evidence already gathered by the UN Commission of Inquiry and by
non-governmental monitoring organisations, such as the Commission for
International Justice and Accountability, a specialised non-governmental
investigative unit that has been working for months to build war crimes
dossiers against high-level government officials and non-state actors in Syria
for such time as prosecution becomes possible.

While the ICJ has taken years to resolve
contentious cases, it has issued advisory opinions as quickly as seven months
after submission of a question—a ruling on Syria should take no more than nine
months.

Would anyone care if the ICJ were to
find that the Assad regime had breached the Convention against Torture or other
provisions of international law? And even if they did, would anyone do
anything?

After all, the UN Charter gives the
Security Council—the very body that could not agree on referring Syria to the
ICC—the power to enforce ICJ rulings.

And yet, a judgment need not be enforced
to have political impact. The Court’s 1986 condemnation of the Reagan administration’s covert war against Nicaragua demonstrated that a key element
of US foreign policy lacked legal foundation. The US reaction—withdrawing from
the Court’s compulsory jurisdiction—underscored Washington’s political isolation
in its approach to Central America.

Similarly, the Court’s 2004 holding that
Israel’s construction of a wall within the Occupied Palestinian territory
breached international law accelerated a steady erosion of political support
across the globe for Israel’s treatment of the Palestinians.

Of
course, sometimes the Court’s orders are heeded. Later this year, Hissene
Habre, the former dictator of Chad, will stand trial for torture and other
grave crimes in a court in Senegal, following an ICJ decision ordering his
prosecution.

No one
expects that an ICJ ruling would immediately halt Syrian officials’ use of
barrel bombs or other outrageous attacks on civilians.

Yet, by
adding the weight of the world’s most respected judicial body to the debate, it
might increase the political cost of continued resistance—by Russia, China or
others—to criminal investigation and prosecution.

By
showcasing the breadth and quality of evidence of serious crimes, and by
(potentially) finding that senior Syrian figures had breached international
law, an ICJ proceeding would make it harder to sweep issues of accountability
under the rug in order to secure an end to the conflict.

And it
would send a powerful signal to the many victims of Syria’s atrocities that the
world will not forget their suffering.

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