Last week, I wrote a post asking why the International Criminal Court hasn't issued warrants for Bashar al-Assad and other leading regime figures in Syria. After all, action was taken very quickly against Muammar Qaddafi in Libya, and the ongoing crackdown in Syria is, if anything, more bloody and indiscriminate than the methods deployed by Qaddafi in the early days of the uprising against his regime.
An official at ICC Chief Prosecutor Luis Moreno-Ocampo's office emailed me this morning explaining why the two cases are different. As far as the ICC is concerned in the case of Syria its hands are tied. Why? Syria, like Libya (and the United States for that matter), isn't one of the 116 states that have ratified the Rome Statute that governs the court's jurisdiction.
"The only circumstance in which the Prosecutor can open an investigation outside the territory of a State Party is pursuant to UN Security Council Resolution, as has occurred in relation to Darfur and Libya or if the State accepts the jurisdiction of the Court as it happened with Ivory Coast," the ICC representative wrote to me. "The Prosecutor can not even comment on what happens in crimes outside his jurisdiction."
In my earlier piece I had contrasted Mr. Moreno-Ocampo's strong public statements about crimes in Libya against his silence over Syria, and in doing so I probably went a little overboard. While the broader point I was trying to make still stands – that in the case of many situations where war crimes might have occurred, it's international politics, not simple questions of legality, that determine what happens – that's certainly not Moreno-Ocampo's fault.
The problem lies with the UN Security Council, where countries like Russia and China are generally nervous about an expanding international authority into matters that touch on national sovereignty. Despite mounting evidence of war crimes in Syria, there seems little appetite at the UN Security Council to take action against Assad or his main allies. Today, Syrian gunboats pounded parts of Latakia, including a Palestinian refugee camp where more than 5,000 fled for their lives.
So while to an outside observer it's reasonable to see the parallels, it wasn't fair of me to lay much blame at the door of the ICC which, after all, can only do what the great powers allow it to do in these instances. What I should have written was that "ICC action" is inconsistent, and explained the politics as to why.
In North Africa and the Middle East, ICC action for now is always going to be politically constrained. Only Jordan and Tunisia have ratified the Rome Statues (Tunisia signed up after its revolution this spring).