The theme this week, carried over from last week, is “actors in international law”. We will finish discussing states, and move on to other actors. But the unfortunate events in Syria provide a lens for thinking about some of these actors.
One of the first things we learn in international law is that sovereign states are largely treated as “equal” subjects. However, over at Opinio Juris, Jens Ohlin notes that in the area of security some actors (the permanent members of the security council) are more equal than others (the rest of the states): “Syria, Intervention, and Recognition”. This is why the Security Council cannot act on Syria. Two of its members, Russia and China, seem unlikely to allow any resolution on Syria to pass, regardless of what the rest of the world may want.
However, another interesting aspect to the Syria issue is the question of forum shifting by actors. If the Security Council’s actions can be blocked by two states, what about the International Criminal Court. Julian Ku asks this in another post at Opinio Juris:“Since the Security Council Won’t Act, Send in the ICC?” These are two somewhat independent international organizations. And while one (the Security Council) is mostly focused on regulating the behavior of states, the other (ICC) is primarily focused on regulating the behavior of individuals. Unfortunately for those who would like to see ICC action, it would likely require Security Council support, given that Syria is not a member. And, once again, China and Russia will likely block such a decision.
Sudan is a case where the Security Council did ask the ICC to investigate a state who was not a member of the ICC. However, this has proved controversial in Africa. Just last month, the African Union asked its commission to consider seeking an ICJ advisory decision on whether Sudanese President Omer Hassan al-Bashir should be considered immune, whether the ICC process is against international law in this instance. (Likely the ICC is in the right here, I would say. But it could be an interesting ICJ decision to follow, should it get there.) See: “African Union may ask ICJ for opinion on Bashir’s immunity from ICC”.