‘ICC is the enemy of liberty’
The investigators, among them Carla del Ponte, the former prosecutor for the International Criminal Tribunal for the former Yugoslavia, have urged the UN Security Council to take action stating that they had identified Syrians in "leadership positions" who may be responsible for war crimes, along with units accused of carrying them out.
“Now really it's time…We have a permanent court, the International Criminal Court, who would be ready to take this case," del Ponte told a news briefing in Geneva.
The rebels are also facing charges of war crimes, but the government bears most responsibility for the violence, according to the report by the investigators led by Paulo Pinheiro.
"We identified seven massacres during the period, five on the government side, two on the armed opponents side," del Ponte said.
In the line with inquiry practice the names of the suspects were not disclosed.
"Of course we were able to identify high-level perpetrators," del Ponte said, adding that these were people "in command responsibility…deciding, organizing, planning and aiding and abetting the commission of crimes."
This comes after the UN High Commissioner for Human Rights Navi Pillay, a former ICC judge, said on Saturday Syrian President Bashar Assad should be probed over war crimes, and called for outside action on Syria, including possible military intervention.
Meanwhile on Monday the EU stopped short of meeting Britain's demand to lift an arms embargo on Syria but agreed to allow "non-lethal" aid and "technical assistance" to flow to the opposition.
Srdja Trifkovic, foreign affairs editor at the Chronicles magazine, doubts that the ICC is in any position to issue such demands. “It’s a very peculiar institution. It is outside any constitutional design. The prosecutor is effectively accountable to no one – and like in the Yugoslav war tribunal he answers to no superior executive power,” he told RT.
This lack of accountability creates scope for legal creativity which depends on the will of the political masters. “Ultimately it’s a political court,” Trifkovic argues.
“The ICC is the enemy of liberty as understood and practiced by the Western institutions since the Enlightenment onwards. The moral absolutism at the core of the ICC is immoral.”
Recalling del Ponte’s tenure as the prosecutor for the International Criminal Tribunal for the former Yugoslavia, Trifkovic argues that the accusations are a fig leaf which is supposed to hide the essence of this project – which is to treat Assad and his government as members of ‘joint criminal enterprise.’ “‘Joint criminal enterprise’ is an all-embracing quasi-legal term used by the Yugoslav war tribunal to indict everybody within the hierarchy and lower down the scale,” he added.
The view is supported by journalist Neil Clark who fears that what's happening here is a political move to put more pressure on Damascus.
“If there are war crimes being committed on both sides, let's prosecute both sides. All we're getting again is talk about indicting President Assad and leading Syrian officials. It's all wrong. If there's evidence of war crimes against rebel commanders, let them be indicted,” he told RT.
“If we think back to 1999 – the NATO bombing of Yugoslavia, in the height of that conflict there was the indictment issued against President Milosevic for war crimes. During the NATO bombardment of Libya there was the indictment against Colonel Gaddafi for war crimes. And I'm worried that this is part of a trend: that to increase pressure on Damascus, we'll have an indictment on the Syrian government. And if people are committing war crimes they should answer for them – but it has to be applied equally.”