ICC and Ad Hoc Tribunals: Should I Feel Cheated On?

A group of US Congressmen on 9 September 2013 have introduced Resolution H.Con.Res.51 to investigate possible war crimes, crimes against humanity and genocide, whether committed by officials of the Government of Syria or members of other groups involved in civil war in Syria. Further, this resolution calls the President of the United States to direct the United States representative to the UN to use the voice and vote to immediately promote the establishment of Ad Hoc Tribunal for Syria.

This resolution was sponsored by Christopher H. Smith (Republican) and co sponsored by 19 congressmen; 6 are representatives from Democrats and the remaining are Republican representatives. At current, this resolution is being considered by the House Committee on Foreign Affairs, which will decide whether to propose a resolution for a vote by Congress.

On 30 October 2013, Chairman of Subcommittee on Africa, Global Health, Global Human Rights and International Organization of the House Committee on Foreign Affairs, Christopher H. Smith made a remark on a Joint Committee Hearing:

The ICC process is distant and has no local ownership of its justice process. It is less flexible than an ad hoc tribunal, which can be designed to fit the situation. The ICC requires a referral... That is highly unlikely in the case of Syria. Russia in the UN Security Council would likely oppose any referral of the Syria matter to the ICC, but might be convinced to support an ad hoc proceeding that focuses on war crimes by the government and rebels.


If the motion for the Syrian War Crimes Tribunal was successfully passed by the U.S. Congress, one issue might  arise: what is the role for the International Criminal Court in this regard then?

During the debate at the Ad Hoc Committee on the Establishment of an International Criminal Court (set up by the General Assembly in 1995), several delegations agreed with ILC draft’s (draft that was later became the Rome Statute) provisions concerning the ability of the Security Council to refer ‘matters’ to the ICC as it would obviate the need for further ad hoc tribunals.

The Rome Statute is indeed a product of multilateral negotiations amongst 160 states. Each made concessions and compromises in order to make the instrument generally acceptable. One of the compromises was on referral power of the UN Security Council to avoid the creation of another ad hoc tribunals (this power is now stipulated under article 13.b of the Rome Statute). 

However, the current trend now is to exclude the ICC and to re route back to the creation of ad hoc tribunal. Syria ad hoc tribunal is not the first attempt. There was Darfur Ad Hoc Tribunal in 2005 (3 years after the ICC being operational) and possible North Korea Ad Hoc Tribunal as recommended by paragraph 87 of the Report of the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea No. A/HRC/25/63  dated 7 February 2014.

One question that lingers in my head…if I was one of the delegates at the Rome Conference that agreed to compromise to allow UN Security Council to refer situations to the ICC for the purpose of avoiding the creation of ad hoc tribunals, should I feel cheated on now by the emerging trend of favoring ad hoc tribunals?