Toby Cadman and Carl Buckley join JiC for this post on their recent application requesting the Prosecutor of the International Criminal Court (ICC) to investigate the deportation of Syrians into Jordan. Carl is a Barrister with Guernica. Toby is the Co-founder of The Guernica Centre for International Justice, which submitted an amicus curiae to the ICC on Myanmar and which also submitted an Article 15 submission to the ICC Prosecutor concerning jurisdiction for Syria by way of application of the Myanmar decision.

(Photo: Getty Images / D. Souleiman)

It’s your turn, Doctor’. These were the words that initiated one of the cruellest conflicts in the recent history of the Middle East.

A group of seven teenagers in the Syrian town of Daraa, inspired by the winds of freedom and democracy blowing from the Arab Spring in Tunisia, Egypt and Libya, adorned their school walls with these words in defiance of the Syrian oppressive regime. Basher-al-Assad, the Syrian dictator whose family has tyrannically ruled the country for more than four decades, is a doctor specialized in ophthalmology.

The response of the Syrian State Security Forces was brutal and prolonged. It treated with extreme violence the young authors of the graffiti. The town of Daraa in turn lit the flames of revolution, initiating with their actions a conflict which is now entering its ninth year and has no clear end in sight.

This war has witnessed unimaginable atrocities. More than half the pre-war population have been either killed, disappeared, or displaced. Most of those who were forced to flee due to the brutal conduct of the Syrian State Security Forces have not been able to return for the very same reasons that forced them to leave. Those responsible, including the Syrian President Assad, must be brought to justice and held accountable.

Spinning the Tires of Jurisdiction?

In recent years, numerous conflicts have been characterized by credible allegations of war crimes and crimes against humanity. The initial reaction to such allegations is to call for the International Criminal Court (ICC) to investigate and prosecute such atrocities.

The basis upon which the ICC can investigate a situation however, is often misunderstood; it does not, contrary to what many believe, have the mandate to investigate any and all instances of conflict-related international crimes, no matter how severe that conflict, no matter how credible the allegations, and no matter how grave the suffering of the victims. The ICC Prosecutor, can commence an inquiry into a situation in one of three circumstances: (i) where the offences are alleged to have been committed within the territory of a ‘State Party’ to the Rome Statute, in which case, jurisdiction is automatically conferred; (ii)  where a non-state party ‘self-refers’ itself and thereby grants jurisdiction; and (iii) where the UN Security Council (UNSC) refers a situation. The net result of this limited form of jurisdiction is that there are many situations that the ICC simply cannot consider, no matter how much it may want to. It is here where the issue lies concerning Syria.

Syria is not a State Party of the ICC and given that it is alleged to be directly responsible for atrocites, it is hardly likely to ‘self-refer’.  As a result, the only other option is through the UNSC.  This in itself has proven to be impossible given its overtly politicised nature and that one of the permanent members, Russia, being an ally of Syria and directly involved in the conflict, has consistently exercised its right of veto over any resolution tabled to refer the matter.  It is noted that China has also consistently sided with Russia vetoing any resolution and the United States has previously argued that it would veto any referral that included the disputed territory of the Golan Heights which borders Israel.

Here’s the catch: the position insofar as jurisdiction is concerned however is now more nuanced than previously thought. In 2018, the jurisdiction of the ICC was widened thus presenting the millions of Syrian victims a route, albeit one that is restrictively narrow in scope, to justice.

Learning from the Rohingya

Like in Syria, the world was horrified by allegations in Myanmar of horrific crimes being committed against the Rohingya in a vacuum of accountability. As a result, the ICC Prosecutor requested a ruling of the Pre-Trial Chamber, asking whether jurisdiction could be exercised for the crime of forced deportation of the Rohingya from Myanmar into Bangladesh.

The argument was a novel one for which the Prosecutor should be rightly applauded. Myanmar is not a State Party to the Rome Statute and therefore the ICC does not have jurisdiction. However, neighbouring Bangladesh has been a State Party since 2010 and was the first Asian State to join the Court. It was hosts more than half a million Rohingya refugees that had been forced to flee their homes amid conduct that amounted to ethnic cleansing. The Prosecutor sought to argue that the ICC had jurisdiction on the basis that although the crime commenced in Myanmar it was concluded on the territory of a State Party.

Guernica was one of a small number of legal groups granted leave to file an amicus curiae brief on the question of jurisdiction. We argued in some detail that the ICC had clear jurisdiction in respect of the crimes of forced deportation, persecution and other inhuman acts.  The Pre-Trial Chamber agreed, and confirmed that, subject to the relevant substantive elements of the crime being satisfied, the Prosecutor had the mandate to investigate.

Guernica was the only legal group to argue in the Myanmar case that the decision on jurisdiction would have wider implications including in Syria where more than a million civilians have been forced into neighbouring Jordan. Guernica therefore commenced on preparing an Article 15 Communication to the ICC Prosecutor on Syria immediately after the Pre-Trial Chamber handed down its Myanmar decision on jurisdiction.

It is important to note here that the Pre-Trial Chamber merely answered the question posed of it and confirmed that there would be jurisdiction if the relevant elements of the crimes could be shown to an appropriate standard, and that those offences were committed within the territory of a State Party, either in whole or in part.

It is on this basis that Guernica submitted an Article 15 Communication with the ICC Prosecutor concerning the Forced Deportation of up to one million civilians from Syria into neighbouring Jordan and that there is no discernible difference between the two situations and therefore no basis upon which to draw a distinction.

Upon Further Reflection

Two further points arise as a result of this filing however that fall to be briefly considered.

Firstly, if it is accepted that the analysis and argument concerning the applicable law presents a clear basis in principle, i.e.that the situation is analogous to that considered by the Pre-Trial Chamber in Myanmar, then the position is clear that a preliminary examination mustbe opened. Of course, any eventual investigations and/or prosecutions will fall on a detailed factual analysis of the evidence. However, this is a task to be undertaken within the context of that preliminary examination, and not a decision as to whether one ought to be opened or not.

Secondly, given the request made by the Prosecutor concerning Myanmar, the question must be asked: why this was not done in the context of the Syrian conflict? Hundreds of thousands of civilians have been pouring into Jordan since the beginning of the conflict and therefore it cannot be seen as a new development. The point is perhaps moot. The important issue is that the argument is made out that the ICC doeshave a clear legal basis to exercise jurisdiction and thus there is finally a pathway towards accountability.

Managing Expectations

It is not suggested that this filing will force the ICC Prosecutor to look at the entire conflict and every crime that has been committed; it will not. The allegations of aerial bombardment, use of chemical and other prohibited weapons, torture and execution of detainees, attacking protected sites such as schools and hospitals will not be considered as the ICC’s jurisdiction, if exercised, will be limited to forced deportation. However, the ICC will need to hear and consider these allegations as they set out the contextual basis for forced deportation and other associated acts. Many instances of international crimes being committed will be outside of its scope, and as much as that continues to be frustrating, we must also be realistic and not offer false hope to the hundreds of thousands of victims of the Syrian conflict.

The ICC cannot do everything. Alone it will not be able to address every allegation and bring justice to every victim of the conflict. It will need to focus on the most senior perpetrators: civilian and military leaders. Doing so will complement those steps already being taken by a host of European States under the principle of universal jurisdiction.

In offering a route to accountability for somevictims of the conflict, the international community must now recognise that it has an essential part to play. It has an obligation to ensure that the ICC has the resources and capacity it needs to deal with this situation. Without them, the ICC will become the white elephant that it has been accused of being, rather than the instrument of justice and accountability that it was created to be.