Enab Baladi – Hani Karazi

For 14 years, all international attempts and human rights organizations to refer the Syrian file to the International Criminal Court (ICC) have failed, amidst many obstacles, the most notable being the Russian-Chinese veto. This has led some human rights organizations to search for legal ways to help refer this file to the court, which, if successful, would be the most significant step towards holding the Assad regime accountable.

On October 3rd, a discussion session was held at the United Nations headquarters in Geneva, on the sidelines of the 57th session of the Human Rights Council, addressing the possibility of referring the Syrian file to the International Criminal Court.

The session was organized by the Syrian Forum, under the auspices of the European Union and the United Kingdom, focusing on the legal aspects that could facilitate the referral of the Syrian file to the International Criminal Court, based on a study prepared by the Syrian Forum and the Legal Action Worldwide organization, which is an independent organization operating in several countries and comprises a group of lawyers and legal professionals specializing in human rights, who work in conflict-affected and fragile areas.

Syrian human rights organizations have conducted eight meetings over the past months, from New York to The Hague to Geneva, aiming to rally governments to act for the accountability of Bashar al-Assad through the International Criminal Court.

Obstacles to the International Criminal Court

Attempts to refer the Syrian file to the International Criminal Court have not succeeded so far due to several obstacles discussed by international criminal law attorney al-Mutassim al-Kilani in an interview with Enab Baladi.

The most significant obstacle is that Syria did not sign the Rome Statute, which is the founding agreement of the International Criminal Court; thus, the court does not have automatic jurisdiction over the crimes committed in Syria. The court needs the country in question to be a party to the Rome Statute or for the case to be referred to it by the United Nations Security Council in order to take judicial action against the Assad regime.

Al-Kilani pointed out that the veto in the Security Council has also obstructed the referral of the file to the International Criminal Court, as Russia and China, both permanent members of the Security Council, have used their veto power to prevent the Syrian file from being referred to the court.

Al-Kilani added that the conflict in Syria is quite complex due to the multitude of parties involved, including international and regional powers, making the decision to refer the file to the International Criminal Court even more complicated. Many countries fear that legally holding the Assad regime accountable might affect their interests in Syria and disrupt geopolitical balances.

There are also concerns that any accountability process for the Syrian regime before the International Criminal Court could be complicated and lengthy, leading to increased tensions in the region, as some countries consider that opening an international investigation might hinder any efforts for a political resolution or through negotiations, according to al-Kilani.

“Myanmar as a legal exit”

During the session held in Geneva in October, there was a discussion about ways to refer the Syrian file to the International Criminal Court, where participants suggested leveraging the case of Myanmar, which was referred to the International Criminal Court due to its forced displacement of Rohingya Muslims to Bangladesh.

On August 25, 2017, the Myanmar military launched a military campaign and committed atrocities against the Rohingya in Arakan (western country), resulting in the death of thousands of Rohingya and leading nearly a million to seek refuge in Bangladesh, according to the United Nations.

The Myanmar government considers the Rohingya Muslims as “illegal immigrants” from Bangladesh, while the United Nations classifies them as “the most persecuted minority in the world.”

In this context, Danny al-Baaj, the senior advocacy advisor at the Syrian Forum, stated that Myanmar, like Syria, is not a party to the International Criminal Court; thus, the court does not have the authority to investigate the violations committed by Myanmar. However, the court’s prosecutor, Karim Khan, exploited the idea that Bangladesh, where the Rohingya were displaced to, is a member of the court. This allowed him in 2018 to file a lawsuit to hold Myanmar accountable for forced displacement, considering it part of a crime completed on Bangladeshi territory.

The court also found that since the Rohingya had to illegally remain outside their country and live in dire conditions in Bangladesh, the International Criminal Court holds jurisdiction over the crimes committed against the Rohingya, such as persecution or “other inhumane acts,” which it indicated constituted a severe deprivation of human rights.

Al-Baaj added to Enab Baladi that the case of Myanmar is very similar to what is happening in Syria, where the latter committed the crime of forced displacement from Syria to Jordan, which is a party to the International Criminal Court. “Thus, we are currently working on international mobilization to urge the International Criminal Court to begin investigating the violations that occurred in Syria, similar to what it did with Myanmar, which could serve as a legal exit for referring the Syrian file to the International Criminal Court.”

Three scenarios for accountability

Regarding the mechanism for referral to the International Criminal Court, al-Baaj believes there are three possibilities. The first is that the Prosecutor himself requests an investigation and accountability, as happened in the case of Myanmar and Bangladesh.

The second scenario is that civil society organizations or Syrian human rights organizations file a complaint with the International Criminal Court against the Assad regime, under Article 15 of the Rome Statute.

Al-Baaj pointed out that this scenario is not effective, because the International Criminal Court states that it receives many complaints from human rights organizations, but it does not have the time to pursue them, in addition to the fact that it is not legally obligated to consider them.

The third scenario for achieving accountability for Assad is that a State Party to the International Criminal Court makes a referral according to Article 14 of the Rome Statute. This has recently occurred when Estonia submitted a referral to the International Criminal Court regarding Belarus and its president, utilizing Article 14 in this case.

Al-Baaj confirmed that human rights organizations are rallying to work on the third scenario, aiming to urge the International Criminal Court to move forward with the case against Assad, given that the Syrian regime has displaced a portion of the Syrians to Jordan, which is a party to the Rome Statute, similar to the case of Myanmar. It is worth noting that Bangladesh did not request this from the International Criminal Court; rather, it was the Court that acted at the Prosecutor’s request.

In September 2024, the Atlantic Council issued a report stating that over the past five years, at least four memoranda have been submitted to the International Criminal Court by Syrian victims who were deported to Jordan. They submitted these memoranda in cooperation with their lawyers and non-governmental organizations such as the Legal Action Worldwide (LAW), demanding an investigation against al-Assad.

The Atlantic Council indicated that the International Criminal Court has not yet made any decision regarding these memoranda. Under Article 15 of the Rome Statute, the Prosecutor has discretionary power concerning whether to open an investigation without any timeframe requiring a response or action.

In light of the difficulty in approaching the previous scenarios due to the lack of international will to hold al-Assad accountable, al-Mutassim al-Kilani believes it is possible to resort to alternative accountability mechanisms, such as creating specialized courts or international investigative committees that work in cooperation with the International Criminal Court. An example of this is the independent international mechanism established by the United Nations to collect evidence regarding the crimes committed in Syria.

Al-Kilani pointed out that a future Syrian government, in the event of a significant political change in Syria, could request the referral of Syrian regime officials, led by Bashar al-Assad, to the Court.

Awaiting a political decision

Since 2012, there have been serious attempts to refer the Syrian file to the International Criminal Court, with signs emerging of the occurrence of repression and serious human rights violations by the Syrian regime, some of which amount to crimes against humanity.

On May 22, 2014, there was a session at the Security Council to refer the Syrian file to the International Criminal Court, in order to hold the Syrian regime accountable for its crimes, but the Russian-Chinese veto obstructed that referral.

Regarding the efforts undertaken by human rights organizations to refer the Syrian file to the International Criminal Court, Danny al-Baaj stated that work has been ongoing since the beginning of the year within the scope of advocacy and international mobilization. “We have surpassed the first phase, which involved answering all the legal questions related to the referral issue, and now we are working in the second phase to address the political questions.”

Al-Baaj added that the Syrian Forum and other Syrian human rights organizations are focusing their efforts on urging State Parties to the Rome Statute to draw the Prosecutor’s attention to the crimes committed by the Syrian regime, which fall within the Court’s jurisdiction and need to be investigated. This certainly requires a political decision from the governments of those states.

Al-Baaj noted that current developments in the region reflect a kind of political seriousness towards holding “criminals” accountable, as the Prosecutor of the International Criminal Court requested the issuance of arrest warrants against the Israeli Prime Minister and Minister of Defense, in addition to several leaders of Hamas. Accordingly, there is a suitable opportunity for justice to be achieved in the region, and every “criminal,” including Bashar al-Assad, should be held accountable, indicating that the Court has proven to be an unbiased party, and it is concerned with the crime and its perpetrator.

In 1998, 108 countries signed the Rome Statute of the International Criminal Court, and there are many countries that did not sign the treaty, including Syria and Iraq. Consequently, the Court does not intervene in issues within Syrian territory, whereas it can automatically exercise jurisdiction over crimes committed on the territory of any State Party or committed by individuals belonging to any State Party.

According to the Syrian Network for Human Rights (SNHR), the Syrian regime is responsible for killing more than 200,000 people, including 23,000 children, in addition to the detention of more than 136,000 civilians since 2011.