New attempts to transfer the Syrian file to the International Criminal Court

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 despite many obstacles, the most notable being the Russian-Chinese veto. This has led some human rights organizations to seek legal avenues to refer these files to the court. If successful, this would be the most important step in holding the Assad regime accountable.

On October 3, a panel discussion was held on the sidelines of the 57th session of the Human Rights Council at the United Nations headquarters in Geneva on 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 and focused 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 organization Legal Action Worldwide, an independent organization operating in multiple countries and comprising a group of human rights specialist lawyers and jurists working in conflict-affected and fragile areas.

Syrian human rights organizations have held eight meetings in recent months from New York to The Hague to Geneva, aiming to mobilize governments to advocate for Bashar al-Assad’s accountability through the International Criminal Court.

Obstacles to the International Criminal Court

Attempts to refer the Syrian file to the International Criminal Court have so far been unsuccessful due to several obstacles, which international criminal lawyer al-Mutassim al-Kilani addressed in an interview Enab Baladi.

The main obstacle is that Syria has not signed the Rome Statute, the founding treaty of the International Criminal Court; Therefore, the court does not automatically have jurisdiction over crimes committed in Syria. In order to take legal action against the Assad regime, the country in question must be a party to the Rome Statute or the case must be referred to it by the United Nations Security Council.

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

Al-Kilani added that the conflict in Syria is quite complex due to the multitude of parties involved, including international and regional powers, which further complicates the decision to transfer the file to the International Criminal Court. Many countries fear that the legal prosecution of the Assad regime could harm their interests in Syria and upset the geopolitical balance.

There are also concerns that a process to hold the Syrian regime accountable at the International Criminal Court could be complicated and lengthy, which could lead to increased tensions in the region, as some countries believe that launching an international investigation would undermine any efforts to do so Political resolution or enforcement could hinder negotiations, said al-Kilani.

“Myanmar as a legal way out”

During the October meeting in Geneva, there was a discussion about ways to refer the Syrian file to the International Criminal Court, with participants suggesting using the case of Myanmar, which was referred to the International Criminal Court due to its forced relocation 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 deaths of thousands of Rohingya and leading to nearly a million Rohingya seeking refuge in Bangladesh, according to the United Nations .

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

In this regard, Danny al-Baaj, senior advocacy advisor of the Syrian Forum, stated that Myanmar, like Syria, is not a party to the International Criminal Court; Therefore, the court has no authority to investigate the violations committed by Myanmar. However, the court’s prosecutor, Karim Khan, exploited the idea that Bangladesh, where the Rohingya were expelled, was a member of the court. This allowed him to file a lawsuit in 2018 to hold Myanmar accountable for the forced relocation, as it was a crime committed on Bangladeshi territory.

The court also noted that the International Criminal Court has jurisdiction over the crimes committed against the Rohingya, such as persecution or “other inhumane acts”, as forcing the Rohingya to stay outside their country illegally and live in terrible conditions in Bangladesh constituted a serious violation of the human rights.

Al-Baaj added Enab Baladi that the case of Myanmar is very similar to what is happening in Syria, where the country committed the crime of forced relocation from Syria to Jordan, which is a party to the International Criminal Court. “That is why we are currently working on an international mobilization to urge the International Criminal Court to begin investigating the violations committed in Syria, similar to Myanmar, which could serve as a legal way out for the transfer of the Syrian file to the International Criminal Court. ” Court.”

Three accountability scenarios

As for the mechanism for appealing to the International Criminal Court, al-Baaj believes there are three options. First, the prosecutor himself is calling for an investigation and accountability, as was the case in Myanmar and Bangladesh.

The second scenario is that civil society organizations or Syrian human rights organizations file a complaint against the Assad regime with the International Criminal Court 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 does not have the time to pursue them and, moreover, there is no legal obligation to consider them.

The third scenario for achieving accountability for Assad is for a state party to the International Criminal Court to file a lawsuit under Article 14 of the Rome Statute. This happened recently when Estonia filed a lawsuit against Belarus and its president at the International Criminal Court, relying on Article 14.

Al-Baaj confirmed that human rights organizations are joining forces to work on the third scenario, with the aim of urging the International Criminal Court to advance the case against Assad, since the Syrian regime has expelled part of Syrians to Jordan, a party to the Rome Statute , similar to the case of Myanmar. It is worth noting that Bangladesh has not requested this from the International Criminal Court; rather, it was the court acting at the prosecutor’s request.

In September 2024, the Atlantic Council released a report stating that at least four memoranda had been filed with the International Criminal Court by Syrian victims deported to Jordan in the last five years. They submitted these memoranda in collaboration with their lawyers and non-governmental organizations such as Legal Action Worldwide (LAW), calling for an investigation into al-Assad.

The Atlantic Council noted that the International Criminal Court has not yet made a decision on these memoranda. According to Article 15 of the Rome Statute, the prosecutor has the discretion whether to open an investigation without setting a time limit requiring a response or action.

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

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

Waiting for a political decision

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

On May 22, 2014, the Security Council held a meeting to forward the Syrian file to the International Criminal Court to hold the Syrian regime accountable for its crimes, but the Russian-Chinese veto prevented this forwarding.

Regarding the efforts of human rights organizations to refer the Syrian file to the International Criminal Court, Danny al-Baaj explained that the work has been underway since the beginning of the year within the framework of advocacy and international mobilization. “We have passed the first phase, which included answering all legal questions related to the transfer issue, and are now working on the second phase to resolve the political questions.”

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

Al-Baaj noted that current developments in the region reflect a kind of political seriousness in holding “criminals” accountable, as the prosecutor of the International Criminal Court has also requested the issuance of arrest warrants against the Israeli Prime Minister and the Defense Minister, as well as several leaders of the Hamas. Accordingly, there is a reasonable opportunity to achieve justice in the region and every “criminal”, including Bashar al-Assad, should be held accountable, which shows that the court has proven itself to be an impartial party and cares about the crime and his perpetrator.

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

According to the Syrian Network for Human Rights (SNHR), the Syrian regime has been responsible for killing more than 200,000 people, including 23,000 children, and detaining more than 136,000 civilians since 2011.