- “Through the jurisdictional pathway introduced in the Myanmar-Bangladesh situation, the ICC Prosecutor has the legal opportunity to immediately begin investigating all criminal acts that led to Syrians fleeing to Jordan,” said Haydee Dijkstal of the Atlantic Council’s Strategic Litigation Project.
- “More than 300 universal jurisdiction cases have been filed worldwide regarding crimes committed in Syria. So far, prosecutions have taken place in several countries, including Germany, France, the Netherlands and Switzerland,” said lawyer Yousuf Syed Khan.
ISTANBUL
Following the collapse of Bashar al-Assad’s regime in Syria, the international community is grappling with the challenge of holding him and his government accountable for the atrocities committed during the country’s long civil war.
Legal experts are exploring various avenues to pursue justice, including recommendations for the International Criminal Court (ICC) to follow the Bangladesh-Myanmar model and ensure universal jurisdiction through domestic courts.
Assad, who ruled Syria for almost 25 years, fled to Russia after anti-regime forces took control of Damascus on December 8. This ended the Baath Party’s stranglehold on power since 1963.
His regime has long faced widespread accusations of serious human rights abuses, including torture and mass killings, with groups such as the Syrian Network for Human Rights (SNHR) documenting evidence of more than 200,000 deaths under Assad’s orders.
Bangladesh-Myanmar model and jurisdiction of the ICC
Although Syria has not signed the ICC’s Rome Statute, experts suggest that justice could potentially be achieved through a legal system set up in the Myanmar-Bangladesh case, which concerns atrocities against the Rohingya community.
Haydee Dijkstal, lawyer and non-resident senior fellow at the Atlantic Council’s Strategic Litigation Project, explained that the ICC could exercise jurisdiction over crimes in Syria if at least one element of the crime took place in a member state.
In this case, she said the focus could be on crimes that forced civilians to flee Syria and enter Jordan, an ICC member state. These crimes include indiscriminate bombings, extrajudicial killings, arbitrary detentions and violent suppression of freedom of expression.
“The ICC can start now. Through the jurisdictional pathway established in the Myanmar-Bangladesh situation, the ICC Prosecutor has the legal ability to immediately investigate all criminal acts that led to Syrians fleeing to Jordan, and to provide at least one path to justice for Syrian victims,” said Dijkstal. Anadolu.
In the Myanmar-Bangladesh case, an ICC Pre-Trial Chamber decided in September 2018 that the court may exercise jurisdiction over the crime against humanity of deportation under Article 7(1)(d) of the Rome Statute , when at least one part of the crime is committed in the territory of a State Party.
Although Myanmar has not signed the Rome Statute, the crimes against the Rohingya were completed in Bangladesh, an ICC member state, allowing the ICC’s jurisdiction.
This precedent could apply to Syria by investigating crimes committed within its borders that culminated in refugees fleeing to Jordan.
Referring to an Article 15 communication she and co-counsel filed on behalf of the Iran Human Rights Documentation Center in 2022, Dijkstal said: “We have argued that under this limited track the ICC has jurisdiction to examine evidence of the same crimes investigate and possibly prosecute. – the crimes against humanity of deportation, persecution and ‘other inhuman acts’ – which began in the territory of Syria but are being completed in Jordan, which is a party to the ICC.”
Dijkstal emphasized that the ICC prosecutor could immediately open a preliminary investigation into the situation in Syria, even without a referral from a state party, and begin examining evidence of crimes that took place partly in Jordan.
Universal jurisdiction
Legal scholar Yousuf Syed Khan argues that prosecution under universal jurisdiction in national courts currently offers the most viable route to liability.
“While not a comprehensive solution, universal jurisdiction has yet proven to be the most practically accessible route for victims to seek justice,” said Khan, also a non-resident senior fellow at the Atlantic Council’s Strategic Litigation Project.
Several European countries, most notably Germany, have brought cases against Syrian officials under universal jurisdiction.
“More than 300 universal jurisdiction cases have been filed worldwide regarding crimes committed in Syria. To date, prosecutions have taken place in multiple countries, including Germany, France, the Netherlands and Switzerland,” Khan noted.
The Koblenz Trial in Germany, which led to the conviction of a former Syrian intelligence official for crimes against humanity, is a historic example of this approach, he added.
Prosecutions at the national level have been facilitated by evidence collected by the UN’s International, Impartial and Independent Mechanism (IIIM), which collects and prepares files to support future legal proceedings, he explained.
Khan highlighted the role of open source research and social media intelligence in overcoming limited access to Syria since 2011.
“After the fall of the Assad regime, access to a robust evidence base is available and this will be crucial for future prosecutions, whether at the ICC, a future ad hoc tribunal, or in domestic courts under universal jurisdiction ” he said.
“With access to prisons, files, documents, mass graves and other crime sites now available following Assad’s collapse, the international community must remain vigilant and focused on ensuring this evidence is forensically preserved.”
Other legal options and need for political will
Speaking about the other possible legal options, Khan explained that the UN Security Council could theoretically refer Syria’s case to the ICC under Chapter VII of the UN Charter.
“Attempts have been made, but have so far been blocked by permanent members with veto power (notably Russia and China). Without a referral by the UN Security Council, direct involvement of the ICC remains unlikely,” said Khan, who previously served on committees set up by the UN Human Rights Council, including for Syria.
Khan also discussed the possibility of creating an ad hoc tribunal similar to the tribunal for Yugoslavia and Rwanda, but pointed out that its formation remains a political challenge.
“Such tribunals require significant international political will, which has not yet been realized for Syria. This is especially the case given the Russian and Chinese vetoes, and because Russia is involved in several crimes in Syria,” he said.
“The international community remains divided over Syria, limiting the opportunity for coordinated action at the highest diplomatic and political levels. Yet the continued collection of evidence and trials at the national level keep the prospect of justice alive and maintains the pressure on perpetrators.”
War crimes and crimes against humanity
In recent years, the Assad regime has been accused of numerous war crimes and human rights violations.
According to Khan, the UN Syrian Commission of Inquiry has documented atrocities since its first report in 2011.
“This behavior includes murder; arbitrary and unlawful detention; torture and other ill-treatment; the crime against humanity of extermination; sexual and gender-based violence; forced displacement as a war strategy; the use of chemical weapons; and the denial of humanitarian aid,” he said.
Khan said two of the commission’s public reports “documented that Russia’s aerospace forces may have committed the war crime of carrying out indiscriminate attacks that resulted in the death and injury of civilians – the first such conclusive findings from a UN body on Russia’s involvement in the Syrian theater. ”
Dijkstal also claimed that there is “a vast amount of evidence that has been collected for years by various groups, including by victims’ groups, NGOs or the UN IIIM on Syria.”
Referring to the notice she submitted in 2022, she said: “In preparing the Article 15 notice, we reviewed evidence of a series of crimes and acts from 2011 to 2018, carried out by both the Syrian government forces and armed forces . controlled, supported and supported by the Islamic Republic of Iran.”
The material reviewed included “evidence of indiscriminate bombings, artillery fire and shelling of civilians, extrajudicial killings and killings, indiscriminate shootings of civilians, arbitrary arrest and detention, including ill-treatment and death in detention, beatings and other abuses of civilians, including abuse of children, house searches and violent suppression of the right to freedom of expression, including against citizen journalists and activists,” she said.
“All of these acts have contributed to Syrians fleeing to Jordan, and that is why we have put forward that while each of these acts can be charged as crimes in their own right, they also constitute the underlying acts of the crimes against humanity of deportation and persecution. and ‘other inhumane acts’ for which the ICC could today decide to exercise jurisdiction,” Dijkstal added.
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