The sudden toppling of Syria’s tyrant, Bashar al-Assad, provides an opportunity for justice that until recently few would have thought possible. The Assad regime was one of the world’s most brutal. Now its senior officials are scattered. Assad has found a haven in Russia, but others remain in the region and are vulnerable to arrest and prosecution. That requires deploying all possible resources to secure justice, including the International Criminal Court.
Assad and his lieutenants did seemingly anything to retain power, including deliberately targeting civilians and civilian institutions in areas held by the armed opposition. They attacked people with chemical weapons, including chlorine and the nerve agent sarin. They dropped barrel bombs – oil drums filled with explosives and metal fragments to maximize damage – on civilian neighborhoods, often targeting hospitals. They besieged opposition-held areas and starved the residents into submission. They detained, tortured, executed, and disappeared at least 150,000 people.
Because of the magnitude of the atrocities, the international community has long sought to bring the perpetrators to justice. The obstacles were formidable while Assad retained power, but important steps were taken.
A commission of inquiry established by the U.N. Human Rights Council has long reported on government atrocities. The U.N. General Assembly created and tasked an investigative body — known as the International, Impartial and Independent Mechanism (IIIM) — to collect and analyze evidence for any available justice forum. Various national courts, aided by the IIIM, have prosecuted Syrian officials who happened to be found in their country under the doctrine of universal jurisdiction.
[Editor’s note: Readers may be interested in Claus Kress, A German Sentence of Life Imprisonment for Crimes Against Humanity – A Small Measure of Justice for Syria; Fritz Streiff and Hope Rikkelman, Syrian Regime Crimes on Trial in The Netherlands]
But these efforts were necessarily ad hoc. The most senior perpetrators remained in Syria, out of reach. Now that has changed.
The new transitional authorities in Syria understandably would like to prosecute these officials themselves, but the Syrian justice system is a shambles. For decades, it served as the Assad family’s tool of repression. Many of its leading officials should be in the dock, not judging others.
It would be a mistake to entrust the Syrian system to conduct trials if they would not be seen as fair. Among the top duties of the transitional authorities is to establish the rule of law and to avoid a new round of bloodletting. Those goals will be undermined if “trials” look more like summary vengeance than impartial justice.
Following the ouster of Saddam Hussein, the Iraqi government conducted rushed and inadequate trials, leading to the quick execution of Saddam and some of his henchman. That did nothing to build the rule of law in Iraq or to avoid a horrible descent into sectarian violence.
One option in Syria would be for international jurists to assist the transitional authorities to build a proper justice system. Such efforts would be laudable and should begin immediately, but they take time and are not easy. They are unlikely to make enough progress to satisfy Syrians’ understandable quest for justice.
The institution that could make an enormous difference is the International Criminal Court. Karim Khan, its chief prosecutor, visited Damascus on January 17 to speak with the transitional authorities. But so far, the ICC has been stymied. That could change, but it will require action by the new Syrian authorities, Khan, or both.
Because Syrian never ratified the Rome Statute, the court’s founding document, the main route to jurisdiction over the Assad government’s atrocities had been via the U.N. Security Council. Members of the council made one effort to refer Syria to the ICC, in 2014, but Russia and China vetoed it. Russia, in particular, is unlikely to change its position, given that senior Russian officials are themselves vulnerable to prosecution for war crimes in Syria in light of the Russian military’s repeated bombing of civilian institutions among other actions.
The obvious alternative would be for the new Syrian authorities to join the court – or at least to file a declaration giving it retroactive jurisdiction, as the Ukrainian government had done before joining the court in October. Beyond opening an avenue for justice, that would signal that the new authorities intend to comply with international human rights and humanitarian law, because their conduct, too, would be subject to ICC scrutiny.
The new authorities might be reluctant to take this step because of their preference to try Assad officials themselves, but the two are not necessarily contradictory. The ICC is guided by what is know as the principle of complementarity, which requires the court to defer to good-faith national investigative and prosecutorial efforts. As noted, there is little in the Syrian justice system that merits deference today, but if that were to change, the new authorities could ask the ICC to send prosecutions to them, which the court would be required to do. In the meantime, these cases could proceed.
Even short of action by the authorities in Damascus, Khan has another route to jurisdiction. So far, he has been reluctant to use it in light of the other demands on his time and resources, but given the dramatic new possibilities for justice in Syria, he should recalculate.
Without Security Council action or the Syrian government’s approval ,the ICC lacks jurisdiction for most crimes in Syria, but there is one important exception. Neighboring Jordan has joined the court, providing jurisdiction for crimes committed there. Because the crime of systematic forced deportation was not completed until refugees stepped from Syria into Jordan – at its height, some 730,000 Syrians – the court has jurisdiction over that crime, which would provide a window into at least some of the Assad regime’s atrocities.
This is not a wild theory. The ICC prosecutor has deployed the same theory to investigate the Myanmar army’s use of murder, rape, and arson to chase some 700,000 Rohingya to Bangladesh in 2017. While Myanmar never joined the court, Bangladesh did. An ICC pretrial chamber approved an investigation on these terms, and Khan has now charged the Myanmar junta leader, Min Aung Hlaing. If other routes to jurisdiction in Syria fail, Khan should pursue this back-up plan.
The Assad atrocities have long served as a painful example of the limits of international justice. It is remarkable that there is now a chance to change that. But it will require action either by the new authorities in Syria or the ICC’s leadership. Despite the significant other pressures on both, this opportunity is too important to squander.