This month, the Chief Prosecutor of the International Criminal Court (“ICC” or “the Court”) announced that her office would not be pursuing allegations of war crimes committed in the ongoing Syrian Civil War. Although this announcement is decidedly frustrating, it came as no surprise. The Court relies on States to voluntarily submit to its jurisdiction. Syria has given no such consent, as it refuses to sign the Court’s founding document. The United Nations Security Council also lacks the political consensus to otherwise confer special jurisdiction to the Court. This post explores the remaining avenues for accountability in Syria, from procedural niches in the ICC founding document, to alternatives efforts by civil society and domestic jurisdictions.
Syria is entering the fourth year of a relentless civil war which has engulfed the entire country. This war has also produced some of the most blatant violations of international humanitarian law in recent memory. For one, the treatment of civilians has been barbaric. Belligerents wage systematic campaigns of violence against the Syrian population, bringing unspeakable horror upon those whose religion, political views, or sexual orientation they find disagreeable. When civilians are not deliberately targeted, the method of warfare itself is indiscriminate. Parties use chemical weapons, barrel bombs, and anti-personnel mines—none of which sufficiently distinguish between civilian and military targets.
Since Syria is not a signatory to ICC’s founding document, the Court’s prosecutor hoped to rely on an alternate, narrower provision, which authorizes prosecution of citizens of State parties who may be committing offensive acts in Syria. This would have allowed the Court to investigate numerous crimes committed by foreign fighters currently in Syria. Unfortunately, the prosecutor decided not to pursue this jurisdictional basis, as it was insufficient to reach the leadership of ISIS, whom many consider most responsible for on-going crimes.
The situation is not hopeless, however. Efforts outside of the ICC system have been chipping away at the perception of impunity. For example, civil society organizations such as the Syrian Accountability Project are working to gather evidence of wrongdoing for use in future trials. The project’s most recent efforts include detailed maps chronicling the movement of armed groups. The cataloging of such information could be matched with instances of atrocities and serve as vital circumstantial evidence in a potential trial. Syrian civil society, echoing a call by the United Nations Commission of Inquiry, also suggested the establishment of an ad hoc international tribunal to investigate crimes being committed in Syria.
Domestic courts of States who are able to apprehend transiting fighters are also an avenue for potential prosecution. Under the concept of “universal jurisdiction”, certain crimes, such as genocide or torture, are considered so heinous by the international community that any State can choose to prosecute them. The International Committee of the Red Cross has also concluded that there is similar universal jurisdiction for war crimes. Such endeavors would find precedent in places like Belgium, which used universal jurisdiction to prosecute the Butare Four for their role in the Rwandan genocide.
In a similar vein, a new Crimes Against Humanity Convention is being drafted with the goal of empowering domestic courts to pursue the types of crimes being committed in Syria. The new convention allows courts to hear any case arising from “systemic and widespread” attacks against a civilian population. This improves over the existing legal framework because it is not merely a prerogative, but an obligation upon states to pursue these crimes. According to the draft convention, States must take “all necessary measures” to exercise jurisdiction over suspects within its territory. Unfortunately, such a convention would unlikely be used to retroactively pursue crimes committed in Syria.
Syria should not be seen as a failure of international law. Rather, the examples above convey the notion that international humanitarian law has taken root as part of the international discourse. Despite political obstacles to accountability, civil society, academics, and even perpetrators themselves are increasingly versed in the vocabulary of the law. Syria served to expose inadequacies in the existing legal framework, and has prompted the international community to utilize and bolster alternative legal avenues for protecting the vulnerable in armed conflict.