A Pathway to Accountability for Syria? The Broader Implications of the ICC’s Findings on Jurisdiction over Cross-Border Crimes

[Kate Vigneswaran is Senior Legal Advisor for Middle East and North Africa for the International Commission of Jurists and Sam Zarifi is the Secretary General of the International Commission of Jurists.]

Can the International Criminal Court now exercise jurisdiction over the deportation of Syrians into Jordan?

This question was raised by a Syrian lawyer last week at a discussion on the sidelines of the UN Human Rights Council meeting in Geneva on Myanmar in light of the ICC’s Pre-Trial Chamber green light to the Prosecutor last week to investigate deportation of Rohingya from Myanmar into Bangladesh and any other crimes with a cross-border element.

The PTC concluded that, as a matter of law, the court has jurisdiction under article 12(2)(a) of the Rome Statute where “at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.” The crime of deportation from the territory of a non-state party to that of a state party engages jurisdiction because one legal element— forcible transfer to another state—occurs within the territory of the state party. In its reasoning, the PTC more than once cited the International Commission of Jurists’ amicus curiae submission supporting the Prosecutor’s application prompting the decision.

The PTC went on to state that the same rationale may apply to other crimes if it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, such as persecution as a crime against humanity if it was committed in connection with the deportation.

The PTC also gave the example of the crime against humanity of “other inhumane acts,” if it was established that following their deportation, hundreds of thousands of Rohingya lived in “appalling conditions” in Bangladesh and that the authorities of Myanmar impeded their return. This is because one element or part of this crime – unlawfully compelling the victims to remain outside their own country – took place on the territory of Bangladesh.

The finding does raise important questions about its broader implications for seeking accountability for atrocities allegedly committed in other parts of the world.

Despite the many positive developments in international criminal justice over the past decades, neither individual victims nor the broader international community have successfully found a way to establish meaningful accountability for the crimes committed against Syrians since the conflict commenced in 2011. Calls for the Security Council to refer the situation to the ICC have not been heeded; Russia and China vetoed resolution S/2014/348, referring the situation to the ICC prosecutor.

With political dynamics foreclosing the possibility either of a Security Council referral of the Syria situation to the ICC or the creation an ad hoc international tribunal for accountability for serious crimes under international law, the UN General Assembly created the International, Impartial and Independent Mechanism to “collect, consolidate, preserve and analyze evidence…and to prepare files” for later prosecution of atrocities committed in Syria. In its first report in February this year, the IIIM stated that “[it] was borne out of the absence of a comprehensive jurisdictional path forward.” It’s worth considering whether the ICC’s recent finding may indeed provide a pathway to jurisdiction and justice, albeit limited.

Hundreds of thousands of Syrian refugees have fled to Jordan, which borders Syria and is a state party to the Rome Statute. Whether a significant number fled as a result of deportation, as defined under international criminal law, has received little attention in published reports.

The ICTY Appeals Chamber, in the Stakic case, addressed the elements of the crime of deportation as a crime against humanity, and held:

278. The Appeals Chamber is of the view that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jurestate border or, in certain circumstances, a de facto border, without grounds permitted under international law. The Appeals Chamber considers that the mens reaof the offence does not require that the perpetrator intend to displace the individual across the border on a permanent basis.

Guido Acquaviva of the Special Tribunal for Lebanon suggested that this definition of the crime means that “any civilian whose fundamental rights are breached can – if all other elements are met – be a victim of this type of crime.”

Indiscriminate and disproportionate attacks against civilians in Syria, as well as unlawful detentions, restrictions on humanitarian aid, appropriation of property and a range of other crimes and violations of fundamental rights, have led to the flight of Syrians, largely civilians, from their homes. Just this week, the Commission of Inquiry on Syria released a report concluding that “forced displacements” occurred “pursuant to ‘evacuation agreements’ negotiated between warring parties and reached as part of local truces.” But there’s been little discussion, and seemingly little investigation, of whether these factors could amount to deportation as a crime against humanity, namely that civilians were forcibly transferred into the territory of another state. An interesting area of documentation would be to establish if and how underlying acts of persecution led to deportation, something not so far a focus for the Syria Commission of Inquiry and, presumably, the new IIIM.

The Syrian context is more complicated compared with the situation in Myanmar’s northern Rakhine state due to the number of players involved, both multiple state and non-state armed groups. Determining who bears responsibility, at not only an institutional but individual level, is no easy task. It requires establishing that accused persons intended the victims leave Syria (or cross a de facto border if one was established) in the knowledge that the conduct had been committed as part of a widespread or systematic attack directed against a civilian population–a required element of deportation as a crime against humanity under the Rome Statute.

Whether other crimes under international law with a cross-border component have been committed against the civilian population which could also give rise to jurisdiction – such as the two examples given in the PTC’s decision regarding Bangladesh – is another open question.

Whatever the answers, the questions are for the Prosecution to determine should it decide the PTC’s decision gives it scope to conduct preliminary examinations elsewhere. And a potentially fruitful direction for inquiry for the multiple actors involved in investigating and documenting crimes committed in Syria.