Syrian Refugees Use Precedent Set in Rohingya Case to Try to Bring Government Officials Before the International Criminal Court

Syrian activists and lawyers are testing the bounds of international law, making two new attempts to bring the government of Bashar al-Assad before the International Criminal Court.

Syrian refugees in Jordan, through London-based lawyers, sent communications to the office of the ICC prosecutor, asking her to exercise jurisdiction over Syria based on a precedent set last year in a case involving Myanmar’s persecution of Rohingya Muslims. The communications are the latest push by Syrian civilians to hold accountable the government whose brutality upended their lives. In recent years, Syrian lawyers and human rights activists have experimented with rarely utilized aspects of international law, succeeding in getting European and American courts to weigh in on atrocities committed in Syria.

“Because of how politicized the war in Syria became, lawyers and those fighting for accountability really had to be creative,” said Mai El-Sadany, the legal and judicial director at the Washington-based Tahrir Institute for Middle East Policy. “The most recent ICC Article 15 submissions” — a reference to communications with the ICC on information about alleged international crimes — “are evidence of this, that there is space for creativity in the accountability space.”

“It is not possible for Syria to stabilize unless these criminals are held accountable.”

The efforts come as the Syrian conflict enters its ninth year. On March 15, 2011, eight years ago yesterday, Syrians, inspired by the wave of protests sweeping the Middle East and North Africa, took to the streets in a “Day of Rage” demonstration. Within a few days, protesters around the country were calling for freedom, dignity, and political reforms. Later that month, activists in the southern city of Daraa toppled a statue of the late President Hafez al-Assad that stood in a city square. This past Sunday, hundreds of Daraawis marched once again, this time to protest the erection of a new statue of the former Syrian president.

In the intervening years, a mass anti-government uprising descended into a merciless war involving at least a half-dozen countries, each of which has contributed to Syria’s destruction. Few would dispute, however, that the Assad regime is responsible for most of the violence that flattened entire cities, uprooted millions of people from their homes, and killed — according to an estimate that is now three years old — 470,000 people.  

The scale of atrocities is unfathomable, yet the perpetrators have evaded accountability — and are gradually being welcomed back into the diplomatic fold. Some Arab states, which effectively blacklisted Assad in 2011, are slowly thawing their relations with the Syrian regime, while Russia, Iran, and China have invested in lucrative reconstruction contracts.

The victims of the war, however, have not been deterred from pursuing justice. One goal of their efforts, said Syrian human rights lawyer Anwar al-Bunni, is to send a strong message that core members of the Syrian regime should not be considered part of any transition period or political solution to the Syrian conflict. “The goal of our work is to block any attempt to rehabilitate war criminals and people who’ve committed crimes against humanity,” said al-Bunni, whose work with the European Center for Constitutional and Human Rights led Germany’s federal prosecutor to issue an international arrest warrant for Jamil Hassan, the head of Syria’s notorious Air Force Intelligence Directorate. “It is not possible for Syria to stabilize unless these criminals are held accountable.”

The International Criminal Court, which sits in the Hague in the Netherlands, is an international, intergovernmental tribunal created by the Rome Statute with the authority to investigate genocide, crimes against humanity, war crimes, and crimes of aggression. Often referred to as a court of last resort, it hears cases when state courts are unwilling or unable to do so, or when the United Nations Security Council or individual states refer cases to the court.

The U.N. Security Council in 2014 floated a resolution to refer Syria to the ICC. China and Russia (Syria’s patron state), exercised their veto power to block that from happening. Because Syria has not ratified the Rome Statute, the court has no independent basis for jurisdiction. A ruling from the court last year, in a case pertaining to Myanmar’s persecution of the Rohingya, however, opened up a new possibility for those hoping to bring Syria before the ICC.

In September, ICC judges issued a pretrial ruling that said the court could exercise jurisdiction over the deportation of the Rohingya from Myanmar, which is not an ICC member state, to Bangladesh, which is. Deportation is a crime against humanity, and the court reasoned that one element of the crime — crossing the border — occurred in Bangladesh, thereby creating jurisdiction. The judges also ruled that the court could look into other crimes under the Rome Statute, such as persecution and other inhumane acts.

Based on that precedent, Syrians are arguing that the ICC has jurisdiction over deportations from Syria to Jordan, which is party to the Rome Statute and is home to more than 1 million Syrian refugees. The London-based Guernica Center for International Justice submitted an Article 15 communication to ICC prosecutor Fatou Bensouda on March 4, asking her to open an investigation into the forcible deportation of Syrians into Jordan. A group of lawyers, led by Rodney Dixon QC of Temple Garden Chambers, filed a similar communication on March 7, on behalf of 28 Syrian refugees in Jordan.

While the lawyers publicly announced their submissions, Article 15 communications are confidential and generally come to light only if the prosecutor decides to take some sort of action.

“Anyone can communicate with the court through Article 15 of the Rome Statute, the treaty that underpins the court, basically sending information to the court,” said Heidi Nichols Haddad, author of “The Hidden Hands of Justice: NGOs, Human Rights, and International Courts.” “It’s then up to the prosecutor to compile that information and decide whether to take it to a judge and move forward with a preliminary investigation.”

In a statement to The Intercept, the office of the prosecutor confirmed the receipt of the Syria-related communications. “As we do with all such communications, we will analyse the materials submitted, as appropriate, in accordance with the Rome Statute and with full independence and impartiality,” Bensouda’s office wrote. “As soon as we reach a decision on the appropriate next step, we will inform the sender and provide reasons for our decision.”

Bensouda could either decline to take action or unilaterally decide to open a preliminary investigation. A third option would be to file a pretrial motion asking the court’s judicial chamber to rule on jurisdiction, as Bensouda did in the case of Myanmar. The court would ask Syria to respond and Jordan to weigh in. Last year, Bangladesh welcomed an investigation into the deportation of the Rohingya into its territory; with regard to Syria, Jordan’s response could make all the difference, cautioned al-Bunni, the human rights lawyer.

“The party that has to request an investigation is the government of Jordan, because it’s the one that’s suffered the harm,” he said. The question of jurisdiction could put Jordan in a quandary, caught between a just cause of helping Syrians’ quest for accountability and the geopolitical implications of helping to facilitate the prosecution of the head of a neighboring state. Cadman, however, says that even though Jordan will be called upon to respond, the court’s decision will rest on the harm Syrian refugees have experienced, and not whether Jordan encourages an investigation. The Jordanian Embassy in Washington, D.C., did not return a request for comment.

The legal teams built their filings around interviews with Syrian refugees in Jordan, in addition to the massive trove of documentation of crimes in Syria from the last eight years.

“I actually think the case is stronger as far as Syria is concerned than it was as far as the Rohingya were concerned,” said Toby Cadman, an attorney at the Guernica Group, which submitted an amicus brief in the Rohingya case. He noted that the scale of displacement in Syria is much larger: About 5 million Syrians have fled their country since 2011, compared to about 730,000 Rohingya refugees.

“That’s not to underestimate the significance of what happened to the Rohingya,” Cadman said. “I think just that the way the conflict has been documented in Syria, we actually know a lot more about what’s happened [there] than what’s happened in Myanmar.”

While the lawyers focused their filings on the crime of deportation, following the precedent set by the Rohingya decision, they also laid out other potential crimes that have occurred in Syria — the use of chemical weapons, indiscriminate bombings of civilian centers, and torture — as well as the risks that refugees would face upon being returned to Syria, such as conscription and detention.

“I interviewed Syrians who did not have a choice to stay in Syria, and had no choice in returning.”

“I interviewed Syrians who did not have a choice to stay in Syria, and had no choice in returning, and that usually means you’re speaking to people who have been detained, or people who are in fear of detention,” said Ibrahim Olabi, a Syrian lawyer who is completing his legal training at Guernica. “I interviewed people who had nothing to do with the uprising and were picked up and detained and tortured, again, in the worst possible means.”

One Syrian interviewed by Dixon’s team said she saw a child blown into pieces by a projectile, “which is a moment seared into her memory,” according to an excerpt from an Article 15 communication that Dixon shared with The Intercept.

She states that when bombing campaigns started in her town, everything intensified. When her cousin decided to flee with his family, he was killed in a missile attack on a minibus and the bus was so burnt that her family could not identify his body. She described her grave fear for her life and the life of her family during the bombing campaigns which randomly targeted buildings around her and hit a school nearby. She decided to flee to Jordan when she heard that regime forces had “cleansed” another part of her town and were moving to her area. She said the regime forces were implementing a policy of cleansing and that she feared she and her family would be killed.

“It’s important to understand that in order to prove crimes against humanity, the prosecutor has to show that there is an attack on the civilian population,” said Dixon. “All of the other crimes that have occurred in Syria can be used by the prosecutor to prove that there has been an attack on the civilian population, of which these deportations are a part.”

That’s not to say that the ICC would necessarily be able to seek convictions in relation to those wider crimes, but the prosecutor would at least gather evidence of them. “That’s important because it gives those victims a voice and it gives the opportunity to a prosecutor to prove the wider pattern and policy of crimes,” Dixon said, “which would be very important for the record and can then be used, in this case, to file a case of deportation and the other crimes against humanity.”

There are limitations to the ICC’s ability to prosecute cases and hold perpetrators accountable. One clear example is that of Sudanese President Omar al-Bashir, who has been wanted by the ICC for war crimes, crimes against humanity, and genocide in Darfur for a decade. Because the ICC does not have a police force, it needs cooperation from states who would be willing to execute an arrest. Al-Bashir, however, has traveled around the world, including to ICC member states, and remains a free man.

The legal maneuvering Syrians have done to try to bring their case before the ICC represents another limitation. Even when the evidence of potential crimes exists, investigations into crimes committed in states that have not ratified the Rome Statute are near impossible because of jurisdictional issues, and U.N. Security Council members are quick to use their veto power to block investigations into crimes potentially committed by their allies.

That’s what makes the various avenues Syrians are pursuing so significant. As of last March, more than two dozen cases had been filed in European courts regarding atrocities committed by the Syrian regime, rebel fighters, and the Islamic State and other fundamentalist militant groups. The family of Marie Colvin, an American journalist killed in 2012 while reporting from the city of Homs, sued the Syrian government in a U.S. district court; in January, the court found Syria responsible for killing Colvin.

Many of the cases in Europe were brought under a legal doctrine known as universal jurisdiction; application of the doctrine varies from country to country, but it essentially allows for courts to prosecute cases regardless of where the crime was committed or whether the accused party has any links to the prosecuting state.

The biggest success so far has been in Germany, where authorities last month arrested a former high-ranking Syrian intelligence officer and two others who are accused of crimes against humanity for torturing detainees in Syrian prisons. Other cases remain pending in France, Sweden, and Spain. (Cadman and al-Bunni have been involved with some of these cases.)

These attempts are possible in part due to an unprecedented level of documentation of crimes in Syria. The victims in some of the cases were identified from a trove of 28,000 photos of people killed in Syrian detention centers, smuggled out of the country by a military defector codenamed Caesar. The U.N. General Assembly, in December 2016, took the step of creating the International, Impartial, and Independent Mechanism to investigate crimes in Syria since 2011. The IIIM, as the body is known, does not have independent prosecutorial authority, but it exists to collect information that could later be provided to courts or tribunals with jurisdiction over the crimes. Last year, 28 Syrian nongovernmental organizations committed to collaborating with the IIIM on its work.

Groups like Guernica and the Syrian Legal Development Program, which Olabi founded as a law student in 2014, have trained Syrian lawyers and human rights activists on how to document atrocities in a way that would make the evidence admissible in court.

“What we’ve been doing, for example, is assisting [activists with] how to document in a legal way,” Olabi said of the Syrian Legal Development Program. “So we created witness interview questions for organizations, for example, that were documenting forced displacement, or helped an organization that’s working on chemical weapons, put it together in the legal framework, which then leads to all the different reports that we used in our Guernica submission.”

Syrians are making use of every tool at their disposal to hold perpetrators accountable under international law, yet many of them hope to see these crimes prosecuted in a post-conflict Syria some day.

“The prosecutions have to happen in Syria, absolutely,” said al-Bunni. “But we have to get there and prepare to have prosecutions in Syria, prepare for transitional justice in Syria; but to get there, we need to show that these people are criminals and no one should interact with them in any shape or form.”

As the Syrian regime cements its military victory, the prospect of a post-Assad state — or a period of transitional justice — is difficult to imagine. Until then, the mere process of pushing for accountability at every forum possible has a number of benefits, El-Sadany said.

“The fact that individuals who are once thought to never have been able to be held accountable are being held accountable or evidence is being collected, I think that is important in and of itself,” she said. “The process of participating in these cases, the process of documenting the evidence, the process of even speaking out loud about the violations that an individual or victim had to endure and who perpetrated those violations, that’s important from a documentation perspective; from a healing perspective for victims; for the memorialization and education perspective so that decades from now, the history of the Syrian revolution and the Syrian war isn’t rewritten.”

Update: March 16, 2019, 11:33 a.m.
This piece has been updated with a response from Toby Cadman on the way in which Jordan’s input will factor into the ICC’s decision.