ANKARA
A "strong" arrest warrant by the International Criminal Court (ICC) against Syria's deposed leader Bashar Assad is "just a matter of time,” according to a Turkish expert.
Levent Ersin Oralli, an academic at Ankara Haci Bayram Veli University, told Anadolu that Syrian ousted leader Bashar Assad clearly violated the Rome Statute and would be tried at the ICC for “oppressing and subjecting the Syrian people to inhumane treatment.”
Evidence, which was obtained after the fall of the Baath regime on Dec. 8 from prisons and mass graves used as torture centers by the collapsed regime would remove barriers to prosecuting Assad and allow for a strong indictment to be prepared, Oralli added.
Why could deposed leader Assad not be tried during his presidency?
Since Syria is not a party to the Rome Statute, the ICC's founding treaty, the court lacks direct jurisdiction over the country.
For the ICC to intervene, Syria must either accept the ICC’s jurisdiction or the UN Security Council (UNSC) must refer the case to the court. In the past, a resolution proposed by France for such a referral was vetoed by Russia.
Oralli noted that during the regime’s rule, challenges such as security risks and dangers in the region made evidence collection difficult. He stated that with the regime’s fall, the area has been opened to all actors within the framework of international law, including the ICC.
The scholar underlined that in cases where there is no attack on another country or its citizens, the legal process proceeds based on “discipline.” However, acts that violate international law, such as mass killings and extrajudicial executions, as seen in Syria, always have consequences, added Oralli.
For his part, Fadel Abdulghany, the head of the Syrian Network for Human Rights (SNHR), said that Syria was ruled under dictatorship during Assad’s tenure, which prevented his prosecution.
Abdulghany added that it is now easier to file a case against Assad, who has become a fugitive.
"Assad is shielded by alliances with powerful states like Russia and Iran, which have vetoed attempts at UN Security Council referrals to the ICC,” said Nousha Kabawat, head of the International Center for Transitional Justice's Syria program.
Is it possible to prosecute fugitive Assad?
Under Article 12(3) of the Rome Statute, a state that is not a party to the Statute can submit a declaration to the ICC accepting its jurisdiction. In other words, if a new government in Syria recognizes the ICC’s jurisdiction, it could pave the way for Assad’s crimes to be prosecuted.
Besides, UNSC member states can apply to the ICC to investigate Assad’s crimes, provided there is no veto.
Oralli said that international law comes into play when crimes such as genocide, serious human rights violations, or the use of chemical and biological weapons occur during civil wars, as in Syria. He noted that the allegations against the Assad regime meet these criteria.
“The atrocities committed by Hitler were against his own people. Trials in the Tokyo courts were the result of atrocities committed against Southeast Asian nations.
"We saw similar massacres in the Darfur and Rwanda genocides. None of them could say, ‘These are my people, you cannot prosecute me during a civil war'," he added.
Abdulghany highlighted that a transitional government in Syria must recognize the Rome Statute to facilitate Assad’s prosecution, adding that this is not limited to Assad alone, other criminals must also be held accountable, including Bashar's brother Maher and former National Security Bureau Chief Ali Mamluk, who have fled to other countries.
He underlined that Assad cannot seek asylum because it would violate the Refugee Convention, saying: "If Russia extradited Assad to Syria, he will hold an accountable fair trial. We will not subject Assad to any torture.”
"All Assad regime will subject to a fair trial, not torture, but of course, there is solid information and data that can condemn him for committing crimes against humanity and war crimes against the Syrian people.
"So we are pretty sure that the court, any independent court, Will. Uh, issue a heavy sentence against Assad,” Abdulghany added.
Similarly, Kabawat stated that violations such as war crimes and crimes against humanity in non-international armed conflicts are punishable under international law. She noted that Assad could be held accountable for crimes committed during Syria’s civil war.
Kabawat believes Assad could be tried for war crimes, crimes against humanity, and potential genocide, emphasizing that international agreements like the Geneva Conventions and the Rome Statute provide the legal framework for such trials.
How would case against Assad proceed at ICC?
Proceedings at the ICC can be initiated either through a referral by a state party or the UNSC or by the Prosecutor launching an investigation independently.
Kabawat explained that the first step in the judicial process is to launch an investigation into Assad, stating: “The trial phase would involve presenting evidence before a tribunal or court, ensuring Assad’s right to defense while seeking justice for victims."
However, Kabawat noted that the judicial process could take years and ultimately depends on the cooperation and willingness of states to extradite the accused.
Alternative mechanisms for prosecuting Assad
Assad could be tried not only by the ICC but also through special or hybrid courts, national courts, or under the principle of universal jurisdiction.
“The crimes committed by Assad are of a universal nature. Therefore, all states have the right to prosecute these crimes under their domestic laws, surpassing the territorial principle,” Oralli noted.
Abdulghany underscored that lawsuits against Assad could be filed in international or domestic courts, noting that Assad no longer has power and that Russia is unlikely to risk its relationship with Syria to protect him.
He commented: "Assad is no longer valuable to Russia anymore. On the contrary, Assad became a burden on Russia's shoulders or any of his allies.
"They need to open a new page, and they need to extradite Assad."
Kabawat said that Assad could also be tried outside the ICC, highlighting the importance of considering rulings issued against Assad and other regime officials in countries like France and Switzerland.
Stressing that prosecuting Assad is essential for enhancing accountability and protecting the rights of victims of oppression, she added that this process would contribute to peace and reconciliation in Syria and lay the groundwork for the country’s reconstruction.
Bashar Assad, Syria’s leader for nearly 25 years, fled to Russia after anti-regime groups took control of Damascus on Dec. 8, ending the Baath Party regime, which had been in power since 1963.
The takeover came after Hayat Tahrir al-Sham fighters captured key cities in a lightning offensive that lasted less than two weeks.
*Writing by Serdar Dincel
