OPINION - How can the Assad regime be prosecuted by the ICC?

The author is a professor of international law at Hebron University, Palestine.

ISTANBUL

At first glance, the prospect of prosecuting the Assad regime at the International Criminal Court (ICC) might appear impossible. Syria is not a party to the Rome Statute, the treaty establishing the ICC. This limitation restricts the court’s jurisdiction to crimes committed by citizens of state parties or within their territories. Additionally, some may assume that the prosecution of Syria's Bashar Assad and his associates would require a UN Security Council referral, as seen in the cases of Sudan and Libya. However, such a scenario is unlikely, as Russia would almost certainly veto any resolution referring Assad to the court. Assad has sought refuge under Moscow’s protection, shielded by Russian President Vladimir Putin, who is himself wanted by the ICC.

Yet, there is still a pathway for the ICC to act against Assad and other leaders of his regime who stand accused of grave crimes against humanity, widespread war crimes, and potentially genocide.

The legal basis for ICC prosecution of Assad

Under Article 12(3) of the Rome Statute, any state, even one that is not an ICC member, may grant the court jurisdiction by referring the situation to the ICC. This referral can apply retroactively to crimes committed on or after July 1, 2002, or another specified date thereafter. The transitional Syrian government could, therefore, accept ICC jurisdiction, at a time it deems appropriate.

Precedents for such declarations already exist. Ukraine, despite not being a state party to the Rome Statute, accepted ICC jurisdiction retroactively as of Nov. 21, 2013. Similarly, Palestine acceded to the statute in 2015 and granted the ICC power to prosecute crimes committed since June 13, 2014, the start of Israel's war on Gaza that year. In both cases, the ICC acted on these declarations, issuing arrest warrants against prominent figures, including Putin and Israeli Prime Minister Benjamin Netanyahu. There is no reason why Assad’s case would not be handled similarly.

The process for a Syrian declaration would be straightforward. The current transitional authorities in Damascus could submit a brief letter to the ICC Registrar, specifying the date from which the court’s authority for Syria would begin. This step allows the ICC to investigate and prosecute individuals responsible for atrocities committed during Syria’s long conflict.

A transitional justice approach

While ICC prosecution could be an essential step, it would not preclude other avenues of justice. National courts or even a dedicated special tribunal could address the crimes committed by Assad’s regime. Syria could also establish truth and reconciliation commissions to uncover abuses, deliver justice to victims, and hold key perpetrators accountable through transitional justice mechanisms.

Such measures, however, would likely require years to implement. In contrast, the ICC could act more swiftly, targeting a select number of high-profile perpetrators responsible for the gravest crimes. The court’s focus would likely be on individuals such as Assad, senior military leaders, top politicians, and heads of the security and prison systems.

Effective accountability

Although the ICC cannot prosecute all offenders, it could issue arrest warrants for key figures, for instance, the top 100 suspects, who would face extradition to The Hague and remain fugitives wherever they travel. This would send a strong message that impunity for atrocities will not be tolerated and that non-accession to the ICC does not preclude accountability.

While the path to prosecuting the Assad regime at the ICC is complex, it is not insurmountable. A declaration by the transitional Syrian government under Article 12(3) of the Rome Statute could serve as a vital first step, ensuring justice for the victims of the devastating conflict in Syria.