Prosecuting Bashar Al-Assad: Can The International Criminal Court Exercise Jurisdiction Over Syria?

by Juan Carlos Portilla

On September 16, 2013, the United Nations released its report affirming that chemical weapons were used on a relatively large scale in the Ghouta area of Damascus, Syria in August 2013 and resulted in numerous civilian casualties. The use of chemical weapons represents a gross violation of international law and should be punished. In particular, Bashar Al-Assad and his lieutenants should be prosecuted under the auspices of the International Criminal Court (ICC), a judicial institutionestablished to help end impunity for the perpetrators of the most serious crimes of concern to the international community. Yet before this can happen, the ICC must find a way to exercise jurisdiction over Syria even though the country has not ratified the Rome Statute of the ICC, the foundational treaty of the ICC. Once it has established jurisdiction over Syria, the ICC should prosecute the perpetrators of the chemical weapons attack individually and guarantee their rights to a fair trial and due process. Finally, the ICC must prove that the perpetrators did indeed commit a punishable crime.

Can The ICC Exercise Jurisdiction Over Syria?

Yes, but getting the perpetrators of the chemical weapons attack to come before the ICC may require some diplomatic maneuvering.  Diplomacy proved to be successful in forcing Syria to join the Chemical Weapons Conventions (CWC), so the international community may also be able to convince Syria to ratify the Rome Statute to avert a military attack from abroad. Moreover, under Article 13 (b) of the Rome Statute, the UN Security Council (UNSC) has the authority to refer ICC crimes—genocide, crimes against humanity, war crimes, and, after January 2017, crimes of aggression—to the ICC Prosecutor, who is responsible for conducting investigations of ICC crimes.   To refer a case to the ICC, the UNSC must pass a resolution under Chapter VII of the UN Charter. To date, the UNSC has referred the cases of Libya and Darfur (Sudan) to the ICC.

There are two caveats to this scenario: first, Russia may exercise its veto power on the UNSC to block any resolution referring Syrian perpetrators to the ICC. Second, Syria has not ratified the Rome Statute.  This second hitch can be overcome given that Syria is a signatory to the Rome Statute and under Article 28 of the Vienna Convention on the Law of Treaties (VCLT), signatory states must refrain from acts that defeat the object and purpose of a treaty. Thus, Syria must comply with interim obligations under the Rome Statute. Technically speaking, the ICC Prosecutor can initiate a criminal investigation in Syria right away on these grounds.

Individual Criminal Responsibility

The ICC has jurisdiction over individuals, not states. Thus, if the ICC finds a way to exercise jurisdiction over Syria, Bashar Al-Assad would be prosecuted as an individual before the ICC.  Syrian military commanders and other government officials in the chain of command may be brought before the ICC as well.  The Rome Statute applies equally to a head of state and senior officers, regardless of their immunities and privileges or whether or not they committed the crime in an official capacity. In short, the ICC may prosecute those who planned and executed the chemical weapons attack in Syria whether they committed the crime individually, jointly with other military personnel, or through military units.

Punishing the Crime 

To convict the perpetrators of the chemical weapons attack in Syria, the ICC Prosecutor must prove that their actions constituted a crime against humanity and entailed systematically attacking civilians per state policy. Pursuant to the Rome Statute, serious violations of the laws and customs of war committed in the context of a civil war, including murder and intentional attacks against civilians, may constitute crimes against humanity. UN Secretary-General Ban Ki-moon could use the Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013 as evidence that the chemical weapons attack constituted a grave violation of customary international law, a war crime, and a violation of the 1925 Geneva Protocol, which prohibits countries from using chemical weapons. Additionally, under the ICC, war crimes must be committed under a policy or plan pursuing “a large-scale commission of such crimes.”  In this instance, the ICC has legal precedent to draw from: in authorizing a criminal investigation in Kenya, the ICC reasoned that a crime planned and executed by local units of the state could meet the requirement of a state policy.

The international community must strive to prosecute Bashar to Al-Assad and his lieutenants in the ICC, not only to deliver justice to the victims of the chemical weapons attack, but also to enhance the credibility of the ICC, a white elephant on the global stage that has cost more than $900 million since its inception.

About the Author

Juan Carlos Portilla is a Visiting Scholar at Boston College Law School. He is representing before the Human Rights Committee of the United Nations two students of the Venezuelan political opposition, who are victims of unlawful detention in Caracas. He previously worked for the government of Colombia. He is a lawyer from the Sabana University School of Law, Colombia, and holds a LL.M. in International Law from The Fletcher School of Law and Diplomacy, Tufts University.

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