War crimes and legal routes: How Assad could be brought to justice for Syria atrocities

By Rabia Ali

ISTANBUL (AA) - Following the collapse of Bashar al-Assad’s regime in Syria, the international community is grappling with the challenge of holding him and his government accountable for the atrocities committed during the country’s prolonged civil war.

Legal experts are exploring different avenues to pursue justice, including recommendations for the International Criminal Court (ICC) to follow the Bangladesh-Myanmar model and ensure universal jurisdiction through national courts.

Assad, who ruled Syria for nearly 25 years, fled to Russia after anti-regime forces seized control of Damascus on Dec. 8, marking the end of the Baath Party’s stranglehold on power since 1963.

His regime has long faced widespread accusations of grave human rights violations, including torture and mass killings, with groups such as the Syrian Network for Human Rights (SNHR) having documented evidence of over 200,000 deaths under Assad’s orders.

- Bangladesh-Myanmar model and ICC jurisdiction

While Syria is not a signatory to the ICC’s Rome Statute, experts suggest that justice might be achievable through a jurisdictional pathway established by the Myanmar-Bangladesh case related to atrocities against the Rohingya community.

Haydee Dijkstal, a barrister and non-resident senior fellow at the Atlantic Council’s Strategic Litigation Project, explained that the ICC could exercise jurisdiction over crimes in Syria if at least one element of the crime occurred in a member state.

In this case, she said the focus could be on crimes that forced civilians to flee Syria and enter Jordan, an ICC member state. These crimes include indiscriminate bombardments, extrajudicial killings, arbitrary detentions, and violent repression of free expression.

“The ICC is capable of starting now. Through the jurisdiction pathway established in the Myanmar-Bangladesh situation, the ICC prosecution has the legal ability to immediately start considering all criminal acts which caused Syrians to flee into Jordan, and to provide at least one avenue towards justice for Syrian victims,” Dijkstal told Anadolu.

In the Myanmar-Bangladesh case, a pre-trial chamber of the ICC decided in September 2018 that the court may exercise jurisdiction over the crime against humanity of deportation under Article 7(1)(d) of the Rome Statute, when at least one element of the crime is committed on the territory of a state party.

Although Myanmar is not a Rome Statute signatory, the crimes against the Rohingya were completed in Bangladesh, an ICC member state, enabling ICC jurisdiction.

This precedent could apply to Syria by investigating crimes committed within its borders that culminated in refugees fleeing to Jordan.

Referring to an Article 15 communication she and a co-counsel filed on behalf of the Iran Human Rights Documentation Center in 2022, Dijkstal said: “We submitted that the ICC has jurisdiction under this limited pathway to investigate and potentially prosecute evidence of these same crimes – the crimes against humanity of deportation, persecution and ‘other inhumane acts’ – which are started in the territory of Syria but which are completed in Jordan, which is an ICC state party.”

Dijkstal emphasized that the ICC prosecutor could open a preliminary examination into Syria’s situation immediately, even without a referral from a state party, and begin examining evidence of crimes partially occurring in Jordan.

- Universal jurisdiction

Jurist Yousuf Syed Khan argues that universal jurisdiction prosecutions in national courts currently offer the most feasible route to accountability.

“While not a comprehensive solution, universal jurisdiction has thus far proven the most practically accessible route for victims to seek justice,” said Khan, also a non-resident senior fellow at the Atlantic Council’s Strategic Litigation Project.

Several European countries, notably Germany, have pursued cases against Syrian officials under universal jurisdiction.

“Over 300 universal jurisdiction cases related to crimes committed in Syria have been filed globally. So far, prosecutions have taken place in multiple countries, including Germany, France, the Netherlands, Switzerland, among others,” Khan noted.

The Koblenz trial in Germany, which led to the conviction of a former Syrian intelligence official for crimes against humanity, stands as a landmark example of this approach, he added.

National-level prosecutions have been facilitated by evidence collected by the UN International, Impartial and Independent Mechanism (IIIM), which gathers and prepares files to support future legal proceedings, he explained.

Khan highlighted the role of open-source investigations and social media intelligence in overcoming limited access to Syria since 2011.

“After the fall of the Assad regime, access to a robust evidentiary record is available and will be crucial to future prosecutions, whether at the ICC, a future ad hoc tribunal, or in national courts pursuant to universal jurisdiction,” he said.

“Now that access to prisons, files, documents, mass graves, and other crime sites is available following Assad’s collapse, the international community must remain vigilant and focused on ensuring that this evidence is forensically preserved.”

- Other legal avenues and need for political will

Speaking about the other possible legal avenues, Khan explained that the UN Security Council could theoretically refer Syria’s case to the ICC under Chapter VII of the UN Charter.

“Attempts have been made but have so far been blocked by permanent members with veto power (notably Russia and China). Without a UNSC referral, direct ICC involvement remains unlikely,” said Khan, who has previously served on commissions established by the UN Human Rights Council, including for Syria.

Khan also discussed the possibility of establishing an ad hoc tribunal, similar to those created for Yugoslavia and Rwanda, but pointed out that forming them remains politically challenging.

“Such tribunals require significant international political will, which has not materialized to date for Syria. This is particularly the case given Russian and Chinese vetoes, and because Russia has been implicated in several crimes in Syria,” he said.

“The international community is still fractured on Syria, limiting the likelihood of coordinated action at the highest diplomatic and political levels. Still, ongoing evidence collection and national-level, universal jurisdiction trials keep the prospect of justice alive and maintain pressure on perpetrators.”

- War crimes and crimes against humanity

Over past years, the Assad regime has been accused of numerous war crimes and human rights violations.

According to Khan, the UN Syria Commission of Inquiry has documented atrocities since its first report in 2011.

“This conduct includes murder; arbitrary and unlawful detention; torture and other forms of ill-treatment; the crime against humanity of extermination; sexual and gender-based violence; forced displacement as a warring strategy; the use of chemical weapons; and the denial of humanitarian aid,” he said.

Khan said two of the commission’s public reports “documented that the Russian Aerospace Forces may have perpetrated the war crime of launching indiscriminate attacks resulting in death and injury to civilians – the first such conclusive findings by a UN body concerning Russia’s involvement in the Syrian theatre.”

Dijkstal also asserted that there is “an enormous amount of evidence which has been collected for years by various groups, including by victims’ groups, NGOs or the UN’s IIIM on Syria.”

Referring to the communication she filed in 2022, she said: “When preparing the Article 15 Communication, we reviewed evidence of a series of crimes and acts from 2011 to 2018 carried out by both the armed forces of the Syrian government but also by armed forces controlled, supported and backed by the Islamic Republic of Iran.”

The material reviewed included “evidence of indiscriminate bombing, artillery fire and shelling on civilians, extrajudicial killings and murder, indiscriminate shooting at civilians, arbitrary arrest and detention including abuse and death in detention, beatings and other abuse of civilians including abuse of children, search operations and violent repression of the right to free expression including to civilian journalists and activists,” she said.

“All of these acts contributed to causing Syrians to flee into Jordan, and therefore we raised that, while each these acts could be charged as crimes in their own right, they also make up the underlying acts for the crimes against humanity of deportation, persecution and ‘other inhumane acts’ for which the ICC could decide to exercise jurisdiction today,” Dijkstal added.​​​​​​​