Despite an eight-year spectacle of violence, extensively documented by journalists, aid workers and even governments, the world’s most wide-reaching criminal court has failed to bring a single case against Syrian President Bashar Al-Assad.
Until now. This week, in a neat legal trick, a group of Syrian refugees and their London lawyers found a way of circumnavigating the major pitfalls that blight the International Criminal Court (ICC) to finally pursue justice.
Taking notes from a similar case raised over the Rohingya crisis in Myanmar, they appear to actually have a solid chance of convincing the ICC prosecutor to push ahead with an investigation into deportation, as a crime against humanity.
Arguably, the biggest problem with the ICC and its ability to pursue cases is that it is heavily reliant on its membership, which is limited, and the UN Security Council, which has never been so polarised.
Syria is not a member of the ICC and so the prosecutor has no inherent jurisdiction to investigate and pursue a case against crimes which took place in the country.
The only other way for Syria to be referred to the tribunal at the Hague is if the UN Security Council orders it. And that decision can be – and with the case of Syria has been – vetoed by a single vote.
In 2014 Russia and China voted against a French-drafted resolution that was supported by more than 60 countries and called for investigation into alleged war crimes being committed by all sides of the conflict.
But this week’s development could change everything, as it focuses on the crimes against humanity the Assad regime has allegedly committed, which have spilled over the borders into Jordan – a member of the ICC. This follows a precedent set in the Rohingya crisis, which spilled over from Myanmar, which is not an ICC country, to Bangladesh, which is.
Rodney Dixon QC, a London-based international human rights lawyer and lead counsel in the new Syria case, told The Independent the alleged crime they want to investigate is one of deportation – the relentless forced displacement of civilians during the conflict. Jordan is the only hope in this instance as Iraq, Turkey and Lebanon – also a recipient of Syrian refugees – are not members of the court.
The UK’s role in this process could be significant because, as a powerful member of the court, Britain can actually force the case against President Assad into existence.
As it stands, Mr Dixon and histeam submitted a “communication”. It still needs the ICC prosecutor to take it in front of the court’s pre-trial chamber for them to decide whether to authorise a formal investigation. This can take time, and there is considerable space for it to be rejected.
To shortcircuit this, the UK (or any other party to the court, such as Jordan) can simply refer it to the ICC directly, triggering an investigation immediately.
“The UK could definitely be more proactive, to take a stance and send a signal. We need to try every single jurisdiction gateway that we have to bring this case forward,” Mr Dixon said.
“This case does highlight how the veto mechanism on the Security Council can be used politically to stop a case coming to the court – and how the politics of the council can directly influence whether there will justice for victims.”
The British public has shown that it deeply cares about the Syrian crisis and the myriad crimes committed by all sides there, and yet the UK government has taken surprisingly little legal action against President Assad or others.
Because of the restrictions on the ICC, several countries including France, Germany and Sweden have launched domestic cases using universal jurisdiction to investigate and, where possible, prosecute serious international crimes committed in Syria.
The UK, though, has yet to do this. The government may, however, find itself conflicted. Since 2014, and up until January this year, the UK has been bombing Syria as part of efforts to wipe out Isis.
Just this week the RAF said it has killed or injured more than 4,300 enemy fighters in Iraq and Syria but killed only one civilian in all the airstrikes.
Monitoring groups believe the actual civilian death toll is much higher. And so the launch of an ICC investigation into the situation across Syria might open the UK up to scrutiny.
Britain’s role in Iraq is already under ICC examination. That does not mean the UK should not support groups like these Syrian refugees in finding an alternativemeans of trying to pursue justice.
Balkees Jarrah, senior international justice counsel at Human Rights Watch, said that this week’s attempt is just one of many innovative solutions available. For example, three years ago a group of states successfully petitioned the UN’s General Assembly to create the International Impartial Independent Mechanism, which has been gathering evidence of war crimes and human rights violations in Syria.
Despite the challenges ahead, there is the possibility that this could function as an archive of evidence that can be tapped by anyone looking to pursue prosecutions in the future, and will make it much harder to ignore the scale of the atrocities taking place in Syria.