What’s taking the ICC so long to investigate war crimes in Syria?

It's been 11 years and counting of a brutal war since the Syrian people demanded their freedom from Bashar al Assad's harsh rule. Countless tragedies later, Stoke White became the first firm to file a war crimes case against Bashar al Assad at The Hague in 2019. However, three years on, we believe the International Criminal Court (ICC) is dragging its feet on delivering justice to the Syrian people.

Syria is not a signatory of the ICC convention. But that did not deter my firm from seeking accountability for Assad’s war crimes. We managed to get testimonies from Syrian victims who fled to Jordan and then invoked the ICC’s jurisdiction to put the Syrian regime on trial. 

We have faced other obstacles along the way. China and Russia have veto powers, and they have used them to prevent the ICC from setting up a Special Tribunal for Syria that could speed up the process.

Despite these hurdles, my team has managed to conduct fieldwork, gathering information on the Syrian regime's war crimes. We have collected over 2,000 testimonies from victims scattered around the region⁠—from the Turkish-Syrian border to the camps in Jordan. These victims told us about targeted air strikes, torture, sexual abuse, mass killings and other serious violations, including deaths resulting from the use of chemical weapons.

Despite having collected an overwhelming body of evidence, the ICC’s Preliminary Examination team, which is the first step to start the trial, is still hobbling on how to start prosecution of Syrian officials. We have had three rounds of investigative missions, and we have regularly submitted evidence to the ICC. To us, it has become clear that the ICC is dragging its feet on the case.

For instance, we have requested that a Preliminary Examination is urgently opened to examine evidence of crimes against humanity under Article 7 of the Statute, namely that victims from Syria have been unlawfully deported to Jordan in violation of Article 7(1)(d); that victims have been collectively persecuted in violation of Article 7(1)(h); and that “other inhumane acts” under Article 7(1)(k) have been committed.

My firm is confident that this pattern of forced deportation has similarly occurred elsewhere in Syria, where civilians were forced to flee their homes and seek refuge in neighbouring countries.

Syrians are the most forcibly displaced population on the globe. The UN estimates that more than 13.4 million Syrians have been forced out of the country by the end of 2019. That’s half of Syria’s population. 

We believe the former ICC Prosecutor Fatou Bensouda and her predecessor Karim Ahmad Khan should have taken urgent and firm steps to take the case forward, especially in light of the extensive evidence that my team had submitted. But instead, last year, the ICC Preliminary Examination Team asked for more evidence at the height of the Covid-19 pandemic. How were we supposed to carry out more fieldwork when everyone was isolating?

Just by giving us their statements, the firm’s clients have taken a great personal risk. On the other hand, the ICC’s dilly-dallying speaks volumes about its priorities. Consider this: when we first submitted the evidence to the ICC in 2019, we didn’t hear from the institution for a year. That was a landmark case against Assad’s crimes and should have been treated urgently, considering the regime’s blatant and visible use of brutal force against civilians.

In comparison, Stoke White has had a good experience with how swiftly the ICC has taken up humanitarian cases in the past. In 2010, ships carrying aid for Palestinians were unlawfully raided by Israeli soldiers, resulting in the death of nine Turkish activists. We filed a case before the ICC, and the process began in May 2013. By November 2014, the ICC had come out with a decision. As lawyers, we do not speculate; but it appears to us that the political interests of states weaken the ICC’s infrastructure. 

Justice beyond the ICC: Universal Jurisdiction

In January this year, the Higher Regional Court in Koblenz, Germany, convicted Anwar Raslan, a senior official of the Syrian Government, for crimes against humanity and sentenced him to life imprisonment for overseeing detention centres where torture and interrogation occurred. Raslan was the ex-head of the Syrian General Intelligence Directorate’s investigation department,  overseeing Branch 251, Branch 285 and other detention centres where abuses took place.

The Court held that Raslan was “a co-offender in a protracted and systematic attack that was launched against the civilian population of Syria, resulting in 27 people being murdered and 4,000 others tortured.”

This is a breakthrough for Syria and a broader sign of where justice can be achieved⁠—via universal jurisdiction procedures. It is currently competing against international justice structures, where the ICC is lagging behind.

The ICC needs to be more active in prosecuting officials from Syria and be emboldened by strides taken in Germany’s courts. While we continue to investigate to make the file at the ICC successful, it appears universal jurisdiction applications in Germany and other European countries have proven to be more effective in seeking justice.