Accountability for Syria is the international criminal court now a realistic option?

Abstract

To date, apart from a few prosecutions in European states, there has been widespread impunity for international crimes committed in Syria since March 2011. The International Criminal Court (ICC) is arguably the most suitable forum for prosecuting alleged perpetrators. However, thus far no accused has appeared before the Court. Indeed, the Prosecutor has yet to even open an investigation due primarily to the inability to establish a precondition for the exercise of jurisdiction. This article examines if this situation is now likely to change in light of a number of recent and controversial decisions of the Court, most notably, Pre-Trial Chamber I's ruling that the Court may exercise jurisdiction on a territorial basis over the alleged deportation of members of the Rohingya people from Myanmar, a non-state party to the ICC Statute, to Bangladesh, a state party, because an element or part of the alleged crime took place on the territory of a state party. The article considers whether this decision could potentially be relied upon as a precedent to enable the Court to exercise jurisdiction over crimes committed in the context of the Syrian unrest where a part or element of those crimes was committed on Jordanian territory, as Jordan is also a state party to the ICC Statute. Even if territorial jurisdiction is shown to exist based on the 'Myanmar precedent', the article examines whether an investigation might nonetheless be frustrated having regard to Pre-Trial Chamber II's refusal to authorize an investigation proprio motu into the situation in Afghanistan since May 2003 on the grounds that it would not serve the interests of justice. Finally, the article considers the potential impact of the Jordan Referral Judgment on the likelihood of high-ranking Syrian officials appearing before the Court. In that judgment, the Appeals Chamber controversially affirmed that head of state immunity is inapplicable before international courts. The decisions discussed in the article generated rigorous and at times divisive debate amongst academic commentators. Accordingly, the article also incorporates a cross-cutting theoretical analysis of the extent to which the differing responses to these decisions reflects the historic fault-line between realists and liberals.