International Justice in Syria: Opportunities for Accountability and Prosecution

Calls for accountability of those responsible for war crimes and crimes against humanity in Syria have grown since the outbreak of the Syrian Revolution in March 2011, continuing through to its conclusion in December 2024. In May 2014, the gravity of the crimes committed against the Syrian people, alongside widespread and systematic violations of international humanitarian law, led France to propose a resolution to the United Nations Security Council referring the situation in Syria to the International Criminal Court (ICC). However, this initiative failed due to the use of the veto by Russia and China. The proposed resolution aimed to enable the ICC to open investigations into crimes committed by all parties to the conflict, as Syria is not a party to the Rome Statute of the Court. This makes referral to the court contingent upon a decision by the Security Council under Chapter VII, as was the case for Libya and Darfur.

On January 17, 2025, the ICC Prosecutor, Karim Ahmad Khan, visited Damascus, where he met with the head of Syria’s new administration, Ahmed al-Shara, and its Foreign Minister, Asaad al-Shaibani. This raised questions about the potential for an international investigation into the crimes committed during the previous years. These developments highlight a crucial legal issue concerning whether the Syrian state could be compelled by the transitional government to sign the Rome Statute and the extent to which the Court can investigate crimes committed before the state’s ratification of its charter.

This paper explores the opportunities for justice and accountability in Syria by examining the jurisdiction of the ICC and the ability of the transitional government to bind Syria to the Court’s authority and represent it before the ICC.

1. Jurisdiction of the International Criminal Court (ICC)

The ICC is the only independent international judicial body with jurisdiction over the most serious crimes that threaten humanity, such as genocide, crimes against humanity, war crimes, and the crime of aggression. However, its jurisdiction faces significant legal and procedural challenges, particularly concerning temporal jurisdiction in complex conflicts like the Syrian situation.

The Rome Statute was adopted on July 17, 1998, and entered into force on July 1, 2002. As such, the Court’s jurisdiction is limited to crimes committed after this date, in line with the principle of non-retroactivity of criminal law.

For states that joined the Rome Statute after it came into effect, the Court’s jurisdiction begins only when that state’s ratification of the Statute takes effect, i.e., after the state formally accedes to the treaty. This approach is designed to reassure states that wish to join, so they do not fear facing investigations for crimes committed before their ratification.

However, Article 12(3) of the Rome Statute allows non-state parties to accept the Court’s jurisdiction retroactively, but this is limited to crimes committed after July 1, 2002. Through this specific acceptance, the Court may open investigations into crimes committed within a defined period based on a declaration submitted by the concerned state, even if it is not a party to the Statute.

A practical example of this is Ukraine, which was not a state party to the Rome Statute but submitted two declarations under Article 12(3) to accept the Court’s jurisdiction. The first declaration focused on crimes committed between November 21, 2013, and February 22, 2014, while the second expanded the timeframe to include crimes committed from February 20, 2014, onwards.

This process allowed the ICC to investigate war crimes committed on Ukrainian territory and issue arrest warrants for Russian officials accused of serious violations as of 2021, even before Ukraine officially ratified the Rome Statute on October 25, 2024, with the Statute entering into force on January 1, 2025.

In the case of Syria, a special declaration from the current government under Article 12(3) of the Rome Statute could be a critical step allowing the ICC to investigate crimes committed throughout the years of the conflict from 2011 onwards. However, this would not cover crimes committed by the regime in the 1980s, particularly in the city of Hama, despite those crimes not being subject to the statute of limitations as war crimes and crimes against humanity, due to the Court’s jurisdiction not extending to them.

This 12(3) option could pave the way for international justice and accountability, allowing the state some degree of control over how justice is implemented within its territory. If the new Syria is capable of conducting serious and effective national investigations and trials, ICC intervention would not be necessary. Based on the principle of complementarity, the Court intervenes only if the state is unable or unwilling to prosecute those involved, i.e., if the state demonstrates its inability to prosecute the perpetrators or if national investigations and procedures are insufficient to bring the perpetrators to justice.

2. The Authority of the Transitional Government to Ratify the Rome Statute

Typically, a transitional government has limited jurisdiction, often focusing on managing state affairs until political transition is achieved and elections are organized. On the international stage, its powers are restricted by the provisions of the temporary constitutional declaration. However, in the absence of any such declaration to date, the question arises as to whether the current interim government can compel Syria to sign the Rome Statute, and whether the ICC evaluates the legal capacity of the signing entity. If the transitional government is deemed to legitimately represent the state, could it accept the signing?

In answering this question, it is useful to consider the Palestinian case. On January 1, 2015, the Palestinian government (“Palestine”) submitted a declaration under Article 12(3) of the Rome Statute, recognizing the ICC’s jurisdiction to investigate alleged crimes committed “in the occupied Palestinian territories, including East Jerusalem, since June 13, 2014.” On January 2, 2015, Palestine officially acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Statute came into effect for Palestine on April 1, 2015. Thus, Palestine was accepted as a party to the Rome Statute despite not being a full UN member, as it has been a “non-member observer state” since November 29, 2012.

Returning to the Syrian situation, the current transitional government, which emerged after the revolution, is bound by the commitments made by its predecessors, such as international debts or treaty obligations, according to the principle of state continuity as a legal and political entity. This means it remains in existence regardless of changes in governance, government, or internal disturbances. The state retains its international rights, obligations, and commitments even in the face of internal changes or leadership transitions. This principle is based on the idea that a state has a legal personality independent of the individuals or institutions representing it. Therefore, the change of regime does not allow the state to evade responsibility for its past actions, such as violations of international law or outstanding debts. Diplomatic relations with other states remain intact by default unless a formal decision to sever them is made.

Regarding the ratification of international treaties, the transitional government, represented by the foreign minister or prime minister, has the right to sign international treaties. However, these treaties do not become binding unless ratified in accordance with each state’s domestic legal procedures. Therefore, if the Bashir government were to sign the Rome Statute, such a signature would not bind Syria as a state until a constitutional declaration is issued to define the authority responsible for ratifying the treaty.

Conclusion

Although advancing international justice and holding those responsible for human rights violations and war crimes accountable is essential, the work done by the ICC is only part of the larger accountability efforts needed in Syria. Yet, this remains a vital first step and an important reference point for other initiatives, including national trials. Moreover, there is a need for non-judicial mechanisms such as truth commissions, investigations, and institutional reforms.

References

1. United Nations, Security Council, Press Release, “China and the Russian Federation block a draft resolution on referring the situation in Syria to the International Criminal Court (ICC) for serious crimes,” May 22, 2014, CS/11407.

2. S. Sendiane, “NATO’s Intervention in Libya,” in Proceedings of the International Conference, Arab World and Latin America: Confluence of Societal Dynamics, Paris, L’Harmattan, 2019, pp. 161-192.

3. https://www.icc-cpi.int/fr/ukraine

4. Catherine Maia, “What role for the International Criminal Court in the face of allegations of crimes in Ukraine?” RDLF 2022 chron. No. 17, https://revuedlf.com/droit-international/quel-role-pour-la-cour-penale-internationale-face-aux-allegations-de-crimes-en-ukraine/

5. BERGER (Marie-Sophie), “The Complementarity of the International Criminal Court in the Libyan Case,” in SFDH, The State in Globalization, Proceedings of the French Society of International Law, A. Pedone, Paris, 2013, pp. 469-486

6. State of Palestine, Situation in the State of Palestine, ICC-01/18, State of Palestine

7. Julio A. Barberis, “The Concept of ‘International Treaty’ and its Limits,” French Yearbook of International Law, 1984, 30, pp. 239-270.