It is widely accepted that the International Criminal Court (ICC) does not have jurisdiction over crimes in Syria, because, Syria is not a state party to the ICC, and that the United Nations Security Council (UNSC) did not refer the situation in Syria to the ICC. However, the ICC announced that it has jurisdiction over crimes in Myanmar, which is not a state party, nor was its case referred by the UNSC.

On 18 September 2018, ICC announced that it opened a preliminary examination concerning the ‘alleged deportation’ of the Rohingya people from Myanmar to Bangladesh. According to article 13 of Rome Statute, the ICC may exercise its jurisdiction with respect to crimes against humanity in accordance with the provisions of Rome Statute if “The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”

How the ICC started the Myanmar investigation:

Since September 2017, The ICC Prosecutor received communications and reports of the alleged crimes of deportation against the Rohingya from Myanmar to Bangladesh. The Prosecutor reviewed those reports and was faced with the issue of the ICC jurisdiction over this crime.

The prosecutor described her sources on the alleged crimes as: reports and other public information that appear credible and consistent, and emanate from prima facie reliable sources, including UN offices, Human Rights Watch, Amnesty International and other international rights groups, as well as corroborative material from media reports. In addition to that the prosecutor received individual communications under article 15 (2) of Rome Statute, that allows the ICC Prosecutor to receive information from nongovernmental organizations, or other reliable sources. Almost all the sources that were mentioned by the Prosecutor also reported on the crimes committed in Syria, including forced displacement, and coercive acts by the Syrian government that forced Syrians to flee including crossing the border to Jordan.

On 9 April 2018, the Prosecutor sought a ruling on the question of the nature of the crime of deportation and the nature of the territorial jurisdiction, from the Pre-Trial Chamber: whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh. This was the first time the Prosecution filed a request under article 19(3) of the Statute seeking a ruling to verify that the ICC has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute. The prosecutor said in her request to the Pre-Trial Chamber that ‘the coercive acts relevant to the deportations’ occurred in Myanmar which is not a State party to the Rome Statute, but considered that the ICC may exercise jurisdiction under article 12(2)(a) of the Statute ‘because an essential legal element of the crime—crossing an international border—occurred’ in Bangladesh which is a State party to the Rome Statute. The Pre-Trial chamber’s ruling came that the ICC has jurisdiction. The ruling based on the submitted material also included that ‘a reasonable prosecutor could believe that coercive acts towards the Rohingya forced them to flee to Bangladesh, which may amount to the crime against humanity of deportation.’

Examining the Syria case

Syrians were forced to flee to Jordan by coercive acts by the Syrian government, and thus the deportation occurred in Syria, but an essential legal element —crossing an international border—occurred in Jordan which is a State party to the Rome Statute. The material that provides that Syrians were forced to flee to Jordan because of the coercive acts is published by many of the same sources that the ICC Prosecutor used to request the ruling from the Pre-Trial Chamber.

Other sources support establishing the crime of deportation of Syrians to Jordan.  The International Criminal Tribunal for the former Yugoslavia (ICTY) said in its judgment of Jovica Stanišić and Franko Simatović in 2013 that:

Forcible displacement means that people are moved against their will or without a genuine choice. Fear of violence, duress, detention, psychological oppression, and other such circumstances may create an environment where there is no choice but to leave, thus amounting to the forcible displacement of people.

The ICTY also reaffirmed the lack of genuine choice as a factor in its judgment of Radovan Karadzic in 2016:

To establish deportation and forcible transfer, there must be a forced displacement of persons carried out by expulsion or other forms of coercion. The term ‘forced’ may include physical force, as well as the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, or the act of taking advantage of coercive environment. The forced character of the displacement is determined by the absence of genuine choice by the victim in his or her displacement.

The forced character of the displacement of Syrians to Jordan of the absence of genuine choice is also established by many reliable sources, including the UN, Human Rights Watch and Amnesty International.

Syrians who fled to Jordan did not have a genuine choice. They fled the government shelling on residential areas destroying their homes and infrastructure, enforced disappearance, torture, rape and death in detention. Even after the government took control back of Daraa, it continued its systemic arrests and disappearance.[1] This is just another proof of the righteousness of the fears by those who were forced to leave, and that they do not have the choice to come back to their country. Fear of violence, duress, detention, psychological oppression, or abuse of power were all established by credible sources.

Intentionality

The knowledge of the attack is the correspondent term to mens rea, and to ‘ intention’ the term used by the ICC Prosecutor in her request to the Pre-Trial Chamber: ‘Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.’

The element of mens rea in the Syrian case is established in reports by credible sources on systematic and widespread attacks by the government on civilian population, including by shelling, enforced disappearance, rape and killing under torture. These intentional attacks on civilians left no genuine choice to them but to cross the border fleeing for their lives. In its publication of Elements of Crimes, the ICC explains the elements of crimes against humanity of deportation. The element of awareness conditions that the perpetrator knew that his coercive acts were a part of systematic or widespread attack against civilians. This is also documented and published by the reliable sources described by the Prosecutor.

A reasonable prosecutor could believe that the government intention was to deport Syrians to Jordan, as the coercive acts by the government forced for years hundreds of thousands of Syrians to flee to Jordan for their lives. The government did not change its acts. Moreover, after taking control of the areas of those who fled the government kept practicing the same crimes of targeting civilians by enforced disappearance and killing under torture. The claim that the government did not intent to deport them makes no sense, and contradicts the mens rea that corresponds in Art. 30 of Rome Statute of the ICC to the mental element:

a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

Intent is defined in Art 30 of the Rome Statute: ‘In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.’ Knowledge is defined in Art 30: ‘For the purposes of this article as the awareness that a circumstance exists or a consequence will occur in the ordinary course of events.’

Hence, the mental elements of knowledge and intent, as defined in the Rome Statute, and are required to establish criminal responsibility and liability for crimes are clearly and easily proven, based on-among other grounds- the awareness by the Syrian government that hundreds of thousands of Syrian civilians kept for years crossing to Jordan fleeing its shelling of civilian structure and other crimes.

Conclusion

Syrian government officials committed coercive acts, including shelling and destroying residential areas and infrastructure, and targeting civilian population with enforced disappearance, torture, rape and murder in detention, as a part of wide and systematic attack on civilian population. Those coercive acts forced Syrians to take the only genuine option available to them, which is to flee across the borders to Jordan. This is the definition of deportation, that occurred in Syria, with an essential legal element —crossing an international border—occurring in Jordan which is a State party to the Rome Statute.

The ICC should start a preliminary examination into the crime of deportation in Syria/Jordan, like it did in Myanmar. By taking action, the ICC sends a message to the victims of international crimes that law interpretation is one of the paths to justice. It will also remind the perpetrators of international crimes in Syria and around the world that the authority of international law can reach them. Perpetrators should not be allowed to feel the relief of impunity and must know that there are legal paths to hold them accountable.

As a Syrian survivor and victim of Assad atrocities, and on behalf of many victims who are still suffering the consequences of deportation in Zaatari, the world’s largest camp for Syrian refugees, I call on Mr. Karim Khan, the newly elected Prosecutor of the International Criminal Court, to start a preliminary examination into the crime of deportation in Syria/Jordan.

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Mansour Omari is a Syrian human rights defender. He holds LLM in Transitional Justice and Conflict. Omari works with  international and Syrian human rights organizations to hold the perpetrators of international crimes in Syria accountable. He is Syria Consultant in Reporters Without Borders. In 2015, he published his research book Syria Through Western Eyes, an in-depth look on the Western reporting on Syria in 2013-2014. In 2012, Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office.