The Guernica Centre for International Justice filed their second submission concerning the Situation in Syria/Jordan with the Prosecutor of the International Criminal Court, building on the initial submission that demonstrated how the ICC now has limited jurisdiction by virtue of Jordan’s status as a State Party to the Rome Statute.
On 1 March 2019, The Guernica Centre for International Justice filed the first Article 15 Communication applying the Myanmar/Bangladesh decision on. jurisdiction to the situation in Syria/Jordan, with the ICC Prosecutor.
That submission, argued that just as the Pre-Trial Chamber ruled that the ICC had jurisdiction over the crime of ‘Forced Deportation’ by virtue of Bangladesh’s position as a State Party to the Rome Statute, the same established legal principle could and should be applied to the Situation in the Syrian Arab Republic, given more than a million civilians had been forcibly deported out of Syria and into neighbouring Jordan – the jurisdictional link being that the Hashemite Kingdom of Jordan became a State Party to the Rome Statute on 11 April 2002; the first and only Gulf State to do so.
The conflict in Syria is now in its ninth year. During this time, more than half a million Syrians have been killed in the conflict, over a million have been injured, and over 12 million individuals have been displaced, either internally, or externally in to other countries. It is important to emphasise that more than half the pre-war population have either been killed, disappeared or have been forced to leave their homes. A significant proportion of those that were forced to flee, forced due to circumstances outside of their control due to the brutal conduct of the Syrian State Security Forces and have not been able to return for the very same reasons that forced them to leave.
This second submission seeks to develop the legal argument as to why the exodus of civilians out of Syria into Jordan constitutes the Crime of Forced Deportation as a Crime Against Humanity for the purposes of the Rome Statute.
It has been drafted in anticipation of the arguments against the proposition, namely that the situation is different to that in Myanmar concerning the Rohingya, and given those differences, the relevant ‘Elements of Crime’ have not been satisfied.
This objection, as the second submission demonstrates, cannot be substantiated, taking into account the clear policy of the Syrian Regime and its supporters, including the deliberate targeting of civilians, the use of prohibited and non-precise munitions, the deliberate targeting of hospitals and schools, and the deliberate targeting of civilians residential areas.
These actions have resulted in civilians having no choice but to flee for their lives, and it is this issue of choice that, as the submission shows, is essential when determining whether the offence is made out of otherwise.
The issue is whether civilians have been given a ‘real choice’ when considering whether to flee or otherwise, and it is abundantly clear, that in Syria, the choice is whether to flee or risk death or imprisonment and torture. This is not a real choice.
By drawing upon the ICC’s own rulings concerning the offences of ‘Forced Deportation’, ‘Persecution’. and ‘Other Inhuman Treatment’, and applying these to the evidence collected, the submission concludes that both the actus reus and mens rea of the offence of Forced Deportation has been satisfied, as well as the relevant elements for the crimes of both Persecution, and Inhuman treatment.
The Guernica Centre submission, filed on 17 July 2019, the International Day of Justice, clearly sets out the legal position as to jurisdiction and states:
This all combines to present a compelling case of forced deportation of more than one million civilians and a strong evidential and jurisdictional basis upon which to open a preliminary examination. In fact, it is argued that the case is so compelling, it is difficult to foresee the circumstances in which the Prosecutor may conclude that there is no basis to open a preliminary examination and thereafter request the Pre-Trial Chamber the authority to open an investigation.
The ICC Prosecutor, Ms. Fatou Bensouda, is therefore again urged to consider these filings as a matter of urgency and confirm that a ‘Preliminary Examination’ is to be opened into the Situation in Syria, thus allowing an element of accountability for the millions of victims of the Syrian conflict as it enters its ninth year.
Benjamin B. Ferencz, Nuremberg Prosecutor and Peace Advocate:
There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.
On this International Day of Justice a plea to the victims.