This post was originally published on OpinionJuris by Kevin Jon Heller, Associate Professor of International Law, University of Amsterdam; Professor of Law, Australia National University; and Academic Member, Doughty Street Chambers.
Last week, the excellent lawyers at The Guernica Group, led by my friend Toby Cadman, filed an Article 15 communication with the Office of the Prosecutor (OTP) arguing that the ICC should open an investigation into the deportation of civilians from Syria to Jordan.
The communication itself is not public, so what we know of TGG’s legal argument comes from their press release. But the basics of the argument are straightforward, tracking precisely the Pre-Trial Chamber’s decision in the Myanmar situation. Syria is not a member of the ICC, but Jordan is. The Court has jurisdiction over a crime as long as one element of it took place on the territory of a state party. The Assad regime’s deportation of civilians from Syria to Jordan is thus within the Court’s jurisdiction, because the cross-border element of deportation took place on Jordanian territory.
This is by far the most promising road to the ICC’s involvement in the Syria situation. (Whether that’s a good idea is a discussion for another day.) Russia will obviously never allow a Security Council referral, and the “dual nationality” argument is problematic in terms of gravity — and in general just too gimmicky for my tastes. But I completely agree with the Pre-Trial Chamber’s general rule concerning the Court’s territorial jurisdiction. And there is no question that the Assad regime’s murderous actions have displaced massive number of civilians into Jordan — more than 1.25 million, according to recent estimates, far more than Myanmar has forcibly displaced into Bangladesh.
That said, it’s worth noting — if only to focus the discussion going forward — that there is at least one difficult legal issue in the Syria situation that does not seem to be present in the Myanmar situation: namely, the mens rea of deportation as a crime against humanity. The actus reus of deportation has clearly been satisfied: the Assad regime has forcibly displaced civilians from areas in which they were “lawfully present,” and many of those civilians ended up crossing into Jordan to find safety. And it seems equally clear that the Assad regime intended to forcibly displace large numbers of civilians.
But here is the question: did the Assad regime intend to forcibly displace civilians across an international border? The “mere” desire to forcibly displace civilians from their homes is enough to establish forcible transfer, but it is not enough to establish deportation. The Pre-Trial Chamber made clear in the Myanmar decision that deportation and forcible transfer are different crimes precisely because they have different consequence elements: for deportation, the forcible displacement (conduct element) must result in civilians crossing an international border (consequence element); for forcible transfer, the forcible displacement (conduct element) need only result in civilians moving to a different part of the state’s territory (consequence element). Here is the relevant paragraph from the decision:
55. The Elements of Crimes pertaining to article 7(1)(d) of the Statute support this interpretation. The underlying conduct (“deported or forcibly transferred”) and the destination (“another State or location”) also contain references to “or”. In this manner, the Elements of Crimes link the conduct and the destinations. In more specific terms, “deported” is linked to the destination of “another State”, while “forcibly transferred” is linked to the destination of “another […] location” (which specifically entails, a contrario, another location within the same State). This means that, provided that all other requirements are met, the displacement of persons lawfully residing in an area to another State amounts to deportation, whereas such displacement to a location within the borders of a State must be characterised as forcible transfer. These linkages are, therefore, consistent with an interpretation of article 7(1)(d) of the Statute as including two separate crimes that are distinguished from each other by the destination of the forced displacement.
Because crossing an international border is a consequence element of the crime against humanity of deportation, it is subject to the default intent requirement in Art. 30 of the Rome Statute. According to Art. 30(2)(b), a person acts intentionally with regard to a consequence if he “means to cause that consequence or is aware that it will occur in the ordinary course of events.” To convict a member of the Assad regime of deportation, therefore, the prosecution would have to prove that he either (1) meant to forcibly displace civilians into another state (here, Jordan) or (2) was at least aware that the forcible displacement would naturally result in civilians crossing an international border. The latter, moreover, is a very high standard: the Trial Chamber held in Katangathat a person is “aware that [a consequence] will occur in the ordinary course of events” only if he is “virtually certain” that the consequence will result. So a member of the Assad regime would not even be guilty of deportation if he thought it was possible that forcibly displaced civilians would end up in another country. Nothing short of virtual certainty concerning that result would suffice.
To be sure, it may well be that members of the Assad regime wanted to drive civilians out of Syria or were at least virtually certain that such deportation would result from their forcible displacement. The need for such proof, however, seems to distinguish the Syria situation from the Myanmar situation. In Myanmar, it is beyond doubt that the junta intended to drive the Rohingya into Bangladesh. In Syria, by contrast, it is not evident that the Assad regime cared what happened to the civilians they forcibly displaced. The fate of a Syria investigation will thus likely turn on the OTP’s ability to prove that the Assad regime did, in fact, intend (in the legal sense) for civilians to end up in other countries. In the absence of such proof, the Assad regime has committed forcible transfer, not deportation. That is no less a crime against humanity — but forcible transfer is one outside of the ICC’s jurisdiction, because it takes place solely on Syrian territory.
In other words: for the Court to investigate the forcible displacement of Syrian civilians proprio motu, it is deportation or bust.