Why didn’t the ICC issue an arrest warrant for Bashar al-Assad?

Question

Bashar al-Assad, who has been the President of Syria since the year 2000, has been credibly accused of mass murder of Syrian civilians including through the use of chemical weapons. The reasons given for why he was never called to trial at the International Criminal Court (ICC) have always been that Syria is not a member country of the ICC and that Russia and China vetoed a United Nations Security Council referral to the ICC.

Until about a week ago those reasons were plausible. Today however they no longer are. Israel is also not a member country of the ICC and there was no United Nations Security Council resolution referring Netanyahu to the ICC. Even so the ICC made it clear that on principle it has no problem issuing arrest warrants and demanding that Netanyahu stand trial by them. That being the case why doesn’t it issue one to Assad as well?

This is NOT a question about your opinion on the Israel-Hamas war - it is a question on why the ICC doesn’t put Assad on trial.

Answer 1

As you note, the ICC does not have territorial jurisdiction over crimes committed in Syria because Syria is not a state party to the Rome statute. A Security Council resolution which would have referred the case of Syria to the ICC was vetoed by China and Russia in 2014.

The question states that this is inconsistent with the recent application for arrest warrants by the ICC Prosecutor Karim Khan for Israeli and Hamas leaders. However, The ICC does not claim to have territorial jurisdiction over Israel. As the Report of the Panel of Experts in International Law on this case notes, the "Government of The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting ICC jurisdiction over alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014".

It goes on:

9. The Panel agrees with the Prosecutor’s assessment that the ICC has jurisdiction in relation to crimes committed on the territory of Palestine, including Gaza, since 13 June 2014, under article 12(2)(a) of the ICC Statute. It also agrees that the Court has jurisdiction over crimes committed by Palestinian nationals inside or outside Palestinian territory under article 12(2)(b) of the Statute. The ICC therefore has jurisdiction over Israeli, Palestinian or other nationals who committed crimes in Gaza or the West Bank. It also has jurisdiction over Palestinian nationals who committed crimes on the territory of Israel, even though Israel is not an ICC State Party.
10. The basis for the Court’s jurisdiction is that Palestine, including Gaza, is a State for the purpose of the ICC Statute. The ICC’s Pre-Trial Chamber has already ruled that the Court’s jurisdiction extends to Palestine, as a State Party to the ICC Statute, on this basis.

The ICC Prosecutor asserts that the court has jurisdiction over Israeli leaders due to their alleged crimes taking place on the territory of Palestine. No similar justification was advanced in the case of Al-Assad.

Answer 2

AFAICT none of the Syrian rebels that tried to form governments of their own have tried to apply to join the ICC, unlike the PA.

On 1 January 2015, the Government of Palestine ("Palestine") lodged a declaration under article 12(3) of the Rome Statute of the International Criminal Court (“Rome Statute” and “Court” or “ICC”) accepting the jurisdiction of the Court over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for Palestine on 1 April 2015.

N.B. there was an editorial in WaPo in 2014 that suggested the opposition groups in Syria do that, but AFAICT they didn't try.

I'm not sure we've seen the last chapter of this, but it's perhaps worth adding that despite the ICC not having/claiming jurisdiction over Syria proper, there was actually an attempt to make them take a case against Assad (and Iran too!), based on the crime of deportation, because the some of the victims fled to Jordan, which is an ICC member.

The request includes evidence of Syrian victims forced to flee into Jordan due to attacks and intimidation by the Syrian government and Iran-backed militia groups. It is being brought by the US-based Iran Human Rights Documentation Center in conjunction with Haydee Dijkstal, a UK barrister. [...]

Syria is not a party to the ICC’s Rome Statute, but it is argued the ICC has jurisdiction because the victims fled into Jordan, which is a state party. [...]

Article 7(1)(d) of the Rome Statute grants the court jurisdiction over the crime against humanity of “deportation or forcible transfer of population”, meaning the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”.

In a previous case in 2018, the ICC found it had jurisdiction over the Rohingya people when they were forced to flee into Bangladesh refugee camps from Myanmar. Bangladesh, unlike Myanmar, is a party to the ICC.

However, AFAICT, neither that [attempted] case nor the similar one involving the Rohingya has made much headway (as reported in the summer of 2023).

The chief prosecutor acknowledged the frustration felt at the speed at which the court issued an arrest warrant for Russian President Vladimir Putin for an alleged scheme to deport Ukrainian children to Russia. Meanwhile, the Rohingya have been waiting six years and no such action has been taken against the Myanmar military leaders who ordered the attacks.

“The big difference is that we have access to Ukraine, we don’t have access to Myanmar,” Khan said.

Although CNN says the junta 'ordered' those attacks, the junta in fact claims that they didn't, and made some cover-up efforts ("the military has insisted the operation was a legitimate counter-terrorism campaign sparked by attacks by Muslim militants, not a planned program of ethnic cleansing"), so I guess that case is a bit less straighforward than CNN makes it to be, legally speaking.

OTOH

While Myanmar is not an ICC member state, the National Unity Government (NUG) — the body representing Myanmar’s democratically-elected leaders — lodged a 12(3) declaration with the court’s registrar on July 17, 2021, accepting the jurisdiction of the court for international crimes committed on Myanmar territory since July 1, 2002, and into the future.

So, there's an additional argument there that the ICC has jurisdiction, in that [Myanmar] case, even though the ICC accepted it before that (NUG) declaration.

Answer 3

The ICC declined to pursue things against ISIS (which held territory in eastern Syria for a while) because of a lack of jurisdiction and little chance any indictments would results in arrests or trials

Under the Rome Statute, the ICC may nevertheless exercise personal jurisdiction over alleged perpetrators who are nationals of a State Party, even where territorial jurisdiction is absent. On this basis, my Office has reviewed communications received alleging crimes committed by ISIS, with a view to assessing the prospect of exercising personal jurisdiction over States Parties nationals within the ranks of this organisation. In doing so, my Office took into account the scope of its policy, which is to focus on those most responsible for mass crimes.

The information available to the Office also indicates that ISIS is a military and political organisation primarily led by nationals of Iraq and Syria. Thus, at this stage, the prospects of my Office investigating and prosecuting those most responsible, within the leadership of ISIS, appear limited.

In this context, I have come to the conclusion that the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.

France issued an arrest warrant for Assad in 2023, but Assad was already under threat of arrest by most Western nations anyways. The only way to get at Assad would be to go in militarily and get him, but that risks confrontation with the Russians

Moscow still considers its presence in Syria a valuable asset, and sees its alliance with Damascus as an important bargaining chip in talks with the West.

Answer 4

I believe this has to do with the situation in Syria being different.

The UN has spent quite some effort into putting an end to the civil war in Syria. They've sent plenty of delegations to Damascus, holding talks and cooperating with the Assad government on many issues, which indirectly is a recognition that Assad isn't some unpopular dictator that can be sidelined. It would be rather unpragmatic for the ICC (although ICC is distinct from the UN) to issue an arrest warrant for Assad when his side was a crucial part in international peace negotiations.

The Syrian regime, despite repression of protests, never really wanted this war; it was imposed on it. From the very outset, Assad promised reforms and attempted to engage in dialog with the opposition which rejected any dialog with the approval and backing of state actors that wanted to see Assad go. They ultimately had to yield, seeing Assad wasn't going away militarily. In many areas in Syria, the governement engaged in reconciliation and issued general amnesty to rebels who put down arms. Maybe the ICC didn't want to impede such reconciliation efforts. Syria has also seen two elections which, although rejected by the West as illegimate, does show a will to put an end to the civil war and rebuild the country.

Another reason the ICC hasn't issued an arrest warrant might be psychological. All sides in this war are guilty of plenty of war crimes rather than one side being disproportionately responsible (as in the Israel-Gaza war). I remember those days when you heard about the absolutely most gruesome executions filmed in broad daylight: head being slit off, people being drowned or burned alive in cages etc. All of this was carried out by Assad's enemies. From a psychological point of view, considering the impact of such horrific crimes on the public mind, it made Assad's crimes fade in comparison. The destabilization of the Syrian government and the insistence on toppling Assad, made Syria a hub for radical terrorists from all around the world. An ICC incrimination of Assad might not have had a significant psychological incentive and appeal, especially when the country was warding off a global terror threat that global opinion probably viewed as a much bigger problem than Assad. It would do a disservice to the struggle against terrorism.