Forced displacement as a crime against humanity

Abstract

The Syrian civil war has been singled out as one of the world’s largest humanitarian crises since World War II, with over 6 million displaced persons who were forced to flee a war-torn country. Over 1 million Syrians have been forcibly deported to Jordan – a country located along the southern region of Syria. Since Syria is not a State party to the Rome Statute of the International Criminal Court (ICC) – which would otherwise have provided the most obvious basis for the Court to claim the necessary jurisdiction to hold wrongdoers responsible for the forced displacement – referral under Chapter VII of the United Nations Charter by the Security Council (UNSC) is another option; such a referral would be similar to that done in 2011 for crimes in Libya. However, the UNSC has repeatedly failed to hold perpetrators of war crimes in Syria criminally accountable. The fact that Jordan is a State party to the Rome Statute has led some Syrians to look more closely at an earlier crisis in the international justice arena, i.e. the refugee crisis of the Rohingya. In that case, the Rohingya claimed that, while the crime of deportation commenced in Myanmar, a non-State party to the Rome Statute, deportation was being carried out in the territory of a neighbouring country, namely Bangladesh – which is a State party to the Rome Statute. The ICC accepted the argument, justifying its decision on the basis of Article 19(3) of the Rome Statute regarding whether the crime against humanity of deportation under Article 7(1)(d) falls within Article 12(2)(a), which implies that the ICC may exercise its jurisdiction if “(a) the State on the territory of which the conduct in question occurred.” Therefore, ICC Prosecutor Fatou Bensouda confirmed the jurisdiction of the Court to investigate the prosecution against the Rohingya people. Since their calls for criminal accountability have found no adequate response from the international community, Syrians were inspired by the Rohingya case. In March 2019, 25 refugees in Jordan submitted a communication to Bensouda contending that by relying on Article 15(1) of the Rome Statute, “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” The refugees asked that Bensouda apply the Myanmar/Bangladesh decision to the situation of the Syrian refugees who have been forcibly displaced to Jordan. Insisting that, since both actus reus and mens rea are sufficient to establish the intention of the Syrian government to force civilians out the country, the conduct establishes the crime of forced displacement as a crime against humanity for the purposes of the Rome Statute. Notwithstanding the Rohingya case, the international community’s reaction to the Syrian file has been frustrating. Many are doubtful that Syrians can succeed with their claim, and others doubt that Jordan will cooperate. This chapter examines how the Syrian case fits within the definition of “forced displaced people.” It discusses the Rohingya case at the ICC, and it investigates how the international community has responded to the Syrian refugee crisis. Moreover, it suggests that while the international community has endeavoured to contain the Syrian refugee crisis – including innovative regulation and policymaking arrangements – it has been hesitant to support refugees’ efforts to take legal measures that might contribute to real solutions for the Syrian people. Moreover, it analyses whether Syrians can succeed in their submission to the ICC. Finally, it considers the question of whether the Jordanian government’s approval is a pre-condition for the Court to have jurisdiction over the crime of forced displacement.