In this article, Jennifer Trahan explores the possibility that international criminal jurisdiction could be created over war crimes that have been (and are still being) carried out in Syria and Iraq, despite the obstacles preventing this situation being brought before the ICC. In the short term, Trahan points to preparatory measures that would facilitate future investigations and prosecutions, wherever they may be carried out. These should include the preservation of evidence of violations, such as is already being undertaken by the Syria Justice and Accountability Centre and the Commission for International Justice & Accountability, the training of Syrian jurists and potential future personnel for a special court, building shared political will towards ensuring impartial justice and establishing the principle that amnesty be non-negotiable in any future peace agreement in Syria.

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In the longer term, the author points to a number of possible scenarios. (1) Iraqi accession to the Rome Statute would enable the ICC to assert jurisdiction over Syrian war crimes that have affected Iraq. Although unthinkable under the present Syrian regime, a future Syrian government could – under Article 12(3) of the ICC statute -declare itself willing to accept the jurisdiction of the ICC in relation to specific crimes committed in the present conflict. This is so even if Syria remains a non-party to the ICC. (2) As an alternative to ICC jurisdiction, Trahan explores the possibility of a hybrid tribunal with jurisdiction over the Syrian situation. (3) Trahan points out that domestic courts within Syria and Iraq already have jurisdiction over crimes within their territories and that a future specialized war crimes chamber within their domestic courts may be feasible.