Last week I wrote that the International Criminal Court (“ICC”) is unlikely to try Syria’s President Assad for crimes against humanity because the Court would probably lack jurisdiction. The Rome Statute—the ICC’s founding treaty—empowers the Court to exercise jurisdiction only with respect to crimes (1) committed within the territory of a state-party, (2) committed by a national of a state-party, (3) referred to the Court for prosecution by the UN Security Council, or (4) committed within a non-state-party’s territory or by one of its nationals, if referred to the Court by that non-state-party. In Assad’s case, jurisdiction is unlikely because Syria is not a state-party to the Rome Statute, and the UN Security Council is unlikely to refer the matter to the ICC because Russia and China would object. While it is possible that a post-Assad regime could refer Assad’s crimes to the Court for prosecution, Syrian domestic politics would probably push strongly in favor of domestic prosecution.

The question of ICC jurisdiction is also relevant to ongoing events in Libya. With Muammar Gaddafi’s regime in the midst of collapse and the Colonel himself in hiding, we should consider what role, if any, the ICC will play once Gaddafi is found. Here, the prospect of ICC prosecution seems significantly higher. Like Syria, Libya is not a state-party to the Rome Statute. But in February 2011, the Security Council passed a resolution referring Gaddafi’s use of military force against regime opponents in early 2011 to the ICC. The resolution ordered “Libyan authorities” to “cooperate fully with and provide any necessary assistance to the Court,” and “urge[d] all [other] States” to cooperate fully as well. Several months later, the Court issued arrest warrants against Gaddafi and two other Libyan officials for offenses including crimes against humanity.

Now that Gaddafi has lost control of the government and is in hiding, it will be interesting to see whether the ICC is able to make use of its established jurisdiction. With the Libyan government obliged to adhere to the Security Council’s resolution and all other states urged to do likewise, Gaddafi may have few places to hide.

Like a handful of other states in the Middle East, Syria has experienced significant domestic political turmoil in recent months, with a sizable and seemingly increasing percentage of its population openly protesting against the autocratic government of Bashar al-Assad. The Syrian government has responded with a crackdown comprised of some of the most violent and repressive tactics seen anywhere since the start of the Arab Spring several months ago. In a report issued yesterday, the High Commissioner for Human Rights at the United Nations described this crackdown as a systematic campaign of murder, torture, deprivation of liberty, and persecution that spans from March to July 2011. The report, which is based on a series of field investigations conducted by the Office of the High Commissioner, concludes that the Syrian government’s conduct “may amount to crimes against humanity” under Article 7 of the Rome Statute of the International Criminal Court.

The report seems to raise three questions for most readers: First, what is a “crime against humanity”? Second, how might the Syrian government have engaged in such conduct? And third, what consequences, if any, follow from culpability?