National courts lead the way in prosecuting Syrian war crimes
Domestic prosecutions in Germany and other European countries offer some hope of justice to victims of war crimes.
A German court last month convicted an alleged former Syrian intelligence officer after he was charged with crimes against humanity perpetrated in his home country.
The case set the stage for the first prosecution for torture by suspected members of the government’s notorious security services and the case was closely watched by those seeking justice for victims of international crimes committed since the Syrian war erupted in 2011.
International crimes are crimes that are so serious they affect the international community as a whole. They include war crimes, crimes against humanity and genocide.
In a September 2019 report, the UN Commission of Inquiry on Syria said Syrian government forces backed by Russian warplanes may have committed war crimes, citing two incidents in Idlib province earlier this year.
The same report also said the former al-Qaeda affiliate Hay’et Tahrir al-Sham (HTS) killed civilians by indiscriminately firing rockets. Despite these findings, few alleged perpetrators have been prosecuted for crimes committed in the Syrian conflict.
Whereas justice mechanisms have often been introduced in the aftermath of ceasefires, some trials have also taken place while hostilities are ongoing, as happened in the former Yugoslavia, meaning the international community does not need to wait for a formal end of the conflict in order to prosecute international crimes.
Despite efforts by some parties to establish an international tribunal to prosecute war crimes committed in Syria, no ad hoc court or tribunal has been established as of yet.
A number of countries have sought to pursue cases of international crimes via their own domestic courts. In February 2019, the Swiss NGO TRIAL International reported that 149 cases were being investigated under universal jurisdiction in 15 countries.
In Sweden, Austria and Germany several cases have been initiated against alleged Syrian government officials. The principle of universal jurisdiction allows national jurisdictions to prosecute grave crimes committed outside their territory.
Sweden led the way by convicting a member of the Syrian military for war crimes in 2015. Human Rights Watch said it was the first war crimes conviction for a member of the Syrian military. And a criminal complaint was opened in Sweden in February against senior officials in the government of President Bashar al-Assad.
A 2018 report by the organisation Eurojust documents a number of court cases brought in European countries against alleged Syrian war criminals that focus on violations of personal dignity and other forms of inhumane treatment.
JusticeInfo said in February 2019 that arrests have also been made in France where a specialised war crimes unit is investigating about 25 cases of Syrian war crimes.
The recent case against two alleged former intelligence officers initiated in Germany is similarly being brought under the country’s universal jurisdiction law.
The convicted suspect in the case, Eyad al-Gharib, 44, was accused of torturing about 4,000 people between 2011 and 2012.
He was allegedly a high-ranking officer who directed operations at a prison where the detainees were subjected to “systematic and brutal torture”.
Torture is considered one of the most widely acknowledged international crimes and can be prosecuted as either a war crime or a crime against humanity.
The trial was held in the city of Koblenz in Germany. It was the first international trial that focused on the widespread use of torture by al-Assad’s regime.
‘Modicum of justice’
According to Kevin Jon Heller, professor at the University of Amsterdam, there is currently no alternative to national prosecutions in relation to the Syrian conflict.
“A number of countries have initiated prosecutions for crimes committed in Syria and clearly the potential exists for even more states to get involved,” he told Al Jazeera.
Leila Sadat, professor at Washington University School of Law, said such national trials are “less satisfactory than a more systematic and comprehensive solution, but the cases so far suggest that the national prosecutions brought outside Syria may deliver a modicum of justice”.
Olympia Bekou, professor at the University of Nottingham, welcomed proceedings before national courts but said they also had drawbacks.
“Justice closer to where the crimes have been committed offers distinct advantages, such as access to evidence and greater visibility of the process,” she said.
Syrian victims of war crimes interviewed by Human Rights Watch in Germany and Sweden have stressed the importance of bringing perpetrators to justice.
Many victims consider the trials a way of deterring similar crimes in the future, and some victims living in Europe have been instrumental in providing evidence of war crimes to prosecutors.
In contrast to the instances in countries such as the former Yugoslavia and Rwanda where war crimes tribunals were created by UN Security Council (UNSC) resolutions to prosecute international crimes, no such ad hoc court or tribunal has been established for Syria.
Since Syria is not a member of the International Criminal Court (ICC), the Syrian situation would have to be referred to the ICC by the UNSC, but attempts to do so have repeatedly been vetoed by Russia and China since 2014.
After unsuccessful attempts at the UN to refer the Syrian situation to the ICC, the UN General Assembly created the International, Impartial and Independent Mechanism (IIIM) in 2016. The mandate of this body was to assist in the prosecution of the persons responsible for the most serious crimes under international law committed in Syria since March 2011.
The mandate explicitly states that the IIIM is not a court but merely a body that will assist with national and international investigations and prosecutions. The mechanism is still in an early stage of its work and has not yet had any significant achievements.
Evidence of international crimes, specifically torture, is currently also being collected by organisations such as the European Centre for Constitutional and Human Rights (ECCHR).
According to Leila Sadat, the ideal solution would be the referral of the Syrian situation to the International Criminal Court.
“The second best option would be the establishment of a hybrid tribunal or an internationalised domestic tribunal,” she told Al Jazeera, noting she doubted whether such a tribunal would be created under al-Assad.
A hybrid court is a court that combines domestic and international law and processes. Examples of hybrid tribunals include the Iraq High Tribunal and the Special Court for Lebanon.
“The Iraq High Tribunal which tried Saddam Hussein was the closest the Middle East has come to the prosecution of international crimes by a hybrid court. However the tribunal was fraught with challenges and is not widely acknowledged as a successful model,” Bekou said.
War crimes courts and tribunals, such as the UN tribunal for the former Yugoslavia (ICTY), have often been criticised for prosecuting only one-side to a conflict.
This raises the question of whether selective justice is better than no justice. The Syrian Democratic Forces (SDF) has called for a special tribunal to hold ISIL accountable for the crimes committed against ISIL detainees.
“Of course, prosecuting those responsible for atrocities on all sides of the conflict is better. But I reject the idea that there is something inherently wrong with selective or victor’s justice, as long as the individuals prosecuted are treated fairly,” said Heller.
“Selectivity is inherent in criminal justice systems but certain forms of selectivity create legitimacy problems for the international criminal justice system,” said Sadat.