Atef Najib Trial Highlights Need for Transitional Justice Law

SJAC is monitoring the Atef Najib proceedings by attending and documenting each hearing, with the aim of supporting public access, preserving a transparent record of evidence and testimony, and assessing how Syrian courts handle cases involving senior former officials accused of serious violations.

The trial of Atef Najib and other accused persons before Syria’s Fourth Criminal Court is an important test case for domestic accountability. It is the first prosecution of a former Assad official before the Court, which has been designated to hear cases related to the transitional justice process. Although early in the process, it is already highlighting the need for a robust transitional justice law and more rigorous investigative procedures.

Legal Basis for the Charges

At the hearing of May 10, the Court examined the legal basis for the charges in the case, citing both domestic and international law for the charges of killing, torture, arbitrary detention, and incitement affecting the rights to life, bodily integrity, liberty, and human dignity. The lynchpin for its application of international law was Syria’s 2025 Constitutional Declaration which incorporates Syria’s ratification of human rights treaties into domestic law. On this basis, the court referred to violations of international humanitarian law, war crimes as well as crimes against humanity (CAH). The court further found that there was both individual and command responsibility.

Legality

The Fourth Criminal Court is a domestic court and only has jurisdiction over domestic crimes. Syrian domestic law does not criminalize war crimes or CAH. Therefore, the prosecution of Atef Najib arguably violates the principle of legality, a fundamental principle of criminal law, which prohibits the prosecution of crimes (and penalties) that are not clearly defined and foreseeable at the time of their commission. Even though the Constitutional Declaration incorporates human rights treaties, it does not define or prescribe penalties for war crimes or CAH.

Legality also applies to modes of liability such as command responsibility. Command responsibility is an important tool for finding military and government leaders responsible for the criminal acts of their subordinates. Pursuing a war crimes case without the availability of this tool would make the prosecution more challenging. 

A further issue is that the charges in this case, which arise from alleged conduct in Dara in 2011, are not properly characterized as war crimes because the situation in Daraa was primarily one of popular protests met with state repression and violence before the armed conflict began. Such cases are more appropriately characterized as crimes against humanity committed against civilians outside the context of an armed conflict.  

Finally, there are early indications that the case was rushed through its investigative phase to trial without taking necessary measures, such as interviewing key witnesses. For the Syrian judiciary to build credibility, it will need to assure the public that it is conducting thorough and fair investigations. Not only must justice be done, but it must be seen to be done.

Conclusion

Grounding the Atef Najib trial in international law is a positive and necessary step. However, Syria must first pass a law to incorporate war crimes and crimes against humanity in domestic law. Passing a Transitional Justice law which is currently in draft form, is likely to address these concerns, at least with regard to future filed cases. It should be passed with haste. There should also be due regard to the proper characterization of charged conduct. Finally, judges should ensure that thorough investigative processes are followed to verify essential facts before proceeding to trial.

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