FAQs: Universal Jurisdiction - Part II
In April, SJAC published a series of eight questions sent to us by Syrians who wanted to learn more about how to file criminal complaints against Syrian perpetrators of serious crimes living in Europe. Many of these questions came to us through our Arabic language podcast “Adaleti” and community outreach events in Germany, the Netherlands, and Sweden which are part of an ongoing project to facilitate legal and psychosocial support for Syrians who are trying to navigate their way through criminal complaint processes in Europe.
Our first series of question focused on the possibilities and limitations for Syrians wanting to file criminal complaints in Europe. The second set of questions addresses the extent to which officials from the Syrian government and armed groups can be held accountable through Universal Jurisdiction. The following responses make it clear that, while limited, there are opportunities available to hold perpetrators accountable for the crimes they committed in Syria.
If you have questions about Universal Jurisdiction in Europe, please reach out to us on Facebook, Twitter, or by emailing SJAC at [email protected].
9. Can the Syrian government be prosecuted for state-led crimes?
The International Court of Justice (ICJ) makes findings against states. Though the proceedings are non-criminal in nature, the ICJ could find the Syrian government responsible for torture or genocide, for example. Before a case can be heard by the Court, states must take several steps, including negotiations and arbitration. The ICJ may impose measures against governments, including the payment of damages or a demand to cease illegal conduct. But, in practice, enforcing the Court’s orders is difficult.
In 2020, the Netherlands (joined later by Canada) asked Syria to enter into negotiation over Syria’s breach of the Convention Against Torture (CAT) to which it is a party. The process of negotiation and arbitration could take years. While the ICJ would not be able to enforce punishment on the Syrian government or demand reparations for victims and survivors, a legal assessment of the facts under international law would serve as a valuable precedent for other enforceable courts.
10. Is it possible to prosecute Bashar al-Assad in a domestic court in Europe?
It is not feasible to prosecute Bashar al-Assad in a domestic court in Europe. Traditionally, heads of state are immune from the jurisdiction of another state’s courts based on the legal doctrine of sovereign immunity. But a state can waive the immunity of its former head of state and there is a call to waive immunities given to people connected to international crimes. However, so long as Assad remains in power, it is unlikely that he would be prosecuted by a domestic court in Europe.
11. Why have relatively low-ranking officials been pursued by European countries, rather than the individuals most responsible for crimes committed in Syria?
Generally, states target alleged perpetrators who are present on their soil. A state can bring charges against a high-ranking Syrian government official who committed a human rights violation, but if the person is not on their land, the impact of the charges is only symbolic because trials in absentia (trials at which the accused is not present) are not possible. Because defecting from the Syrian government is more difficult the higher one’s rank, lower-ranking officials have been able to flee Syria and seek asylum elsewhere. Their presence in states practicing universal jurisdiction makes them susceptible to domestic criminal proceedings. In this way, universal jurisdiction is an important tool for judicial accountability, but it is limited.
12. What is the benefit of prosecuting low-level government officials if high-level criminals enjoy impunity?
While it may be frustrating that high-level officials continue to enjoy impunity in Syria, applying universal jurisdiction to lower-level officials currently in Europe remains the only viable option for Syrians to seek accountability and to engage with justice processes. Having agency over these processes is a crucial part of individual and collective healing needed for a population to move beyond the traumas of conflict. As more opportunities for accountability present themselves in the future, Syrians will need to define the scope of perpetration and decide who they want to hold accountable and by what means. For more information on how transitional justice mechanisms in other conflicts handled the question of who to prosecute, see SJAC’s analysis here.
13. Are Syrian government defectors the only people being investigated and prosecuted for crimes committed in Syria?
No, Syrian government defectors are not the only people being investigated and prosecuted for crimes committed in Syria. Several states have taken action against non-state perpetrators, including people who fought for armed groups, such as ISIS, Jabhat al-Nusra, and Jaysh al-Islam. The same rule for filing a submission applies: the alleged perpetrator should be present in the country in which the submission is filed. SJAC is willing to provide legal and psychosocial support through its partners for individuals filing in Germany, the Netherlands, and Sweden.
14. Is it true that ISIS fighters are more actively pursued by European authorities than fighters with Jabhat al-Nusra (HTS), other opposition groups, the Syrian army, or pro-government groups including the Shabiha?
Simply being affiliated with a group classified as a terrorist organization is a punishable crime and is enough to warrant an investigation into linked crimes. On the other hand, members of opposition groups that are not labeled terrorist organizations are not subject to criminal punishment unless they perpetrated criminal acts in violation of a country’s terrorism-related legislation. The same rule applies to former fighters in the Syrian army.
Accordingly, ISIS and HTS fighters are more actively pursued by European authorities because both groups are classified as terrorist organizations and are considered to pose a potential security threat. This contrasts to fighters from other opposition groups, the Syrian army, and the Shabiha for whom clear evidence is required to prove a substantial link between the alleged crimes and the alleged perpetrator. An investigation into the claims will only commence when this link is established.
15. Why does the ICC have jurisdiction over crimes committed in Ukraine but not Syria?
While Ukraine has not ratified the Rome Statute, it has accepted the jurisdiction of the ICC by submitting a formal declaration in 2015. For this reason, the ICC has jurisdiction over alleged crimes that occurred in Ukraine. Syria has not ratified or acceded to the Rome Statute, nor has it issued a declaration, and the UN Security Council is unlikely to make a referral to the Prosecutor of the ICC because of Russia, so the ways in which a situation can go before the ICC are not available for Syria.
16. Can Turkish nationals be prosecuted for violations committed in Syria?
To date, there are limited avenues for prosecuting Turkish nationals for violations committed in Syria. One reason is that Turkey has little political will to convict its own citizens for crimes they committed in Syria, which means that domestic Turkish courts are not a realistic venue. However, Turkey is a party to the European Convention for Human Rights & Fundamental Freedom and is under the jurisdiction of the European Court of Human Rights (ECtHR) which can issue orders against governments, but cannot impose criminal punishment. The ECtHR has been somewhat reluctant to rule on Turkey-related complaints. Regardless, Turkish nationals may still be subject to criminal prosecution if they are present in a country that exercises universal jurisdiction.
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