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Universal Jurisdiction Best Practices

Universal Jurisdiction Best Practices

The 2022 conviction of Anwar Raslan for 27 cases of murder and 4000 cases of torture brought renewed attention to international efforts to bring to justice perpetrators of war crimes, in Syria and elsewhere. This, and cases like it, are being pursued in Europe under the principle of universal jurisdiction (UJ) which is predicated on the idea that some crimes are so grave that they can be tried outside of the country where they are committed (i.e. extraterritorial). With these opportunities for justice, come numerous challenges such as identifying suspects living in UJ states, securing relevant and reliable evidence, and collaborating effectively with war crimes units tasked with investigating atrocity crimes. Through a decade of experience documenting war crimes and supporting war crimes units, SJAC has distilled a set of guiding principles and best practices that are essential to work effectively in support of UJ cases.

Some challenges in pursuing universal jurisdiction cases have general application. States pursuing extraterritorial crimes tend to prioritize suspected terrorists, extremist fighters, and returnees due to national security issues. As a result, other crimes are overlooked, including sexual and gender-based crimes, religious and political persecution, and enforced disappearances. The lack of resources for the prosecution of UJ cases creates obstacles to investigating crimes that occurred outside of the state and assisting victims that don’t hold the nationality of the prosecuting state. In most UJ cases, there is a heavy reliance on witness testimonies as seen in the Alaa M trial in Frankfurt, Germany which can be difficult to corroborate without physical evidence (such as evidence from the crime scene or documentary evidence). In both the Eyad Al-Gharib and Anwar Raslan proceedings, witnesses traveled from outside of Germany to testify, leading to logistical, scheduling, and witness protection issues.

Many Syrian witnesses are reluctant to participate in UJ trials for fear of reprisal, which leads to the disruption of investigations and may lead to insufficient evidence. For example, Amnesty International found an increase in witness intimidation and threats to families of Syrians abroad after the conviction of Eyad Al-Gharib. Witnesses that partake in UJ trials may also be subject to retaliation should they return to Syria as the Syrian Government is known to track the movements of those opposing the Government from its oversea embassies. SJAC has also observed on-line intimidation where individuals online disclose information about witnesses or threaten their safety.

The unique legal regimes within each European state must also be taken into account. While Germany has a more comprehensive code of crimes of international law, many other states have more limited UJ laws. The Netherlands, France, Belgium, and Spain have more restrictive policies and definitions. Germany, despite having the capacity to prosecute a multitude of crimes in different circumstances still struggles when faced with interpretation difficulties. Other bureaucratic challenges include inadequate procedures to obtain evidence, witnesses, and suspects abroad.

In order to assist War Crimes Units, which are dependent on civil society for evidence, contextual information, and connections with witnesses, SJAC has identified the following best practices for Syrian civil society:

Documentation

  • Documentation must follow the highest international standards to provide reliable and probative evidence to authorities. SJAC has published a series of trainings in Arabic outlining the documentation standards adopted by prosecutors and courts.
  • Confidentiality is key to both protect witnesses and survivors providing documentation, as well as to build a relationship with justice authorities.
  • Authorities are pursuing very specific investigations. Documenters must share only relevant and reliable data with justice mechanisms, as well as only provide reliable witnesses for these cases and investigations. This lessens the potential for a backlog and prevents compromising the identity of witnesses that may not be relevant to a specific investigation.
  • Authorities are interested in facts. Documentation and evidence collection must use objective language and avoid any bias. Requests from war crimes units and prosecutors must be answered professionally and accurately. Detailed and clear responses cut down on miscommunication and delays. There is also a need for strict organizational policies to share requests with the relevant people. This  policy must respect the confidentiality and sensitivity of the evidence and investigation.
  • As data is transferred between internal team members and externally to authorities, a clear and strict data transfer policy helps respect the privacy of witnesses and the confidentiality of the investigation as well as ensure data security.
  • Continuous documentation, legal, and investigatory training for those who are collecting evidence, ensures quality documentation which helps authorities tie up investigations on clear and accurate data.

Witness Support

  • Witnesses and survivors often have legal questions about providing testimony or whether they even have documentation that would be relevant for investigations. SJAC’s UJ guides provide readers with steps on how to pursue justice for crimes committed in Syria in six different European states. Legal representation is often not prioritized when engaging with witnesses, however, it is vital to ensure witnesses are aware of their rights and the procedures of the country in which they are testifying.
  • Responsibility for collecting documentation, communicating with authorities, and reaching out to witnesses should be divided amongst multiple individuals to ensure quality controls and maintain witness confidentiality. Team members communicating with witnesses and victims should undergo relevant training, including in psychosocial support and do no harm principles.
  • SJAC has noted that Arabic-language psychosocial support for witnesses and victims is severely lacking. While courts must take the necessary steps to increase this support, several Syrian PSS organizations have worked to fill this gap through virtual PSS sessions. SJAC has also published factsheets on PSS support in Germany and Netherlands to guide Syrians through the psychosocial support services available in both countries.

Public outreach

  • Syrian participation is vital to justice efforts. SJAC strives to keep the Syrian community informed of all updates related to universal jurisdiction cases and inform them of the rights and duties of witnesses and victims. Overpromising justice results discourages participation. Rather honest and clear expectations should be communicated with the Syrian community.
  • The focus on public outreach should be on showing the truth and not on a specific political or religious ideology. When facts are not presented clearly, there is more room for misinformation, which can discourage Syrians from participating in justice processes.
  • Documentation relies on networks. Partnerships with other civil society groups and communities helps to build a network of Syrians who can confidentially share data.

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