In late February, a Swedish court sentenced Mouhannad Droubi to five years in prison for committing a “torture-like” assault of a captured regime soldier in 2012. Droubi was a member of the Free Syrian Army (FSA) at the time but had been living in Sweden since being granted asylum in 2013. The case, which marks the first instance of a Syrian being tried abroad for crimes committed during the conflict, represents an important first step in in the transitional justice and accountability process. However, the conviction has also sparked controversy among those opposing the Assad regime.
Under Swedish law, courts can prosecute war crimes even if the accused committed the crime outside of Sweden. In a video of the attack posted to Facebook, Droubi was depicted beating the already injured and tied up victim with a whip and baton while threatening to cut out his tongue. The Swedish court found Droubi’s actions to be a violation of the Geneva Conventions which prohibit “cruel treatment and torture.” The court dismissed Droubi’s argument that his superiors forced him to commit the assault to prove his loyalty to the FSA, stating that it had “no doubts that Droubi participated in this violence of his own free will.”
All victims of the violence in Syria deserve justice, whether they suffered abuse at the hands of regime, opposition, or extremist forces. In the absence of international or domestic justice options, foreign national courts may offer a desirable alternative to pursuing justice for victims of egregious crimes like torture. Viewed in this light, Sweden’s first-ever application of extraterritorial jurisdiction to the Syrian conflict should be commended and is hopefully the first of many prosecutions, whether in Sweden or elsewhere.
However, foreign national courts are legally limited in their ability to prosecute anyone in the world for any crime. They also have difficulty accessing evidence and witnesses that are located abroad. Thus, non-Syrian courts are likely to only pursue justice against individuals who are located within their territory based on evidence that they can readily gather. Since many Syrians fleeing the conflict to live in the West are anti-regime, it is likely that additional extraterritorial prosecutions in foreign national courts would target anti-regime fighters like Droubi.
Countries like Sweden must also be aware of the negative perceptions that these prosecutions might induce among Syrians, who may not be familiar with the legal complexities of extraterritorial jurisdiction. Prosecutions solely of perpetrators aligned against Assad may be viewed as support for the hypothesis that the West no longer cares about justice for the Assad regime’s atrocities — especially while known pro-Assad perpetrators are legally residing in Western countries. Already, Syrians have strongly criticized Droubi’s prosecution, despite the clear evidence that he participated in torture. If foreign national courts disregard such perceptions, anger and frustration among anti-regime parties will only grow, further perpetuating what SJAC’s recent report found to be an increasingly divisive conflict.
To mitigate these potentially harmful effects, foreign countries that undertake such prosecutions may wish to publicly affirm commitment to accountability through national prosecutions and immigration controls for persons from all sides of the conflict. Additionally, foreign national courts can engage with Syrians directly in Arabic regarding ongoing trials. Such regular communiques could include Arabic language updates on trial procedures as well as the prosecutorial purpose and intent of pursuing a particular suspect. While outreach efforts may not appease everyone, they will help Syrians connect with the justice process and build understanding of why certain decisions were made.
Similarly, Syrians must have realistic expectations of what is possible prior to the end of the conflict and accept that any perpetrator of war crimes — pro or anti-regime — should be subject to criminal punishment. Rather than challenging extraterritorial prosecutions such as Sweden’s, Syrians could publicly advocate for additional trials against pro-Assad perpetrators. Additionally, Syrians can learn about ways in which they may be able to contribute to making such trials possible, such as by reporting documentation of abuses to relevant organizations and authorities.
Through additional prosecutions and regular public engagement, foreign national courts can hold those responsible for committing serious crimes accountable and contribute to Syria’s nascent transitional justice process. SJAC’s upcoming report with Mark Lattimer from Minority Rights Group explores the potential options for pursuing justice for Syrians prior to the end of the conflict as well as the feasibility and impacts of each option. In addition to the need for public outreach, the report provides other suggestions to the international community and will be relevant for Sweden and other foreign national jurisdictions that are seeking to prosecute war crimes in Syria.
Please stay tuned for the report titled A Step Towards Justice: Current Accountability Options for Crimes Under International Law Committed in Syria. And for more information or to provide feedback, please contact SJAC at firstname.lastname@example.org.