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Wednesday, March 27, 2024 | Back issues
Courthouse News Service Courthouse News Service

Digital age atrocities: a perfect storm for universal jurisdiction

European countries are leading the world in prosecuting war crimes that occurred far from their own soil, when justice is slow to come at home or from an international tribunal.

(CN) — Not in Syria or even in The Hague, but in the small western German city of Koblenz, a former member of Syrian President Bashar Assad's secret police was convicted earlier this year of torturing more than 4,000 prisoners during the Syrian civil war. 

Using a legal principle known as universal jurisdiction, a German judge in a German court sentenced Eyad Al-Gharib to 4 1/2 years in prison after a yearlong trial. 

“In principle, nations have an obligation to prosecute certain serious crimes, regardless of where they occurred,” said William Wiley, an attorney who worked at the International Criminal Tribunals for both the former Yugoslavia and Rwanda and is now the executive director of The Commission for International Justice and Accountability. 

Universal jurisdiction rests on the idea that some crimes — genocide, crimes against humanity, war crimes and torture — are so serious that offenders can be tried in any jurisdiction. The principal has existed for centuries. Roman philosopher Cicero argued that pirates could be prosecuted by any state, as they were the “enemy of mankind.” The concept underpinned the legal justification for the Nuremberg Trials, which prosecuted Nazi war criminals following World War II. 

The prevailing opinion in international law circles is that, ideally, crimes should be prosecuted where they occur. “Justice in the cultural context is preferable,” said Patrick Kroker, legal adviser at the Berlin-based European Center for Constitutional and Human Rights. Local legal systems are best positioned to understand local customs, speak the languages of those involved and be the most accessible for victims. 

That’s why the International Criminal Court — established in 2002 by the Rome Statute — is intended as a complementary legal avenue. It’s only when states are unwilling or unable to bring perpetrators to justice that the ICC will intervene. Another route would be an ad hoc tribunal, established by the United Nations to investigate crimes that occur during a specific conflict. The 1994 Rwandan Genocide, crimes committed during the Bosnia Wars and atrocities committed during the civil war in Sierre Leone were all prosecuted by courts established specifically to do so. 

None of these options are available to Syrian victims. Unrest in 2011, which grew out of the Arab Spring protests, has led to a bloody and ongoing civil war. Half a million people have died in the conflict over the last decade. More than half the country's prewar population, some 13 million people, have been internally displaced by fighting and another 6 million had fled the country. Though the United Nations concluded last year that parties to all sides of the conflict have committed human rights abuses, the majority are attributed to Syria's government, headed by Bashar al-Assad. 

Al-Assad is unlikely to prosecute himself or his supporters; Syria is not a member of the International Criminal Court; and attempts at the U.N. to establish an ad hoc tribunal have been blocked for political reasons by Russia and China. With no other legal outlets, victims have looked to other nations to bring criminals to justice. 

More than 1 million Syrian refugees have ended up in Europe, with Germany and Sweden taking the most. “With this many people, you’re going to end up with some bad apples,” said Wiley. The vast majority of indictments based on universal jurisdiction have been against people residing in the country where they have been charged. 

Exact numbers are hard to come by. There is no international database of universal jurisdiction cases, and not all countries even track the cases on a national level. According to a count by Philip Grant, the executive director of Trial International, a Geneva-based nongovernmental organization that fights to bring international crimes to justice, defendants face charges through universal jurisdiction in eight European countries. 

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One of the earliest Syrian cases to be prosecuted in Europe occurred in Sweden, which convicted an ex-member of the Free Syrian Army of war crimes in 2015. Sweden has five ongoing cases from Syria or Iraq and one from Iran, along with six past cases from Rwanda and the former Yugoslavia. German officials say they have around 100 cases under investigation. Spain, Norway, the Netherlands, Switzerland, Austria and even Hungary have also had convictions. 

Trials in the past have relied heavily on documentation and witness testimony. Now, the police may have the crime on video. 

“The Syrian war is the most documented conflict in human history,” Grant explained. Facebook was already nearly 10 years old when the war broke out, and smartphones with cameras were widely available. A Dutch court in July found an asylum-seeker guilty of committing war crimes for the execution of a Syrian government official, which several people recorded with video. The footage clearly shows Ahmad al Khedr marching a handcuffed and beaten man, identified as Lieutenant Colonel Qussai Mahmoud al Ali, to the Euphrates River before shooting him as he begs for his life.

Swedish senior prosecutor Karolina Wieslander notes, however, that evidence is still the biggest challenge in bringing cases. National governments do not have investigators on the ground in Syria to interview witnesses and collect evidence. Videos moreover may not show the full context of a crime. In the aforementioned Dutch case, the defendant argued, unsuccessfully, that he himself was being threatened with violence if he didn’t go through with the execution. 

This screenshot from video shows Courtenay Griffiths, lawyer for the former President of Liberia Charles Taylor, handing over a supermarket shopping bag filled with documents during a hearing at the Special Court for Sierre Leone on Feb. 15, 2010. (SCSL archive via Courthouse News)

The Commission for International Justice and Accountability, of which Wiley is the head, specializes in obtaining documentation in Syria so that it can be used as evidence in court. They now have 1.1 million documents from Syria, largely the result of efforts by locals on the ground. The organization also digitizes and organizes documents so that it is easy for prosecutors to make use of them. 

To prosecute these crimes, the availability of suspects and evidence is only the start. Authorities must also be willing to take them on.

“There are no other avenues,” Wiley said, calling it a moral obligation for many.

Wieslander in Sweden said she’s very proud that she and her country have wanted to tackle such challenges. There are 10 prosecutors and 15 police officers working on war crimes cases in Sweden. Germany and the Netherlands have opened special divisions to handle investigations.

But universal jurisdiction cases are not without their critics. The ICC has long been accused of neocolonialism as a European court sitting in judgment of mostly African nations, and some legal scholars see the same problem with the prosecution of Syrian cases. Al Khedr, the man convicted in the Netherlands of executing a prisoner, was also charged with membership in a terrorist organization but was acquitted of that crime. When reading the verdict, the judge said the court didn’t have the contextual understanding to make a determination. 

Further, the vast majority of Syrians persecuted in Europe have fought for the opposition. Those fleeing the regime are the ones who end up as refugees, while supporters can find safe haven in Syria. An ex-Syrian Army colonel, Anwar Raslan, who was allegedly in charge of a torture unit in Damascus is currently on trial in Germany. He had defected from the regime and his asylum claim was supported by opposition leaders. 

Victims and human rights groups contend that war criminals cannot be allowed to go unpunished in society. Many of the prosecution witnesses in these cases have come from the refugee population as well. A man who claims he was tortured in Raslana’s detention center ran into him at a grocery store in Berlin. “You can’t have a credible justice system and allow people like this to run free,” Kroker says. “This is better than the alternative of nothing.” 

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Categories / Courts, Criminal, International, Law

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