(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.