The Partial Return of Universal Jurisdiction: Syrian Torturers on Trial in Germany
In the German city of Koblenz, 23 April 2020 saw the start of a trial at the Higher Regional Court that is attracting worldwide attention: two Syrians are accused of participating in the systematic torture of Syrian government opponents. The case is based on the principle of universal jurisdiction, which has been increasingly used around the world. Universal jurisdiction trials come with many practical and political problems attached, and have been criticized from different perspectives. And yet, the Koblenz trial reflects innovative developments that should be welcomed.
A lucky strike that wasn‘t
The investigation against the main defendant was triggered by an apparent lucky strike for German prosecutors. Anwar Raslan, who sought asylum in Germany in 2014, walked into a Berlin police station in February 2015 to demand protection. He claimed that he was feeling threatened, since he had led interrogations, “including by force”, during his time as a senior Syrian intelligence officer.
As it turned out, he had been the head of an “Investigations” unit at the infamous “Al-Khatib” torture prison in Damascus run by Branch 251 of the Syrian Intelligence Directorate. During his tenure in 2011-2012, he allegedly oversaw the torture of at least 4000 government opponents. Following further investigations, German police could identify a second suspect who had arrived in Germany a little later, Eyad al-Gharib. He was Raslan’s subordinate and in charge of rounding up anti-government protesters and bringing them to Al-Khatib. In February 2019, both men were arrested. In the Koblenz trial, Raslan is charged with complicity in crimes against humanity, including 58-fold murder, rape and grave sexual harassment. Al-Gharib is charged with deprivation of liberty and torture of 30 people and aiding and abetting crimes against humanity.
Why did Raslan voluntarily share his story with the German police? What appears naïve at first sight reflects a fundamental divergence of legal understandings. Similar to German war criminals in the Nuremberg trials, Raslan argued that he was merely following orders – an inadmissible defence for crimes against humanity under modern international criminal law. Raslan’s ignorance is also the consequence of a sobering statistic: For perpetrators of grave human rights violations, the risk of facing prosecution abroad is minimal. As a result, there is no awareness of this theoretical possibility in large parts of the world.
Impunity is particularly striking with regard to Syria. Despite hundreds of thousands of casualties, the use of chemical weapons and many other cruelties, the Hague-based International Criminal Court (ICC) cannot investigate, due to a Russian veto in the UN Security Council. What Raslan didn’t know: Even if international mechanisms are blocked, mass atrocities can still be prosecuted – in Germany as well as in many other states – under the principle of universal jurisdiction, which holds that national authorities can investigate and punish certain crimes even when neither victims nor perpetrators are their own nationals. Universal jurisdiction has been applied for centuries to the crime of piracy; after 1945, it was extended to genocide and eventually other grave human rights violations. In the 1990s, many European states passed relevant legislation, enabling high profile indictments such as Spain’s against Chile’s former dictator August Pinochet. With the adoption of the ICC Statute in 1998 and its subsequent implementation in national legislation, many more states created the legal basis for universal jurisdiction trials. By 2017, 147 states had adopted some form of universal jurisdiction according to an Amnesty International survey.
Universal jurisdiction in practice: Limits, conflicts and change
In practice, however, states have been reluctant to apply the principle. On average, 68 investigations per year were initiated (overwhelmingly in Europe) and less than three trials per completed in 2000-2017. Although investigations and trials have become slightly more frequent over the course of the past decades, their overall number can hardly generate a powerful deterrent effect – which is also reflected in Raslan’s ignorance.
Universal jurisdiction cases 1990-2017
Source: Máximo Langer und Mackenzie Eason (2019): The Quiet Expansion of Universal Jurisdiction, European Journal of International Relations 30, 3, S. 779-817.
Several reasons account for the reluctant use of universal jurisdiction. One is that states applying it often face high political costs. This became apparent in the 1990s and 2000s, when prominent cases triggered outright diplomatic crises: between the Spanish, British and Chilean governments in the Pinochet case or between the United States and Belgium, where complaints had been filed against George H.W. Bush, Dick Cheney and Colin Powell. Both Belgium and Spain came under massive international pressure that forced them to scale down their particularly far-reaching interpretations of universal jurisdiction. At the time, observers already diagnosed the “fall of universal jurisdiction” and argued that the prosecution of atrocity crimes in other countries was a “public good” that could only be provided by a central institution such as the ICC.
And yet, reality developed in a different direction. The backlash against Belgium and Spain did not spell an end to the use of universal jurisdiction, and even the small number of 45 completed universal jurisdiction trials since 2002 still compares favourably to the ICC’s track record of 9 completed trials. An important caveat, however, is that contemporary universal jurisdiction trials no longer focus on political heavy-weights. Instead, the vast majority of cases concern low- to middle-rank perpetrators who – like the two defendants in the Koblenz trial – arrived in Europe as refugees and are thus already on the territory of the jurisdictional “forum state”. From the point of view of European states, the focus on migrants not only serves to avoid diplomatic turmoil, but it also helps them not to become safe havens for perpetrators of mass atrocities: whenever asylum law prevents states from extraditing suspects to their countries of origin that would normally be responsible for investigating, universal jurisdiction enables the authorities of the host state to prosecute the crimes themselves. In addition, the focus on refugees present on a state‘s territory increases trials’ practical chances of success. This is also important for civil society organizations that often initiate complaints together with victims – such as the European Center for Constitutional and Human Rights in the Raslan/Al-Gharib case. These organizations increasingly direct their energies to cases with a real chance of succeeding in court, and to quiet cooperation with investigators. As a result of this shift, the application of universal jurisdiction has become more effective, while still remaining limited to few cases.
Selective and politically abused? Critiques of universal jurisdiction
The high selectivity of universal jurisdiction trials entails political distortions that have been criticized from different angles. Most importantly, the focus on refugees leads to inequalities with regard to the prosecution of different (groups of) perpetrators. Only perpetrators who emigrate can be subjected to universal jurisdiction trials. In the case of Syria, this applies mainly to opposition fighters and to former officials like Raslan and Al-Gharib who have – for whatever reasons – eventually defected from the regime. In contrast, those who still firmly support Assad – and thus those most responsible for crimes committed in Syria – remain at large.
Another frequent criticism is that in using universal jurisdiction, many states seem to be driven not so much by a genuine interested in globally enforcing universal legal standards, but by a “parochial” national interest in policing migrant populations.
Finally, governments in the global South have at times expressed concern that states could abuse universal jurisdiction to target selected other states. This criticism was particularly vocal in past cases when former colonial powers investigated crimes committed in their former colonies (Spain/Chile, Netherlands/Surinam, Belgium/Democratic Republic of the Congo). Remarkably, universal jurisdiction trials are viewed even more critically than the ICC, which has also been attacked as “neo-colonial”. However, it is important to note that universal jurisdiction has recently been used also outside Europe, for instance, in Argentina, South Africa, or in the Senegalese trial of the former Chadian dictator Hissène Habré.
Part time world justice? The Koblenz trial in context
In light of the above, the Koblenz trial can be seen as exemplary of a long-term international development. And yet, it also contains and reflects new elements that at least partially address typical problems associated with universal jurisdiction trials.
First, the trial is the first in which former Syrian government representatives are held to account for their participation in state-organized torture. This lessens the selectivity of justice with regard to Syria, since most cases so far have concerned opposition fighters linked to the Islamic State. This correction is also a success of the strategic litigation pursued by German prosecutors and civil society groups, who perceive the prosecution of perpetrators accidentally present in Europe as insufficient. In this sense, the Koblenz trial is the result of a deliberate politics of international criminal justice, albeit with the aim of reducing, rather than deepening, the unequal treatment of crimes.
Second, since the beginning of the Syrian civil war, Germany has institutionalized procedures that clearly go beyond a narrow “no safe haven” policy. The Federal Office for Migration and Refugees systematically searches for witnesses of international crimes among refugees applying for asylum. Thus, thousands of leads could be passed on to federal investigators. The Federal Attorney General, in turn, not only investigates individual suspects, but also conducts two “structural investigations” against unknown perpetrators. One focuses on the Yazidi genocide, the other on crimes committed by the Syrian government. The Koblenz trial is expected to draw on evidence generated in the latter investigation, including through forensic analysis of thousands of pictures of torture victims smuggled out of Syria by a former Syrian military police photograph under the pseudonym “Caesar”.
Already in 2018, the same structural investigation led the Attorney General to issue an international arrest warrant against Jamil Hassan, head of the Syrian Air Force Intelligence Directorate. The case against this senior officer who continues to reside in Syria sends a clear signal that German authorities are not merely trying to rid themselves of Syrian mass murderers but also to undertake at least a little bit of world police work.
It is also implausible to argue that the German state uses universal jurisdiction to target representatives of the Syrian government for political reasons. In fact, the start of the Koblenz trial all but coincides with an equally important universal jurisdiction trial in the Frankfurt Higher Regional Court against an Iraqi suspect accused of participating in the Yazidi genocide.
Furthermore, German investigations are embedded in international organized efforts to prosecute Syrian crimes. At the European level, Eurojust, a Hague-based EU agency dedicated to fostering cooperation in the fight against international crimes, organizes regular meetings of the war crimes units of EU member states and associated states, as well as ICC and Europol representatives, as part of the “Network for investigation and prosecution of genocide, crimes against humanity and war crimes”. More directly, the Raslan/Al-Gharib investigation has profited from the bilateral legal assistance of other European states where potential witnesses live, including France and Sweden.
Important pieces of evidence have also been provided by the Commission for International Justice and Accountability (CIJA). This NGO, sponsored mainly by Western governments, has worked with government opponents inside Syria to smuggle more than 800,000 pages of evidence outside the country – primarily, but not exclusively of crimes committed by the Assad regime.
But also beyond the political West, the fight against impunity in Syria has received broad international support, most prominently in the form of the International Impartial and Independent Mechanism. The Geneva-based organization was set up in 2017 with an overwhelming majority of the UN General Assembly to collect evidence against Syrian perpetrators and prepare case files – including for potential use in universal jurisdiction trials. While not much is known yet about specific cases in which the IIIM has facilitated national investigations, its very existence fulfils an important legitimizing function, similar to the role of the UN War Crimes Commission charged with supporting national trials of German war criminals after World War II.
Against this broader background, the Koblenz trial should be welcomed as a small island of justice in an unequal and unjust world.
Dr. Caroline Fehl is senior researcher at the Peace Research Institute Frankfurt (PRIF). Her research focuses on norms and institutions in the field of international security, specifically international criminal justice and (humanitarian and nuclear) arms control regimes. She currently directs a project on protection and prosecution norms in global responses to mass atrocities. Twitter - @CarolineFehl
Image: Udo Schröter via Flickr (CC BY-SA 2.0)