In Justice Efforts for Syria, ‘Universal Jurisdiction is not Disappearing’

[Dr Patrick Kroker is senior legal advisor with the European Center for Constitutional and Human Rights, where he is responsible for the center’s work on accountability for crimes in Syria. He is a German-qualified attorney and, in this capacity, regularly represents survivors of international crimes in UJ investigations and trials, including in the first case on Syrian state torture in Koblenz, Germany (Al Khatib-trial).]

For many years, universal jurisdiction (UJ) seemed the only possible avenue for accountability for international crimes committed in Syria. Significant achievements were made through a patchwork of cases in jurisdictions such as Germany, France, Sweden, the United States and elsewhere. The inherent limitations and shortcomings of these cases were manifold, however: trials in places far away from the affected society and in a different language were difficult to access for a wider Syrian public. Most often, the defendants were present in the countries where the trials took place, which meant that only low to mid-rank perpetrators had to face charges. Even in cases, where arrest warrants or even verdicts were handed down against high-level perpetrators such as in France or Germany, these remained with no tangible consequences for the suspects, them still enjoying their life and privileges in Syria. 

New Dimensions of Justice Options Seem Available

With the fall of the Assad regime, the prospects for accountability have changed dramatically. Activists, lawyers, policymakers, and – most importantly survivors – are beginning to discuss accountability mechanisms that only a few weeks ago seemed utopic: an international or hybrid tribunal, based in Damascus, trying leaders of the mukhabarat, the notorious secret services that formed the backbone of Assad’s torture system. Members of the Syrian armed forces who ordered attacks with chemical weapons or deadly sieges of entire neighborhoods and cities appearing before a reformed and well-trained Syrian judiciary. 

Discussions about the wide variety of justice-options that are theoretically available have just begun, they can (and should) finally be led by Syrians. The current administration has, from a very early point onwards, called for accountability of the most responsible perpetrators from the Assad government, while signaling to grant amnesties to others (see also here). The Minister of Justice of the Syrian Interim administration has recently announced the establishment of ‘special courts to try the criminals of the Assad Regime and their associates’ and stated that Syria might ‘sign the Rome Statute to facilitate the prosecution of the regime remnants, including Bashar al-Assad’.

But despite all this, I argue in this post –  borrowing a quote from Maximo Langer’s famous academic article for my headline – that, when it comes to accountability efforts for international crimes in Syria, UJ cases will and should continue to play an important role in the near, mid-term and long term future. 

UJ Proceedings are Needed to Bridge the Gap Until Other Accountability Mechanisms are Available 

To design and build the architecture of a future accountability process is going to take years. This includes any specialized court system in Syria, which the new administration announced to be operational by March 2025, if it is to guarantee minimum standards of fair trial. Until then, UJ proceedings play an important gap filling function in the following ways:

Ongoing Cases and Investigations 

It goes without saying, that ongoing UJ-trials, such as the one against the former doctor at the military doctor from Homs, Alaa M., in Frankfurt or the trial of a former Hezbollah-member from Busra Sham in Deraa governate in Stuttgart, Germany will continue. Investigations that are so advanced that they have already led to arrests, are also highly likely to continue and that in the absence of any extradition agreement with Syria, they will lead to further trials outside of Syria. This concerns, for example, the former head of Adra prison in Damascus Ousman Alsheikh who has been arrested and charged in the US, among others, with counts of torture. The trial will likely be held in the summer. In Sweden and Germany, investigations continue against at least seven suspects for crimes committed during the siege of Yarmouk Damascus by pro-Assad militias who were arrested in mid-2024. 

There are also very likely more suspects in Europe than have thus far been arrested, potentially more have fled or will flee after the fall of the regime – some potentially under new names and with false identity documents – , because they feel safer there than in Syria. And then there are outstanding arrest warrants by European prosecutors, also against higher level suspects – including Bashar Al-Assad himself, or secret service leaders Ali Mamlouk and Jamil Hassan.

Extraditions to Syria?

The new administration has repeatedly made calls for high level suspects to be extradited to Syria, should they be arrested elsewhere. How soon this will be a realistic scenario depends on the states’ willingness to extradite to a country with whom most of them have had not even diplomatic relations for the past decade, let alone mutual legal assistance agreements, which in many states also require minimum standards of due process to be guaranteed when cooperating. From what Syrians say about the current state of the Syrian judiciary, this will take a long time to build. Also, international crimes would first need to be codified in Syrian law if suspects are to be tried for war crimes or crimes against humanity (which many Syrians rightly argue, they should). 

But without international arrest warrants from Syria, to arrest perpetrators who are traveling, investigations against them must not only have been opened but already advanced quite a bit normally for a court to order the preliminary detention of a suspect. It is therefore important that UJ-investigations continue until an international(ized) mechanism or the national court system in Syria is up and running. Cases that have been commenced in other jurisdictions could, at a later stage, also be transferred from third states to Syria or a newly established justice mechanism. Duško Tadić, the first ever person to stand trial before the ICTY was for example arrested on the basis of a German arrest warrant in Germany and later transferred to The Hague.

Division of Labor

Given the magnitude of the task to hold accountable those most responsible for international crimes committed in Syria in the past 14 years, it would be more than reasonable to divide the labor between the national Syrian judiciary, an international(ized) mechanism and third states exercising UJ after the new mechanisms are up and running.  

This is true especially in the light of the vast amount of evidence and expertise that has been gathered in countries that are investigating the crimes in Syria since 2011. Also in case, the political climate for accountability in Syria changes over time (which does not seem like an unrealistic scenario), proceedings in other states can keep the flame of accountability alive. In what has been coined the “ping-pong strategy” – to confront atrocities in exile whenever a dead-end seems to have been reached in the country itself, has proven to be quite successful in the case of Argentinean dictatorship crimes for example.

Further, any kind of justice-mechanism within Syria will likely be limited to the regime and its allied armed groups. While by far the most crimes have been committed by them, it is important for a transitional justice process that crimes by all actors and armed groups are being investigated, including by groups that are unlikely to be in the focus of any accountability effort in Syria, such as HTS itself or the Syrian National Army for the crimes they are committing in Syria’s northeast since 2018, especially in Afrin. Trials that are not popular for the new political elite in Syria, but that are nevertheless important for a comprehensive transitional justice process could still take place outside of Syria. 

UJ Proceedings Can Have a Positive Impact on (Transitional) Justice Efforts in Syria – Now and in the Future

For the overall transitional justice process, trials taking place far away from where the crimes have been committed are far less impactful than trials that are taking place in the country/region. Nevertheless, trials far away from there can contribute to such a transitional justice process in several ways. 

Precedents for Other Courts and Tribunals

On the one hand, UJ proceedings already have established important precedents with regards to historical/factual circumstances of these crimes and also with regards to legal issues. The ongoing and potentially new cases will continue to establish such precedents. In early 2021, a court in… established for the first time that crimes against humanity are being committed through the detention and torture system by the Syrian regime against its people since at the latest April 2011. It provided its reasons in more than 200 pages, taking into account and weighing hundreds of pieces of evidence that have been introduced in the trial. This includes a ruling on the Caesar photos, their authenticity, their credibility and in how far they are legal proof of the system of torture in killing orchestrated by the Syrian government. The verdict against Anwar Raslan from January 2022 confirmed this and established the precedent that sexualized violence was regularly used by the former Syrian its system of torture and detention as a crime against humanity. The Dabbagh case in France, included a judicial decision on how the system of enforced disappearance and the terrorization of the family members of disappeared persons was functioning, including the subsequent seizure of the property of the victims. 

The decision in the case of Alaa M in Frankfurt will shed light not only on the criminal responsibility of the doctor from Homs, but on the function that military hospitals fulfilled in the system of torture, enforced disappearance and death. The Stuttgart court in Germany will issue judicial findings on how far the Lebanese Hezbollah took part in the widespread and systematic attack of the Assad regime and its allied militias in Syria. The upcoming Yarmouk trial will hopefully legally scrutinize the use of starvation as a method of warfare and as part of the crimes against humanity. These cases can thus establish adjudicated and established facts and legal characterizations that other international and national courts can build on. 

Impact on the Transitional Justice Process

Beyond their legal (precedent-setting) function, current and future UJ cases outside of Syria can contribute to the wider process of transitional justice, especially if their impact is amplified by media, artistic interventions and educational as well as political initiatives. For this to happen, it is important that the national judiciaries in which these trials take place finally put more weight on making the trials more accessible to a Syrian public in their countries and abroad. As noted above, this has been one of the major shortcomings of the landmark-trials that happened in Europe and elsewhere. Oral hearings should regularly be simultaneously translated to Arabic for the court-audience. Where the national laws and witness’ security concerns allow, they should also be recorded, potentially even be broadcasted on the internet so that a wider public can follow them. While some milestone-decisions, such as the first Koblenz-verdict have laudably been translated to Arabic, this needs to happen on a regular basis – it is not on NGOs alone to try and fill this gap. It would be desirable that amplifying the effect of UJ-trials be part of the foreign policy of states in which these jurisdictions take place. They could commission translations and produce outreach materials about these trials that could be disseminated by likely soon-to-opened diplomatic missions in Syria and through social media channels.

Conclusion

UJ proceedings have served the function of a crouch for an accountability process in which they were the only justice option available. Likely and hopefully, these days are over. Their importance may diminish over time if more comprehensive justice solutions with more Syrian ownership become operational. Until then, and even afterwards, they can and should continue to play a (complementary) role in the overall efforts for accountability for one of the most violent and brutal crime-settings of our era.