This year, Syria is marking the 10th anniversary of its violent conflict, which has led to the killing, disappearance, and displacement of millions of its citizens, in addition to major destruction of the country. While states have failed to provide a meaningful response to war victims and survivors, in this blogpost, Brigitte Herremans argues that Syrian and international NGOs have broken the justice impasse by mobilizing efforts to seek criminal accountability under the principle of universal jurisdiction (UJ).

A decade after the start of the uprising in Syria in March 2011, there is little reason for optimism about justice and accountability. Over 500.000 Syrians have been killed, 130.000 people have been forcibly disappeared, and over 12 million people have been displaced. While the Assad regime is the main perpetrator of international crimes, the transformation from a peaceful uprising to a civil war has prompted a multiplicity of perpetrators. The complexity of the conflict, the international stalemate resulting from Russia’s diplomatic and military alliance with the regime, and the emergence of the Islamic State of Iraq and Syria (ISIS), have paralyzed the international community. I argue that while states have failed to deliver a meaningful response, Syrian and international NGOs, which I refer to as justice actors, broke the Syrian justice impasse. In this post, I highlight how justice actors managed to create a crack in the wall of impunity through the pursuit of criminal accountability under the principle of universal jurisdiction (UJ)

Syrian justice activists (Feras Fayyad, Wafa Mustafa, Anwar al-Bunni) raise attention for forcibly disappeared Syrians outside the Koblenz Court (Credit: European Center for Constitutional and Human Rights)

In their justice efforts Syrian and international justice actors advance the transitional justice (TJ) paradigm, despite the evolution to a non-transition. Besides criminal proceedings, they use TJ mechanisms such as documentation and truth-seeking to pursue justice and to further resistance. The centrality of resistance against authoritarianism and state violence, that unleashed the uprising, is marginalized in mainstream debates on Syria that are often framed through the binary prism of a ‘failed’ versus a ‘successful’ revolution. Despite the uprising’s defeat and the entrenchment of the regime’s policies of annihilation, resistance continues to shape the determination of Syrian survivors and justice actors to bring down the wall of impunity, with UJ offering the first crack.

The principle of UJ allows states to prosecute individuals for international crimes — such as crimes against humanity, war crimes, genocide, and torture — based on the assumption that they harm the international order. States can evoke the principle when prosecutions in the territory where the crimes have been committed or international courts such as the International Criminal Court are not possible. Originally applied to hold pirates and slave traders accountable for their crimes, the principle was key in the pursuit of accountability following the International Military Tribunal at Nuremberg. The first case was the Eichmann trial in Israel in 1961, and the principle became internationally known after the arrest of Augusto Pinochet in London in 1998. However, states tend to be cautious to open UJ cases, out of diplomatic, economic and pragmatic considerations. For example, as a result of political pressure by the US, Belgium amended its UJ legislation in 2003, imposing a national tie on defendants or victims, thus restricting the reach of UJ in its courts. UJ is an evolving legal paradigm, that over the last decade witnessed a quiet expansion, focusing more on low level defendants, increasingly shifting from a global enforcer perspective to an approach of ‘no safe haven’ to perpetrators of international crimes.

The Syrian conflict has reinvigorated the debate on UJ and strongly increased interest in prosecutions in foreign national courts under UJ as it offers the only possibility to hold perpetrators of crimes accountable in the absence of domestic remedies and as access to the International Criminal Court is blocked by the Russian and Chinese veto in the UN Security Council. European judicial authorities’ interest was also triggered by the arrival of Syrian refugees and security issues related to the return of foreign terrorist fighters. Most court cases on war crimes or crimes against humanity committed in Syria relate to crimes by non-state actors, as there is a stronger motivation to establish accountability for crimes committed by jihadi groups, who pose a security threat to European citizens.

The al-Khatib trial marks a shift away from exclusive accountability efforts for crimes committed by jihadi groups. In October 2019, the German Federal Public Prosecutor opened a trial against two former Syrian security service officials before the Higher Regional Court in Koblenz, resulting in the start of the first trial on state torture in Syria in April 2020. The defendants were operating in the al-Khatib detention center, notorious for torture of detainees, resulting in the killing of thousands of citizens. The main accused, Anwar Raslan, served as its head in 2011-2012 and allegedly oversaw these crimes while the second accused, Eyad al-Gharib, was his subordinate. Raslan was charged for complicity in crimes against humanity, including 4,000 cases of torture, 58 murders, and cases of sexual assault and rape. Al-Gharib was accused of rounding up protestors to take them into custody and charged for aiding and abetting in torture and deprivation of liberty as crimes against humanity in at least 30 cases. In February 2021, the Court sentenced al-Gharib to four-and-a-half years in prison. Survivors and plaintiffs in this case welcomed the verdict, even if he is a low profile official, as it confirmed that acts of the regime and its collaborators constitute crimes against humanity. The verdict against Raslan is expected later this year.

Syrian survivors and co-plaintiffs in the al-Khatib trial (Wassim Muqdad and Hussein Ghrer and their lawyer (Patrick Kroker) brief the press (Credit: European Center for Constitutional and Human Rights)

The al-Khatib trial is a milestone in the battle for justice while the conflict is ongoing and the justice mobilization on behalf of states is limited. It came about as a result of the relentless efforts of justice actors who started engaging from 2016 onwards in strategic litigation in Europe. Syrian NGOs, lawyers, victims, and their families started teaming up with European NGOs. A key player is the European Centre for Constitutional and Human Rights (ECCHR), which has been filing torture cases together with nearly 100 Syrian survivors in Germany, Austria, Sweden, and Norway. In the al-Khatib trial, ECCHR supported survivors, along with the NGOs the Syrian Center for Media and the Freedom of Expression and the Syrian Center for Legal Studies and Research. This sort of innovation occurred because of Syrian diaspora initiated justice activism, and the determination of international NGOs to join the fight against impunity.

The trial has outcomes that reach far beyond Koblenz and the logic of criminal proceedings. Firstly, the evidence gathered can also be used in other criminal proceedings on Syrian state torture and can inspire other European judiciaries to initiate cases. Secondly, the central place of witness testimony has allowed survivors to obtain a forum to raise violations related to issues that have been underexplored, such as sexual violence. In June 2020, seven survivors of torture in cooperation with NGOs submitted a criminal complaint to the German Federal public prosecutor asking to investigate and prosecute sexual and gender-based violence in Syria as a crime against humanity. Thirdly, the trial has increased the zeal for the prosecution of other international crimes, inter alia the use of chemical weapons, which is the object of a criminal complaint filed in March 2021 in France. Fourthly, the trial has revived the debate on what justice in the Syrian context can and should look like, strengthening the conviction of many victims and justice actors that criminal accountability offers only a starting point and that efforts cannot be limited to retributive justice. Finally, UJ cases in the Syrian context also have global repercussions, demonstrating that sustained and innovative efforts can defy feasibility politics and address an accountability gap via domestic courts, thus overcoming defeatism and strengthening the international justice architecture.