Syrian civilians have paid a heavy price for a decade of war in which their government and parties to the conflict, such as ISIL (ISIL), have violated nearly every basic human right and committed almost every atrocity.
From the summary executions, torture and enforced disappearance of tens of thousands of people, to the use of chemical weapons, to the genocide against Yazidis and the deliberate targeting of hospitals and health workers, to the bombardment of civilians under the guise of waging war on “terrorists”, the list of despicable crimes seems endless. Due to the violence, half of Syria’s pre-war population was displaced, often repeatedly.
Currently, all avenues of justice are blocked in Syria and victims can only go to court in other states. Recent developments have raised hopes as states have advanced prosecutions and several trials against Syrian nationals accused of committing atrocities have resulted in guilty verdicts. However, in some countries there are still a number of legal obstacles that need to be removed to allow the prosecution of international crimes.
In principle, the Syrian government should hold accountable all perpetrators of atrocities committed on its territory by bringing those responsible before independent tribunals.
In practice, the arbitrary actions of the Syrian security apparatus and the unfair procedures of the counter-terrorism and military courts on the ground facilitate further violations and crimes.
In principle, when a state like Syria is unwilling or unable to investigate and prosecute such crimes, the international community and the guardian of international peace and security, the United Nations Security Council, should ensure that the situation be referred to the International Criminal Court (ICC).
In practice, the Security Council is paralyzed by vetoes.
National courts, mainly in Europe, have risen to the challenge commendably in the meantime. Usually, a state only has jurisdiction if crimes occur on its soil, are committed by its nationals or against its people. This jurisdictional limitation was challenged after World War II, as some crimes were considered so serious that they could be prosecuted under the principle of universal jurisdiction, regardless of where the perpetrators were tried.
Germany is one of the states that has embraced this paradigm shift and it has paid off. German courts have secured 20 convictions of former fighters in Syria, such as returning ISIL members, for various international crimes, including persecution based on gender and religion.
On January 13, the Higher Regional Court in Koblenz, in a landmark decision, sentenced former senior Syrian intelligence officer Anwar Raslan to life in prison for crimes against humanity in a prison near Damascus ten years ago. , where he oversaw the torture of more than 4,000 prisoners, resulting in the deaths of at least 58 people.
Additionally, in early 2021, a low-ranking former Syrian intelligence official was found guilty by a court in Koblenz of complicity in crimes against humanity in connection with the arrest of protesters, who were detained, tortured and killed in one of many branches of Syrian intelligence services. It was the first time that a court classified the actions of the Syrian government as a systematic attack against its civilian population.
But not all states have opted for such a broad jurisdictional framework. Many require that specific conditions be met, including the presence of the suspect in their territory. In 2010, the French legislator added a requirement for dual criminality of the act – in French law and in the state where it took place.
On this basis, France’s highest court, the Court of Cassation, recently concluded that France cannot prosecute crimes against humanity committed in Syria because Syrian law does not define all the elements of the crime in question. This decision was a blow to the ongoing efforts of French prosecutors and judges to bring justice to victims of crimes against humanity in Syria. It remains to be seen how other international crimes will be affected in France. Let’s hope that the ongoing proceedings on the Yazidi genocide can move forward.
Fortunately, efforts to try Syrians who committed crimes during the war continue in other states, including Austria, Belgium, Norway, Sweden, Switzerland, the United States and elsewhere – despite judicial and budgetary obstacles faced by their national war crimes prosecution units and courts.
In a context where fair and independent justice is unobtainable in Syria and where the Security Council remains deadlocked, national courts, although limited, offer victims a narrow path to justice.
However, to take full advantage of national avenues of justice, States must ensure that their own legislation, budgets and policies can fully meet the challenge.
We need to improve legislation, avoid loopholes through which perpetrators can escape justice, and ensure that universal jurisdiction is not subject to further restrictions in domestic law, including in France, given the recent ruling.
We need more resources and cooperation between states to ensure that those at hand can be held accountable.
We need to address issues of immunity for senior Syrian officials to ensure that no one is above the law.
We need Syrian refugees and asylum seekers, who are the first victims and witnesses of these trials, to feel welcomed, supported and encouraged to testify.
Until independent and fair justice is available in Syria, states that see themselves as champions of human rights can do a better job of providing legal recourse to those seeking justice.
The opinions expressed in this article are those of the authors and do not necessarily reflect the editorial position of Al Jazeera.