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Alternative Jurisdictional Bases for a Hybrid Tribunal for Syria

As we have discussed, one option under consideration to address the commission of grave international crimes during the conflict in Syria is the creation of a hybrid tribunal within the judicial system of one (or more) of the border states that have been most impacted upon by the Syrian war. Given the degree of domestic instability in Lebanon and Iraq, and the fact that Lebanon is already engaged in an experiment in international criminal justice in the form of the Special Tribunal for Lebanon (STL), the obvious candidates to host a hybrid tribunal are Jordan and Turkey.

Jordan now plays host to almost 600,000 Syrian refugees; many are housed in the world’s second largest refugee camp, which is designed to hold upwards of 130,000 people and is now Jordan’s 4th largest city. There are so many refugees in Jordan that Syrians make up at least 10% of the country’s population. For its part, Turkey is providing refuge to almost 750K Syrians. (The UNHCR has identified over 2,800,000 “persons of concern” in the Syria conflict). The risk that these massive refugee flows will further destabilize the destination countries and the region at large remains acute. At the same time, one can imagine a state such as Qatar, which has played a central role in funding the opposition and efforts at accountability including the production of a chilling report on the prevalence of custodial torture in Syrian detention facilities, might be willing and able to host a tribunal as well.

The Benefits of the Regional Hybrid Approach

There are a number of obvious benefits to the hybrid tribunal model in general and to locating any such tribunal in the region, particularly when it comes to the ease of accumulating information that may become evidence in future proceedings. Remaining close to Syria will also facilitate the integration of Syrian jurists, lawyers, and other staff into the work of the tribunal. This lends greater local ownership and thus legitimacy to the process and also contributes to building domestic capacity.

One additional reason to focus on neighboring states as potential hosts might not be so obvious. Such states may be empowered to exercise jurisdiction on multiple bases given the direct effects of the conflict on them. To be sure, the principle of universal jurisdiction (UJ)—which empowers all states to prosecute individuals accused of the commission of international crimes regardless of any nexus to the prosecuting state—is available to any state that is so inclined to move forward with prosecutions of individuals responsible for the commission of war crimes and crimes against humanity. Nonetheless, some states remain squeamish about advancing the UJ norm, perhaps all the more so in a new collective form. As such, there is an obvious utility to identifying states that can lawfully exercise domestic jurisdiction on other, less contentious bases.

Bases of Domestic Jurisdiction

By way of background, the exercise of domestic jurisdiction has traditionally been conceptualized along multiple dimensions: the location of the criminal act or its effects (territoriality), the identity of the perpetrator or victim (nationality), and the nature of the criminal act. This taxonomy can be traced back to the Harvard Draft Convention on Jurisdiction with Respect to Crime, promulgated in 1935 and available at 29 Am.J. Int’l L. 442 (Supp.1935). The Restatement (Third) of Foreign Relations Law of the United States at §402 built on this framework and identified the following bases of prescriptive jurisdiction:

Subject to §403 [enumerating reasonableness factors], a state has jurisdiction to prescribe law with respect to

(1) (a) conduct that, wholly or in substantial part, takes place within its territory [territoriality];

(b) the status of persons, or interests in things, present within its territory;

(c) conduct outside its territory that has or is intended to have substantial effect within its territory [effects];

(2) the activities, interests, status, or relations of its nationals outside as well as within its territory [nationality]; and

(3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests [protective].

Of course, it should be emphasized that this taxonomy is somewhat artificial when applied to real world situations, particularly involving international crimes. A criminal act may be transnational in execution and may involve citizens of different states as perpetrators and victims; as such, any domestic prosecution can involve multiple bases of jurisdiction. Indeed, in addition to universal jurisdiction, which is available to all states, states in the region can also credibly exercise domestic jurisdiction over events in Syria on the basis of either the effects or protective principles.

The Effects Doctrine

The effects doctrine—which traces its domestic roots to U.S. antitrust law (United States v. Aluminum Co. of America (ALCOA), 148 F.2d 416 (2d. Cir. 1945))—authorizes jurisdiction over extraterritorial conduct that causes adverse effects within the prosecuting state’s territory. Historically, the effects doctrine allowed for jurisdiction only when the conduct in question was clearly recognized as a crime, where the effects on the territory were substantial and direct, and where the exercise of jurisdiction would be consistent with international practice. These requirements have been relaxed in the formulation of the Third Restatement, which further allows for assertions of extraterritorial jurisdiction where there are either intended or actual effects within the territory of the prosecuting state.

The Protective Principle

In terms of its origins, the protective principle finds affinity in the inherent right of states to engage in acts in self-defense. It authorizes the exercise of penal jurisdiction over extraterritorial acts that threaten state security, endanger the political or territorial integrity of a nation, or undermine the operation of essential governmental functions. The theory of this basis of jurisdiction is that the prosecuting state cannot be expected to rely upon other states (e.g., the state on whose territory the perpetrator acted) to adequately protect its own interests. Indeed, with respect to the treason-type offenses, other states may not have enacted the necessary substantive law to prosecute acts of treason committed against another state. That said, some states will by treaty or other arrangement reciprocally protect each other’s interests (see, e.g., Article 305 of the Bustamante Code).

Crimes typically subject to protective jurisdiction harm the sovereign itself or impair vital governmental functions, although the principle is not limited to so-called political crimes (espionage, treason, and subversion). Additional crimes subject to protective jurisdiction include counterfeiting, immigration and other forms of fraud, trafficking or smuggling in illicit substances or persons, perjury, falsification of official documents, etc. It has been hypothesized that states should also be empowered to invoke this principle of jurisdiction for transnational environmental harm and that the category of sufficient state interests is not necessarily closed.

There is some indirect precedent for applying the protective principle in the war crimes context. Following World War II, occupation courts relied upon the protective principle to prosecute extraterritorial conduct against the interests of the prosecuting state. For example, in Joyce v. DPP ((1946) A.C. 347 (U.K.)), the defendant (a U.S. citizen carrying a fraudulently obtained British passport) was prosecuted for treason for providing aid and comfort to the enemy in the form of propaganda broadcast in Germany. In Kawakita v. United States (343 U.S. 717 (1952)), the defendant was prosecuted for treason for torturing Allied prisoners of war who were being forced to work in a Japanese factory. Likewise, Israel invoked the protective principle (among other jurisdictional grounds) to justify its abduction and prosecution of Adolf Eichmann (Attorney-General of the Government of Israel v Eichmann 36 I.L.R. 18 (1961)), even though the state of Israel did not exist at the time Eichmann acted.

The Rule of Reason

The Restatement §403 subjects the exercise of effects and protective jurisdiction to a “reasonableness” balancing test, which involves a consideration of a number of factors, including:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted.

(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.

In the event that these factors generate conflicting outcomes when concurrent jurisdiction exists, the Restatement expects states to evaluate their relative interests and defer, as a function of comity, to the state with the greater interest in prosecution. It should be noted that the Restatement does not subject universal jurisdiction, which is separately defined at §404, to this rule of reason interest balancing.

Jordan or Turkey & the Protective or Effects Principles

Many of the factors above attest to the reasonableness of Jordan or Turkey exercising jurisdiction over crimes resulting in the deportation or flight of Syrian refugees, and all attendant consequences, under either an effects or protective theory of jurisdiction. The underlying crimes in question are well-established, and the Syrian regime (and any individual defendants) would have no basis to object to their extraterritorial prosecution. In any case, there are unlikely to be any competing exercises of jurisdiction in light of the continued impunity in Syria and the anticipated multilateral support for any regional tribunal. As the international community considers the hybrid tribunal option, the protective and effects principles offer grounds to vest jurisdiction in those states most harmed by the conflict in neighboring Syria.

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About the Author

is the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department. Follow her on Twitter (@BethVanSchaack).