On Tuesday, the United States government issued a statement supporting Germany’s request to Lebanon to extradite a high-ranking Syrian official accused of war crimes and crimes against humanity. Former officials from the Obama and Trump administrations spoke to me about the significance of this development.
By taking this step, the United States placed itself on the record in support of Germany’s exercise of a form of “universal jurisdiction,” a move that marks a significant development in U.S. legal practice. Under section 1 of the 2002 Code of Crimes Against International Law, German courts are allowed to exercise criminal jurisdiction over an accused person who has committed war crimes, crimes against humanity, or genocide—regardless of where the crimes were committed, regardless of whether the accused has any connection to Germany, and regardless of the nationality of the victims at the time the crimes were committed.
Back in June 2018, German prosecutors issued an international arrest warrant for General Jamil Hassan, head of the Syrian Air Force Intelligence Directorate and a long-time member of Syrian President Bashar al-Assad’s inner circle.
The warrant is based on a criminal complaint by a human rights organization, the European Center for Constitutional and Human Rights, filed in November 2017 on behalf of nine Syrian refugees living in Germany. The organization’s submission to the Office of the German Federal Public Prosecutor alleges crimes involving widespread and systematic killing, persecution, torture and sexual violence committed between September 2011 and June 2014 in five Syrian Air Force Intelligence Branches.
In February 2019, Al Jazeera reported that General Hassan was in Lebanon to receive medical treatment and that German authorities had asked Lebanon to extradite him to face trail in Germany. At the time, Lebanon’s Interior Ministry denied receiving any notification from Interpol. The U.S. State Department’s public statement is also a confirmation that a formal request was conveyed to the Lebanese authorities.
But the most significant feature of the U.S. government’s statement is its support for Germany’s criminal process in this case.
“The United States would welcome any decision by the Government of Lebanon that would facilitate the lawful extradition of Syrian General Jamil Hassan to Germany, in compliance with the Government of Germany’s extradition request and consistent with applicable law,” the State Department said in a statement on its website.
German federal prosecutors have been pursuing other senior Syrian government officials as well, and also opened a criminal investigation in pursuit of members of ISIS for crimes committed in Syria and Iraq.
Stanford Law Professor and former Deputy to the U.S. Ambassador-at-Large for War Crimes, Beth Van Schaack told me, “Germany’s war crimes unit has been working in collaboration with its counterparts in other countries such as France to bring justice to the victims of atrocities in Syria. We have seen similar initiatives crop up in other parts of Europe. It is laudatory for the United States to support these cooperative efforts, which remain one of the only avenues for bringing a measure of accountability for Assad’s crimes.”
General Hassan has been in the United States and European Union’s legal crosshairs for years. In 2011, the United States imposed financial sanctions on him for his involvement in the violent crackdown of Syrians.
In response to the United States support for Germany’s extradition request, Yale University law professor and former State Department Legal Adviser Harold Koh told me in an email, “By all accounts, Hassan is a shameless war criminal, torturer, and enemy of all humankind. The only meaningful way to deter such heinous acts as his is to support his accountability—as the US has done here—wherever he may be apprehended and tried, including in the national courts of a close, law-abiding democratic ally.”
Germany’s exercise of criminal jurisdiction for crimes committed in Syria is an effort that other states have undertaken as well, including against alleged members of ISIS. In May 2018, French authorities issued an international arrest warrant for three senior Syrian government officials, including General Hassan.
“The justice deficit for the atrocities of the Assad regime is self-evident, and in the absence of realistic alternatives the German Federal Prosecutor’s Office has stepped up,” said Todd Buchwald, former State Department Ambassador for Global Criminal Justice and now a fellow at the Woodrow Wilson Center. He went on to note that implementation of universal jurisdiction authority under a country’s domestic law requires discretion and judgment, but said that the Germans have proceeded with principle, persistence, and professionalism.
Van Schaack also spoke about the practices of the German authorities. “The exercise of universal jurisdiction is making a comeback, and so far the German model represents one of the most responsibly managed, highly professional exercises of this form of criminal justice especially when used in directed manner to address the world’s most heinous crimes,” she said.
Former administration officials pointed to the significance of the U.S. statement.
Columbia University law professor Sarah Cleveland, who served as Counselor to the Legal Adviser at the Department of State and until 2018 as the U.S. Member on the United Nations Human Rights Committee said, “The extreme scale of atrocities in Syria and the absence of other avenues for accountability in this case demonstrate why universal jurisdiction for such crimes is important and should be supported by the United States. The United States’ support for Germany’s extradition request is therefore an important milestone for international justice.”
In an email, Brian Egan who served as Legal Adviser to State Department and Legal Adviser to the National Security Council told me, “I assume that the US would hang a lot on the fact that this case involved allegations from refugees currently in Germany, so that this isn’t a ‘pure’ assertion of universal jurisdiction. It is nonetheless noteworthy that the US is taking such a strident public position in favor of international legal accountability for these atrocities.”
In 2010, the United States Mission to the United Nations made a four-page submission to the United Nations expressing support for the principle of “universal jurisdiction,” in which the only link was the presence of the accused perpetrator in the territory of the state prosecuting the case. The 2010 statement concluded:
“[T]he United States believes that such jurisdiction, when prudently applied, with appropriate safeguards against inappropriate application, and with due consideration for the jurisdiction of other states, can be an important tool for ensuring that perpetrators of the most serious crimes are brought to justice and that the United States does not provide a safe haven for such individuals.”
The 2010 statement referred to U.S. statutes and prosecutions involving acts of torture, terrorism, and piracy.
Ambassador Buchwald also served as Special Coordinator for Global Criminal Justice at the State Department until July 2017.
“The basic principle that those responsible for atrocities must be held to account has deep American roots, and there is no logical reason that support for the principle should divide along partisan political lines. The Administration’s support for Germany’s action may surprise some but in some ways is inevitable,” Buchwald said.
The full two-paragraph statement by the U.S. Department of State on March 5, 2019 follows: