Further to Ryan Goodman’s recent post on the United States’ welcome support for the German request for the extradition of a high-level Syrian suspect, I have just finished a paper canvassing the domestic suits involving Syria proceeding in U.S. courts that tracks this and related cases involving events in Syria. The draft is available here.
Ideally, international criminal law cases would go forward in the domestic courts in the impacted country itself. This proximity to the events in question ensures greater societal visibility to maximize the expressive function of the law, tap into the potential of such proceedings to help instantiate the rule of law, and prevent a recurrence of violence. On a practical level, local proceedings also facilitate access to evidence and for victims. All that said, where courts in the affected country are foreclosed, as is the case in Syria, legal processes in the courts of other countries offer a second-best alternative.
The ability of domestic courts to adjudicate international crimes depends, of course, on having in place the requisite legal framework with respect to both jurisdiction and substantive law. Nations can apply their criminal laws to events that happen extraterritorially on a number of grounds. These include principles of nationality, passive-personality, the effects doctrine, and the protective principle. When it comes to international crimes, most important has been the principle of universal jurisdiction. Since the 1990s, this concept has evolved: blossoming at first, then withering slightly, and now experiencing new growth, nurtured in part by the imperative to prosecute the crimes committed during the Syrian war. Although this phenomenon once generated hyperbolic antagonism, the exercise of extraterritorial jurisdiction over international crimes is now a regular feature of international affairs, as domestic and regional legal systems reorder themselves to facilitate the investigation and prosecution of crimes with a transnational dimension. The ability and responsibility to prosecute international crimes thus exists across jurisdictions.
In the Syrian context, European and regional domestic courts have emerged as fertile grounds for justice given the failure of the ICC referral effort, the lack of multilateral support for a hybrid or ad hoc tribunal devoted to Syria, and the perceived legal impediments to building international justice institutions outside the Security Council. The Syrian Commission of Inquiry has expressly called upon states to utilize universal jurisdiction to “investigate and prosecute persons and groups implicated in egregious violations.” Individual states have begun to oblige.
A number of domestic trials involving events and actors in Syria are already underway on the basis of diverse principles of jurisdiction and featuring a range of criminal charges and fact patterns. These cases fall into two general buckets. One set of cases involves foreign fighters who have returned home to face charges under anti-terrorism legislation or laws criminalizing their participation in foreign wars. States are highly motivated to prosecute such cases because they perceive these defendants as posing an acute national security threat, both from the perspective of bringing the violence home but also as potential recruiters and radicalizers. In this regard, the Paris attacks of November 2015, among others, stand as a stark reminder of the risk posed by “weaponized” foreign recruits. In addition, by virtue of Security Council Resolution 2178, states are under U.N. Charter-based duties to comprehensively address the phenomenon of foreign terrorist fighters. Many states have accordingly enacted legislation enhancing their ability to prosecute terrorism, raising concerns among rights groups, advocates, and our own Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, about the misuse of such laws.
A second subset of cases involves individuals who stand accused of committing international crimes stricto sensu. These latter prosecutions are enabled by the incorporation of international criminal law into domestic penal codes, a global legislative trend occasioned in part by the ratification of the Rome Statute (even though that treaty technically does not require domestic incorporation of ICC crimes). Although most domestic cases involving Syria feature some combination of these two sets of criminal charges, sometimes states are only able to resort to immigration remedies for lack of evidence or other legal impediments. Facilitating these cases is the proliferation of special prosecutorial units dedicated to investigating international crimes; global mutual legal assistance arrangements; the formation of joint investigative teams focused on the prosecution of transnational crimes; training programs dedicated to investigating international crimes; and Europe-wide institutions such as EUROPOL, the European Arrest Warrant (EAW), and the Eurojust Genocide Network. Domestic prosecutors have also benefited from institutional learning and assistance from non-governmental investigative efforts that render these cases less daunting.
In addition to these criminal cases, and important in their own right, a handful of civil cases are also moving forward, particularly in the United States, including against the sovereign state of Syria. The latter cases offer victims the opportunity to shape justice without having to work through the national prosecutorial authorities or the criminal justice system.
A jurisprudential survey of Syrian cases proceeding in domestic courts yields a number of interesting observations and trends in prosecutorial practice.
- First, the cases skew towards terrorism, as opposed to atrocity crimes, charges. Given the broad reach of material support for terrorism statutes, these crimes are easier to prove with available evidence and also respond to sovereign national security priorities.
- Second, most of the existing indictments involve single incidents (rather than large operations or systemic abuses). To the extent that war crimes charges are forthcoming, they tend to involve relatively minor charges, often for lack of evidence of more serious crimes that are implied by the proof at hand. These include crimes such as desecrating a corpse, rather than the more serious charges associated with targeting civilians, custodial abuses, or the use of chemical weapons. States have also been creative about coupling these international law-based charges with ordinary penal charges and enhancements, such as unlawful weapons use. Together, the types of substantive charges being filed are more easily proven, often through the defendant’s own social media profile or phone records, than other war crimes or crimes against humanity.
- Third, none of the cases that have moved forward involve sexual violence charges, even though these crimes have been legion in Syria (especially in detention centers) and documentation centers have compiled large quantities of evidence.
- Fourth, from the perspective of trends in the defendants involved, most indictments tend to focus on low-level perpetrators, rather than the architects of violence or those most responsible.
- Fifth, and also troubling, is that the vast majority of cases that have moved forward have targeted members of opposition groups—including ISIL members—rather than Syrian government personnel. Senior figures, and regime actors, have simply not traveled to Europe or elsewhere that these cases are being pursued. As a result, investigations against Syrian government perpetrators have remained aspirational works in progress. That said, national authorities are increasingly organizing structural investigations on the conflict and its various armed groups, which allow them to move quickly against particular individuals as soon as they are within reach. And, as discussed in Ryan’s post, indictments have increasingly been issued against more senior regime figures who have been located; it remains to be seen whether extradition will be forthcoming.
- Sixth, as is apparent from the available evidentiary records, many of these cases are benefiting from the sophisticated documentation work of non-governmental organizations that are sharing their holdings with national authorities. These groups are compiling dossiers on potential defendants, producing memoranda on key background inquiries (such as the chain of command), coding their holdings for ease of search, and authenticating digital and documentary evidence.
- Seventh, in many European systems, Syrian lawyers and experts are intimately involved in conceptualizing, encouraging and proving these cases—attesting to the emergence of a new model of hybridity.
- Eighth, and finally, the testimony of asylum-seekers and others who have sought refuge in the prosecuting state has also proven crucial, attesting to the importance of prosecutorial authorities building trust and genuine connections with Syrian diaspora communities. These migrants are crucial sources of evidence and often identify perpetrators among their ranks.
All told, while important, these domestic proceedings remain episodic and opportunistic. Given the investigatory and prosecutorial realities, the cases in the aggregate are not representative of the full scope of the international crimes being committed in Syria. Although these results are disappointing if the goal is comprehensive accountability, these cases are establishing important legal precedents, providing domestic authorities with valuable experience prosecuting international crimes, offering a measure of justice to victims, and punishing individuals accused of horrific acts. In addition to putting a dent in impunity and denying safe haven to perpetrators, cases in foreign courts promote stability by preventing victims and victim groups from taking justice into their own hands in their places of refuge. Even singular cases can be highly salient and can exert a multiplier effect, signaling that justice is possible and helping advocates overcome political resistance elsewhere.
Finally, the availability of this accountability outlet, notwithstanding its limitations, has also helped to galvanize and sustain civil society organizations during the seemingly endless conflict whose energies might wither without some evidence of tangible impact. When situated against the obstacles to exercising international jurisdiction, these results should be celebrated, since domestic courts have emerged as the only potential forum to administer justice to date—one case at a time.