Samir Ousman al-Sheikh was about to board a one-way flight from Los Angeles to Beirut when his trip came to a sudden stop. Earlier this month, agents from the U.S. Department of Homeland Security arrested al-Sheikh, who has been charged with immigration fraud for lying on his visa and U.S. citizenship applications.
Prosecutors alleged that the 72-year-old ran Syria’s infamous Adra Prison, located on the outskirts of the capital Damascus, from 2005 to 2008, and that from July 2011 to approximately July 2012, he served Syrian President Bashar al-Assad as the Governor of Deir Ez-Zour, a site of violent crackdowns against anti-government demonstrations, as the Syrian civil war began to unfold.
The immigration charges are a welcome start, but there is more that U.S. prosecutors can and should do to hold al-Sheikh fully to account under the Torture Act and the Justice for Victims of War Crimes Act. Additional investigative resources would be needed to assess the entire range of al-Sheikh’s potential criminality. Still, charges of torture (while he headed Adra Prison) and war crimes (as Governor and Head of the Security Committee of Deir Ez-Zour, at least from February 2012 when the Syrian armed conflict arguably commenced – see below) are both credible lines of inquiry.
Against this backdrop, and given that al-Sheikh has been described as the “highest-level Assad regime official arrested anywhere in the world” it would amount to a deep injustice for the victims and survivors his crimes, and a dereliction of stated U.S moral commitments to international justice (and, potentially international legal obligations), if al-Sheikh’s ultimate charge sheet simply reflected immigration fraud.
Historically, such a mismatch (see page 22 of this article) between violations and charges has been the typical result when the U.S. government has arrested perpetrators of atrocities. But, since the fall of 2022, as Congress grew concerned about accountability for Ukrainian victims of Russian atrocities, this trend has begun to shift. Al-Sheikh’s arrest provides an opportunity for this shift to be harnessed and expanded with further changes to both U.S. law and practice.
Legal Opportunities and Constraints
Should U.S. prosecutors decide to pursue full accountability in al-Sheikh’s case, there are several, non-exclusive legal pathways to explore. First, and most straightforward, would be to consider a case under the Torture Act. Passed by Congress in 1994, the Torture Act grants jurisdiction over torture, attempted torture, or conspiracy to commit torture outside of the United States including when “the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.” Based on the factual allegations from the immigration fraud indictment, it appears that the Torture Act would cover alleged acts of torture committed during al-Sheikh’s time as the head of Adra Prison.
A second line of investigation worth pursuing relates to the possibility of war crimes charges. Under the original war crimes law that Congress passed in the 1990s, U.S. officials could only prosecute war crimes if either the victim or the perpetrator was a U.S. national or a member of the U.S. armed forces. Recently, however, the Justice for Victims of War Crimes Act closed this loophole by ensuring that prosecutors can target perpetrators of war crimes who are present in the United States, regardless of the perpetrator or victim’s nationality or where the crime took place. The addition of this “present in” jurisdictional hook means that al-Sheikh could potentially fall within the legislation’s reach.
Pursuing a war crimes prosecution is not without obstacles. First, some question whether the Justice for Victims of War Crimes Act can cover conduct that took place before the Act became law (see, for example, Michel Paradis’ argument that such prosecutions would violate the Ex-Post Facto Clause of the U.S. Constitution). This concern, however, may be surmountable. As Edgar Chen explained during the Senate hearing on the legislation, such jurisdictional amendments “do not declare unlawful what had been lawful before. They merely define U.S. domestic jurisdiction over crimes that are universally unlawful and already prohibited.” If al-Sheikh were to litigate the issue, and a court adopted Chen’s reasoning – which we think is the correct one – then the court would have jurisdiction over such a prosecution.
Second, war crimes charges can only be brought in the context of an armed conflict. Experts differ on when exactly the current conflict(s) in Syria began, but the Independent Commission of Inquiry on Syria, established by the U.N. Human Rights Council, concluded in its August 2012 report that “a non-international armed conflict developed in the Syrian Arab Republic during February 2012 which triggered the applicability of Common Article 3 of the Geneva Conventions” (Annex II, para. 12).
The U.S. war crimes statute enables prosecution of so-called “grave breaches” of Common Article 3 of the Geneva Conventions in the context of a Non-International Armed Conflict (NIAC), specifying such breaches to include murder, torture, cruel or inhumane treatment, and intentionally causing serious bodily injury. In all cases, a conspiracy to commit such crimes falls within the statute. What this means in relation to al-Sheikh is that investigators would need to delve into his conduct as Governor of Deir Ez-Zour from February 2012 onwards.
Critically, it seems that al-Sheikh was not only Governor, but also head of the Deir Ez-Zour Security Committee, reportedly through 2013. Such security committees were established throughout Syria by Assad early in the uprising, coordinating police, military and intelligence services, in the implementation of Assad’s brutal response to dissent. Investigators should explore whether there is evidence that in his role as the head of the Security Committee, al-Sheikh conspired, from February 2012, to commit war crimes that fall within the remit of the War Crimes Act (see here paras. 63-69). The Syrian Network for Human Rights – an independent human rights organization which monitors and documents human rights violations in Syria – is already urging prosecutors to assess al-Sheik’s responsibility for war crimes of murder and torture committed in Deir Ez-Zour in this period.
Finally, al-Sheik’s case highlights the ongoing gap in U.S. legislation with respect to crimes against humanity. Despite over a decade of effort to change this, the United States still does not have legislation that enables domestic prosecution of crimes against humanity outside of torture and war crimes. The conflict in Syria did not reach the required intensity and duration to be classified as a NIAC until, arguably, February 2012. This means that absent crimes against humanity legislation, al-Sheik’s potential criminality, including, for example, conspiracy to commit murder and torture, in the seven-month period from when he was appointed Governor of Deir Ez-Zour in July 2011 until the start of the NIAC cannot be accounted for under U.S. law.
Immigration Fraud Charges: Start Point Not End Point
Arresting international criminals for immigration fraud is the U.S. government’s modern day equivalent of arresting Al Capone for tax evasion. Securing the arrest of someone like al-Sheikh is an excellent first step in the pursuit of justice, but it should not be mistaken for justice itself.
Addressing this mismatch advances the goals that serve as the bedrock of criminal law. Legal experts have coined the term “fair labeling” – the idea that the crimes charged should match the conduct alleged. This is important for defendants, but it also matters for victims and survivors. Seeing someone who was responsible for your torture, or disappearing a loved one, face deportation from the United States for lying on their immigration papers is categorically different from seeing them prosecuted for the atrocities they committed. Also at stake is the power of deterrence, the idea that facing consequences like hefty jail sentences will stop criminal activity, or at least give war criminals pause before they act. That message of deterrence is reduced with the potential maximum penalty for an immigration violation of the type applicable in al-Sheikh’s case is 10 years, compared to the potential sentence of life imprisonment (or, in particular circumstances) the death penalty for a war crimes conviction.
When the U.S. government deports defendants suspected of committing international crimes, on immigration charges, it works to ensure that they will face prosecution for these crimes in the country to which they are sent back. Sometimes this idea is effective and facilitates the principle of justice being served locally, close to survivors and families of the victims. Nedjo Ikonic, a Commander during the genocide in Srebrenica, for example, served time for visa fraud in the United States before being deported to face trial on genocide charges in Bosnia.
Too often though, the impunity gap remains open. This happens when the home country of the defendant is unable or unwilling to prosecute, and there is no international court with jurisdiction to step into the void. Both of these limits are in play with respect to al-Sheikh. With the Assad regime still in place, there is no prospect of prosecution inside Syria. Moreover, because Syria is not a party to the Rome Statute, and the U.N. Security Council has not made a referral (an unlikely outcome with Russia, and its veto power, as a key Syrian ally), the International Criminal Court also lacks jurisdiction over al-Sheikh’s crimes.
Some may argue that this is a situation where the U.S. could save its own prosecutorial resources and extradite al-Sheikh to one of the European nations, like Germany or France, that have been pursuing Syrian accountability through universal jurisdiction. Certainly this would be preferable to deporting him to Syria, and it would satisfy U.S. international legal obligation to “extradite or prosecute” core international crimes. There are, however, at least two reasons for the U.S. government to take on his prosecution itself.
First, Mohammad Al Abdallah (and presumably others like him, anonymized in the indictment), who provided crucial evidence against al-Sheikh, is a refugee in the United States. For the foreseeable future, the United States is his home. As Al Abdallah disclosed on X when the indictment was unsealed, he provided U.S. investigators with his testimony. He should be able to see the fruits of that effort brought to bear without having to travel to a foreign country.
Second, it would behoove U.S. prosecutors to develop expertise in prosecutions stemming from atrocities committed throughout Assad’s long dictatorship. Al-Sheikh will not be the last of Assad’s loyalists to seek safe haven in the United States, especially given Europe’s growing reputation for using universal jurisdiction to prosecute Syrian atrocities. Prosecuting State-sponsored crimes, before and/or during the Syrian conflict, requires a significant upfront investment in understanding the relevant chains of command and communication flows. But that investment pays off and becomes easier with each additional case.
Strengthening Commitments
U.S. authorities cannot identify potential perpetrators of Syrian atrocities trying to evade justice on U.S. soil without the trust and courage of Syrian survivors like Al Abdallah. If the U.S. government wants to sustain and strengthen its commitment to pursue accountability for the most serious crimes of concern to the international community, then it must honor the victims and survivors of Syrian atrocities by pursuing full and meaningful accountability from those who have done irrevocable harm.