On 23 April 2020, a court in Koblenz, Germany initiated a lawsuit under the principle of universal jurisdiction for two former Syrian government officials charged with committing crimes against humanity. This is the world’s first criminal trial of Syrian state agents for atrocities perpetrated during the country’s ongoing conflict.
In the indictment, Anwar Raslan was pointed out as a senior official of the Syrian General Intelligence Directorate, one of the four main intelligence agencies of Bashar al-Assad’s government. Raslan allegedly perpetrated torture, rape and sexual violence, against at least 4,000 detainees at the al-Khatib detention facility located at Damascus between April 2011 and September 2012. German Prosecutors argue that Raslan’s public official position made him a direct representative of Syrian government (as well as Bashar al-Assad). Also, Eyad al-Gharib, the second accused, allegedly aided and abetted torture as a member of the Syrian General Intelligence Directorate. Accordingly, prosecutors will try to prove their accusations including Raslan’s role in coordinating systematic torture and murder.
Throughout nine years of conflict in Syria, international law has been constantly violated by different actors due to ongoing proxy war in the Syrian territory; and thus, there have been assertions regarding war crimes and crimes against humanity voiced by various state and non-state actors including the United Nations.
In the Article 8 of the Statute of the International Criminal Court (“ICC Statute”), war crimes are defined as “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character” . Crime against humanity, on the other hand, is described in the ICC Statute Article 7 as “a widespread or systematic attack directed attack against any civilian population, with knowledge of the attack from governments and civilians”. The important difference between two offenses is war crimes should always occur in the context of armed conflict, either international or non-international whereas crime against humanity refers to actions involving the disgrace or humiliation of individuals and might commit even in a time of peace.
Moreover, under the principle of universal jurisdiction, perpetrators of grave international crimes can be prosecuted domestically irrespective of perpetrators’ and/or victims’ citizenships or where crimes were committed. Countries, which have ratified international conventions to use universal jurisdiction for war crimes committed in international armed conflict (Geneva Conventions of 1949), apartheid (International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973), torture (The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984), and enforced disappearances (International Convention for the Protection of All Persons from Enforced Disappearance of 2006). Indeed, universal jurisdiction is the power of the national judicial systems of a state to investigate and prosecute limited crimes, regardless of the place of the affirmed crime, accused’s citizenship, country of residence, or any other relation. As a party to the relevant international conventions, national courts of Germany can investigate and prosecute war crimes, crimes against humanity, forced disappearances and genocide in Syria even if there is no geographical, social, and political link.
Even though we believe that such prosecutions should be welcomed by the international society, they still only provide a partial solution to the lack of domestic legal accountability in Syria. The Security Council should immediately refer the situation in Syria to the International Criminal Court as it did for the war crimes that took place during the conflicts in the Balkans (by establishing the International Criminal Tribunal for the former Yugoslavia in 1993) and for Rwandan genocide (by establishing the International Criminal Tribunal for Rwanda in 1994).