Universal Jurisdiction: Jurisdictional Imperialism or Syria’s Only Hope for Justice?
Universal jurisdiction allows a court to try non-citizen individuals for certain crimes committed outside that nation’s border. While this can help provide justice and deter future human rights violations, it may also be used by European countries as a form of “jurisdictional imperialism.” As several European countries prosecute individuals related to the conflict in Syria, one might ask: is this imperialism or a form of justice?
Photo: Pixabay.
BY: Dana Ahdab, STAFFER
On February 24, 2021, Eyad al-Gharib, a former Syrian intelligence officer, was convicted by a German court of complicity in crimes against humanity perpetrated in Syria. Before defecting from the regime in 2012, Gharib helped arrest protesters and deliver them to a detention center in Damascus, where the detainees were subjected to systematic torture. Gharib’s conviction arises out of the first trial of an individual linked to the regime of President Bashar Al-Assad.
Anwar Raslan, a high-ranking former Syrian intelligence officer, currently remains on trial in Koblenz, Germany. Raslan, who was in charge of the infamous al-Khatib prison in Damascus, is suspected of being involved in the torture of at least 4,000 people between 2011 and 2012. He is also charged with 58 counts of murder, along with rape and sexual assault charges. If convicted, Raslan faces life in prison.
Both Gharib and Raslan left Syria and were granted asylum in Germany, where they were arrested in 2019. Neither man is a German citizen, nor did their alleged crimes take place in Germany. German prosecutors were able to bring claims against both in German courts under the principle of universal jurisdiction.
What is Universal Jurisdiction?
The principle of universal jurisdiction comes from the idea that some crimes are too inhumane to go unpunished, regardless of where, or by whom, the crime was committed. Under universal jurisdiction, a nation’s courts can try non-citizen individuals for crimes that were committed outside that nation’s borders. These crimes include crimes against humanity, war crimes, torture, and genocide. The perpetrators of these crimes are considered hostes humani generis (“enemies of all mankind”). Supporters of universal jurisdiction view the principle as a way to bring perpetrators of crimes against humanity to justice, deter future human rights violations, and promote social reconciliation.
One of the most well-known cases of universal jurisdiction was the arrest of General Augusto Pinochet, the former dictator of Chile, in 1988. Pinochet was arrested in London under a Spanish arrest warrant charging him with human rights crimes under the principle of universal jurisdiction. A British court ruled that Pinochet could be extradited to Spain to stand trial for his crimes, despite Pinochet’s claim of immunity. Although Pinochet did not stand trial in Spain—as it was discovered by a medical examination that he did not have the mental capacity to stand trial—his case, brought under universal jurisdiction, was seen as a “wake-up call to tyrants everywhere.”
Critics of universal jurisdiction argue that the prosecution of cases under this principle is a form of “jurisdictional imperialism” because it usually involves North American and European courts extending their jurisdiction over individuals who come from developing countries. An imbalance arises where former colonial powers prosecute crimes that occurred in their former colonies while refusing to scrutinize their own past crimes. This imbalance discredits a principle meant to be truly “international.”
Universal Jurisdiction Over Syrian Individuals
To date, all the claims that have been brought against individuals connected with the Syrian conflict under the principle of universal jurisdiction have been brought in European countries including Germany, Austria, Sweden, and France.
The reason for Europe’s prominence has to do with several factors. First, European countries tend to have an especially broad definition of universal jurisdiction and many Western European countries have integrated the principle into their criminal law systems. Second, European countries tend to have both the resources and motivations to prosecute crimes under universal jurisdiction, partially because they are actively encouraged by decisions made by the European Union. Third, Syrian victims and witnesses of crime have flocked to the continent. Some of them have been “instrumental in providing evidence of war crimes to prosecutors.”
Other Forms of Justice Over Syrian Individuals
At this time, it seems that bringing claims under universal jurisdiction is the only way to bring perpetrators of crimes against humanity in Syria to justice. Recourse to domestic courts has not yet been feasible considering these individuals have not been prosecuted for their crimes in Syrian courts.
Recourse to international courts is not much better. Since 1945, international war crimes tribunals have been created to address crimes against humanity committed during wartime. Some mechanisms, like The International Criminal Tribunal for Yugoslavia and The International Criminal Tribunal for Rwanda, were created by the United Nations. There has not yet been a war crimes tribunal created for Syria.
Additionally, recourse to the International Criminal Court (ICC) has not yet been possible. Syria is not a party to the ICC, meaning that the court does not have jurisdiction over Syria. For the ICC to have jurisdiction over Syria, the matter would have to be referred by the UN Security Council. While the United Nations has made numerous attempts to refer the matter for ICC jurisdiction, each attempt has been vetoed by China and Russia since 2014.
While it has its flaws, the principle of universal jurisdiction seems to be the only way to bring a “modicum of justice” to the victims of conflict in Syria—at least for now.
Dana Ahdab is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Georgetown University’s School of Foreign Service in 2020, with a B.S.F.S. in International Politics.