Justice for Syria in Swedish and German Courts: Possibilities and Challenges
By Maria Elena Vignoli |vignolm@hrw.org
For the past six and a half years, the world has witnessed atrocities committed in Syria in a climate of impunity by all parties to the conflict. The route to the International Criminal Court (ICC), the key international forum for accountability, is currently blocked. In 2014, Russia and China vetoed a UN Security Council resolution that would have given the ICC prosecutor a mandate to investigate and prosecute serious crimes committed in Syria, and there are no indications that they would vote differently today. At the same time, with the conflict still raging, the option of bringing proceedings before Syrian courts is not viable.
In this bleak landscape for accountability, some small steps toward justice are under way in Europe. Several countries are investigating serious crimes committed in Syria since 2011. These investigations are made possible by the international law principle of universal jurisdiction, which allows authorities to pursue certain crimes because of their gravity, regardless of where they were committed, or the nationality of either the victim or the suspect. In addition, the large number of Syrians who have come to Europe, mainly as refugees, since 2015 means that victims, witnesses, material evidence and even some suspects are now within the reach of the European authorities.
Efforts in Sweden and Germany
Human Rights Watch recently released a report on efforts in Sweden and Germany to pursue justice for grave crimes in Syria. These are the first two countries to have successfully prosecuted and convicted individuals for serious crimes in Syria, as well as the largest recipients of Syrian asylum seekers in Europe.
In addition, Sweden and Germany have good systems to pursue these cases, including (a) comprehensive legal frameworks that allow the prosecution of serious crimes, even if committed abroad. (b) specialised war crimes units investigating and prosecuting these crimes and (c) previous experiences with such cases, including those relating to atrocities committed in the Western Balkans and Rwanda.
Both countries have ongoing structural investigations on grave crimes in Syria. These are broad preliminary investigations, without specific suspects, designed to gather evidence related to potential crimes that can be used in future proceedings in the investigating country or elsewhere. Sweden and Germany also have several ongoing investigations against specific individuals for serious crimes in Syria.
Seven war crimes cases have been brought to trial (three in Sweden and four in Germany). These cases are not representative of the patterns of violations in Syria as they have nearly all been prosecutions of fighters from the Free Syrian Army and other non-state armed groups opposed to the government, ISIS and Jabhat al-Nusra. Only one case has been brought against a low-level member of the Syrian army.
Challenges
Authorities in both countries face difficulties that have most likely affected the number and type of cases brought to trial so far. Some are inherent to accountability efforts for international crimes at the domestic level, and solutions to overcome them are often beyond the reach of authorities. For example, these cases are usually brought against people in the territory of the prosecuting country and authorities cannot control whether certain individuals are physically present in their country at a specific time.
These inherent challenges are compounded, in the case of Syria, by an ongoing conflict in which there is no access to crime scenes. Authorities investigating these cases in both countries have been compelled to turn elsewhere for information, including from Syrian asylum seekers and refugees, counterparts in other European countries, UN entities, nongovernmental groups involved in documenting atrocities in Syria, and open-source material.
But Sweden and Germany are encountering challenges in their engagement with Syrian asylum seekers and refugees on their territory. These are people who fled horrible crimes and are often afraid to come forward publicly because they fear for the safety of their loved ones back in Syria. Many of them also find it difficult to trust the government and the police, as a result of their negative experiences with the authorities back home.
Finally, Syrians in Sweden and Germany often do not know that it is possible for them to contribute to, and even participate in, these proceedings and are unaware of the mandate and limits within which authorities in both countries are working. This lack of information can generate unrealistic expectations about how they might contribute to prosecutions and the possible outcome of these cases, which may fuel a sense of frustration among Syrian asylum seekers and refugees.
Areas for improvement
While Sweden and Germany are taking active steps to address some of these issues, more can be done.
First and foremost, the governments of both countries should provide the specialised war crimes units within their law enforcement and prosecution services with the resources necessary to carry out their difficult task. Swedish and German authorities should improve their outreach efforts to Syrians on their territory, including by translating relevant information into Arabic and distributing it on social networking platforms commonly used by Syrians in Europe.
Finally, both countries should consider legal reforms to improve the framework for the prosecution of grave international crimes. This includes making torture a standalone criminal offense in line with article 1 of the UN Convention Against Torture to criminalise acts of torture committed abroad without necessarily categorising them as war crimes or crimes against humanity.
Conclusions
These proceedings are important steps toward justice for Syrians and a beacon of hope for victims who have nowhere else to turn. However, their limited nature highlights the need for a more comprehensive justice process to address the ongoing impunity in Syria. To fill this gap, a long-term, multi-tiered, cross-cutting approach is needed that should include, in addition to proceedings under universal jurisdiction, judicial mechanisms at both the international and national level.
Maria Elena Vignoli is the 2016-17 Sandler Fellow with the International Justice Program. Her research focuses on accountability for Syria and Iraq through universal jurisdiction cases in Europe. She previously worked for the Office of the Prosecutor at the ICC and the ICTR and spent time in Eastern DRC investigating possibilities for truth and reconciliation in the Ituri district. She holds a law degree from the University of Bologna, an M.A. in human rights and genocide studies from Kingston University, London and an LL.M. from Columbia Law School.