Analysis

Why Accountability in Foreign Courts for Syrian War Crimes Matters

The Syrian War may be the most well-documented conflict in history. Civilians have recorded countless hours of war crime footage and regime defectors have smuggled out thousands of documents and photos detailing systematic regime abuses. Video, photo, document, social media, and witness narratives include evidence of enforced disappearances, systematic torture of prisoners, extrajudicial executions, rape and other gender-based violence, siege and starve techniques, the targeting of civilian facilities like hospitals, the indiscriminate use of weapons on civilians including barrel bombs, the use of chemical weapons, forced displacement, and denial of essential services like water. Despite this, justice for these crimes in international courts is nearly impossible. Syria is not party to the International Criminal Court (ICC) and Russia has vetoed attempts to bring Syria to the ICC for these crimes. While there is another attempt by lawyers to refer Syria to the ICC via Jordan, in light of the fact that Syrians were forcibly displaced to Jordan, there has been little movement on this front.

The impossibility of justice in Syrian courts and the unlikely prospects before the ICC have given rise to Syrian regime war crimes prosecution in foreign third party courts, often through the principle of universal jurisdiction. In Germany, the prominent trial of two mid-level regime officials on charges of crimes against humanity for their role in torture of Syrian prisoners is underway, a result of previous structural investigations and other efforts. A former regime official has already been sentenced in Sweden for violating the dignity of the dead based on social media evidence. The Caesar photos, which show the systematic torture of thousands of Syrians in regime prisons, are currently being used for investigations in Germany, France, Sweden, and Norway. In some situations, like the Dabbagh case in France and the Marie Colvin case in the United States, the families of victims of regime torture and targeted killings have personally filed criminal and civil cases against regime officials. On a separate front, the Netherlands has recently put Syria on notice for human rights abuses, specifically torture, by sending a diplomatic notice per the Convention Against Torture, a process that could result in an International Court of Justice referral.

These cases are undoubtedly important to the individuals involved, but justice has proven to be slow and limited. Many investigations have not seen public updates in years and a few filed cases have been thrown out due to lack of evidence or a court’s decision that the case did not fall within its jurisdiction. So far, justice seems to primarily affect mid-level officials. However, these cases are important beyond the individual outcomes. They are critical tools for meting out direct punitive measures against specific regime officials, ensuring the regime as a whole and the commission of war crimes are not normalized in the future, and validating the experiences of victims.

The Syrian cases unfolding in domestic courts are unprecedented in many ways, and while it is unclear what the outcomes will be, pursuing such cases can unlock unexpected results. For example, accountability for human rights violations in Chile seemed elusive until former leader Augusto Pinochet was arrested in London as the result of a Spanish arrest warrant for him that the United Kingdom decided to enforce. This case gave important momentum to the use of universal jurisdiction in other contexts, including Syria. More complaints and investigations have the potential to create more support toward punitive measures against regime officials, harsher international diplomatic and economic sanctions against the Syrian regime, and increased focus on the narratives and demands of victims.

Punitive Measures Against Individual Regime Officials

Cases in foreign courts have the potential to lead to legal measures against specific figures within the Syrian regime. While the potential ICC, ICJ, and civil cases seek to hold the Syrian government as a whole to account, the vast majority of cases involving Syria pinpoint specific officials for prosecution, including top security and military officials in Syria, along with mid-level security officials residing in Europe.

Cases like that of Rifaat al-Assad can lead to the seizure of a regime figure’s personal assets by foreign courts. Rifaat al-Assad—Bashar al-Assad’s uncle—who was exiled to Europe in the 1980s and is allegedly one of the main figures responsible for the Hama massacre of 1982, only began facing justice in European courts in 2017, likely because of the momentum from the more recent Syria-related court cases. While his war crimes investigation is still underway in Switzerland French courts this year convicted him of embezzling state funds, ordering jail time and that his Paris and London properties be seized.

Other arrest warrants have been put out against top regime officials. In France, the Dabbagh case, which investigated the torture of two French nationals in Syrian prisons, helped lead to arrest warrants for Syrian intelligence officials Ali Mamlouk, Jamil Hassan, and Abdel Salah Mahmoud. Testimonies from 24 Syrian torture victims resulted in Germany’s issuance of an arrest warrant for Air Force Intelligence Chief Jamil Hassan. These arrest warrants can make it harder for regime officials to conduct travel outside of Syria as they had in the past. Ali Mamlouk had previously been able to travel to Italy to meet with intelligence officials there and Jamil Hassan had allegedly traveled to Lebanon for medical treatment.

Currently, mid-level regime figures in Europe who believed they would never face justice are being held accountable for their individual alleged crimes and may face jail time in European prisons. Alaa Mousa, a doctor who allegedly tortured prisoners in Homs Military Hospital, has been arrested and is expected to face trial in Germany. Mohammad Abdullah in Sweden was sentenced for violating a dead man’s dignity after posting a photo on social media of him stepping over a prisoner’s dead body. The previous head of the Political Security Branch in Latakia is being investigated in Switzerland. Another brigadier general, Khalid Halabi, is being accused of torture and abuses against detainees in Austria.

As cases of torture and war crimes are brought to light, the overall system of abuses can be slowly demystified and individual roles in the committing of human rights violations can be prosecuted. Courts of law that are able to investigate the opaque Syrian security apparatus and discern the individual orders and acts of individual security officials and politicians allow for victims to pursue justice and for policymakers and courts to take further punitive action. Even before verdicts are issued, investigations can help determine which officials ordered and committed human rights violations. These cases provide an important push for detailed investigations and can lead to further international action and policies against regime officials including individualized sanctions, travel bans, asset freezes, and legal action.

Ensuring the Syrian Regime System is not Normalized

On a broader political level, these court cases create yet another roadblock to diplomatic normalization with the regime.

As the Syrian conflict unfolded, dozens of countries severed diplomatic relations with the regime and Syria’s membership was suspended from the Arab League. This established a norm within the international community whereby the Syrian state’s systematic committing of war crimes would result in its diplomatic isolation. Recently in a dangerous reversal of this norm, the reopening of diplomatic channels has begun in Gulf countries and has been floated by the Trump administration.

However, when foreign national courts investigate and confirm the systematic use of torture and other war crimes by the Syrian regime, it will make normalization more difficult. Systematic investigations in Europe that implicate the entire regime system can prevent European countries from normalizing relationships, even if a political administration sympathetic to the regime, like Marine Le Pen in France, were to take power.

European analysts have stated that these cases help demonstrate to European ministers that Syria is unsafe for refugee return. Witness testimony in one of these cases has demonstrated that regime human rights violations, like mass graves for the bodies of executed prisoners, continued into 2017, even as the war was winding down. The findings of these courts can provide a case against regime normalization, even if hostilities were to cease in Syria. It can demonstrate that regime administrative and bureaucratic practices even outside the context of active warfare are egregious enough to continue to treat Syria as a pariah state. In other words, even if the war were to effectively end, these investigations can demonstrate that human rights abuses would likely continue. Other analysts point to how these cases will make it much more difficult to normalize relationships with the regime without meaningful conditions like the release of detainees or providing information on the disappeared and missing.

These cases can increase political will and awareness to curb regime behavior. It can accelerate policymaking that encourages sanctions, deterrent action, and other anti-regime measures in legislatures.

Beyond hampering the normalization of the current regime, these cases can also contribute to ensuring that its most egregious human rights violators do not find their ways into a future political system in Syria. In this way, pursuing justice now can ease a period of transitional justice. Many experts believe that it is important for transitional justice to start before the transition process is underway. If there are already-established investigations into what administrative practices and bodies of the Syrian state flout international law and which actors within the state are responsible for driving violations, the process of deciding what and how to reform state institutions can be eased. Precise legal investigations into how human rights violations are carried out can make institutional reform possible over a complete overhaul (as de-Baathification proponents argued in Iraq) and can ensure the targeting of criminal bureaucratic elements of the past regime.

Validating Survivor Experiences

Finally, these court cases are essential in putting victims’ voices at the forefront of the Syrian story. Survivor testimony can ensure that explanations of the Syrian conflict and the war crimes committed during it focus on the effects on human lives, beyond just the geopolitical or economic implications. Centering victims’ voices ensures that specifically-named individuals and the regime protecting them can be held accountable, putting names and faces to the abuses of a conflict that might seem faraway and theoretical to many around the world.

These cases provide opportunities for victims to prioritize the most important issues to them and articulate how they view justice. For example, many of the Syrians and organizations involved in these cases have expressed that the plight of missing Syrians, likely detained or killed in regime prisons, should be a top priority.

These court cases encourage war crime documentation and other civil society efforts to tell the Syrian conflict from a civilian victim perspective. As cases open, the importance of supporting these civil society and accountability organizations can become clearer to international stakeholders. This helps preserve and document Syrian history in the face of the whitewashing of war crimes. This documentation can also give victims and their families public access to information to what happened to them and their loved ones.

Such cases can also bring to light often-overlooked crimes like sexual and gender based violence (SGBV), as the complaint filed in Germany by seven survivors against nine high-ranking regime officials has demonstrated. This case has helped bring the stories of other SGBV survivors to the forefront and turned international attention towards this aspect of Syrian prisons.

Finally, these cases also provide a higher standard for what victims are owed. It helps set a norm that victims of mass atrocity crimes, not just in Syria, have the right to demand accountability and can expand the scope of what that accountability looks like. This again, encourages for even more criminal complaints to be filed and continues the momentum on the long path to justice for Syrians.

The expansion of these court cases can give Syrians, who have for too long been relegated and dehumanized as a wave of refugees, the center stage to demand the justice that has been promised to them by the international community. The small percentage of Syrians who are able to bring their stories and demands forward in these cases are slowly carving out space for silenced Syrians everywhere.