On April 23rd the international community praised the opening of the first-ever court case tackling the systematic and widespread use of torture by the Syrian regime.
Two representatives of the regime stand trial for crimes against humanity. Anwar R, a Colonel of the prison Branch 251, or al-Khatib, is charged with being complicit in the torture of at least 4000 people between 2011 and 2012, as well as the murder of 58 people, rape, and other types of sexual violence.
A subordinate of Anwar R, Eyad A, is charged with at least 30 counts of torture. Several torture survivors are co-plaintiffs in the case, and more are expected to testify.
The setting of the trial, however, is Koblenz, Germany, over 3500 kilometres from Damascus, Syria. Why? Because Anwar R and Eyad A entered Germany as asylum seekers in 2014 and 2018, and because of this principle called ‘universal jurisdiction’.
The principle of universal jurisdiction is based on the idea that some crimes are so grave that they are a fundamental attack on the international community and can’t go unpunished. To ensure justice, the jurisdiction of the case is made ‘universal’, meaning that any state can take on the case – independent of where, by whom, and against whom, the crime was committed.
The principle covers crimes defined as international crimes (crimes against humanity, war crimes, genocide, and torture). So, if the country in which the crime took place is unable or unwilling to investigate or prosecute, another country can step in.
Hurdles and restrictions
In practice, the principle is not as universal as it sounds. A country needs to acknowledge the said international crime as a crime in its own national law, before universal jurisdiction can be applied.
According to a review by Amnesty International, over 160 of the 193 Member States of the UN define one or more of the four crimes under international law as a crime in national law.
However, according to Human Rights Watch, several states have restrictive threshold requirements for opening universal jurisdiction-cases. In many countries the case needs to have some sort of link to home before it’s taken on. Another common threshold is that the suspect needs to be present, or expected present, before investigation or prosecution is initiated.
Many cases have been opened on the basis of universal jurisdiction through the years, but investigating a crime remotely is not easy-peasy. There are many hurdles, including limited access to crime sites and witnesses, but also political pressure from powerful states who do not wish to see their countrymen on trial.
According to a survey, only 52 universal jurisdiction trials proceeded through to a verdict between 1961 and 2017 (Devika Hovell, 2018).
Universal cases on the rise
52 cases? In 56 years? That doesn’t seem like a lot. It’s important to remember, though, that had these cases not been tried under universal jurisdiction, they probably never would have come to court, meaning the loss of justice and reparation for thousands of victims, including victims of the Dirty War in Argentina, and victims of the insurgency and dictatorship of Hissène Habré in Chad.
Also, partly due to the great influx of Syrian and Iraqi refugees in Europe, the world has seen a remarkable increase in universal jurisdiction cases and verdicts over the past two years: Ten verdicts in 2018 (8 convictions and 2 acquittals) and 18 verdicts in 2019 (16 convictions and 2 acquittals) according to Trial International’s annual reports on the use of universal jurisdiction.
Universal jurisdiction is debated, challenged and restricted by many states, but it seems to be an increasingly important tool in the global fight against impunity. For Syrian victims it is, as of now, the only way to seek justice, and evidently many European countries are working hard to help them see it done.
Several cases of human rights violations in Syria and Iraq are currently being investigated in France, Germany, The Netherlands, Austria, Spain, Switzerland, Norway, Sweden and Finland – all thanks to the principle of universal jurisdiction.
The torture committed in Branch 251 is but a droplet in a dark ocean of torture and other human rights violations committed by the regime in Syria, but the trial of Anwar R and Eyad A brings a long-awaited ray of hope for justice to the hundreds of thousands of regime-victims both inside and outside the wartorn country.
Sources: Amnesty International, Human Rights Watch, Trial International, International Crime Database, Justiceinfo, The Guardian, Hovell, 2018, (The European Journal of International Law Vol. 29 no. 2 ).