- What’s the basis for European courts to try atrocities committed in Syria and Iraq? What is universal jurisdiction?
- Does universal jurisdiction mean that every country can investigate any grave international crime committed in Syria and Iraq?
- What cases related to serious crimes in Syria or Iraq have been opened in Europe?
- What are the limitations in the cases before European courts related to crimes in Syria and Iraq and what can be done to ensure more meaningful justice?
- What about cases before European courts on terrorism-related charges?
- What is the significance of war crimes universal jurisdiction cases for crimes in Syria and Iraq?
- Why has there been an increase in the number of war crimes cases related to Syria and Iraq in European courts lately?
- Does this mean there are numerous war criminals hiding among the asylum seekers? Is there reason to be afraid?
- What does refugee law say about asylum seekers suspected of grave international crimes?
- How can suspects of grave crimes be identified?
- What is the role of diaspora communities from Syria and Iraq who are now in Europe?
- Do European countries have to investigate and prosecute suspects of grave crimes in Syria and Iraq?
- What are the challenges of prosecuting Syrian and Iraqi atrocity crimes in European courts?
- What have European countries done to tackle these challenges?
- What is the role of various entities documenting serious crimes in Syria and Iraq?
- Could Bashar al-Assad be prosecuted under universal jurisdiction laws?
- What is needed in the long term to achieve justice for the atrocities in Syria and Iraq?
- What is happening in Syria and Iraq?
- Are crimes related to Syria and Iraq the only ones to be prosecuted under universal jurisdiction laws?
Ground-breaking investigations and prosecutions are underway in some European countries against people accused of torture, beatings, and kidnappings in Syria and Iraq. These cases are made possible by the arrival in Europe of both victims and suspects in the context of the refugee crisis.
The cases are the first cracks in impunity and the first credible attempts at holding accountable those responsible for terrorizing civilians in the recent conflicts in Syria and Iraq. The cases demonstrate that grave crimes in Syria and Iraq are of concern to humanity as a whole and can be prosecuted even if those responsible flee abroad.
This question-and-answer document explains how and why European courts can try crimes committed in Syria or Iraq; the significance of the arrival in Europe of some suspected war criminals among asylum seekers; and why it is important to identify, investigate, and evidence permitting, prosecute them even if the crimes were committed thousands of kilometers away.
In the wake of a series of shocking terrorist attacks in France, Belgium, and Germany, law enforcement agencies in European countries have focused on identifying and prosecuting people who may be planning such acts. This is also very important but distinct from prosecuting the crimes committed in Syria and Iraq.
1. What’s the basis for European courts to try atrocities committed in Syria and Iraq? What is universal jurisdiction?
National courts of a country usually are able to investigate a crime if there is a link between that country and the crime. For example, if the crime was committed on the territory of the country wishing to exercise jurisdiction (territorial jurisdiction principle), the suspect is a citizen of that country (active personality principle), or if the victim is a citizen (passive personality principle).
However, national courts are able to act even if there is no such link for a limited number of international crimes, including war crimes, crimes against humanity, torture, genocide, piracy, attacks on United Nations personnel, and enforced disappearances. National courts can investigate and prosecute these crimes even if they were committed abroad, by foreigners and against foreigners, because such crimes are considered so grave that ensuring that they do not go unpunished concerns humanity as a whole.
This principle under international law is known as universal jurisdiction. Although this principle has existed for a very long time, it had rarely been used by national courts until a few years ago.
International treaties require countries that have ratified them to use universal jurisdiction for war crimes committed in an international armed conflict (1949 Geneva Conventions), apartheid (the 1973 Convention against Apartheid), torture (the 1984 Convention against Torture), and enforced disappearances (the 2006 Convention against Enforced Disappearance). These treaties require signatories to extradite or investigate a suspect in their territory. It is also generally agreed that international customary law allows the use of universal jurisdiction for crimes considered particularly heinous by the international community, such as war crimes in non-international armed conflicts, crimes against humanity, and genocide.
Some European countries, including Germany, France, and Sweden, are using universal jurisdiction laws to investigate allegations of war crimes, crimes against humanity, and genocide in Syria and Iraq.
While, in principle, it would be preferable for justice to be carried out in the countries where the crimes are committed, this is often not possible. Universal jurisdiction reduces “safe havens” where those responsible can enjoy impunity and sends a strong signal about the nature of the underlying crimes.
2. Does universal jurisdiction mean that every country can investigate any grave international crime committed in Syria and Iraq?
No, countries have not uniformly implemented international law and universal jurisdiction into their national laws. As a result, some countries have universal jurisdiction for some crimes and not for others, and the starting date for such jurisdiction can vary.
Most countries’ laws require the suspect to be present on their territory. Legislation in France, the United Kingdom, and Spain further prescribes that the person must be a resident for national courts to exercise jurisdiction over them for war crimes, genocide, and crimes against humanity committed abroad.
Germany and Norway are the two only countries in Europe with “pure” universal jurisdiction over war crimes, crimes against humanity, and genocide – meaning that no link is required. Nonetheless, prosecutors have broad discretion to decide whether to investigate if the suspect is not in the country. In practise, these countries have also focused on investigating suspects present on their territory.
3. What cases related to serious crimes in Syria or Iraq have been opened in Europe?
Several European countries are investigating grave international crimes committed in Syria and Iraq. Most cases are against people who are in those countries.
In the first trial in Europe for war crimes committed in Syria, a Stockholm court in February 2015 found a Syrian national, Mohannad Droubi, guilty of torture as a war crime. Droubi, who had obtained residency in Sweden in 2013, was a fighter in the Free Syrian Army and was accused of assaulting a man allegedly affiliated with the Syrian armed forces. In that context, torturing a prisoner amounted to a war crime. Droubi had posted a video of the assault on his Facebook account. The five-year sentence against him was recently increased to eight years in a retrial.
Swedish police in March 2016 arrested another member of a Syrian armed group who had arrived in Sweden in 2013, on war crimes charges. He is accused of involvement in killing seven Syrian soldiers in 2012 outside of a combat situation in the Idlib province of northwestern Syria. His trial is expected to start this year.
Another Syrian national appeared in a Stockholm court in February after photos of him in uniform apparently standing on corpses in civilian clothes were found on the internet. He admitted working for the Syrian armed forces but denied involvement in the fighting. His case was eventually dismissed for lack of corroborating evidence and witnesses.
In Germany, police reported initiating 13 investigations into cases related to Syria. In addition, they have opened a “structural investigation” on Syria. This is a broad investigation, without specific suspects, aimed at gathering evidence available in Germany to facilitate future criminal proceedings before German or other courts. At least two Syrian nationals who were members of armed groups in Syria are detained in Germany on war crimes charges. One is accused of kidnapping a UN observer in 2013. The other is a suspected commander of a rebel militia in Aleppo, alleged to have supervised the torture of several prisoners and personally tortured at least two of them.
In France, prosecutors in a war crimes unit in Paris in September 2015, opened a preliminary investigation into Syrian government atrocities based on a collection of photos of dead Syrian detainees smuggled out of Syria by a military defector publicly referred to as Caesar. The photos reveal methodically organized and widespread human rights abuses in government detention facilities, with detainees tortured, starved, beaten, and left to suffer diseases. The French prosecutors must still determine whether they have jurisdiction over these crimes, in accordance with requirements under French law.
Further, media reports indicate that the immigration services in France may have passed information to prosecutors about several suspects, including a defector suspected of involvement in the torture and murder of government opponents in 2011 and 2012.
Norwegian authorities are reported to be investigating 20 Syrians, both from the Syrian armed forces and armed groups.
In the Netherlands, officials have said that in 2015, they identified in the country 10 Syrians suspected of grave international crimes whom they are currently investigating.
In Switzerland, the Attorney General opened a criminal investigation in August 2016 for war crimes in Syria.
In Finland, two former Iraqi soldiers, Jebbar Salman Ammar and Hadi Habeeb Hilal, were convicted of a war crime, for desecrating the bodies of fighters from the extremist group Islamic State (also known as ISIS). One was sentenced to 16 months in prison and the other 13 months. Both men, who arrived in Finland at the end of 2015, had posted photos of themselves on Facebook holding up decapitated heads. It was not possible to establish whether they had killed the fighters and under what circumstances. In a separate case, two brothers belonging to ISIS, who arrived in Finland in September 2015, were arrested on charges of terrorist murders for executing 11 unarmed Iraqi soldiers during a massacre in the Iraqi city of Tikrit in June 2014.
These cases are important first steps by European national judiciaries to bring to justice those responsible for atrocities in Syria and Iraq. More countries should investigate and – evidence allowing – prosecute suspects on their territory. Other cases may be underway for which no public information is available.
4. What are the limitations in the cases before European courts related to crimes in Syria and Iraq and what can be done to ensure more meaningful justice?
In the absence of any alternative option for justice in Syria, the use of universal jurisdiction is generating high expectations. Despite the important role of the first universal jurisdiction cases and the need for more countries to apply their universal jurisdiction laws, there are limitations and the current landscape could be strengthened to better contribute to accountability for grave crimes in Syria and Iraq.
Since it is impossible in many cases to travel to the countries where the crimes were committed and because of the lack of judicial cooperation from their governments, it may still be very difficult for European investigators and prosecutors to find sufficient evidence to bring charges. For example, judicial authorities of the Kurdistan Region of Iraq and the Federal Government of Iraq have said that there was no treaty basis for judicial cooperation with European authorities on these cases.
High-level officials or senior military commanders also are unlikely to travel to Europe, and some would have immunity from prosecution. Due to the legal requirements of presence, as well as a current focus by prosecutors on tracking suspects of war crimes on their territories, it is likely that universal jurisdiction cases will continue to focus on low or mid-level suspects in Europe.
It is important for European prosecutors to explore options for investigating more senior-level suspects who are not necessarily on their territory. This would be possible both if a victim of the crimes were a national of the investigating country and under the principle of command responsibility, under which military and civilian commanders are accountable for crimes committed by their subordinates if they failed to prevent, stop, or punish them.
It is also important for European prosecutors to consider investigating and – evidence permitting – bring charges against those who aid and abet crimes in Syria and Iraq. In France, for example, a judicial investigation is open against the French company, Qosmos, for selling surveillance equipment to the Syrian government that may have been used to facilitate the arrest and subsequent torture of detainees.
Most universal jurisdiction cases have been against members of opposition armed groups in Syria or members of Islamic extremist groups such as ISIS. While this is most likely due to the information at the disposal of European prosecutors – as opposed to a policy bias – this nonetheless means that universal jurisdiction cases do not appropriately reflect the large-scale atrocities committed against civilians in Syria by the government.
Whenever possible, prosecutors should press charges that are most representative of the gravity of the crimes committed by the suspects. In some cases, suspects are charged with belonging to or supporting armed groups in Syria and Iraq that are considered terrorist groups, without considering whether they committed other grave crimes that could amount to war crimes and crimes against humanity. While these terrorism-related offenses may be easier to investigate and prove under anti-terrorism laws, they do not appropriately reflect the seriousness of the crimes in Syria and Iraq and the devastating effect on civilians.
War crimes units should consider a prosecutorial strategy that would enable them to bring more representative cases, both with regard to targets and charges, to contribute most meaningfully to accountability in Syria and Iraq.
5. What about cases before European courts on terrorism-related charges?
Given the horrific terrorist attacks that have claimed dozens of lives since January 2015, in France, Belgium, and Germany, law enforcement and prosecution services across Europe are understandably prioritizing terrorism-related cases. These terrorism-related investigations and prosecutions in European countries primarily concern individuals who may be planning terrorist attacks in Europe, as opposed to abroad. A large number of investigations have been opened against European nationals who went to or attempted to reach Syria or Iraq to fight for extremist groups and have returned to European countries.
The great majority of terrorist attacks in Europe to date have not been committed by individuals who had arrived in Europe among asylum seekers, but rather by European nationals or long-term residents. Regardless of their origins or backgrounds, those who plan or conduct terrorist attacks in Europe should be brought to justice.
6. What is the significance of war crimes universal jurisdiction cases for crimes in Syria and Iraq?
The universal jurisdiction cases in European courts are a small opening for justice for victims of atrocity crimes. With all other avenues blocked, these cases are the only current available option for some measure of justice. National courts in Syria are not functioning everywhere and lack independence and credibility, and trials in Iraq have been fraught with problems.
After years of unchecked horrors against the civilian population of Syria and Iraq, in contravention of international humanitarian and human rights law, these cases are an important reminder that there are consequences for those who ignore their duties under international law. They send the signal that those responsible for serious crimes can be held to account for their acts and that the number of places where they can flee to ensure impunity is shrinking.
Neither Syria nor Iraq is a member of the International Criminal Court (ICC). The European Union and its 28 member states have repeatedly called on the UN Security Council to refer the situation in Syria to the ICC, and on the government of Iraq to refer jurisdiction to the court and ratify the Rome Statute, to become an ICC member, including in an “EU regional strategy for Syria and Iraq as well as the ISIL/Da’esh threat” adopted by foreign ministers in March 2015. However, the EU and its member states have not persistently followed up on their own calls, particularly with the high level pressure needed to ensure that the Iraqi government joins the ICC as a court of last resort for atrocity crimes. Russia and China vetoed a UN Security Council resolution to refer the situation in Syria to the ICC.
While the European cases are limited in number and scope, they convey to Syrian and Iraqi victims some hope that domestic courts in refugee-hosting countries can provide a crucial opportunity for justice. Investigations by national criminal justice systems under universal jurisdiction laws also contribute to preserving evidence that may be used in future trials before an international mechanism or local courts.
Universal jurisdiction cases are an important first step in ending the climate of impunity in Syria and Iraq. They help set a marker that justice for grave international crimes cannot be set aside in any potential peace negotiations and will be a key element of any future transition plan for Syria and Iraq.
7. Why has there been an increase in the number of war crimes cases related to Syria and Iraq in European courts lately?
Millions of people have been fleeing conflict-torn countries, including Syria and Iraq, over the past several years. While the vast majority have fled to neighboring countries, including Lebanon, Jordan, and Turkey, an increasing number have sought asylum in Europe.
This means that victims, witnesses, material evidence, and sometimes suspects who were previously not available to European investigators and prosecutors are now in European countries that have the necessary universal jurisdiction laws. This makes it possible for those countries to start investigating cases related to grave international crimes in Syria and Iraq.
8. Does this mean there are numerous war criminals hiding among the asylum seekers? Is there reason to be afraid?
The cases before European courts suggest that law enforcement services have found evidence that some suspects of grave international crimes are hiding among genuine asylum seekers. It is not the first time that both victims and suspects have arrived in European countries. The same happened after the genocide in Rwanda in 1994, and after the Balkan wars in the 1990s.
However, the vast majority of asylum seekers who have arrived in Europe from conflict zones over the past few years are legitimately seeking protection from persecution, horrific crimes, and generalized violence.
Screening asylum seekers to identify and investigate suspects of atrocities is appropriate and important in securing justice for serious crimes in Syria and Iraq. The fact that a small number of suspected war criminals may be in Europe is no reason to stigmatize entire groups of asylum seekers or instigate a racist and xenophobic reaction. These people are precisely the ones seeking to escape egregious human rights abuses.
9. What does refugee law say about asylum seekers suspected of grave international crimes?
Under article 1F of the 1951 UN Convention on the Status of Refugees (Refugee Convention), individuals for whom there is serious reason to consider that they have committed a crime against peace, a war crime, or a crime against humanity are excluded from protection as refugees.
Article 1F both ensures that those who committed grave international crimes do not escape prosecution and that the refugee system is not abused. A guidance note by the UN High Commissioner for Refugees (UNHCR), the UN refugee agency, on exclusions under the Refugee Convention explains:
If the protection provided by refugee law were permitted to afford protection to perpetrators of grave offences, the practice of international protection would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.
Screening asylum seekers and ensuring the exclusion of people responsible for grave crimes is important in preserving the integrity of the asylum system itself, as it assures refugee-hosting countries that the people they recognize as refugees indeed deserve that status.
Exclusion under article 1F can have grave consequences for the individual concerned and should be used with extreme caution. Article 1F only applies to acts committed prior to entering the country where the individual sought asylum. The commission of the specific crime should be evaluated on an individual basis, not collectively, such as being a member of an armed group that has been responsible for grave crimes. Individuals should be allowed to defend themselves against allegations in a fair hearing.
10. How can suspects of grave crimes be identified?
Immigration authorities are responsible for uncovering possible suspects through appropriate immigration screening and refugee status determination procedures.
Through interviewing asylum applicants, officers uncover clues that lead to further investigation. This could include the presence of suspects in a specific location at a certain time when serious crimes were committed and membership in an armed force or militia. Immigration officers can also get revealing information through interviewing victims and witnesses. In Germany, a form distributed to Syrian asylum seekers includes questions as to whether the applicants have witnessed war crimes in Syria, and if so, whether they can give details, including the names of those responsible. Completing these specific questions in the form is voluntary and does not affect the outcome of the asylum procedure. If this approach proves helpful in identifying useful information and suspects, the forms could be extended to asylum seekers from Iraq.
The Netherlands and the UK have created “1F” units in their immigration services, with staff who develop the necessary specialized expertise and experience to handle these types of cases, including in-depth understanding of specific conflict situations.
Immigration authorities can help ensure that suspects are prosecuted by alerting national law enforcement services and sharing information with them. In France, immigration services reportedly identified a former Syrian army officer suspected of torture and murder of government opponents in 2011 and 2012. The immigration authorities in the Netherlands reported identifying 10 suspects from Syria in 2015, after investigating 170 people who applied for asylum.
Cooperation between immigration services and law enforcement agencies should, however, preserve the rights of asylum seekers and the integrity of the asylum process. Asylum seekers should be told that information they provide could be shared with other government agencies. Suspects should receive legal assistance and information should be shared with law enforcement services only after refugee status has been denied on the basis of article 1F.
11. What is the role of diaspora communities from Syria and Iraq who are now in Europe?
Diaspora communities play an important role in identifying suspects. Witnesses and victims may recognize suspects. Media recently reported that a Kurdish Yezidi woman who had been abused for four months in an ISIS camp in Iraq recognized one of her abusers in a market in Baden, Germany, and identified him to the police.
Several media reports indicated that national law enforcement services are receiving numerous tips from refugees. In Germany, the office of the federal criminal police said they were receiving between 25 and 30 hints per day with information about war crimes in Syria, although it said that most reports came without hard evidence and may only amount to rumors. In Norway, officials reported receiving more than 100 tips from refugees in the second half of 2015. In Switzerland, the immigration services received about 400 tips in 2015 from Syrian asylum seekers
Reporting such information to local police is not necessarily an obvious or easy step for members of the diaspora communities in Europe. Many may not know that European courts can investigate crimes committed in their country of origin. After perilous journeys to reach Europe, others may want to move on with their lives. Still others may be concerned that they could undermine their own refugee applications or even have security concerns for themselves or family members who stayed behind. It is important for authorities in Europe to be sensitive to these concerns. It is also crucial for the authorities to explain the possible legal scenarios to avoid creating unrealistic expectations, and to spread information about the legal requirements for universal jurisdiction cases in the refugee community. The Netherlands and Germany distribute leaflets in several languages in asylum centers and invite asylum seekers to communicate information they may have.
A growing number of websites and Facebook pages are also purporting to identify suspects present in Europe. The information is difficult to verify, however, and should be treated with great caution, as some may be driven by personal motives or revenge.
12. Do European countries have to investigate and prosecute suspects of grave crimes in Syria and Iraq?
While international refugee law excludes suspects of grave international crimes from refugee protection, this falls short of fulfilling a country’s obligations under international law to ensure justice for these crimes.
Over the past half century, governments have increasingly accepted that some crimes are so heinous that they must not go unpunished irrespective of where they were committed. International treaty and customary international law obligate countries to prosecute those responsible for serious international crimes, such as torture, genocide, crimes against humanity, war crimes, and enforced disappearances.
Through the use of universal jurisdiction, this legal obligation extends to crimes committed abroad for countries that have ratified treaties on torture, war crimes, and enforced disappearances.
Given existing legal obligations under international law, immigration authorities should not merely use information collected under article 1F of the Refugee Convention to refuse entry or deport suspects but should make sure to refer them to law enforcement authorities in appropriate cases so that they can be held accountable. In the Netherlands, there has been an increasing focus on deporting 1F suspects as opposed to investigating and prosecuting them.
Some suspects excluded on the basis of article 1F who could be returned under the terms of the Refugee Convention cannot be returned to their country of origin because of absolute prohibitions under other human rights conventions. The Convention against Torture and the International Covenant on Civil and Political Rights, as interpreted by the UN Human Rights Committee, categorically maintain that no one can be returned to a place where they would be at risk of torture or cruel, inhuman, or degrading treatment or punishment, under the international human rights law principle of non-refoulement.
Similarly, the jurisprudence of the European Court of Human Rights (ECHR) prohibits returning anyone to a place where they would be at risk of torture, the death penalty, arbitrary detention, and blatantly unfair trials.
This means that those suspected of serious crimes who are excluded from refugee status under 1F but cannot be returned to their home countries could enjoy de-facto impunity if the host country did not investigate and prosecute them.
People excluded under 1F can find themselves in an unfair legal limbo if they are not investigated to either confirm or drop charges, and do not have legal access to residency in a third-country.
13. What are the challenges of prosecuting Syrian and Iraqi atrocity crimes in European courts?
Investigating and prosecuting grave crimes under international law committed thousands of kilometers away, in a conflict situation, is not an easy task. In addition to appropriate legislation, prosecuting grave international crimes requires a good understanding of international law, and involves difficult investigations of crimes that are often large scale and complex.
For Syria and Iraq, where conflict is ongoing, European investigators and prosecutors may not be able to investigate in the countries where the crimes occurred, enormously complicating the job of gathering evidence.
Given the vast displacement of population in both Syria and Iraq, victims and witnesses can also be dispersed and difficult to locate. Furthermore, European investigators and prosecutors must take great care not to create protection risks for these witnesses and victims or their families. Language and cultural differences also create obstacles and investigations can be long and costly. Video and photo evidence, such as that shared on social media, can be useful, but their authenticity and the date and location at which they were taken must be established.
14. What have some European countries done to tackle these challenges?
Several European countries, including the Netherlands, Belgium, Denmark, Sweden, France, Norway, Germany, the UK, and Switzerland, have created specialized war crimes units, made up of police and prosecutors, with specific expertise and dedicated to this type of cases.
Human Rights Watch research shows that these dedicated units can help domestic law enforcement officials and prosecutors to overcome difficulties. Members of these units have gained significant knowledge and expertise that increase their effectiveness. With motivated and experienced staff, as well as earmarked budgets, these units can focus on investigating serious crimes. Their very existence often reflects political will within the countries to fight impunity for atrocities.
In France, Germany, Sweden, and Switzerland, however, the war crimes units have insufficient staffing and budgets and a mounting workload. Some units have jurisdiction over terrorism in addition to war crimes and crimes against humanity. While it is understandable that authorities are primarily concerned with internal security, it is important to ensure that this focus does not deplete resources available for universal jurisdiction cases that are critical for accountability in Syria and Iraq.
Countries that have war crimes units should ensure that the units have the necessary resources to work effectively. More countries should consider creating such units.
International cooperation is also essential, especially given the dispersal of victims, witnesses, and potential suspects across countries in Europe in the wake of the refugee crisis.
To strengthen such cooperation, the EU created in 2002 a “Network of contact points on war crimes, crimes against humanity, and genocide.” This EU Genocide Network has enhanced cooperation and the sharing of best practices between EU member states, as well as a few observer countries, through biannual meetings. The network has also organized at least two meetings dedicated to investigations on grave international crimes in Syria.
15. What is the role of various entities documenting serious crimes in Syria and Iraq?
Several international organizations focused on crimes in Syria, such as the Syria Justice and Accountability Centre, the Commission for International Justice and Accountability (CIJA), local Syrian groups, and the UN Commission of Inquiry on Syria, are collecting and preserving information about violations of human rights and humanitarian law in Syria. CIJA also received funding to document crimes against the Yezidi minority in Iraq and Justice Rapid Response carried out a project with UN Women documenting crimes in Iraq.
This documentation work is critically important to preserve evidence and other information related to serious crimes in Syria and Iraq. The information can help to establish patterns of crimes and command responsibility of high level officials, once a credible justice mechanism is available to try them – whether at the national or international level, including universal jurisdiction.
Documentation initiatives may also have collected background information on the conflict, or the organization of armed forces, that could be helpful in universal jurisdiction cases.
Some, including the UN Commission of Inquiry, have been in touch with European war crimes units. At the moment, European prosecutors are looking for information specifically related to cases on which they can establish jurisdiction – that is, when the suspect is in their territory or the victims are citizens of that country.
16. Could Bashar al-Assad be prosecuted under universal jurisdiction laws?
Not immediately. Bashar al-Assad is Syria’s head of state. The International Court of Justice held, in the Yerodia decision, which opposed Belgium and the Democratic Republic of Congo about an arrest warrant against the Congolese foreign minister, that heads of states and some ministers have immunity from prosecution before the national courts of a third country while they are in office.
Al-Assad could be prosecuted under universal jurisdiction laws once he is no longer in office, however. In a recent landmark case, Senegalese courts prosecuted the former president of Chad, Hissène Habré, for crimes in that country in the 1980s. It was the first such case by the national courts of one country against the former head of state of another.
Immunity does not bar prosecution by international courts, such as the ICC.
17. What is needed in the long term to achieve justice for the atrocities in Syria and Iraq?
Ensuring that those responsible for grave violations are held accountable is important in its own right and fundamental to obtain durable and stable peace in Syria. Accountability should play a central role in any transition plan. Universal jurisdiction cases are a first, important step in an otherwise bleak landscape.
But to achieve fuller accountability, a multi-tiered approach consisting of national and international justice efforts is necessary. Despite the failure of the UN Security Council to refer the situation in Syria to the ICC, Human Rights Watch believes that the court is the forum most capable of investigating and prosecuting those most responsible for heinous crimes in the absence of the prospect of meaningful action by national authorities in Syria.
Over the long term, national trials in Syria will also be necessary to narrow the impunity gap. At that time, international support may be required to strengthen the capacity of the Syrian criminal justice system. In addition, criminal prosecutions are only one element of the larger justice and accountability process, and complementary measures will be needed to ensure that the society can successfully deal with a past of grave human rights violations, including truth telling, reparations, and security sector reform.
In Iraq, it is essential to hold ISIS on the one side, and government and coalition forces on the other, accountable for violations of international humanitarian and human rights law. One national trial, concluded in February, against people accused of the massacre of up to 1,700 Shia military cadets from Camp Speicher, north of Tikrit, in June 2014, on charges of terrorism, fell seriously short of international fair trial standards.
Iraq should make war crimes, crimes against humanity, and genocide offenses under domestic law, and become a member of the ICC. This would not only give jurisdiction to the court over the grave crimes committed by all parties on the territory of Iraq, but the court’s oversight would provide an impetus for Iraq to ensure accountability for the worst crimes by all sides.
18. What is happening in Syria and Iraq?
Following the uprising in Syria against the Assad government that erupted in March 2011, the country has had a brutal armed conflict in which warring parties have committed deliberate atrocities as well as indiscriminate attacks against civilians. As of October 2015, more than 250,000 people had died, including 100,000 civilians. More than 640,000 people lived under siege, 6.6 million people were internally displaced, 4.8 million had fled to neighboring countries, and more than 1 million to the EU.
Syrian government forces and their allies have conducted deliberate and indiscriminate air strikes, including dropping barrel bombs at times filled with toxic chemicals on populated areas. Government forces have imposed sieges to effectively starve the civilian population and force negotiations to enable them to re-take territory. Arbitrary and incommunicado detention, ill-treatment, torture, and enforced disappearances remain rampant in government detention facilities. These add to the horror of already appalling prison conditions, leading to deaths in custody from a complete lack of basic care, including food, hygiene, and treatment of chronic diseases.
Non-state armed groups have also committed grave international crimes, including indiscriminate and deliberate attacks against the civilian population in government-held areas, the use of child soldiers, killings, abductions, and hostage-taking. Extremist Islamic groups such as Jabhat al-Nusra and ISIS are responsible for systematic human rights abuses that amount to war crimes and crimes against humanity, including horrific extra-judicial killings, and ISIS has committed organized rape, sexual slavery, and forced marriage of women.
After the extremist Islamic group ISIS took the Iraqi city of Mosul in June 2014, the insurgency in Iraq escalated into an internal armed conflict and the human rights situation has been deteriorating ever since. A coalition of Kurdish and central Iraqi government forces, pro-government militias, and a United States-led international air campaign are fighting against ISIS. As of January 2016, close to 3.2 million Iraqis had been displaced and the conflict had disrupted school for over 3 million children, as well as access to medical care, food, and clean water.
All parties to the conflict have violated international humanitarian and human rights law. ISIS executed hundreds of civilians and forced women into sexual slavery. Both ISIS and militias have been using child soldiers for combat. Enforced disappearance and torture have remained rife. ISIS has prevented civilians from leaving conflict zones, and government authorities sometimes have prevented people fleeing ISIS access to safe areas or prevented their return to their homes. Pro-government militias have engaged in widespread destruction of homes and shops after battles. Government forces have carried out allegedly indiscriminate air and artillery attacks.
19. Are crimes related to Syria and Iraq the only ones to be prosecuted under universal jurisdiction laws?
No. There has been considerable progress in the prosecution of crimes under international law by national courts in the last 20 years. Cases in European, Canadian, and US courts have involved crimes committed in Rwanda, the Democratic Republic of Congo, Afghanistan, Guatemala, Kosovo, Iraq, Liberia, Bosnia and Herzegovina, and Argentina, among others.
The courts of Senegal recently tried the former president of Chad, Hissène Habré. In addition, Argentina, Senegal, and South Africa have opened investigations of grave human rights violations in China, the Democratic Republic of Congo, Spain, Paraguay, and Zimbabwe.