By Abbas Al-Moussa, TDA Coordinator for the Legal Reform Project.
The development of international relations was accompanied by a concern that needed to be addressed, namely, international crime was evolving and taking multiple and dangerous forms, threatening international peace and security, prompting the international community to cooperate to find ways and mechanisms to punish and deter perpetrators of international crimes.
As the national judiciary is the primary deterrent to crime and protector of human rights, and as it cannot in its traditional form or jurisdiction always perform this task (and is sometimes reluctant for political reasons), many countries have worked to grant their national judiciary universal jurisdiction to consider international crimes.
These countries rely on international conventions and treaties, which deal with varying international crimes. For example, Article Two of the United Nations Convention against Torture states: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
This development in the national judiciary of some countries helped human rights defenders and Syrian human rights organizations work to hold accountable some of the perpetrators of war crimes and crimes against humanity, especially since political circumstances of the Syrian file have so far blocked the way to the International Criminal Court.
Koblenz Court
The court of Koblenz, Germany, which has been trying Syrian citizens since last April based on the universal jurisdiction of the national judiciary, prompted us at TDA to talk about jurisdiction and opening of this file.
A few weeks ago, the Supreme Regional Court in the region of Koblenz issued a ruling convicting Iyad al-Gharib, former intelligence officer for the Syrian regime, imprisoning him for four and a half years on charges of complicity in committing crimes against humanity, in the case of two Syrian officers accused of responsibility for crimes against humanity in regime detention centers of the capital, Damascus.
The details and developments of this trial sparked a wave of conflicting reactions among Syrian supporters and opponents. Those who support the trial see it as the beginning in holding the Syrian regime to account; it is the first of its kind concerning the Syrian file, the outcome of great efforts by human rights bodies, described by some as “historic.”
Those who oppose it see deficiencies, since the court examining the case is German and local, and as some put it, “useless.” Others saw it as a waste of justice, a diversion from the objective of holding the Syrian regime accountable, and one whose purpose was to provide scapegoats. Some even went so far as to mock the trial, disregarding the feelings of victims and their families.
This article will examine the Koblenz trials from a legal perspective to clarify some ambiguities. Perhaps it will help to paint a complete picture of these trials by answering some legal questions.
Does the German court of Koblenz have the right to try Syrians or citizens of other nationalities? Does the fact that it is a local court in Germany make it deficient in such trials?
The German judiciary has enjoyed universal jurisdiction to hear international crimes of all kinds since 2002. This jurisdiction was granted by the German legislature in accordance with the country’s penal code. Germany is also a member of many international treaties and conventions that obligate ratifying countries to prosecute perpetrators of crimes against humanity.
The fact that the Koblenz court, a German local court, is unfamiliar with the Syrian issue, does not mean that it is unable to consider such trials. Application of German judicial and legal procedural rules, hearing parties to the case, studying reports and documents from human rights organizations on the Syrian file in general and subject matter of the lawsuit in particular, can sufficiently inform the context and capacitate it to issue a judgment.
What is universal jurisdiction?
Universal jurisdiction means that a state has granted its national courts the mandate to prosecute persons who have committed criminal acts in international humanitarian law or international human rights law, even if the perpetrator and victims are not nationals of this state and these crimes occurred outside the state’s territory, based on the two principles of non-impunity and the fight against international crime.
In contrast, national jurisdiction occurs when one of the parties to the crime is a national of that state, or if all or part of the crime took place within its territory.
A crime which falls under the national jurisdiction is considered to have been committed against the society represented by the state. A crime which falls under the universal jurisdiction is one against the international community as a whole, that is, an international crime which any state can punish.
On what principles does a state grant its judiciary universal jurisdiction?
Many countries have developed their laws and judiciaries to intercept perpetrators of international crimes and prevent impunity, relying on a number of principles, most importantly:
- The principle of non-impunity, which constitutes a firm basis for achieving justice and holding accountable everyone who has committed an international crime.
- Establishing a real deterrent to prevent such crimes in the future or to prevent their recurrence.
- Contributing to achieving international peace and security, as well as stabilizing international relations and protecting the interests of states by combating international crime.
- Protecting citizens of countries that adopt universal jurisdiction by holding perpetrators of international crimes to account; a perpetrator of crimes in one country poses a risk to the society of another country which receives him, if it cannot convict him because its judiciary does not have jurisdiction.
What is the legal basis for universal jurisdiction?
Universal jurisdiction is based on several legal principles stipulated in international conventions and treaties, as stated in Article 7 of the Convention against Torture of 1984: “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”
Is universal jurisdiction a substitute for the jurisdiction of the ICC?
No. On the contrary, it is a complementary role; universal jurisdiction closes a legal loophole when the state concerned with the case is unwilling or unable to prosecute the perpetrator, or if that state has not signed the ICC “Rome Statute.” Universal jurisdiction is thereby important in prosecuting perpetrators of international crime and preventing impunity.
Will this type of trial hinder efforts towards justice and holding the Syrian regime to account?
The answer is no, absolutely not. These trials will enable Syrians to preserve evidence and strengthen their legal argument, and will support in establishing the Syrian regime’s responsibility for these crimes, by convicting those working under its command and its systematic policy of committing crimes against humanity.
Have there been other experiences of employing universal jurisdiction?
Several important trials employed universal jurisdiction to achieve justice.
Historically, universal jurisdiction was activated for the first time in anti-piracy trials, as pirates attacking ships in international waters were not subject to the law of a particular country. Therefore, it was adopted that any country can charge for piracy, even if the country or region is not itself affected by the crime, considering the crime of piracy is an international crime.
More recently, universal jurisdiction was applied in the Nuremberg trials after World War II, when the court invoked this jurisdiction to consider crimes by Nazis, on the grounds they were crimes against the international community as a whole and any state is entitled to hear them.
Universal jurisdiction is one mechanism for accountability that we Syrians, individuals and organizations, must use in the best way to achieve justice and victory for victims and their families, especially as political circumstances do not indicate a clear direction for a solution in Syria.
By Abbas Al-Moussa, TDA Coordinator for the Legal Reform Project.
