Syrian civilians have paid a heavy price for a decade of war, in which their government and parties to the conflict, such as ISIS (ISIS), have violated almost every basic human right and perpetrated almost every atrocity.
From the summary execution, the torture and enforced disappearance of tens of thousands of people, to the use of chemical weapons, the genocide against the Yazidis, and the deliberate targeting of hospitals and health workers, to the bombing of civilians under the guise of waging war on “terrorists,” the list of despicable crimes seems endless. As a result of the violence, half of Syria’s pre-war population has been displaced, many of whom have been displaced repeatedly.
Currently, all avenues of justice are closed in Syria and victims can only appear before courts in other countries. Recent developments have raised hope, as states have pushed forward with prosecutions, and several court cases against Syrian nationals accused of atrocities have ended with convictions. However, in some countries, there are still a number of legal barriers that need to be lifted to enable the prosecution of perpetrators of international crimes.
In principle, the Syrian government should hold all perpetrators of atrocities committed on its territory accountable by bringing those responsible before independent courts.
In practice, arbitrary actions by the Syrian security apparatus and unfair actions by counterterrorism courts and field military courts facilitate further violations and crimes.
In principle, when a country like Syria is unwilling or unable to investigate and prosecute such crimes, the international community and the guardian of international peace and security, the United Nations Security Council, must ensure that the situation is referred to the International Criminal Court (ICC) .
In practice, the Security Council is paralyzed by its veto.
Meanwhile, local courts, especially in Europe, took the laudatory position in this appeal. Normally, a state has jurisdiction only if crimes occurred on its territory, or were committed by its citizens or against its people. This judicial limitation was challenged after World War II, as some crimes were deemed so serious that they could be prosecuted under the principle of universal jurisdiction, regardless of where the perpetrators were prosecuted.
Germany is one country that has embraced this paradigm shift and it has paid off. German courts have secured 20 convictions of former fighters in Syria, such as returning members of ISIS, of various international crimes, including persecution based on gender and religion.
On January 13, the Koblenz Higher Regional Court, in a landmark ruling, sentenced former Syrian intelligence officer Anwar Raslan to life imprisonment for crimes against humanity in a prison near Damascus a decade ago where he oversaw the torture of more people. More than 4,000 prisoners, resulting in the deaths of at least 58 people.
Also, in early 2021, a former Syrian intelligence official was convicted in the Koblenz Court of complicity in crimes against humanity in connection with the arrest of protesters, who had been arrested, tortured and killed in one of the many branches of the Syrian regime. Syrian intelligence services. This was the first time that a court classified the actions of the Syrian government as a systematic attack against its civilian population.
But not every country has chosen such a broad judicial framework. Several specific conditions require their fulfillment, including the presence of the suspect on their territory. In 2010, French lawmakers added the requirement of double criminality for the act – both under French law and in the state in which it occurred.
On this basis, France’s highest court, the Court of Cassation, recently concluded that France cannot prosecute crimes against humanity committed in Syria because Syrian law does not specify all the elements of the crime in question. This ruling was a major blow to the ongoing efforts of French prosecutors and judges to bring justice to victims of crimes against humanity in Syria. How other international crimes will be affected in France remains to be seen. We hope that the ongoing actions regarding the genocide of the Yezidis will be allowed to proceed.
Fortunately, efforts to prosecute Syrians who committed crimes during the war continue in other countries, including Austria, Belgium, Norway, Sweden, Switzerland, the United States, and elsewhere—despite the judicial and budgetary obstacles faced by national war crimes prosecution units and courts.
In a context where fair and independent justice cannot be achieved in Syria and the Security Council remains in a dead end, domestic courts, even if limited, offer victims a narrow path to access justice.
However, to take full advantage of the avenues of domestic justice, states must ensure that their legislation, budgets and policies can fully address this challenge.
We need to improve legislation, avoid loopholes through which perpetrators can escape justice, and ensure that universal jurisdiction does not face additional restrictions under domestic law, including in France, given the recent decision.
We need more resources and cooperation between states to ensure that those at hand are held accountable.
We need to address issues of immunity for senior Syrian officials to make sure no one is above the law.
We need Syrian refugees and asylum seekers, who are the primary victims and witnesses in such trials, to feel welcome, supported and encouraged to come forward.
As long as independent and fair justice is not available in Syria, countries that consider themselves champions of human rights can do a better job of providing legal redress to those who seek justice.
The opinions expressed in this article are those of the authors and do not necessarily reflect the editorial position of Al Jazeera.