Syrian civilians have paid a heavy price for a decade of war in which their government and parties to the conflict, such as ISIL (ISIS), violated almost every nuclear human right and committed almost every atrocity.
From summary executions, torture and the forced disappearance of tens of thousands of people, to the use of chemical weapons, genocide against the Yazidis, and the deliberate targeting of hospitals and health workers, to the bombing of civilians under the guise of a war on “terrorists” , the list of heinous crimes is seemingly endless.Due to the violence, half of Syria’s pre – war population has been displaced, very repeatedly.
Currently, all avenues to justice in Syria are blocked and victims can only appear outside courts in other states. Recent developments have given rise to hope as states have pursued prosecutions and several court cases against Syrian citizens accused of committing atrocities have ended in convictions. In some countries, however, there are still a number of legal barriers that need to be removed to enable the prosecution of international crimes.
In principle, the Syrian government should hold all perpetrators of atrocities committed on its territory by bringing to justice those responsible.
In practice, arbitrary actions by the Syrian security apparatus and unfair proceedings by counter-terrorism and field-military courts facilitate further offenses and crimes.
In principle, when a state 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 after the International Criminal Court (ICC).
In practice, the Security Council is paralyzed by vetoes.
Domestic courts, mainly in Europe, have accepted the challenge with praise in the meantime. Usually a state has jurisdiction only if crimes take place on its territory, are committed by its subjects or against its people. This restriction on jurisdiction was challenged after World War II, as some crimes were considered so serious that they could be prosecuted under the principle of universal jurisdiction, regardless of where the perpetrators would be tried.
Germany is one of the states that has embraced this paradigm shift and it has borne fruit. German courts have upheld 20 convictions of former fighters in Syria, including returning members of ISIL, for various international crimes, including gender-based and religious-based persecution.
On January 13, the Koblenz Higher Regional Court, in a landmark pronunciation, former high-ranking Syrian intelligence official Anwar Raslan was sentenced to life in prison a decade ago for crimes against humanity in a prison near Damascus where he oversaw the torture of more than 4,000 prisoners, resulting in the deaths of at least 58 people.
In early 2021, a former Syrian intelligence official was convicted in court of complicity in crimes against humanity in connection with the arrest of protesters, who were detained, tortured and killed in one of the many branches of Syrian intelligence services. It was the first time that a court has classified action by the Syrian government as a systematic attack on its civilian population.
But not every state has chosen such a broad jurisdictional framework. Many require that specific conditions be met, including the presence of the suspect on their territory. In 2010, French lawmakers added a requirement for double incrimination of the act – under French law and in the state where it took place.
On this basis, the Supreme Court of France, la Cour de Cassation, recently ruled that France could not prosecute crimes against humanity committed in Syria because Syrian law does not define all elements of the crime in question. This ruling was a major blow to ongoing efforts by 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. Hopefully, ongoing proceedings over the Yazidi genocide will be allowed to continue.
Fortunately, efforts to prosecute Syrians who committed crimes during the war continue in other states, including Austria, Belgium, Norway, Sweden, Switzerland, the United States and elsewhere – despite judicial and budgetary barriers to their national war crime prosecution units and courts. facing.
In a context where just and independent justice is not available in Syria and the Security Council remains trapped, domestic courts, albeit limited, offer victims a narrow path to justice.
However, to make full use of domestic justice avenues, states must ensure that their own legislation, budgets and policies can fully address the challenge.
We need to improve legislation, avoid loopholes through which offenders can escape justice, and ensure that universal jurisdiction does not face any additional restrictions under domestic law, including in France, given the recent decision.
We need more resources and cooperation between states to ensure that those within reach can be held accountable.
We need to address questions about immunity of 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 hearings, to feel welcome, supported and encouraged to come forward with their testimonies.
As long as independent and just justice is not available in Syria, states that consider themselves human rights champions can do a better job of providing a remedy to those who seek justice.
The views expressed in this article are those of the authors and do not necessarily reflect Al Jazeera’s editorial views.