In January 2022 the first war crimes trial for atrocities committed in Syria concluded with a guilty verdict for Anwar Raslan. Raslan was a Syrian intelligence officer charged with committing the crimes of rape, murder, and sexual assault while working at a prison camp in Damascus. This trial demonstrates how domestic and regional courts could hold human rights violators accountable in the absence of UN action.
The history and purpose behind international criminal courts:
The international community has created international criminal courts, but domestic and regional courts must still play a central role in holding violators of international human rights accountable because the international courts suffer from limited jurisdiction and resources . In the wake of the Bosnian and Rwandan genocides, the international community created ad hoc international criminal tribunals. These tribunals were created by the United Nations (UN) Security Council, pursuant to its authority under Chapter VII of the UN Charter. The tribunals had the authority to establish their own definitions of crimes within their jurisdiction, as well as establish rules of procedure and evidence.
It is unlikely the UN Security Council would be able to reach a consensus to establish another ad hoc tribunal to address ongoing widespread human rights violations, like those in Syria, because countries on the UN Security Council have been accused of committing atrocities of their own and have a history of vetoing action to address such atrocities. Each member of the Security Council would need to vote favorably to establish another tribunal (or at the very least, abstain from voting) because each of the five permanent members of the UN Security Council, the United States, United Kingdom, China, France, and Russia, has the right to veto any resolution or decision. When a country uses their veto power this stops the resolution from taking effect. Since the end of the Cold War, Russia and China’s use of their veto as permanent members of the Security Council has increased. That increase has surged even more since 2011, with the conflict in Syria. Some examples of Russia and China using their veto power to block UN action regarding the conflict in Syria include blocking a referral of the conflict to the ICC and blocking UN sanctions against the Syrian government. It is doubtful China would vote to create a tribunal to investigate and prosecute perpetrators of atrocity crimes, while they are simultaneously being accused of genocide. Similarly, Russia would probably not vote to approve a tribunal while it is being accused of committing war crimes in Ukraine. Other permanent members may also have reservations about creating a new ad hoc tribunal because of the cost or political consequences.
As the feasibility of creating an ad hoc tribunal became less likely, the global community created the permanent International Criminal Court. The International Criminal Court (ICC) was created by the UN through the Rome Statute. The ICC investigates and prosecutes international crimes, but faces its own obstacles. The ICC was designed to have limited jurisdiction, and has limited resources to investigate and prosecute every potential perpetrator of international crimes. The ICC also faces political obstacles to investigating and prosecuting international criminals because it relies on state-parties to apprehend defendants and for its funding; it has been criticized for being politically motivated and not truly independent in the cases it chooses to investigate.
Domestic courts’s ability to conduct international criminal tribunals:
If the UN Security Council is unable to overcome the political obstacles discussed above to establish an international tribunal, and the ICC’s limited resources and jurisdiction prevent it from addressing certain mass atrocities, then domestic and regional courts may be left to hold international criminals accountable. A significant hurdle for holding violators of international criminal law accountable in a domestic court is establishing a basis for jurisdiction over the accused. Typically, a state only has jurisdiction over people or conduct that happens in its own territory. In the Raslan case conducted in Germany, the court based jurisdiction on the principle of “universal jurisdiction.” The principle of universal jurisdiction holds that some crimes are so atrocious that any country may try perpetrators, and Germany codified this principle into its domestic law.
Germany’s universal jurisdiction law grants it the authority to prosecute non-nationals for genocide, crimes against humanity, and war crimes. As of 2012, 147 countries have adopted a universal jurisdiction statute, granting themselves jurisdiction over at least one international crime. Different countries may include different crimes within their universal jurisdiction laws. For example, while Germany includes genocide, crimes against humanity, and war crimes, Austria also includes torture and international kidnapping for extortion in its laws for universal jurisdiction. The US has passed laws criminalizing several international atrocity crimes, including war crimes, torture, and piracy among others. These statutes establish universal jurisdiction over international crimes. However, the United States does not have a domestic statute criminalizing crimes against humanity, which is the broadest of the atrocity crimes. This means that even with statutes encompassing other crimes, and having universal jurisdiction over those crimes, the United States would not be able to charge someone with crimes against humanity in US courts. In addition to different countries including different crimes within their universal jurisdiction laws, countries may define international crimes differently. If one country has a broader definition of crimes against humanity and recognizes universal jurisdiction for crimes against humanity, then it could subject more perpetrators of atrocities to its jurisdiction.
The Raslan Trial
Anwar Raslan left Syria in 2012 and defected to Germany, where he was admitted on humanitarian asylum. In 2015 he filed a report with his local police station, stating that he was afraid he was being followed, also indicating that he was a colonel. This is when Raslan first came on local police’s radar. In 2017 Raslan was interviewed by state police regarding another Syrian officer’s potential crimes. The information Raslan provided gave details regarding Syria’s security apparatus that raised suspicions of police again. Police began investigating Raslan after this interview and arrested him in 2019 for his involvement in Syrian war crimes. Germany’s laws providing for universal jurisdiction over war crimes and crimes against humanity, including torture, created the legal framework to successfully charge Raslan.
Police in Germany were already investigating other Syrian officers for war crimes, interviewing witnesses who had come to Germany as refugees, and collecting evidence of atrocities from humanitarian and human rights groups in Syria. This broad investigation created a detailed evidentiary record for Raslan’s trial. Raslan’s defense argued to dismiss some of the witness’s testimony because they had not been tortured by Raslan. Raslan claimed he should not be held accountable for the atrocities committed at his branch, because he did not actually have control or authority there, and therefore cannot be responsible for the crimes committed. Ultimately this defense failed, and the court found Raslan guilty of 27 out of the 54 counts against him; he was sentenced to life in prison.
The Raslan case may be the first in a new chapter of international criminal law cases. Other cases and over 100 investigations into potential international crimes committed during the Syrian conflict are underway in Germany. Other countries could use these cases as a blueprint to engage in accountability efforts. If the United States wants to continue being a leader in international criminal justice and upholding human rights norms, then it should also take steps to join Germany’s accountability efforts. An important first step for the United States to take would be to pass a domestic crimes against humanity statute that grants US courts universal jurisdiction over the crime. In response to the Raslan verdict, the UN High Commissioner for Human Rights said, “This is a clear example of how national courts can and should fill accountability gaps for such crimes wherever they were committed.”
Author Biography: Meredith Gusky is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School and a graduate student at the Elliott School of International Affairs. She is a member of the International Law in Domestic Courts Journal, and the International Refugee Assistance Project.