The full Court issued two rulings to clear the way for further prosecutions despite limitations imposed by the French parliament, holding that the relevant prosecutions were not barred by the principle of double criminality or other defenses raised by the defendants. Other pending cases can now move forward, such as those involving recruitment of child soldiers and use of chemicals weapons in Syria – as well a multitude of cases from other jurisdictions such as Ukraine. Nonetheless, there remain arbitrary restrictions in French law – unjustified by international law – that could present insurmountable obstacles for future cases.

Case 1 – Double Criminality

France has signed and ratified the Rome Statute and passed implementing legislation to criminalize crimes against humanity, war crimes, and genocide. However, it tied the hands of prosecutors by writing into domestic law certain limitations. As Aweiss Al Dobouch and I have written previously, one of those limitations is the so-called double criminality requirement which prohibits overseas crimes from being prosecuted unless the crime is also prohibited by the State where the offense occurred. Double criminality is a nod to fairness as it would be unjust to prosecute someone in France for an act that wasn’t illegal in the State where it was committed. But it would seem to have limited relevance to the most serious category of crimes, involving the widespread and systematic attacks on civilians (i.e., crimes against humanity) as they are universally recognized as crimes under customary international law. In 2021, a panel of the Cour de cassation put a stop to the prosecution of a Syrian reservist named Abdulhamid C., who was allegedly complicit in the suppression of protests, and worked for two sections of the General Intelligence in Damascus known for torturing detainees. That panel held that because Syria had not criminalized crimes against humanity specifically, the prosecution was illegal.

On May 12, the full Court reversed that decision, holding that common sense should prevail and that Syria’s criminalization of torture, killing, and murder should suffice to ensure fairness to the accused person. Referencing the legislative history of the original French law, the Court noted that double criminality did not require that the law of the prosecuting state and the law where it occurred be identical. It also referenced the law of extradition which required double criminality but had left it to the courts to determine whether the facts alleged would qualify as crimes in the state of commission. Noting that Syria had criminalized murder, rape, and torture, it held that the prosecution of Abdulhamid C. did not require that Syria specifically criminalize crimes against humanity and that the prosecution could recommence.

Keenly aware that it was significantly broadening the scope of French law, the Court stated that some important limitations remained. For example, persecution as a crime against humanity and certain war crimes might not be criminalized in certain states. Pursuing such cases in France would not be possible under existing law, the Court was careful to note.

Case 2 – Non-State Actors, the “Habitual Resident” Requirement, and Future Implications

In a second case, decided on the same day, the Court clarified numerous other limitations to the prosecution of crimes against humanity. The case involved Islam A., a member of a non-state actor, Jaysh al-Islam (Army of God), who had travelled to France and was enrolled as a university student. He was charged with torture, complicity in forced disappearances, and participation in a group established to commit war crimes, as well as recruitment of child soldiers.

Non-State Torture

Under international law, as well as French law, torture is defined as being committed by a “public official or other person acting in an official capacity.” The accused in the case challenged whether he could be charged with torture as he was not a public official even if it was proved that he was a member of Jaysh al-Islam. Citing cases from the U.N. Committee against Torture as well as a 2019 decision of the U.K. Supreme Court, the Cour de cassation rejected the argument, holding that torture could be committed by a non-State actor during its occupation of territory where it was exercising quasi-governmental authority. It recalled that Jaysh al-Islam had occupied the region of Ghouta, and had exercised judicial, military, detention, commercial, and religious authority, by which it inflicted repression, violence, pain, and suffering on the population. Such acts, in the view of the Cour de cassation, could constitute torture, even if committed by a non-State actor.

Just Passing Through?

French law imposes an additional burden on the prosecutor of atrocity crimes, namely to prove that the accused is a “habitual resident” of France. Unfortunately, the term is nowhere defined in French law. The Court noted that the limitation was intended to prevent the “instrumentalization” of French jurisdictions that would impact the conduct of international relations. It was therefore meant to guarantee a true connection between France and the person under investigation. Mere transit through France would not suffice to establish “habitual residence”. However, it noted that Islam A., whose parents lived in Turkey, had a French student ID card, metro ticket, library card, and telephone card. Police surveillance noted that he stayed at his apartment in France and that he left only to go to mosque or eat, acting “like an effective resident and not like a tourist.”  They held therefore that he had sufficient stability during a period of at least 3 months to satisfy the “habitual residence” requirement. The holding will be welcomed by civil society which has advocated that the case move forward. However, it is not a panacea. Members of autocratic regimes frequent European capitals to shop along the Champs Elysees or to eat at Michelin starred restaurants. Given the habitual residence limitation, simply luring a member of an abusive regime to France won’t permit a prosecution. It would be better that this limitation be written out of French law altogether.

Child Soldiers and Their Mothers

Again faced with a challenge based on double criminality, the Court reaffirmed its holding in the companion case that the crimes in the prosecuting State and the State of commission need not be identical. It noted that both Syrian and French law prohibited recruitment of child soldiers under 18 years old. It further noted that Syria had ratified the four Geneva Conventions as well as the Convention on the Rights of the Child (which prohibits recruitment of children younger than 15 years old). It therefore reinstated the prosecution against Islam A. on this charge, also ordering that he pay 2,500 Euros to the civil parties for their attorney fees.

The Court therefore clearly indicated that recruitment of child soldiers in Syria could be prosecuted in France. The precedent may have immediate importance as 35 children were repatriated from northeast Syria to France, along with 16 mothers of the children who may be suspected members of ISIS. The fate of the mothers is as yet unclear. However, women who have travelled with their children to Syria and Iraq have been prosecuted for child endangerment as well as child recruitment.

As we have noted previously, other serious crimes, such as use of chemical weapons, are likewise prohibited by Syrian law. There are several pending investigations in France for these crimes which should also be able to move forward without hindrance.

Conclusion

With its liberal interpretation of French law, the Cour de cassation narrowly saved the doctrine of universal jurisdiction in France, particularly for crimes in Syria. With the International Criminal Court unavailable, given Russia and China’s veto of the U.N. Security Council referral of the situation, and no other tribunals with criminal jurisdiction to hear Syrian cases, universal jurisdiction remains the last refuge for those seeking a measure of justice for Syrians and victims of other conflicts.

With these two decisions, prosecutions for the most serious international crimes, including torture, murder as well as recruitment of child soldiers can now move forward in France. However, there remain important limitations that would prevent other very serious cases from being prosecuted. These limitations are not required by international law, and the French parliament would better serve international justice by removing these loopholes and giving universal jurisdiction full effect in France.

IMAGE: The full moon is pictured over the Cour de cassation in Paris. (CHRISTOPHE ARCHAMBAULT/AFP via Getty Images)

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Un avis retentissant rendu par la plus haute juridiction française a semé le doute sur les perspectives d’actions en justice relevant de la compétence universelle, en France et ailleurs, pour tenir pour responsables les auteurs de violations des droits de l’homme dans les États qui ne respectent pas le droit international. La Cour de cassation française a estimé que les procureurs français ne pouvaient pas enquêter ou engager des poursuites pour crimes contre l’humanité en vertu d’une loi française ancienne, car la Syrie n’avait pas criminalisé les crimes contre l’humanité au niveau national. Il y a de l’inquiétude que cet arrêt ne prive les Syriens – et les victimes d’autres États qui ne reconnaissent pas les crimes contre l’humanité – de la possibilité de demander des comptes pour les violations des droits de l’homme par le principe de compétence universelle (CU). Ce serait une tournure regrettable des événements, car la compétence universelle est devenue le dernier refuge pour de nombreuses victimes d’atrocités lorsque la Cour pénale internationale (CPI) (en collaboration avec le Conseil de sécurité des Nations unies) a choisi de ne pas agir. Comme le suggère par une coalition d’ONG, la loi française devrait être modifiée. Mais en attendant, il reste de nombreuses possibilités de demander justice en France pour les atrocités commises par les Syriens, notamment compris pour le génocide, la torture et les crimes de guerre.

La Cour de Cassation bloque les crimes contre l’humanité

Le 24 novembre 2021, la cour de cassation a rendu un arrêt définitif selon lequel les procureurs français ne sont pas compétents pour enquêter et poursuivre un présumé criminel de guerre syrien en raison de l’absence de définition en droit syrien des crimes contre l’humanité. L’affaire concernait Abdulhamid C., 32 ans, qui a servi entre 2011 et 2013 en tant que réserviste dans les services de sécurité de l’État à Damas – une unité connue pour la répression violente des manifestations contre le régime de Bachar el-Assad.  Pourtant, le tribunal a déclaré qu’il ne pouvait pas poursuivre la « complicité de crimes contre l’humanité » contre un ancien soldat syrien sur le territoire français.

L’arrêt – bref au regard des normes du droit international – était fondé sur l’article 689-11 du code de procédure pénale français, qui dispose que les crimes contre l’humanité ne peuvent être poursuivis en France qu’à la condition de l’existence d’une double incrimination. En d’autres termes, les procureurs français ne peuvent poursuivre ce comportement que si l’État dans lequel les crimes ont été commis soit criminalise expressément les crimes contre l’humanité, soit est partie au Statut de Rome et a donc criminalisé ce comportement en ratifiant le traité (même sans législation d’application).

La décision a été un grand choc pour de nombreux défenseurs et militants des droits de l’homme, et notamment pour les Syriens qui ont exprimé leur inquiétude pour que les auteurs des crimes les plus odieux soient soumis à la justice, il faut que des dispositions pénales les punissent dans la législation de l’État de leur nationalité ou de la région où les crimes ont été commis – États qui, dans de nombreux cas, sont directement impliqués dans la conduite criminelle. Ces observateurs ont averti que la France pourrait désormais devenir un refuge pour les auteurs de violations des droits de l’homme.

Dans le cas des violations des droits humains dans des États, comme la Syrie, qui n’ont pas criminalisé les crimes contre l’humanité, il reste d’autres options. En effet, étant donné que la Syrie a ratifié les Conventions de Genève ainsi qu’un certain nombre d’autres conventions et traités internationaux qui criminalisent les violations, il reste des alternatives viables pour poursuivre les auteurs vivant en France.

Les lois nationales syriennes

Comme l’a précisé la Cour de cassation, le droit français exige la double incrimination pour que les crimes contre l’humanité puissent être poursuivis en France. Bien que les crimes contre l’humanité ne soient pas criminalisés en Syrie, un certain nombre d’autres crimes figurent dans les lois syriennes. Pour ces crimes, la double incrimination serait satisfaite. Par exemple, la double incrimination s’applique explicitement aux crimes de guerre en droit français. Mais contrairement aux crimes contre l’humanité, la double incrimination est satisfaite en ce qui concerne les crimes de guerre car la Syrie a ratifié les quatre Conventions de Genève en 1953. En outre, la Syrie a adhéré au Protocole de Genève interdisant l’emploi de gaz asphyxiants et toxiques et de méthodes bactériologiques dans les guerres par le décret législatif n° /117/ de 1970. Par conséquent, de futures accusations peuvent être portées pour des crimes constitutifs de crimes de guerre ainsi que pour des crimes liés aux armes chimiques.

Les plaints pourraient également progresser sur la base d’accusations de torture. Bien que la torture ne soit pas spécifiquement mentionnée dans la disposition française exigeant la double incrimination, elle est reconnue par le droit international à la fois comme un crime de guerre et comme un crime contre l’humanité et pourrait être soumise à l’article 689-11. Mais la Syrie a adhéré à la Convention contre la torture, qui a été exécutée au niveau national par le décret législatif n° 39 de 2004. En outre, l’article 53 de la constitution syrienne stipule que « personne ne peut être torturé physiquement ou mentalement, ou traité de manière dégradante ». Cette disposition est reprise à l’article 391 du code pénal syrien, qui interdit la torture et punit les auteurs de ce crime. Par conséquent, la torture peut toujours faire l’objet d’enquêtes et de poursuites par les autorités françaises.

Dans certains cas, la loi antiterroriste syrienne peut également constituer une base raisonnable pour la double incrimination. Il convient de noter que la loi antiterroriste syrienne a été largement utilisée par le gouvernement syrien pour persécuter les opposants et les citoyens ordinaires. Cela met en évidence l’absurdité de la condition de double incrimination dans le cas d’États qui sont eux-mêmes responsables de violations généralisées des droits de l’homme. Néanmoins, l’exigence de double incrimination peut être satisfaite dans les cas où les procureurs français choisissent de poursuivre les responsables des crimes liées au terrorisme, tels que les membres d’ISIS ou de Jabhat al Nusra.

Fondement douteux de la double incrimination

Malgré les voies juridiques qui existent pour les victimes syriennes en France, la justification de l’exigence de la double incrimination pour les crimes relevant de la compétence universelle est sujette à caution. Certains crimes internationaux sont d’une telle importance, et si universellement acceptés, qu’une législation d’application au sein de l’État dans lequel le crime a été commis ne devrait pas être requise pour une poursuite au titre de la compétence universelle.

Les normes impératives du droit international sont celles qui sont acceptées et reconnues par la communauté internationale des États dans son ensemble et qui ne permettent donc aucune dérogation (c’est-à-dire le jus cogens). La Cour Internationale de Justice a reconnu les interdictions du génocide et de la torture comme des normes impératives – bien qu’à ce jour elle n’ait pas encore reconnu les crimes contre l’humanité comme faisant partie de cette catégorie. Beaucoup considèrent que les violations graves des Conventions de Genève entrent également dans cette catégorie. En effet, certains ont fait valoir que les tribunaux français ont déjà accepté que les lois internationales contre les crimes contre l’humanité, les crimes de guerre et la torture s’appliquent directement en France, y compris leur caractère universel, avec certaines limitations importantes. Selon nous, les crimes de jus cogens sont directement applicables à la fois en France et en Syrie et devraient satisfaire à l’exigence de double incrimination, malgré les limitations de l’article 689-11.

Le Parlement français, reconnaissant probablement l’importance de faciliter les poursuites des crimes de jus cogens, a supprimé l’exigence de double incrimination pour le crime de génocide dans les amendements de 2019 à la loi française. Toutefois, il a maintenu cette exigence pour les crimes contre l’humanité et les crimes de guerre, ainsi que pour la torture en tant que crime contre l’humanité ou crime de guerre. Les groupes de défense des droits de l’homme et les victimes ont demandé de nouveaux amendements à la loi afin de supprimer cette exigence dans les cas concernant ces crimes.

Cependant, même si la loi est modifiée, les amendements pourraient ne pas résoudre le problème que l’exigence de la double incrimination a créé pour la poursuite des auteurs de violations des droits humains dans le conflit syrien. À première vue, le principe juridique international connu sous le nom de nullum crimen sine lege, qui figure à l’article 112-1 du code pénal français (également connu aux États-Unis sous le nom d’interdiction des lois ex post facto), empêche l’application rétrospective de nouvelles lois pénales ou de lois nouvellement modifiées. Ainsi, même si la double incrimination est supprimée pour les crimes contre l’humanité dans la loi française, cela pourrait ne pas permettre de poursuivre les auteurs de violations des droits humains pour des faits antérieurs à la modification. Si tel est le cas, les crimes commis au cours du conflit syrien, à partir de 2011 et jusqu’à aujourd’hui, ne seraient pas susceptibles d’être poursuivis en vertu d’une éventuelle législation modifiée. Toutefois, le droit français exclut du principe nullum crimen les lois qui sont modifiées à des fins uniquement juridictionnelles. Ainsi, un tribunal français pourrait finalement conclure que l’amendement visant à supprimer la double incrimination pour les crimes contre l’humanité pourrait avoir un effet immédiat, s’il est jugé purement juridictionnel.

Quelle que soit l’issue, l’amendement de la loi permettrait de poursuivre les crimes contre l’humanité commis en Syrie, ou dans d’autres États, après l’amendement. Il est donc nécessaire d’amender à nouveau la législation pour supprimer totalement l’exigence de double incrimination pour les crimes contre l’humanité.

Réexamen de l’avis Lafarge

Ceux qui suivent les affaires de compétence universelle se souviendront qu’il y a quelques mois seulement, la même cour de cassation a rendu un arrêt qui a donné un nouveau souffle à l’affaire pénale contre le cimentier Lafarge pour complicité de crimes contre l’humanité en raison des paiements effectués par la société à ISIS afin de poursuivre ses opérations en Syrie.

Dans cette affaire, un tribunal de première instance avait jugé que la société ne pouvait être tenue responsable de complicité de crimes contre l’humanité. La Cour de cassation a annulé cette décision, estimant que « l’on peut être complice de crimes contre l’humanité même si l’on n’a pas l’intention d’être associé aux crimes commis ». La Cour a également estimé que « le fait de verser sciemment plusieurs millions de dollars à une organisation dont le seul but était exclusivement criminel suffit à constituer une complicité, peu importe que l’intéressé ait agi pour poursuivre une activité commerciale ».

A première vue, il est difficile de concilier l’arrêt Lafarge avec l’arrêt rendu dans l’affaire Abdulhamid C. La première affaire a rétabli des accusations de crimes contre l’humanité pour un crime commis en Syrie, alors que la seconde a rejeté une affaire considérant qu’un tribunal français ne pouvait pas juger des crimes commis en Syrie. Pour harmoniser ces décisions, on pourrait considérer que la question de la double incrimination n’a jamais été soulevée dans l’appel Lafarge. L’arrêt Lafarge s’est concentré sur la question de la complicité et sur l’existence d’un ensemble de faits permettant de soutenir la complicité de crimes contre l’humanité. La Cour n’avait aucune raison d’examiner la localisation des crimes ni si la question de savoir si la double incrimination pouvait également être un motif de rejet des accusations de crimes contre l’humanité. Néanmoins, l’apparente incohérence est frappante. Bien que la France soit une juridiction de droit civil qui ne reconnaît pas les précédents juridiques tels qu’ils sont compris dans les juridictions de common law, on pourrait attendre une certaine cohérence, en particulier dans deux affaires rendues à deux mois d’intervalle.

Quoi qu’il en soit, la décision dans l’affaire Abdulhamid C. pourrait conduire au rejet des accusations de crimes contre l’humanité portées contre Lafarge, qui sont actuellement en renvoi. L’affaire Lafarge pourrait se poursuivre sur la base des charges restantes, dont le financement du terrorisme. Mais le rejet des charges les plus graves serait une issue malheureuse – une issue qui rend la décision dans l’affaire Abdulhamid C. d’autant plus regrettable, et l’amendement de l’exigence de double incrimination d’autant plus urgent.

Conclusion

La décision de la Cour de cassation dans l’affaire Abdulhamid C. est un coup dur pour les victimes de crimes contre l’humanité en Syrie. Les efforts actuels pour obtenir la justice en Syrie – tant en France qu’ailleurs – dépendent fortement des poursuites relevant de la compétence universelle, étant donné qu’un renvoi à la CPI a fait l’objet d’un veto de la part de la Russie et que la Syrie n’est pas partie au Statut de Rome (elle a signé le Statut en 2000 mais ne l’a jamais ratifié). L’imposition d’une double incrimination dans ces circonstances est incompatible avec le principe de compétence universelle, qui repose sur l’idée que certains crimes sont si graves qu’ils menacent le monde entier et affectent la conscience mondiale. Il est compréhensible que les défenseurs des droits de l’homme considèrent que la décision donne aux criminels la possibilité de jouir de l’impunité alors qu’ils ont commis les crimes les plus graves.

Cependant, comme indiqué ci-dessus, la Syrie a criminalisé les crimes de guerre, la torture et le terrorisme qui restent des pistes viables pour des poursuites en France malgré l’exigence de la double incrimination. En tant que tel, l’avis de la Cour de cassation, bien que regrettable, ne signifie pas la fin de la compétence universelle en France.

Image : Une vue de l’entrée de la Cour de cassation, photographiée le 21 mars 2017. (THOMAS SAMSON/AFP via Getty Images)

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A bombshell opinion from France’s highest court has raised doubts about the prospects for universal jurisdiction cases, in France and elsewhere, to hold accountable perpetrators of human rights abuses in States that do not respect international law. The French cour de cassation held that French prosecutors could not investigate or prosecute crimes against humanity under a long-standing French law because Syria had not criminalized crimes against humanity domestically. There is concern that the ruling will deprive Syrians – and victims from other States that do not recognize crimes against humanity – from seeking accountability for human rights abuses through universal jurisdiction (UJ). This would be an unfortunate turn of events as UJ has become the last refuge for many victims of atrocities when the International Criminal Court (ICC) (in conjunction with the U.N. Security Council) has chosen not to act. As suggested by a coalition of NGOs, the French law should be amended. But in the interim, there remain significant opportunities to seek justice in France for Syrian atrocity crimes, including for genocide, torture, and war crimes.

Cour De Cassation Blocks Crimes Against Humanity

On Nov. 24, 2021, the cour de cassation issued a final ruling that French prosecutors are not competent to investigate and prosecute an alleged Syrian war criminal due to the lack of a definition in Syrian law of crimes against humanity. The case involved Abdulhamid C., 32, who served between 2011 and 2013 as a reservist in the state security services in Damascus – a unit known for violent suppression of demonstrations against the regime of Bashar al-Assad.  Yet the court said it could not prosecute “complicity in crimes against humanity” against a former Syrian soldier on French soil.

The ruling – brief by international law standards – was based on Article 689-11 of the French code of criminal procedure, which states that crimes against humanity can only be prosecuted in France under the condition of the existence of dual criminality. In other words, French prosecutors can only prosecute this conduct if the State in which the crimes were committed either expressly criminalizes crimes against humanity, or is party to the Rome Statute and has thus criminalized the conduct by ratifying the treaty (even without implementing legislation).

The decision was a great shock to many human rights defenders, activists, and Syrians in particular who voiced dismay that for perpetrators of the most heinous crimes to be subject to justice, there must be criminal provisions that punish them in the legislation of the State of their nationality or region where the crimes were committed – States that, in many cases, are directly involved in the criminal conduct. These observers have warned that France may now become a safe haven for human rights abusers.

In the case of human rights abuses in States, like Syria, that have not criminalized crimes against humanity, this is not the end of the road. Indeed, as Syria has ratified the Geneva Conventions as well as a number of other international conventions and treaties that criminalize the conduct at issue, there remain viable alternatives to prosecute perpetrators living in France.

Syrian Domestic Law

As the cour de cassation has made clear, French law requires double criminality for crimes against humanity to be prosecuted in France. Although crimes against humanity are not criminalized in Syria, a number of other crimes can be found in Syrian statutes. For these crimes, double criminality would be satisfied. For example, double criminality explicitly applies to war crimes under French law. But unlike with crimes against humanity, double criminality is satisfied with regard to war crimes as Syria ratified the Four Geneva Conventions in 1953. Furthermore, Syria has acceded to the Geneva Protocol banning the use of asphyxiating and poisonous gases and bacteriological methods in wars by Legislative Decree No. /117/ of 1970. Therefore, future charges can be brought for war crimes in general as well as for chemical weapons offences.

Cases could also move forward on charges of torture. Although torture is not specifically mentioned in the French provision requiring double criminality, it is recognized under international law both as a war crime and as a crime against humanity and could arguably be subject to article 689-11. But Syria has acceded to the Convention against Torture, which was executed domestically by Legislative Decree No. 39 of 2004. Furthermore, Article 28 of the Syrian Penal Code provides that “no one may be tortured physically or mentally, or treated degradingly.” This is further included in Article 391 of the Syrian Penal Code, which prohibits torture and punishes the perpetrators of this crime. Therefore, torture may still be investigated and prosecuted by French authorities.

In some cases, the Syrian counterterrorism law may also provide a reasonable basis for double criminality. It should be noted that the Syrian counterterrorism law has been heavily abused by the Syrian government to persecute those with opposing views as well as ordinary citizens. This exposes the absurdity of the double criminality requirement in cases of States that are themselves responsible for widespread human rights abuses. Nonetheless, the double criminality requirement can be satisfied in cases where French prosecutors elect to pursue those responsible for terrorism related offences, such as members of ISIS or Jabhat al Nusra.

Dubious Basis of Double Criminality

Despite the clear avenues that remain open to Syrian victims in France, the rationale for requiring double criminality for universal jurisdiction crimes is open to question. Some international crimes are of such importance, and so universally accepted, that implementing legislation within the State in which the crime occurred should not be required for a prosecution under universal jurisdiction.

Peremptory norms of international law are those that are accepted and recognized by the international community of States as a whole and therefore do not permit derogation (i.e. jus cogens). The International Court of Justice has recognized prohibitions against genocide and torture as peremptory norms – though to date it has not yet recognized crimes against humanity as falling within that category. Many would consider that grave breaches of the Geneva Conventions also fall within this category. Indeed, some have argued that French courts have already accepted that international laws against crimes against humanity, war crimes, and torture directly apply in France, including their universal character, with some important limitations. In our view, jus cogens crimes are directly applicable in both France and Syria and should satisfy the double criminality requirement, notwithstanding limitations in article 689-11.

The French parliament, likely recognizing the importance of facilitating prosecutions of jus cogens crimes, removed the double criminality requirement for the crime of genocide in 2019 amendments to the French law. However, it let stand the requirement with regard to crimes against humanity and war crimes as well as torture as a crime against humanity or war crime. Human rights groups and victims have called for further amendments to the law to remove the requirement in cases concerning these crimes.

Even if the law is amended, however, the amendments might not resolve the problem that the double criminality requirement has created for the prosecution of human rights abusers arising from the Syrian conflict. At first glance, the international legal principle known as nullum crimen sine lege, found within article 112-1 of the French Penal code (also known in the United  States as the prohibition against ex post facto laws) prevents the application of new criminal laws or newly amended laws retrospectively. So even if double criminality is removed for crimes against humanity in the French law, this might not permit the prosecution of human rights abusers for facts arising prior to the amendment. If that is the case, crimes committed during the course of the Syrian conflict, starting from 2011 and continuing to present, would not be subject to prosecution under any amended legislation. However, French law excludes from the nullum crimen principle laws that are amended for only jurisdictional purposes. So a French court might ultimately conclude that the amendment to remove double criminality for crimes against humanity could have immediate effect, if found to be purely jurisdictional.

Regardless of the outcome, amending the law would permit the prosecution of crimes against humanity committed in Syria, or in other States, following the amendment. It would therefore be appropriate to amend the legislation again to remove the double criminality requirement altogether for crimes against humanity.

Revisiting the Lafarge Opinion

Those following universal jurisdiction cases will recall that only a few months ago, the same cour de cassation issued a decision that breathed new life into the criminal case against the Lafarge cement company for complicity in crimes against humanity because of payments the company made to ISIS in order to continue its cement operations in Syria.

In that case, a lower court had ruled that the company could not be held liable for complicity in crimes against humanity. The cour de cassation overturned that ruling, holding that “one can be complicit in crimes against humanity even if one doesn’t have the intention of being associated with the crimes committed.” The court also held that “knowingly paying several million dollars to an organization whose sole purpose was exclusively criminal suffices to constitute complicity, regardless of whether the party concerned was acting to pursue a commercial activity.”

On its face, it is difficult to reconcile the Lafarge ruling with the ruling in the Abdulhamid C. case. The first case reinstated charges of crimes against humanity for conduct in Syria, whereas the second dismissed a case holding that crimes against humanity could never be charged for conduct in Syria. To view the decisions favorably one might consider that the issue of double criminality was never raised in the Lafarge appeal. It could be said that the Lafarge ruling was laser-focused on the issue of complicity and whether there could be a set of facts that would support complicity in crimes against humanity. The court had no reason to consider the location of the crimes in Syria and whether double criminality could also be a ground for dismissing the crimes against humanity charges. That said, the apparent inconsistency is striking. Although France is a civil law jurisdiction that does not recognize legal precedent as it is understood in common law jurisdictions, one would think that there would be an attempt to remain consistent, particularly in two cases issued within two months of one another.

In any case, the decision in the Abdulhamid C. case could lead to the dismissal of the crimes against humanity charges against Lafarge which are currently on remand. The Lafarge case could continue on the basis of the remaining charges, including financing terrorism. But the dismissal of the most serious charges would be an unfortunate outcome – one that makes the decision in the Abdulhamid C. case all the more regrettable, and the amendment of the double criminality requirement all the more urgent.

Conclusion

The cour de cassation decision in the case of Abdulhamid C. is a blow to victims of crimes against humanity in Syria. Present efforts to obtain a measure of justice in Syria – both in France and elsewhere – are highly reliant on universal jurisdiction prosecutions given that a referral to the ICC has been vetoed by Russia, and Syria is not a party to the Rome Statute (having signed the Statute in 2000 but never ratified it). The imposition of double criminality in these circumstances is inconsistent with the principle of universal jurisdiction which is buttressed by an understanding that there are crimes that are so serious as to threaten the entire world and affect the global conscience. It is understandable that human rights defenders would consider that the decision gives criminals an opportunity to enjoy impunity despite committing the most serious of crimes.

However, as noted above, Syria has criminalized war crimes, torture, and terrorism which remain viable avenues for prosecutions in France despite the double criminality requirement. As such, the cour de cassation opinion, while regrettable, does not signify the end of universal jurisdiction in France.

Image: A view of the entrance to the Court of Cassation (Cour de cassation), pictured on March 21, 2017. (THOMAS SAMSON/AFP via Getty Images)

The post France Is Not a Safe Haven for Human Rights Abusers – Despite High Court Opinion appeared first on Just Security.

Having completed direct monitoring of the daily trial proceedings for the last year, the Syria Justice and Accountability Centre (SJAC), where I serve as legal director, can now offer some preliminary lessons for future “universal jurisdiction” prosecutions in order to maximize impact and ensure inclusivity.

Background

Syrian President Bashar Al-Assad maintains his grip on power in Syria through an interlocking web of intelligence agencies, with a host of powers normally disaggregated between the police, military and intelligence agencies. Branch 251, also known as the Al-Khatib Branch due to its location, forms part of the General Intelligence Directorate (GID), and was used as a way station where suspected enemies of the government were detained and tortured before they were sent to other prisons for long-term confinement (and torture) or were released. Numerous Syrian witnesses (see also, here and here) testified as to their arrests and detention in the basement cells of Branch 251, where they were interrogated and often subjected to torture. An insider witness testified that those who died in the various detention centers were transferred to hospitals where death certificates were forged citing natural causes in order to obfuscate the government’s systems of mistreatment.

Both defendants in the Koblenz trial fled Syria in 2012 and eventually made their way to Germany where they sought asylum. Raslan first came to the attention of authorities when he complained that he was under surveillance by Syrian intelligence in Germany. His case was referred to the German Federal Criminal Police (BKA) and after several criminal complaints were filed by Syrian victims through human rights organizations, Raslan was arrested. The case had special resonance because some of the victims from Branch 251 were depicted in the Caesar Files which show the bodies of several thousand victims of torture in photographs smuggled out of Syria by a military photographer. Al-Gharib was initially questioned by the BKA as a witness in the same case. During the questioning however they realized that he was also implicated in criminal conduct. Some of his early statements were excluded for failure to properly advise him of his rights. Since German law does not allow for in absentia proceedings, the presence of Raslan and Al-Gharib in Germany allowed the case to move to trial.

Al-Gharib, who was convicted largely on the basis of his own self-incriminating statement to German police, was found to have worked at Division 40, a sub-division of Branch 251, and to have been aware of abuse at the detention center. The court found that Al-Gharib took part in arresting protestors at a 2011 demonstration and transported them to Branch 251. It did not find that he, personally, beat any prisoners. It is further worth noting that none of the victims who joined the trial as civil parties (i.e. “plaintiffs”) brought complaints against Al-Gharib personally.

Given the lack of evidence particular to Al-Gharib, the Higher Regional Court in Koblenz severed the trial, issuing an early verdict against him. The trial continues against Anwar Raslan, who was senior to Al-Gharib and allegedly the head of interrogations at Branch 251. There is more significant evidence against him, although there remain some challenges in proving his culpability. For example, detainees were normally blindfolded (see also, here and here) so witnesses had difficulty identifying Raslan in court. In addition, it is alleged that since Raslan was not from the Alawi sect associated with Assad’s rule, he did not have substantial power within the Branch.

Significance of the Trial in Germany

Russian vetoes have ensured that no member of the Syrian government has been tried before an international tribunal despite the fact that the government is responsible for the vast majority of atrocities during the conflict. Because of this, the U.N. Security Council was unable to refer the case to the International Criminal Court. A work-around was devised by the U.N. General Assembly in the form of an investigative mechanism (the IIIM) with a mandate to compile evidence, but with no designated venue for prosecution.

So far, universal jurisdiction has proven to be the most viable option for Syrians to obtain a measure of justice in the near term, particularly in Germany, Sweden, the Netherlands, and France where there are sizeable populations of Syrians and special war crimes units mandated to conduct such investigations. To date, most trials have focused on non-State actors, so it was a welcome development when Germany announced the prosecution of Syrian government officials for abuse of the State apparatus by arbitrarily arresting and torturing its citizens. The trial in Koblenz is therefore a significant milestone in the pursuit of justice for Syrians.

An important legal milestone was also achieved in discarding the notion that lower-level State officials can be shielded from criminal prosecution based upon functional immunity (ratione materiae). The immunities to prosecution afforded by international law are the subject of considerable debate. Head of state immunity (ratione personae) applies at least to the heads of state, heads of government, foreign ministers, and possibly defense ministers. Whereas functional immunity (ratione materiae) may offer protection to other government officials for official acts taken on behalf of the state. There remains controversy as to whether immunities should prevail in cases involving international crimes. The German Federal Court of Justice (BGH) has now held that State officials and members of the military (at least those of lower rank) do not enjoy functional immunity under customary international law in foreign criminal proceedings for war crimes. Though the ruling came in a separate case, the Koblenz proceedings were influential, particularly as the BGH cited litigation arising from Koblenz as a basis for finding the absence of functional immunity.

Plaintiffs in Koblenz also succeeded in a request to add charges of sexual violence as crimes against humanity. Though the facts underlying the charges were already included as domestic crimes – satisfying due process concerns – the court granted the request of plaintiffs to recharacterize charges as the crime against humanity of sexual violence. This helps to emphasize that sexual and gender-based violence were wielded as weapons and as a matter of policy by the Syrian government.

Limits of Universal Jurisdiction

Despite these important milestones, the trial in Koblenz faced a number of important challenges which SJAC, in conjunction with its partners at the International Research and Documentation Centre for War Crimes Trials (ICWC), has highlighted in its report on the trial released on Thursday. Universal jurisdiction trials serve justice by fighting against impunity for serious crimes, depriving human rights offenders of safe havens, and symbolizing greater accountability by prosecuting senior leaders and those most responsible for atrocity crimes. But “Not only must justice be done; it must also be seen to be done.”

Hundreds of thousands of Syrians have sought refuge in Germany, yet very few have attended the proceedings in Koblenz or even know what is happening there. The German Federal Prosecutor chose to file charges in the provincial court likely to avoid a backlog of cases in other locales such as Berlin, where there is a large Syrian population. But the result was to deprive many Syrians of an opportunity to see justice at work. When they did attend, they were not permitted access to the Arabic language interpretation, which is produced for the benefit of the defendants and plaintiffs. The opportunity to learn from this historic trial was likewise curtailed when a motion to audio record the hearings for later academic use was denied. There are efforts underway to monitor the trial in the form of detailed notes. Other participants published short summaries of important events and thematic podcasts. But there is no publicly available official record of proceedings. These are significant lost opportunities.

The court’s approach to witness protection could also be described as clumsy. On several occasions, witnesses were hesitant to speak and expressed concerns for the safety of family members living in Syria, Turkey, and even Europe. It was not apparent that the court had advance notice of these concerns and the issues were addressed as they arose in court. Although German law permits a range of protective measures, the court limited such measures to allowing witnesses to conceal their personal identifying information from the public and/or wear a mask during their testimony. Some witnesses were granted this protection in court only to step outside the courtroom and unveil their face and name other protected witnesses. In light of the significant dangers faced by many witnesses and to their families, a more rigorous approach to witness protection should be pursued by courts holding universal jurisdiction trials. International tribunals are staffed with professionals responsible for witness protection matters and national war crimes units could benefit from this expertise.

Syrian audiences were likewise perplexed by the decision to charge Eyad Al-Gharib despite his low rank and the fact that he defected from the regime, not to mention his apparent cooperation with authorities in the investigation of Anwar Raslan. Other witnesses with the same or more significant responsibility testified in the trial and were not charged by the prosecutor. This created confusion as to the German Federal Prosecutor’s policy, leading Al-Gharib’s counsel to question what criteria were used to open criminal proceedings in Germany. It also contributed to the reticence of insider witnesses to cooperate with investigators and prosecutors. This will likely create obstacles to building cases against senior leaders and begs the question as to who of the millions of Syrians with some connection to the Syrian government should be prosecuted. This will be a significant challenge as Syrians grapple with the conflict of the last 10 years and chart a path forward that includes comprehensive justice and the possibility of reconciliation.

Conclusion

The trial of Eyad Al-Gharib and Anwar Raslan continues to be an important milestone for Syrian justice. It should be celebrated while acknowledging that an international tribunal is a more suitable venue to try the senior leaders of the Syrian government. As universal jurisdiction trials remain at the forefront, the trial in Koblenz teaches important lessons as to how to conduct such proceedings, including sufficient public outreach, meaningful inclusion of victims, and clear policies on the selection of witnesses vs. defendants. As more structural investigations move forward in other European States, such as Sweden and France, war crimes units in these countries should take heed of these lessons to maximize the impact of their efforts.

Image: Presiding judge Anne Kerber stands before handing the verdict to Syrian defendant Eyad al-Gharib (hidden under a folder), accused of crimes against humanity in the first trial of its kind to emerge from the Syrian conflict, waits to hear the verdict in the court room on February 24, 2021 in Koblenz, western Germany. Photo by Thomas Lohnes/AFP via Getty Images

The post A Drop in the Ocean: A Preliminary Assessment of the Koblenz Trial on Syrian Torture appeared first on Just Security.

The situation is at once a human rights emergency while also posing a threat to national security. All of the detainees are deprived of due process as they are being held without charge and without any prospects for judicial consideration of their status. Conditions violate international human rights standards and may amount to torture. Innocent children detained with their mothers are not provided any form of education and do not have even their basic needs met. Continued detention in such conditions can be a breeding ground for terrorist fighters as it radicalizes or re-radicalizes those most susceptible to indoctrination. Given the size of the problem, there is an immediate need to triage a coordinated response to different detained groups, identifying the most pressing circumstances to be addressed first.

Foreign Fighters

Repatriation of foreign fighters is the proposal most often espoused as an antidote to indefinite detention in northeast Syria. Indeed, foreign fighters are one of the most significant populations within ISIS as they are likely to be the most motivated to the cause, hardened by combat, and least likely to have ways to return to a peaceful life post-conflict. Hundreds of fighters have been repatriated to Kazakhstan, Kosovo, Russia, and Uzbekistan. However, Western States have been reluctant to repatriate their own nationals as it is domestically unpopular, there may be insufficient evidence to support convictions and a legal framework lacking prosecutable crimes, and rehabilitation efforts are perceived to have poor prospects of success. Even countries that have repatriated foreign fighters are known to have released them without trial. For example, Kazakhstan, Uzbekistan, Russia, and Tajikistan took hundreds of fighters back, but failed to investigate or prosecute (all of) them.

Women and Children

The largest group of those left behind by the crumbling of ISIS are women and children. According to the latest report by Human Rights Watch, there are 63,400 family members in two camps run by the SDF, of which 90 percent are children under the age of 12. The camp conditions are inhumane with

contaminated water, overflowing latrines, shortages of fresh food and diapers, tents leaking or catching fire, rampant disease, insufficient medical care, and almost no schooling for children or counseling for a severely traumatized population.

Many women remain hardline ISIS supporters. Some patrol the camps and enforce strict rules against other women, with reportedly 33 killings within al-Hol camp in 2020. About 8,000 are children brought to Syria from over 60 others countries or born under ISIS some of whom may be stateless. This situation fuels support for ISIS as the SDF is overwhelmed by the number of inhabitants and is unable to provide basic needs while ISIS enlists new members from al-Hol through threats or coercion. Efforts to repatriate women and children for reintegration or prosecution have also been stymied. For example, Canada was considering repatriation of a number of women and children until a public backlash following the New York Times’ Caliphate podcast, which featured a purported ISIS fighter who claimed to have returned to Canada without legal repercussions. The reporting later proved to be false but not before it forced Canada to reassess its repatriation policy. There are also concerns that to repatriate children alone means separating them from their mothers in violation of the Convention on the Rights of the Child.

Amnesties

Over the last two years, thousands of Syrian fighters have been granted what amount to amnesties by the SDC and released back to their communities in Syria, sometimes with tribes providing assurances that the returnees will not commit crimes, and sometimes without such sponsorships. This approach has produced mixed results, with some former fighters being successfully accepted into their communities of origin. However, families of the missing and those kidnapped by ISIS have complained about the lack of consultation before the SDC decided to release the fighters. Indeed, a blanket amnesty for individuals who committed international crimes runs counter to international law. In brief, de jure or de facto amnesties are not a complete solution to the overall problem of postwar detainees, particularly for foreign fighters or those responsible for more significant crimes.

Models of Justice

Since 2019, a number of ideas have been put forward to prosecute ISIS fighters. The Swedish government floated a proposal to create a tribunal or some other legal mechanism in the region to prosecute the fighters. Several NGOs criticized the idea as one-sided, arguing for a more holistic justice solution. At the time, the proposal did not garner significant support because it appeared designed to shirk states’ responsibility to repatriate their nationals. There were also concerns that short sentences would lead to ISIS fighters being quickly released.

The Guardian published an editorial calling for the creation of an ad hoc tribunal given the failure of the United Nations Security Council to refer the Syria situation to the International Criminal Court following a double veto by Russia and China. However, the ad hoc tribunals for Rwanda and the former Yugoslavia were also created by the UNSC, so this option would be similarly blocked by a Russian veto. Subsequent hybrid tribunals for Sierra Leone and Cambodia were created with the consent of the territorial state, which will not be forthcoming from Syria.

The obstacles to creating an international institution has turned the world’s attention to the domestic sphere. The French government has made a diplomatic push to have French ISIS fighters prosecuted in Iraq. Trials of ISIS fighters in Iraq are devoid of due process, however, lasting no more than 15 minutes and often resulting in the death penalty. This violates the international human right to due process. In addition, Iraqi courts are not sufficiently resourced to prosecute thousands of foreign fighters.

The most thorough analysis to date comes from Prof. André Nollkaemper’s legal opinion requested by the Dutch government in 2019, canvassing the legal justification for the creation of a treaty-based international tribunal with or without Syrian or Iraqi governmental support. He recommends that if an international tribunal is created, it should have “the broadest possible participation of states that can exercise jurisdiction over ISIS members as well as effective cooperation with Iraq or Syria.” (The document is only available in Dutch, but a good translation is available through Deepl.)

More recently, SDF trials have proceeded with some quasi-judicial proceedings, mainly against Syrian nationals. On March 18, the SDC reiterated its call for the creation of an international or hybrid tribunal to address the issue, for the provision of legal cooperation and international expertise. Two years from the first call for international assistance and with no solution yet on the table, a novel approach is required.

A Treaty-Based Terrorism Court

The most significant threat to security and stability are the 2,000 foreign fighters held by the SDF. This should be the first priority of the international community. For this unique problem, the international community should create a treaty-based terrorism court in collaboration with the Kurdistan Regional Government in Iraq (KRG) with arrangements to transfer convicted fighters to their home countries to serve their sentences.

There are at least 58 States with ISIS foreign fighters in SDF jails. Through a multilateral treaty, these States could pool their jurisdiction to form a tribunal to prosecute fighters for terrorism-related crimes. In this setting, jurisdiction may be granted for crimes committed abroad based on the active personality principle, whereby most domestic systems permit the prosecution of their own nationals for terrorism crimes. Crimes committed by these perpetrators – be it in Syria, Iraq, or elsewhere – would be within the jurisdiction of the court. The historical antecedent to this legal strategy is the London Agreement between the allied powers following WWII to prosecute Nazi leadership at Nuremberg. Due process rights would be guaranteed in the charter to the new tribunal, which would exclude the death penalty as inconsistent with international human rights standards.

The most appropriate locus for the tribunal would be in KRG-Iraq as it was also part of the territory controlled by ISIS. Victims and witnesses are located in the region and the area is relatively stable. Although trials would ideally be located where crimes occurred and where the detainees are now located, the SDC does not have legal personality to enter into international agreements. The Syrian government is not cooperating with efforts for international justice, and distrust between it and the SDF would not permit effective cooperation. There is political tension between the SDC and the KRG that would need to be resolved. But addressing this issue of mutual concern could be a basis for creating stronger relations, particularly if both entities are supported by the international community.

The subject-matter jurisdiction should be restricted to terrorism-related offenses for which the full-range of penalties remain available up to and including life-imprisonment. Prosecution might also include sexual and gender-based violence (see pp. 137-138). For example, Iraqi criminal law defines terrorism as “any criminal act” with terrorist intent. This could encompass SGBV, kidnapping and other crimes with specific intent. By limiting jurisdiction to these crimes, it would obviate the need to examine the contextual elements of crimes against humanity, war crimes, and genocide, which present resource-intensive and time-consuming issues. Of the foreign fighters, those most responsible for these international crimes, or those whose victims are foreign nationals, could still be prosecuted for atrocity crimes in their home jurisdictions. For example, the so-called ISIS Beatles are being prosecuted in U.S. courts (not without controversy). Indeed, it is important that the Yazidi genocide be recognized, and those most responsible for those crimes should be punished, either in regular Iraqi courts or pursuant to universal jurisdiction in other states.

A question arises as to the applicable substantive criminal law given that the foreign fighters are from over 50 different States. One view is that the substantive law of terrorism may be provided by Syrian law (Syrian counter-terrorism law 6/28/2012) because the crimes occurred in Syria. It may be argued, however, that this is not possible without the participation of the Syrian government. Further, this law has been abused by the Syrian government to prosecute political enemies, activists, and anyone suspected of opposing the regime.

Another view is that the national law that corresponds to the nationality of the accused must be applied, meaning a Kazakh ISIS fighter can only be convicted of crimes punishable under Kazakh law. This would complicate the work of the tribunal considerably. Nonetheless, the ministry of justice of each State could provide a legal memorandum to the tribunal setting forth the applicable substantive law for the terrorism offenses and a judicial office within the tribunal could compile these opinions and make them available to presiding judges (in Arabic). A third option would be to prosecute on the basis of Iraqi criminal law. Any crime with a connection to Iraq (e.g. where the perpetrator passed through Iraq for the purpose of joining ISIS and committing terrorism) could be prosecuted based upon Iraqi law now in effect. For crimes with no territorial connection to Iraq, it could extend its universal jurisdiction laws to encompass the crime of terrorism. The substantive law of terrorism under KRG-Iraqi laws (Law No. 13/2005; KRG Law No. 3/2006) could then be applied to all foreign fighters. This last option might be problematic as it would extend universal jurisdiction to less grave crimes such as membership in a terrorist organization. This approach may also trigger ex post facto concerns. A final, less optimal solution, would be to extend the jurisdiction of the treaty-based tribunal to grave breaches of the Geneva Conventions, crimes against humanity and genocide. These crimes have attained the status of customary international law and could satisfy the principle of legality. As noted above, this would require proof of all contextual elements

Criminal procedures may follow those established by the KRG (Criminal Procedure Code 23 of 1971 Kurdistan region of Iraq (as amended to 14 February 2010). This would obviate the need to draft and approve unique rules of procedure and evidence and would follow the example of the Khmer Rouge Tribunal, which adopted Cambodian law for its rules of procedure. (Note: The ECCC later chose to write its own rules based upon the already existing Cambodian rules of procedure). Although this arrangement is unconventional, it is not unprecedented. The Lockerbie criminal trial for the terrorist bombing of Pan Am Flight 103 took place in the Netherlands, but applied Scottish criminal procedure.

Some other practical concerns include the large caseload as well as funding. International tribunals are not accustomed to prosecuting a large number of accused persons. Indeed, they are designed to prosecute senior leaders and those most responsible for atrocity crimes. For example, the ICTY indicted 161 individuals. A more appropriate model might be prosecutions for piracy (a sister crime of terrorism). A decade ago, pirate attacks off the coast of Somalia skyrocketed. Hundreds of pirates were captured by international navies patrolling the area. In a program coordinated by the United Nations Office on Drugs and Crime and approved by the UNSC, specialized anti-piracy courts were designated in several States, including Kenya, the Seychelles, Mauritius, and Tanzania, which prosecuted over 1,200 pirates with the ultimate goal of transferring them to their home states. This strategy, along with international naval patrols and the use of private security contractors to defend commercial ships, was effective at suppressing piracy and trials were generally considered fair with convicted pirates returned to their homes to serve sentences. See here and here.

As for funding, Iraq is reluctant to bear the entire burden of these prosecutions. It has been reported that it has requested $1 million per prosecution of ISIS foreign fighters. However, a treaty-based terrorism court would not be an Iraqi institution. It would be supported by outside funding from international donors, which could control the budget and the functioning of the court. A final decision on the most appropriate personnel should be resolved following a decision on the applicable substantive law. It should be noted that courts using one official language (such as the Special Court for Sierra Leone) were much more efficient than courts with two or three languages such as the ICTR or ECCC. The official language of court should be Arabic and staffed with lawyers and judges who speak the language.

Rights of Survivors and the Search for the Missing

The brutality of ISIS continues to be felt by the survivors, especially those in Syria and Iraq whose family members were disappeared by ISIS and who remain missing. ISIS fighters are the single best source of information to obtain information on the missing, including the locations of ISIS prisons and mass graves. Tribunals prosecuting ISIS fighters should therefore provide opportunities to obtain this information during judicial processes. Prosecutors and judges should ask questions of ISIS fighters and survivors should be permitted to participate in these proceedings through a representative – as permitted by KRG criminal procedure. If the accused choose to remain silent during their substantive trials, they should be asked these questions again prior to sentencing.

Transfer of Prison Sentences – not extradition

Since 2019, despite repeated calls to repatriate foreign fighters, there has been very little movement by Western states. This is due in part to a fear that foreign fighters will be acquitted due to a lack of evidence, thus creating a security threat upon their release. A treaty-based court addresses this concern by prosecuting fighters prior to their repatriation. Ultimately, however, they should still be returned to their home countries through the transfer of sentences. The States signing the treaty could sign bilateral or multilateral transfer agreements with the KRG-Iraq to facilitate the return of foreign fighters to their home countries to serve their sentences consistent with human rights law.

In the event of acquittal, a separate system would need to be put in place for reintegration/ rehabilitation in their home countries.

Syrian and Iraqi ISIS fighters

A treaty-based terrorism court for foreign fighters would not be suitable to prosecute the remaining 8,000 ISIS fighters in SDF jails who are either Iraqi or Syrian. These individuals should be prosecuted in their home jurisdictions under pre-existing law and with the regular judicial processes in place.

Syria prosecutions should proceed against Syrian fighters in the SDC’s courts in northeast Syria pursuant to Syrian law. These courts will require international assistance to bring them into compliance with relevant human rights law. To this end, the international community should provide support in the form of infrastructure and expertise. As USAID contemplates reinitiating efforts to rebuild infrastructure in northeast Syria, it should consider a program to support the judiciary and criminal justice sector, including prison infrastructure and a program for rehabilitation and reintegration of ISIS fighters.

Iraqi members of ISIS should be extradited for trial in Iraq, which should also be financially supported by the international community. However, the international community should not become complicit in human rights abuses. The UNSG should seek diplomatic reassurances that the maximum penalty imposed will be life imprisonment, and that basic due process will be respected, including the right to a defense and a fair trial. International trial monitors should be present to ensure due process is respected.

Women and Children

The prosecution of foreign ISIS fighters in a treaty-based tribunal and the prosecution of Iraqi and Syrian ISIS fighters in their home countries will not remedy the situation of women and children remaining in camps in NE Syria. Some of these women are responsible for crimes and should be prosecuted. The treaty-based court could also be seized of these cases. Although there will need to be special provision to ensure the courts are equipped to address female detainees. This would add serious complications and prosecution of men detained in SDF jails might need to be prioritized.

Conclusion

The prosecution of ISIS fighters should not be confused with holistic justice for Syria. The Syrian government is the single largest perpetrator of atrocity crimes during the 10-year long conflict, and it must not be permitted to enjoy impunity. Justice is already proceeding in a piecemeal fashion through universal jurisdiction prosecutions in Germany, France, and elsewhere, and there is some hope that Syrian senior leaders will one day be held to account. But this should not prevent the international community from addressing the continuing national security and human rights emergency posed by the 10,000 ISIS fighters languishing in poorly resourced SDF prisons. To be sure, the challenges are significant but not insurmountable.

Image: Men, accused of being affiliated with the Islamic State (IS) group, sit on the floor in a prison in the northeastern Syrian city of Hasakeh on October 26, 2019. Photo by FADEL SENNA/AFP via Getty Images

The post A Tribunal for ISIS Fighters – A National Security and Human Rights Emergency appeared first on Just Security.

The Beatles

The so-called ISIS “Beatles” were four British nationals responsible for the detention of foreign ISIS captives, including American journalists James Foley and Steven Sotloff and American aid workers Peter Kassig and Kayla Mueller. One of the Beatles, Mohammed Emwazi (aka Jihadi John), appeared on video beheading numerous victims. He’s believed to have been killed in a U.S. drone strike in 2016. A second Beatle, Aine Davis, is serving a 7 ½-year prison sentence in Turkey. Reports are conflicting as to whether a fifth man arrested in Spain in April, British-Egyptian rapper Abdel Majed Abdel Bary, was another “Beatles” member. Abdel Bary’s father was convicted in the 1998 twin bombings of US embassies in Kenya and Tanzania.

The two remaining Beatles, El Shafee Elsheikh and Alexanda Kotey, were arrested by the Syrian Democratic Forces (SDF), a partner of the U.S., and held in SDF detention facilities that receive U.S. support. In October 2019, President Donald Trump’s ordered withdrawal of U.S. forces from Syria created a crisis, with over 100 ISIS fighters escaping and fears that thousands more would follow. In the chaos, the U.S. tried and failed to transfer five dozen high-value ISIS detainees out of the country. It did, however, succeed in transferring Elsheikh and Kotey to Iraq which Trump announced by tweet. The U.K. stripped the two men of citizenship, but the government retains a crucial role in whether the men will be brought to trial in the U.S. or instead be handed over to Iraqi authorities for prosecution, and likely, execution.

Transfer to the U.S.

The U.S. has long urged that ISIS foreign fighters, estimated to be 2,000 of the 10,000 detainees in SDF custody, be repatriated to their home countries in Europe and the Middle East. Human rights advocates agree. Fionnuala Ní Aoláin, the special rapporteur on counter-terrorism and human rights, has urged repatriation and said that trials adhering to due process standards, are “the only effective and legally sound means available to ensure that the obligations set out in prior Security Council resolutions are realized.” This places a higher burden on European states, as far fewer U.S. citizens traveled to Syria to join ISIS. Still, if the U.S. follows through on a civilian trial of Elsheikh and Kotey consistent with due process, it would be adhering to its own rhetoric and serve to encourage other States to follow suit.

That said obstacles remain to the transfer of Elsheikh and Kotey. Elsheikh’s mother filed suit in the U.K., arguing the sharing of evidence between the U.K. and the U.S. pursuant to mutual legal assistance was unlawful. Early this year, the U.K. Supreme Court agreed, holding that the U.K. Foreign Office was required by the Data Protection Act of 2018 to seek assurances that the death penalty would not be exercised by the U.S. if the information was shared. This does not prevent the physical transfer of the accused, because both men are already in U.S. military custody, but it would prevent the use of certain (invaluable) evidence. Attorney General Sessions told his U.K. contemporary that “he could not see how the U.S. could do that [a civilian trial] without the U.K. evidence.” Although many witness statements were already shared by the U.K. (see Judgement at para. 61), the ruling prevents any further assistance (such as continued access to witnesses or additional evidence). In addition, a U.S. court could exclude evidence (such as the statements) that the U.K. Supreme Court deemed was illegally transferred by reference to the principle of judicial comity.

Faced with these unattractive possibilities, and calls from the victim’s families for the men to be tried in the U.S. Attorney General Barr has assured U.K. authorities that the U.S. will not seek the death penalty in the case. Barr’s letter also came with a warning: If the U.K. fails to send the evidence requested by October 15, the accused will be transferred to Iraqi custody. Iraqi trials have been criticized by human rights groups for a lack of due process, amounting in some cases to summary executions without any due process protections. It is, therefore, unlikely that Elsheikh and Kotey would receive a fair trial in Iraq, depriving victims’ families of the opportunity to get a full reckoning of their crimes.

Evidentiary Issues

The U.S. Justice Department’s ability to mount a successful prosecution will not only depend upon the sharing of evidence by the U.K., but will also hinge upon the admissibility of evidence obtained during their detention. In an interview conducted by the Washington Post, Elsheikh made allusion to the fact that he may have been mistreated in detention, noting that he had subjected those in ISIS jails to some mistreatment but, “Nothing different to what people experience – I am going to be blunt here and probably just deal with it later – […] from U.S. allies.”

Statements made by Elsheikh and Kotey could become important evidence in their trial. During the same interviews, both men disclosed significant details about their own conduct, including knowledge of torture, the fact of James Foley’s death, conversations with Kayla Mueller, and participation in the ransoming of hostages. In addition, both men were likely interrogated by the SDF, U.S. military, intelligence operatives, as well as criminal investigators. But only statements made in accordance with the Fifth Amendment to the U.S. Constitution will be admissible in a U.S. court. This means that statements taken under duress, pursuant to mistreatment or without proper warnings pursuant to Miranda would be inadmissible.

National security concerns may also prevent certain information from being disclosed and/or introduced against the accused at trial. The Classified Information Procedures Act (18a USC § 1 et seq.) governs the disclosure of classified information to defendants in a criminal trial. In some cases, it may require that a defense attorney obtain a security clearance to receive evidentiary disclosure or deprive a defendant of access to evidence against them. As such, it may create tension with the Accused’s Sixth Amendment right of confrontation as well as the right to a public trial. This could lead to the exclusion of evidence, thereby weakening the prosecutor’s case. As the Justice Department and U.S. Attorneys assess the strength of the case, they will need to consider a number of additional issues.

Charging Issues

Based on publicly available information, Elsheikh and Kotey could be charged with a number of criminal violations, including War crimes (18 U.S.C. § 2441), Hostage taking (18 U.S.C. § 1203), Murder (18 U.S.C. § 2332), Trafficking (18 U.S.C. § 1595); Torture (18 U.S.C. § 2340A); conspiracy under RICO (18.U.S.C. § 1962(d)), or terrorism-related offenses, such as Material Support for Terrorism (18 U.S.C. § 2339A, 18 U.S.C. § 2339B, 18 U.S.C. § 2339C); or Receiving military training for Terrorism (18 U.S.C. § 2339D).

War crimes v. Terrorism charges

Prosecutors will have to decide whether to inaugurate the U.S. War Crimes Act or instead rely on terrorism-related charges. The Genocide Network is a European group of State representatives responsible for the prosecution of atrocity crimes to which the U.S. has observer status. At their last meeting in November 2019, the Genocide Network concluded that

States mainly approach the issue of foreign fighters from a counter-terrorism perspective. However, to ensure criminal responsibility of perpetrators and to deliver justice to victims, investigation and prosecution of all crimes committed by foreign fighters, members of ISIS and other terrorist groups during the armed conflict in Iraq and Syria are essential. Suspects charged with terrorism are often also involved in other criminal offences, such as slavery, rape, torture and murder as core international crimes. Interaction between different sets of law is therefore required on national level to lead to a more effective charging of suspects.

As previously noted by Beth Van Schaack (here, here, and here), the case against Elsheikh and Kotey provides a good opportunity to bring the War Crimes Act into use. This would more comprehensively encompass the wrongdoing of the accused and bolster the available sentences.

The alternative would be to bring only terrorism-related charges, which might be easier to prove but are imprecise and do not fully encompass the conduct alleged to be perpetrated by the ISIS Beatles.

U.S. v. Other victims

The four men who made up the “Beatles” were specifically responsible for the detention and ransoming of foreign detainees. Kotey acknowledges his role in the ransoming of at least four French detainees, three Spanish, one British national and one Dane, as well as several Americans – although the U.K. judgement references 27 beheadings attributable to the accused. The above-noted criminal statutes grant jurisdiction for extra-territorial crimes in limited circumstances, either where the perpetrator or victim is a U.S. national, or where the perpetrator is present in the U.S. It is not clear that Elsheikh and Kotey may be charged with the deaths of victims who are not U.S. citizens, which would leave these victims’ families without redress for their losses. Even if not charged, however, it might be possible for U.S. prosecutors to introduce evidence relevant to other murders pursuant to FRE 404(b) to show the modus operandi of the accused. Although no convictions could enter, it would at least air these grievances in court and help to support a conviction for other crimes.

Defenses

In his interview with the Washington Post, Kotey asserted that he had no choice but to follow the orders of his commander in ISIS, as he would have been beheaded if he did not comply. This defense of duress is commonly raised in trials for international crimes. It was asserted by an ISIS mechanic in Canada, and may be an issue in a trial in Germany of two former Syrian government officials. But, it is more likely to be a mitigating factor in sentencing than to negate criminal responsibility.

Mohammed Emwazi (aka Jihadi John), who was recorded on video beheading Foley, was later killed by a U.S. drone, which may contravene domestic and international law. Elsheihk and Kotey could point to Emwazi’s killing as a way to distract from the charges against them. This type of tu quoque defense seeks to delegitimize the prosecution by showing the hypocrisy of the power that has brought the defendant to trial. It could serve to embarrass the U.S. during the trial, but would not be relevant to the criminal responsibility of Elsheihk and Kotey.

Conclusion

The U.S. is doing the right thing by seeking to try Elsheikh and Kotey in a U.S. district court. It fulfills the promise of due process and gives the victims’ families the opportunity for justice and closure. Other states should be encouraged to repatriate their own nationals who left to join ISIS, as well as foreign fighters who have committed crimes against their citizens.

But this will not resolve the imminent national security and human rights problem festering in SDF jails in northeast Syria. Of the estimated 10,000 to 11,000 ISIS fighters in these underfunded, under-resourced jails, only 2,000 are foreign fighters. The international community still has not identified a solution as to how to deal with the 8,000+ Syrian and Iraqi fighters who were members of ISIS. No international tribunal would be equipped to deal with this number of detainees. Plus, executions of former ISIS fighters after inadequate trials in Iraq will only serve as a recruiting tool for ISIS.

Meanwhile, the SDF is preparing to try thousands of fighters in Syria and is seeking international assistance. Although the SDF is not equipped with trained judges and lawyers, no one has stepped forward to provide assistance. There is a real danger that such trials will not comply with due process and repeat the errors of the Iraqi trials or worse. Furthermore, there are an estimated 70,000 women and children of ISIS fighters living in the al-Hol camp, many of whom now disavow ISIS and others who may have criminal responsibility. A durable solution must start with the repatriation of foreign fighters in SDF jails, as well as the foreign women and children in al-Hol. If the international community fails to take responsibility for foreign fighters, a resurgence of ISIS will be in the making.

Syrian and Iraqi victims of ISIS deserve more. While it is encouraging to see U.S. officials heeding the calls of victims’ families, such as Diane Foley, for fair trials in civilian courts as opposed to at Guantanamo Bay, this highlights the need for victims’ voices to be amplified in other efforts to bring ISIS fighters to justice, including in Syria and Iraq. Thousands of Syrians do not know the fate of their loved ones. Trials of ISIS fighters are a significant opportunity to bring the truth to light. As U.S. prosecutors contemplate the case against Elsheikh and Kotey, they should ask former ISIS fighters where the dead are buried to allow families to put them to rest. They should also utilize all of the statutes at their disposal, including the War Crimes Act, to ensure there is comprehensive justice for ISIS’s victims.

Image: A Kurdish security officer, right, escorts Alexanda Amon Kotey, left, and El Shafee Elsheikh, center, allegedly among four British jihadis who made up a brutal Islamic State cell dubbed “The Beatles,” at a security center in Kobani, Syria, Friday, March 30, 2018. “The Beatles” terror cell is believed to have captured, tortured and killed hostages including American, British and Japanese journalists and aid workers. AP Photo/Hussein Malla

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This situation was avoidable. It is no accident that Syria’s healthcare infrastructure is in tatters. The government has intentionally targeted hospitals, threatened healthcare workers, and denied and diverted humanitarian medical aid, particularly from non-government-controlled areas as a means of targeting rebels and the populations under their control. For example, reporting from the New York Times pieced together video evidence, along with cockpit radio communications showing that orders were given to bomb hospitals in Idlib province. Further evidence arises from the report of a United Nations Board of Inquiry (BOI) tasked by the U.N. Secretary General to investigate a so-called “deconfliction mechanism” which was used to share information between warring parties. While the mechanism was set-up to prevent attacks against hospitals and other objects protected by international humanitarian law, the BOI found that the Syrian government turned the system on its head and used the information for the purposes of targeting. The BOI also noted evidence of Russian involvement, but hedged on whether there was sufficient evidence to make a finding in that respect.

Hospital workers have likewise been the subject of intentional attacks by the Syrian government. This has led to an estimated 70 percent of health workers fleeing the country since the start of the conflict, leaving only a skeleton crew of medical workers to address any acute or chronic medical conditions.

The Syrian government also has a history of removing medical items from aid convoys traveling to opposition areas as a part of the larger strategy to control the flow of aid and ensuring that wounded or sick opposition fighters and civilians do not receive care and treatment. In February 2018, for example, Syrian authorities removed 3,810 medical treatments from aid convoys heading to Ghouta.

The Syrian government’s attacks on healthcare are further exemplified by the response to outbreaks of communicable diseases. For example, the reemergence of polio in Syria was a direct consequence of Syrian government’s deliberate inaction as it initially refused to acknowledge the existence of transmission and withheld routine immunizations in besieged and opposition-controlled areas such as Deir-Ez-Zor, where the outbreak began in 2013. The government attacked vaccine storage facilities leading to 140,000 doses of vaccine being destroyed. This led to 74 confirmed cases by 2017 for a disease that was on the verge of eradication.

The combined effect of these policies has been recognized by Dr. Annie Sparrow et. al. as the weaponization of healthcare namely, “a strategy of using people’s need for health care as a weapon against them by violently depriving them of it.” Though this concept aptly describes the strategy employed by the Syrian government, it does not fall neatly within the current structure of international humanitarian law (IHL) or international criminal law (ICL).

We have examined the criminal responsibility of the Syrian government from the perspective of IHL and ICL in a new paper. We assess the acts and omissions of the Syrian government in relation to its attacks on healthcare, including the incidents described above, as they apply to the weaponization of the COVID-19 pandemic. While direct casualties resulting from the Syrian and Russian bombing of hospitals clearly constitute war crimes, we conclude that indirect casualties resulting from the inaccessibility of healthcare may also lead to criminal responsibility as the foreseeable result of a coordinated campaign. This conclusion has a very real practical implication on the gravity of these crimes. Direct attacks on hospitals have resulted in hundreds of deaths. However, the Syrian government’s weaponization of healthcare has brought an appalling level of suffering and death, amounting to at least tens of thousands of victims. Syrians who die as a result of the inaccessibility to treatment or protection against COVID-19 may also result in criminal responsibility, in our view.

One challenge that arises is identifying the victims whose deaths are attributable to their inability to obtain healthcare or treatment. In this relation, there may be reference to the concept of excess deaths, the difference between observed numbers of deaths and expected numbers. To take one example, public health experts determined the number of deaths caused by the Ebola virus in West Africa that resulted due to the inaccessibility to healthcare. A number of conditions, including deaths of healthcare workers, mandatory curfews, etc., prevented many victims from receiving treatment and increased the numbers of casualties attributed to Ebola by thousands. The Syrian government’s intentional weaponization of healthcare has likewise deprived thousands of Syrians of treatment and it should be held criminally responsible for these outrages.

Still, it is relatively early in the outbreak of COVID-19 in Syria and a number of measures could, and should, be taken to reduce human suffering and risk of death. Humanitarian aid, including medical aid, should be allowed to flow into all areas. The United States should ensure that economic sanctions on Syria do not prevent humanitarian aid from reaching those in need. In particular, the existing humanitarian aid exceptions to the sanctions regimes should be clarified, including the provision of general and specific licenses to facilitate COVID-19 specific aid. Another obstacle to the provision of aid was the vetoes exercised by Russia and China of a UN Security Council resolution in early July that would have permitted cross-border aid into Idlib and Aleppo, resulting in a reduction in the number of approved entry points from six to one. Nonetheless, the Syrian government, of its own accord, should permit aid convoys to continue. It should also provide assurances that once a COVID-19 vaccine is developed, it will permit the WHO and humanitarian NGOs to disseminate the vaccine throughout the country, without discrimination against those in non-government held areas. This would show its willingness to prevent unnecessary human suffering and reverse its policy of weaponizing public health. The Syrian government should take note, however, that should it fail to adequately address the spread of COVID-19, senior members of the government may be held criminally responsible for the resulting deaths at the ICC or a future hybrid tribunal.

Bashar al-Assad himself would do well to recall the Hippocratic Oath he swore upon becoming a doctor:

I will apply, for the benefit of the sick, all measures [that] are required […] I will prevent disease whenever I can, for prevention is preferable to cure. […] May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.

As COVID-19 threatens an already vulnerable population, the Syrian government must acknowledge the dangers posed by the disease and stop its attacks against healthcare in non-government controlled areas. Any less would be criminal.

Image: A member of the Syrian Civil Defence (The White Helmet) checks the rubble and debris at a medical centre following reported shelling by the Syrian government, in the Syrian town of Hbeit in the southern countryside of the rebel-held Idlib province on April 30, 2019. Photo: OMAR HAJ KADOUR/AFP via Getty Images

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However, with Turkey’s occupation of parts of northern Syria, a new venue may now be available to victims: the European Court of Human Rights (ECtHR). Turkey is a State party to the European Convention for Human Rights & Fundamental Freedoms (ECHR) and, in a similar context, the ECtHR has held that Turkey was obliged to adhere to the standards of the Convention not only in Turkey, but also in areas under its effective military and administrative control such as Cyprus (See Loizidou v. Turkey; Cyprus v. Turkey). Turkey has effective control over parts of northern Syria, with the sustained presence of its military, imposition of Turkish law, and administration of schools and other public functions. This degree of territorial control may have pried open jurisdiction for Syrians at the ECtHR to seek redress for human rights abuses by Turkish forces (and militias) in Syria.

Turkish Occupation and Violations in Syria

There is strong evidence that Turkey and its proxy militias have committed numerous human rights abuses and war crimes in Syria. This started in 2016 with the invasion and looting of Azaz and Jarablus in Operation Euphrates Shield, premised on Turkey’s fight against terrorism. Turkish violations — including suppression of freedom of expression, property expropriation, and forced demographic change — continued within Afrin in 2018. More recently, at the end of 2019, Turkey took President Donald Trump’s announcement of U.S. military withdrawal from Syria as an invitation to invade a broad swath of northeast Syria, with reports of summary executions and the use of white phosphorous, a prohibited means of warfare, against the local population.

Historical Antecedents – Cyprus v. Turkey

Turkey’s invasion of northern Syria recalls an earlier period in history with the war in Cyprus. In 1974, Turkey occupied Northern Cyprus, establishing a new “state” it named the Turkish Republic of Northern Cyprus (“TRNC”), with the presence of 30,000 troops and the establishment of administrative functions such as schools and courts. This new entity was not recognized as a State by the international community and was deemed to be little more than a Turkish vassal. Following the exercise of control of Northern Cyprus, however, Turkey was accused of numerous human rights abuses including property expropriation, curtailment of religious and educational rights, forced demographic change, authorizing the trial of civilians by military courts, and failures to investigate the fate of missing persons. A complaint was brought before the ECtHR by the government of Cyprus on behalf of its aggrieved citizens.

Turkey challenged the court’s jurisdiction since the alleged conduct had not occurred within Turkey’s borders. Based on well-established jurisprudence, the Grand Chamber of the ECtHR rejected this argument, holding that its jurisdiction “is not restricted to the national territory of the Contracting States,” and further that Turkey’s responsibility can extend to “acts and omissions of their authorities which produce effects outside their own territory.” Responsibility may arise “when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory.” (para. 76). International law is clear on this point, with the International Court of Justice (ICJ) holding in the Wall case that Israel was obliged to guarantee respect for human rights treaties in the occupied Palestinian territories (paras 111-113).

Turkey also asserted that it was not responsible for any of the purported human rights violations because they were only attributable to the TRNC. The ECtHR rejected this argument as well, holding that the acts and omissions of the TRNC were imputable to Turkey:

Having effective overall control over northern Cyprus, its [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration [TRNC] which survives by virtue of Turkish military and other support. (para. 77).

This judgment forms part of a long line of jurisprudence before the ECtHR on the scope of states’ extraterritorial human rights obligations. The easiest cases have been those, like in Cyprus and now Syria, where the state exercises such “effective control” over foreign territory. There are other cases where such control is lacking and the state is still found liable for human rights abuses abroad.

The ECtHR is open to Syrian victims

Returning to the situation in the north of Syria, the corollaries are inescapable. Turkey has occupied parts of northern Syria, establishing administrative offices and maintaining a contingent of troops and proxies. The administration of these regions answers to and survives only thanks to the backing of the Turkish government and military. By any reasonable measure, Turkey’s presence in northern Syria has all of the trappings of an occupation as it retains effective control over these areas.

As a result, Turkey must respect the mandates of the ECHR, and Syrians have a right to bring claims for violations of their human rights by Turkey before the ECtHR. If such claims are established before the ECtHR, it could order compensation be paid to Syrian victims by the Turkish government. The amount of compensation would depend on the specific circumstances of each case. A judgement by the ECtHR would also be a source of embarrassment for the Turkish government and potential leverage in peace negotiations.

A possible hurdle to any suit against Turkey for such violations is the requirement that petitioners exhaust local remedies — a jurisdictional prerequisite before the ECtHR. Would Syrian victims be required to first bring their grievances before a military or civilian court in occupied northern Syria? Possibly not, as the ECtHR has dispensed with this requirement where exhausting local remedies would be futile or ineffective. On this basis, Syrian victims should have direct access to the ECtHR – albeit in cases limited to human rights abuses committed by Turkey.

Conclusion

Nine years into a conflict replete with all manner of human rights violations, Syrian victims deserve justice. The doors to the ICC remain closed due to a Russian blockade. Some measure of justice is available to certain victims who can identify perpetrators living in Europe in the form of universal jurisdiction cases making their way through the courts. But these cases are far from comprehensive. Through its invasion and occupation of northern Syria, Turkey has provided Syrian victims with another opportunity for justice. Although allegations of human rights abuses could only be brought to the ECtHR based on violations by Turkey (or possibly Russia, which — as a State party to the ECHR— is also subject to ECtHR jurisdiction), it is an opportunity that should not be overlooked. As such, the Syria Justice and Accountability Centre encourages Syrian victims in occupied Turkish territories to bring complaints before the ECtHR to guarantee the human rights of Syrians and to prevent future violations.

Image: Turkish military tanks drive past the town of Ariha on the M4 highway in Syria’s rebel-held northwestern Idlib province on May 7, 2020. Photo by Omar HAJ KADOUR/AFP via Getty Images

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