Accountability for International Crimes in Syria: Universal Jurisdiction and its Application
Av tingsfiskalen MIKAEL SCHANTLI1
The principle of universal jurisdiction — the legal foundation that enables states to establish and exercise jurisdiction over certain atrocious crimes of universal concern such as war crimes, genocide and crimes against humanity — is a noble albeit somewhat controversial instrument. So far, it seems to be more of a theoretical concept than a practical one. This is due to numerous reasons, many of which will be addressed in this article. Exercising universal jurisdiction can pose certain practical challenges, and there seems to exist a slight gap between principle and practice. However, as this article will try to show, the gap is nonetheless slowly closing, particularly in some Western
European countries such as Sweden.
Between 2011 and 2017, the humanitarian disaster in Syria claimed the lives of roughly 475,000 human beings. More than 106,000 people have disappeared or been detained and millions have sought refuge, mostly in neighboring countries like Turkey but also in European countries like Germany and Sweden.2 Throughout this ungraspable crisis, several state and non-state actors have committed atrocious acts. While the Islamic State (ISIS) may have received most of the media’s attention, official government forces have played their shared part as well. According to reports, government forces have tortured and ill-treated detainees (sometimes to the point of death). They have used prohibited weapons, e.g. chemical weapons, in widespread, systematic attacks and they have abused international humanitarian law by unlawfully blocking humanitarian aid.3 Furthermore, innocent civilians have suffered the wrath and inhumanity of non-state actors such as ISIS and the former Al-Qaeda affiliate Jabhat al-Nusra. The two organizations have reportedly violated several international humanitarian regulations, inter alia by systematically targeting civilians with kidnappings and executions, recruiting child soldiers, deploying chemical weapons and sexually enslaving women and girls. As if these atrocities
1 This article is based on a research paper that the author wrote for his Master of Laws (LL.M.) at New York University School of Law in 2020. 2 These are the Crimes we are Fleeing, Human Rights Watch Report, 2 and 12 (October 3rd, 2017), https://www.hrw.org/report/2017/10/03/these-are-crimes-weare-fleeing/justice-syria-swedish-and-german-courts. 3 Id. at 12.
weren’t enough, there exists evidence that the Syrian-Russian coalition has carried out airstrikes striking civilian areas.4 In its 2017 report “These are the Crimes we are Fleeing”, Human Rights Watch has concluded that many of these abuses (regardless of the party committing them) may likely amount to war crimes and in some cases crimes against humanity.5 These types of international crimes are commonly considered so serious and so unacceptable that the perpetrators cannot be allowed to go unprosecuted.6 In the effort of adjudicating the abusers behind these crimes, sovereignty-based judicial constructs such as territorial jurisdiction have to be set aside, or rather: supplemented. A more transpiring, widespread principle of universal jurisdiction aspires to make sure that the most serious crimes acknowledged in the international community can be, and should be, accounted for. The underlying idea of universal jurisdiction is a shared attempt to act in the face of atrocities. Thus, the principle of universal jurisdiction reflects a determination by the international community that persons engaged in e.g. war crimes and crimes against humanity — hostis generis humani (enemies of all humanity) — should not go unseen nor unpunished. One could therefore say that states’ right to act unilaterally to assert universal jurisdiction over persons committing atrocities is based on the notion that they act as “agents for the international community”.7 However, as this article will try to show, there seems to exist a slight gap between principle and practice. Exercising universal jurisdiction can pose certain practical challenges, some of which will be addressed below. This gap is nonetheless slowly closing, particularly in some countries in Western Europe. Accountabilities for atrocities in Syria before European courts are starting to bear fruit, especially in German and Swedish courts. This is partly due to a real concern that these states not become safe havens for perpetrators of international crimes. Cases, some of which will be discussed below, have been opened and have proceeded to trial and conviction. These developments have generally occurred where law enforcement and judicial authorities have made an organizational, institutional and policy commitment to take potential universal jurisdiction cases seriously, e.g. by enacting appropriate legislation. Thus, there seems to exist a willingness among countries such as Sweden to utilize universal jurisdiction and prosecute potential abusers. Prosecutions like these constitute an important part of the international community’s efforts in holding offenders responsible, establishing justice for victims (and their families) and preventing states from becoming sanctuaries for war criminals and human rights abusers. Prosecuting grave crimes like the abovementioned could build
4 Id. at 12–13. 5 Id. at 13. 6 David J. Luban, et al., International and Transnational Criminal Law 215 (2019, Wolters Kluwer). 7 Id. at 221.
respect for, and confidence in, the rule of law. It could also serve as a warning to perpetrators that they will not escape accountability and thus — in the long run — hopefully help defer individuals from committing these abuses in the future. The principle of universal jurisdiction plays a big role in this judicial equation. The challenge of turning this principle into practice is a demanding one. However, bearing in mind the atrocities that have taken place in Syria during the last decade, it is nevertheless a challenge we cannot shy away from.
2 Universal Jurisdiction in Principle
What gives states the authority to enforce criminal law outside their own borders? Under classical Westphalian notions of state sovereignty, a state exercises sovereign power over its own territory but not over the territory of any other state.8 Hence, states traditionally (and probably most commonly) derive their jurisdictional powers from the public international law principle called the territoriality/territorial principle, meaning that sovereign states can prosecute criminal offenses that are committed within its borders. Thus, the territorial theory takes the position that criminal jurisdiction depends upon the place of perpetration. In effect, the principle also bars states from exercising jurisdiction beyond their borders unless they have jurisdiction under other principles such as the principle of nationality, the passive personality principle, or the principle of universal jurisdiction. The latter — also called the universality principle — enables a state to establish and exercise jurisdiction over certain crimes of universal concern regardless of where those crimes were committed or regardless of the nationality of the offender or victim(s). Thus, universal jurisdiction exempts states from “connection” requirements like territory or nationality and enables them to exercise jurisdiction with respect to an offense committed by a foreign national against another foreign national that took place outside the forum state’s territory.9 The principle of universal jurisdiction is often viewed as a special case earmarked for a small group of the grimmest crimes in society such as genocide, war crimes, crimes against humanity and torture.10 Thus, universal jurisdiction seem to extend to jus cogens crimes. Even though all states of the world are parties to the 1949 Geneva Conventions — which mandate the exercise of universal jurisdiction in its Grave Breaches provisions — and some are parties to other multilateral treaties mandating universal jurisdiction, it seems like most states have not established universal jurisdiction in their domestic laws.11 Some states, Sweden among others, have provisions in their criminal statutes exercising universal jurisdiction with respect to certain atrocities such as war crimes, genocide and crimes against
8 Luban, et al., supra note 5 at 173. 9 Id. at 177 and 213. 10 Id. at 177. 11 Id. at 214–15.
humanity. This is however not the case with most other countries. Why is that? What keeps certain nations in the international community from further implementing the principle of universal jurisdiction even though most seem to agree to its existence and importance? The reasons might be both many and undisclosed due to politics, diplomacy and the like. This has of course left room for speculation. Some have said that the principle of universal jurisdiction is impracticable and intrusive.12 These opposers of universal jurisdiction argue that its use amounts to one state infringing on the sovereignty of another and that international tribunals are the better, more appropriate choice.13 However, the world’s main international criminal tribunal — the International Criminal Court (and its Office of the Prosecutor) — faces some significant obstacles in its efforts of adjudicating potential abusers. Grossly speaking, the ICC bases its jurisdiction on either state ratification of the Rome Statute, prosecutor initiative (proprio motu), in casu ad hoc referral by a non-party state, or referral through a UN Security Council resolution.14 As highlighted by the situation in Syria, which will be addressed further below, the ICC and its Office of the Prosecutor might thus very well lack possibility to investigate and adjudicate individuals believed to be responsible for grave international crimes. Arguably, this leaves the world in an unsettling situation were it not for the existence and potential application of universal jurisdiction. Nevertheless, universal jurisdiction cases still seem to attract controversy15 and its application undeniably raises concerns of sovereignty infringement. As a judicial construct, it demands political sensitivity. Supporters of a more cautious approach hold that universal jurisdiction is appropriate but only as somewhat of a “reserve tool” or last resort when the territorial state is unwilling or unable to prosecute.16 This principle of subsidiarity implies that courts in the territorial state should have priority in exercising jurisdiction over the crimes. It also implies, however, how important the struggle against impunity is and that universal jurisdiction ultimately centers around, and safeguards, anti-impunity.
Whenever political hurdles might be overcome, applicants of the principle of universal jurisdiction will however most likely always face certain practical difficulties (some of which will be addressed further below). Prosecutions based on universal jurisdiction seem rare in practice and some states impose additional requirements in order to exercise universal jurisdiction, e.g. commission of the crime during a specific conflict or time period and the territorial presence of the suspect.17 Serious skepticism and issues related to so called in absentia trials were
12 Id. at 226. 13 Id. at 225. 14 Rome Statute of the International Criminal Court, article 12 and 13. 15 Luban, et al., supra note 5 at 213. 16 Id. at 225. 17 Id. at 213.
thoroughly expressed in one of the world’s most famous and leading judicial decisions on universal jurisdiction and its application in practice; the 2002 International Court of Justice Arrest Warrant case (discussed further below). Thus, while some states require that the accused offender be in custody of the forum state in order to exercise universal jurisdiction, some countries — Sweden, among others — make use of the “purer” principle of universal jurisdiction where such a custody requirement is absent.18 Even in liberal countries such as Sweden, however, many practical obstacles present themselves when initiating an criminal investigation based on universal jurisdiction. Some challenges remain if the case goes to trial, at which stage other ones might develop additionally. Some of these practical encounters will be discussed below, mostly in general terms but also in the case of Syria specifically.
3 Universal Jurisdiction in Practice — Brief Historical Outlook
Arguably the most well-known and fundamental judicial decision on universal jurisdiction and its application in practice, ironically the 2002 ICJ Arrest Warrant case actually ended up revolving around a disputed immunity issue. Yet, several ICJ judges seized opportunity to issue separate opinions on the matter of universal jurisdiction.19 The opinions held different perspectives and discussed a variety of judicial matters. For example, President Guillaume established that neither treaty law nor international customary law provide states with the possibility of conferring universal jurisdiction in absentia (i.e. without the offender present on its territory).20 However, judges Higgins, Kooijmans and Buergenthal jointly nuanced President Guillaume’s opinion by concluding that “[…] virtually all national legislation envisages links of some sort to the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of jurisdiction. This does not necessarily indicate, however, that such an exercise would be unlawful. […] Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law, — that is, State practice — is neutral as to exercise of universal jurisdiction”.21 Thus, even though the ICJ ultimately held that the principle of universal jurisdiction could not extend Belgium’s prosecutorial powers to an immune Congolese state official in absentia, it certainly appears as though the court did not repudiate universal jurisdiction as such (actually, the judges split 5-4 in favor of universal jurisdiction). This probably comes to show that the ICJ realized how important the principle could be in the endeavors of preventing suspects of international crimes from
18 Id. 19 Id. at 217. 20 Id. at 219. 21 Id. at 220.
finding safe havens in third countries. The court clearly distinguished between immunity and impunity, teaching international lawyers an overall lesson that even though immunity might stop the application of universal jurisdiction, we must make use of it whenever possible in order to avoid impunity.
Lastly, a couple of important practical issues when applying universal jurisdiction were discussed in the ICJ opinion, e.g. how the principle of territorial jurisdiction best facilitates, and corresponds to, investigatory measures such as gathering of evidence. It was inter alia pointed out that the territory where the offence is committed most often is where evidence can be successfully collected in order to pursue an investigation and go to trial.22 This declaration points to one of the many practical obstacles faced when conducting a criminal investigation (and subsequent criminal trial) based on universal jurisdiction.
4 Universal Jurisdiction in Practice — General Challenges
From the initial complaint to the conclusion of the trial and any appeal, domestic cases based on universal jurisdiction are complex and present special difficulties for police, prosecutors, defense attorneys and courts. An apparent obstacle to a successful investigation and prosecution of an international crime is the relative lack of familiarity with investigating, prosecuting and adjudicating such cases among domestic judicial agencies. Simply put, the international crimes targeted by universal jurisdiction give rise to questions not normally handled by local authorities. Because these acts will have occurred in a foreign country (sometimes very far away), often many years earlier, cases rarely arise in the manner to which local authorities are accustomed. Simple investigatory measures might impose various hurdles and not only legal ones. Investigators and prosecutors may lack knowledge about the historical and political context of the alleged crime and of applicable international law. Witnesses may be scattered across the globe and the government of the host state might be unwilling or unable to cooperate with foreign authorities (or defense attorneys). Despite these complications, domestic cases have been opened and proceeded to trial and conviction, e.g. in Sweden during the last five years. More on that later on in this article.
Extraterritorial investigations are undeniably resource-intensive and can become quite time-consuming. They pose a high number of logistical and administrative challenges, particularly as it comes to evidence gathering. Furthermore, having to conduct a big part of a foreign investigation in a region where an armed conflict might still be ongoing poses additional issues of security and cooperation. Traveling to the affected country presents a range of challenges, including linguistic and cultural barriers and potential resistance from local authorities. Ultimately, politics and diplomacy will set the framework for what can reasonably be achieved. Questions are normally dealt with through a
22 Id. at 217.
bilateral mutual assistance treaty between the forum state and the host state. These treaties might however be more or less efficient and might be more or less adhered to depending on the circumstances and the relations between the two countries. In order to conduct a sufficiently diligent investigation, governmental authorities of the forum state will likely have to ensure the capacity to relocate threatened witnesses (either to a safe third state or the forum state itself). Language barriers and cultural differences will have to be overcome in a respectful but efficient manner.
These logistical and judicial problems do not just present themselves for the investigatory authorities (i.e. prosecution and police), they also impose challenges on the defense and the court itself. For example, article 6 of the European Convention on Human Rights ensures that any criminal defendant must be given a fair trial. This concept involves, inter alia, the right to confront and examine witnesses and the principle of “equality of arms”; i.e. equality in presenting arguments and equality in being able to present evidence. Ensuring these fair trial guarantees in the context of a universal jurisdiction case, where most witnesses and evidence for and against the defendant may be outside the country, may require additional efforts on part of judicial authorities. Benjamin Franklin once said “An investment in knowledge pays the best interest”. This, like many other things in life, is very true when it comes to the application of universal jurisdiction. A common denominator to strive for regardless of which judicial actor you might be (i.e. prosecutor, defense attorney, judge etc.) is specialized knowledge of universal jurisdiction and the crimes related to its application. Authorities in different countries might of course deal with this in various ways. One approach might be to create specialized war crimes units within the police and prosecutorial authorities (and even judiciary) that concentrate on investigating, prosecuting and adjudicating universal jurisdiction cases. One can assume that such units allow for concentration of relevant experience and information, thereby enhancing the efficiency and proficiency of investigations. This will of course also benefit the judiciary should the case go to trial. Sweden, among others, has adopted this approach by creating the National Unit for International and Organized Crime (author’s translation) in January 2018.23 Creating such specialized units implies an institutional commitment to taking prospective universal jurisdiction cases seriously. It is also worth mentioning that such units are legally mandated through a decision by the Council of the European Union on Justice and Home Affairs “on the investigation and prosecution of genocide, crimes against humanity and war crimes”.24
23 Åklagarmyndigheten, https://www.aklagare.se/kontakt/aklagaromraden /nationella-aklagaravdelningen/riksenheten-mot-internationell-och-organiseradbrottslighet/ (Swe: Riksenheten mot internationell och organiserad brottslighet). 24 Council Decision 2003/335/JHA (May 8th, 2003), article 4.
International coordination and cooperation are other essential parts of efficiently applying the principle of universal jurisdiction. In order to fight impunity and deny sanctuaries to perpetrators, the international community has to come together and synchronize their joint efforts collectively. This, of course, has to be done on a practical level and not just a theoretical one. Several multilateral treaty provisions oblige state parties to cooperate in the investigation of international crimes. 25 As part of its efforts in putting theory into practice, the Council of the European Union on Justice and Home Affairs has decided to set up a “European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes”.26 Steps like these are of course crucial in order to increase international cooperation and information exchange on the application of universal jurisdiction. They enable authorities and judicial actors to make important bilateral contacts and to exchange information regarding national legislation and how it is administrated practically.
The general challenges discussed in the paragraphs above deal with practical obstacles (and potential solutions) when moving forward with a case based on universal jurisdiction. A different but related question, however, is what legislative challenges exist before reaching that stage. Specifically, what kind of measures does universal jurisdiction require of domestic law in order to enable its practice in a sufficiently effective way? Despite positive developments in national practice in countries such as Sweden and Germany, significant legislative limitations remain which hinder the exercise of universal jurisdiction. These challenges could most likely be overcome with enough political will. They include, inter alia, the continuing absence of implementing domestic legislation and the application of restrictive threshold requirements for opening criminal investigations (including reliance on non-transparent prosecutorial discretion). Fundamentally, countries that claim adherence to the principle of universal jurisdiction — e.g. by ratifying treaties which define international crimes — has to introduce definitions of international crimes into their own domestic laws. And they must do so in an adequate manner. Insufficient or vague implementation might cause legal practitioners — prosecutors and judges foremost — to rely on other “more common” criminal provisions when framing international crimes such as war crimes and torture. Thus, prosecutors might potentially feel like they have no choice but to frame these crimes in terms of domestic equivalents such as murder or assault. The legal effects of doing so are many and dangerous. For example, besides from potential policy issues on a broader scale when “degrading” international crimes to domestic crimes (true justice for victims among other), applying less accurate domestic law for such criminal charges means that the crimes
25 For example; article 88 of the First Additional Protocol to the 1949 Geneva Conventions and article 9 of the 1987 Convention against Torture. 26 Council Decision 2002/494/JHA (June 13th, 2002).
might be subject to less severe punishment and (shorter) statutes of limitations. This might of course impact the case and its outcome substantially. In comparison, under international law, international crimes are not subject to statutes of limitations.27 Furthermore, countries will have to adapt their legislation in order to enable an expanded cooperation between domestic authorities. For example, in order to avoid becoming safe havens for suspected perpetrators, states will have to give legal consideration to formalizing and strengthening mechanisms of cooperation and information exchange between immigration authorities and prosecutorial authorities in respect of suspected abusers who apply for refugee status or visas. Such measures might prove essential in the long run.
In sum, the fair and effective exercise of universal jurisdiction poses substantial challenges to many different actors within a state’s legal system. Universal jurisdiction cases are generally more complex and resource-intensive than ordinary criminal cases. More often than not, they raise novel legal questions for domestic investigators, prosecutors, defense attorneys and the court. In order to achieve a suitably adequate application of the principle of universal jurisdiction, specialized knowledge, sufficient funding and international cooperation are essential requirements.
5 Universal Jurisdiction in Practice — The ICC’s Role
Many refer to the International Criminal Court as the number one forum for investigating and, where warranted, prosecuting and adjudicating individuals charged with international crimes. The court is explicitly participating in a global fight to end impunity.28 However, the ICC cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, domestic courts. Thus, if a state pursues these core crimes domestically it divests the ICC of its ability to pursue the case, rendering the case inadmissible.29 This is an important factor to calculate for when dealing with the principle of universal jurisdiction and its practice in reality.
A more fundamental and profound limitation on the ICC and its Office of the Prosecutor is the mandate on which it bases its jurisdiction. Grossly speaking, the court has four ways of obtaining a legitimate mandate: 1) the crime was committed by a state party national or in the territory of a state party or in a state that has accepted the jurisdiction of the ICC; 2) UN Security Council referral; 3) the ICC prosecutor may initiate an investigation on her own initiative (proprio
27 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, November 26th, 1968, 73 U.N.T.S. vol. 754, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.27 _convention%20statutory%20limitations%20warcrimes.pdf. See also article 29 of the Rome Statute. 28 International Criminal Court, https://www.icc-cpi.int/about. 29 Luban, et al., supra note 5 at 719.
motu) or upon request from a state party; and 4) voluntary ad hoc referral by a state not party to the Rome Statute.30 The first option is probably the least controversial one since such a jurisdictional mandate is treaty based. There are currently 123 state parties to the Rome Statute.31 This is of course a vast number of countries, an encouraging testimony to the ICC and its mission. The ICC, however, is not an institution of unlimited financial resources. With finite resources, the ICC can try only a relatively small number of perpetrators. Therefore, its Office of the Prosecutor has decided to function with a two-tiered approach to combat impunity. On the one hand it will initiate prosecutions of the leaders who bear most responsibility for the crimes. On the other hand it will encourage national prosecutions, where possible, for the lower-ranking perpetrators. This strategy of focusing on the major abusers may however leave an “impunity gap” unless national authorities, the international community and the ICC work together to ensure that all appropriate means for bringing other perpetrators to justice are used.32 Thus, the ICC relies heavily on, and works in close connection with, domestic courts and laws. Evidently, the existence of the ICC has already encouraged states to incorporate as domestic law the crimes within the jurisdiction of the court. And it has been said that the use of this legislation will be a major step in bringing to justice the perpetrators of atrocities.33 Of course, this policy orientation becomes even more apparent considering the fact that the ICC is principally a court of complementarity. Even when authorized through any of the abovementioned types of mandates, it only aims to exercise its jurisdiction when a state is “genuinely” unwilling and/or unable to investigate or prosecute.34 However, one might wonder what happens when neither of the types of mandates are available? If you are dealing with mass atrocities in a country which is not a party to the Rome Statute, where UN Security Council authorization is lacking, where the Office of the Prosecutor has not initiated a proprio motu case, and where the host state has been reluctant to refer the situation to the ICC? What do you do then? The credible answer is that you must rely on the principle of universal jurisdiction and its implementation in domestic law in countries all around the world. How can such a situation even occur, one might ask. Sadly, one of the most telling examples of such a situation is in fact Syria during the last decade. It is when the international community has to deal with an atrocious situation like the one in Syria that one
30 Id. at 728. See also Rome Statute of the International Criminal Court, article 12 and 13. 31 International Criminal Court, https://asp.icc-cpi.int/en_menus/asp/states%20 parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx. 32 Paper on Some Policy Issues Before the Office of the Prosecutor, International Criminal Court, 3 (September, 2003), https://www.icc-cpi.int/nr/rdonlyres/ 1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905_policy_paper.pdf. 33 Id. 34 Luban, et al., supra note 5 at 719 and 729.
might realize the importance of universal jurisdiction and the enabling of its use in national legal systems.
6 Universal Jurisdiction in Practice — Sweden and Syria
As indicated above, the ICC and its Office of the Prosecutor lacks the possibility to investigate and adjudicate individuals believed to be responsible for the grave international crimes that has taken place in Syria during the last decade. This is due to several factors: Syria is not a party to the Rome Statute and has yet to voluntarily accept the ICC’s authority ad hoc. Furthermore, in May 2014, Russia and China vetoed an UN Security Council resolution that would have given the ICC the mandate needed.35 These factors will ultimately impact the Syrian people; civilians who have been forced to either live with atrocities for years or flee their home country and find themselves displaced across the globe. Thus, in the struggle to achieve justice for Syria and its people, the principle of universal jurisdiction and the enabling of its use in national legal systems become essential. Thankfully, countries like Sweden have arisen to the challenge.
Sweden’s efforts in utilizing universal jurisdiction have been partly mapped out in the 2017 Human Rights Watch report “These are the Crimes we are Fleeing”. The report finds that “[Sweden has] several elements in place to allow for the successful investigation and prosecution of grave crimes in Syria — above all comprehensive legal frameworks, well-functioning specialized war crimes units and previous experience with the prosecution of such crimes”.36 Sweden has ensured that its domestic laws are broad enough to allow law enforcement to pursue suspected perpetrators in their home countries even though the crime in question was committed elsewhere and the suspect and victims are not Swedish nationals. When adjudicating mass atrocities, the Swedish prosecution authority and the Swedish courts derive their universal jurisdiction mandate from one of the opening provisions of the Swedish Penal Code37. Chapter 2 of the Swedish Penal Code differentiates between jurisdiction based on territoriality, nationality and universality. The provision authorizing the use of universal jurisdiction simply states that when dealing with certain international crimes (e.g. genocide, war crimes and crimes against humanity) committed abroad, Swedish law shall apply and Swedish courts shall have legitimate jurisdiction. The provision does not require the territorial presence of the alleged perpetrator, as is the case with many other countries. Thus, while the ICJ and judicial commentators in the
35 Press Release, Security Council, Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, U.N. Press Release, SC/11407 (May 22nd, 2014). 36 Supra note 1 at 3. 37 Brottsbalken [BrB] [Penal Code] 2:3 (Swed.). The provision refers to the Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes adopted in June 2014.
international community have met the concept of universal jurisdiction in absentia with skepticism38, Swedish legislation is significantly permitting regardless of where the suspect is located. It requires no specific link between Sweden and the crime in question for national authorities to have jurisdiction. This type of “pure” universal jurisdiction is quite rare to find in domestic legislation. In fact, Sweden, Germany and Norway are the only countries in Europe to make use of such universal jurisdiction over international crimes.39 This is of course an important factor to observe, both principally and practically.
A much helpful factor that has aided Sweden practically in investigating, prosecuting and adjudicating war crimes and the like is the availability of victims, witnesses, material evidence and even suspects within reach of Swedish authorities. This is due to the large number of Syrian asylum seekers and refugees that have made their way into Europe, especially during the last five years. Several European cooperation mechanisms (including the European Arrest Warrant) enable countries to work together and exchange crucial information in the struggle to end impunity. However, countries such as Sweden might not necessarily require cross-border cooperation in order to properly adjudicate abusers of international law. Together with Germany, Sweden has received the highest number of Syrian asylum applications of all European countries between 2011 and 2017. The two nations composed 64% of 970,316 applications according to the UN High Commissioner for Refugees.40 This allows Swedish authorities to collect evidence and interview potential victims, witnesses and abusers within its own borders, thus avoiding (at least in part) the problems that inaccessibility to crime scenes abroad may create. However, as rightly pointed out by the 2017 Human Rights Watch report41, there exists a lack of awareness among Syrian asylum seekers and refugees in Sweden about the systems in place for the investigation and prosecution of international crimes. Consequently, in order to maximize the potential behind universal jurisdiction, Sweden faces a vital challenge in connecting victims and witnesses with the right authorities and war crimes units. Only then can these people contribute properly and sufficiently to domestic justice efforts. Sweden has a decentralized judicial system and serious international crime cases could potentially be argued anywhere in the country. In practice, however, prosecutors normally request that these cases be referred to Stockholm District Court, which informally possesses specialized knowledge to handle these kinds of cases.42 Another prominent
38 Anthony J. Colangelo, The New Universal Jurisdiction: In Absentia Signaling Over Clearly Defined Crimes 540 (2005, Georgetown Journal of International Law, vol. 36). 39 Supra note 1 at 15. 40 Europe: Syrian Asylum Applications, UNHCR (April, 2011–July, 2017), http://data.unhcr.org/syrianrefugees/asylum.php. 41 Supra note 1 at 4. 42 Id. at 41.
district court within the field of international criminal law is Södertörn District Court. The last decade has indeed shown that Sweden has successfully utilized the principle of universal jurisdiction. It is one of the two first countries (along with Germany) in Europe in which individuals have been prosecuted and convicted for international crimes by use of universal jurisdiction.43 However, so far only a handful of cases related to Syria have reached the trial phase.44 Some of the most noticeable ones are presented in the table below.
Defendant Alleged crimes and charges Case outcome
Mouhannad Droubi (member of a Syrian non-state armed group affiliated with the Free
War crimes and aggravated assault: assaulted a member of another non-state armed group affiliated with the Free Syrian Army
Sentenced to 8 years in prison by Svea Court of Appeal on 5 August 2016 (case number: B 4770-16)
Haisam Omar Sakhanh (member of a Syrian non-state armed group opposed to the government)
War crimes: extrajudicially executed seven Syrian army soldiers
Sentenced to life in prison on 16 February 2017; affirmed by Svea Court of Appeal on 31 May 2017 (case number: B 3787-16) Mohammad Abdullah (member of the Syrian army)
War crimes: violated the dignity of five dead or severely injured people by posing for a photograph with his foot on one of the victims’ chest
Sentenced to 8 months in prison by Södertörn District Court on 25 September 2017 (case number: B 11191-17)
It is worth mentioning that all three defendants had travelled to Sweden as refugees and applied for asylum there once they got arrested on Swedish soil. Thus, these trials were not in absentia trials. The successful efforts in bringing these perpetrators to justice is a win not only for every victim but also for the international community as a whole. They demonstrate that universal jurisdiction is not just a legal principle but a useful tool that can be properly exercised in practice, albeit with some uncertainty as to in absentia trials. However, these few cases are not truly representative of the vast extent and horrific character of the abuses committed in Syria and the human suffering displayed there during the last decade. Much remains to be done in the fight to end impunity and bring justice to Syria and its citizens.
43 Id. at 15. 44 Id. at 24.
7 Concluding Thoughts
The principle of universal jurisdiction is a noble albeit somewhat controversial instrument created in order to pursue and adjudicate those who commit mass atrocities like war crimes, genocide and crimes against humanity. So far, it seems to be more of a theoretical concept than a practical one. This is due to numerous reasons, many of which have been addressed in this article. Moving forward, several issues will have to be addressed in order to maximize the use of universal jurisdiction in a legitimate way. Domestic war crimes units like the one in Sweden have to be provided with enough financial support to enable them to conduct sufficiently thorough investigations. Police, prosecutors, defense attorneys and judges have to be educated on a regular basis, thus providing them with the specialized knowledge needed to deal with unorthodox legal encounters. Furthermore, the effective exchange of information between countries of all corners of the world has to be simplified and increased. Here, the UN established International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 201145 will play a key role. The same goes for the Independent International Commission of Inquiry on the Syrian Arab Republic46. Documentation efforts, including preserving potential evidence, will continue to be important and could be vital to future domestic and international accountability processes. And unless the international community starts to utilize universal jurisdiction to a greater extent on an international scale, a wider, general judicial forum is needed for the comprehensive prosecution of perpetrators of serious international crimes in Syria. Since the prospects of the ICC adjudicating these grave crimes seem less realistic, one might begin to wonder whether an international ad hoc ISIS-tribunal should (and could) be created, much like former ad hoc tribunals like the ICTY and ICTR. This is of course only one creative suggestion of a way forward. Regardless of which future strategy the international community adopts, our strive towards justice for Syria cannot be weakened. And although the war against impunity might be hard-won, universal jurisdiction enables us to win some important battles on the way to victory.
45 Established by the UN General Assembly in December 2016 through resolution 71/248. 46 Established by the UN Human Rights Council in August 2011 through resolution S-17/1.