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Invoking ‘Universal Jurisdiction’ for the prosecution of Crimes Against Humanity

By: Louis Golden BL

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Introduction

In January of this year, a German court found Anwar Raslan guilty of crimes against humanity.  Raslan ran an infamous detention centre close to Damascus, Syria’s capital.  This was a landmark trial for several reasons.  The Court saw and heard harrowing evidence which gave the world unique insight into the brutal tactics adopted by the Assad regime in the lead up to, and during, Syria’s civil war.  Raslan defected from Syria where he ran an infamous detention centre known as Branch 251.

Raslan was sentenced to life in prison having been found guilty of involvement in some 4,000 incidents of torture, as well as murder, rape, and sexual assault.  Some of the most damning evidence came from the “Caesar Photos”, photographs from a hard drive stolen by a Syrian defector, protected by anonymity for his own safety, and referred to only as Caesar.  Caesar smuggled over 53,000 photographs out of Syria which show tortured, burned, and emaciated victims.  Prosecutors alleged that Raslan conducted interrogations using electric shocks, beatings, rape, and sleep deprivation as methods of interrogation.

The ruling in the case is the first occasion on which a senior member of Bashar Al Assad’s regime has been convicted of atrocities carried out during Syria’s civil conflict, although, Assad himself remains out of reach of justice and this is unlikely to change as long as he enjoys the backing of Tehran and Moscow.

Universal Jurisdiction

Raslan was tried in Germany despite his crimes being committed in Syria.  This is because he was tried using the legal principle of universal jurisdiction.  This gives the trial even greater significance as it may set a precedent that changes how courts deal with crimes against humanity in the future.  The principle of universal jurisdiction allows prosecutors to target perpetrators of these crimes regardless of whether there is a link between the crime and the jurisdiction in which the trial takes place.  Universal jurisdiction allows for a state, claiming jurisdiction, to prosecute crimes of the utmost severity which were committed otherwise than in the jurisdiction of the prosecuting state.  Crimes which can be tried under this principle include, inter alia, war crimes and crimes against humanity.  Such a prosecution can occur regardless of the nationality or domicile of the accused, and regardless of where the crimes took place.  The principle is based on the premise that crimes of such severity harm the international community, and therefore, the international community can endeavor to prosecute them wherever it sees fit.  Universal jurisdiction can generally be invoked by a national court when a more conventional method of criminal prosecution is not available.

Typically, for a trial to take place in Germany, an accused would have either committed a crime in Germany, been a national of Germany, or committed a crime against a German citizen.  And, in the absence of that which would typically have provided the German courts with jurisdiction, the principal of universal jurisdiction was invoked.

It is highly unlikely that Raslan would have been tried for these crimes in the jurisdiction in which they took place as the state in which they were perpetrated sponsored the crimes, and such crimes are both systemic and endemic in Assad’s Syria.  Some of the crimes the Assad regime has been accused of include the application poison gas against civilians and the targeted killings of rescue workers and journalists, most notably, Marie Colvin.

Famously, in a case that has been the subject of innumerable on-screen productions, Adolf Eichmann, the SD’s former Head of Jewish Affairs, stood trial in Israel despite never having committed a crime in Israel. Eichmann was abducted in Argentina, after which he was smuggled out of Buenos Aires by Mossad, and taken to Jerusalem to stand trial.  Although jurisdiction to carry out this trial was accorded to Israel's Courts by Israel’s “Law for Meting out Justice to Nazis and their Collaborators”, the rationale is similar to that of universal jurisdiction, invoked in the Raslan trial.

Conclusion

The invocation of the universal jurisdiction principle, and the prosecution of Raslan may, it is hoped, pave the way for greater accountability.  The trial is likely to send a shiver down the spine of Bashar Al-Assad.  The western educated ophthalmologist was once a beacon of optimism in the west when he was hosted by Jacques Chirac , Nicolas Sarkozy , Tony Blair, and by the Queen at Buckingham Palace. He is now, however, very much a pariah in the international community, and more isolated than ever before.

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