How Europe is bending the arc toward justice

Portraits of victims under the dictatorship of Augusto Pinochet, who was later detained in London under universal jurisdiction © Martin Bernetti (AFP/File)
Richard Dicker, Human Rights Watch for Open Democracy
As a "court of last resort", the ICC does not always have the jurisdiction to prosecute perpetrators of war crimes in every conflict around the world. In this article for Open Democracy, Richard Dicker of Human Rights Watch explores how the concept of universal jurisdiction is enabling domestic courts to take international justice into their own hands — and the resources that will be required to sustain them.

Armed conflicts that have given rise to horrific war crimes in SyriaIraqYemen and South Sudan are all beyond the reach of the ‘court of last resort’, the International Criminal Court (ICC). But domestic courts in Europe are stepping into the void and giving the victims some hope.

The ICC was created to take on crimes that shocked the conscience of humankind where national courts failed to do their job. But by making consent from the states almost a necessary precondition for invoking the court’s authority, governments gave this court only limited power. With obstruction and division at the United Nations Security Council, the council was blocked from “referring” Syria to the ICC.

Near-absolute impunity has dominated on the ground at the price of unimaginable human suffering in Syria. But even with impunity ascendant there and no international court with the necessary authority available, the trials of low level armed insurgents and returning members of ISIS in the national courts of several European countries highlights an important trend. Swedish, German and French courts are using what’s known as universal or extraterritorial jurisdiction to take up cases against those believed to have committed serious crimes in Syria. This trend is especially significant when neither the ICC or the domestic courts where the crimes occurred are available.

In February, a court in Stockholm convicted a Syrian rebel of killing seven captured members of the Syrian armed forces – a war crime – in 2012 and sentenced him to life in prison. The convicted man, Haisam Omar Sakhanah, had applied for asylum in Sweden. Prosecutors used video recordings of the killings to demonstrate that, despite the defense claims that the executions followed a court verdict, the time lapse – a mere 41 hours – between apprehension, trial and execution was deemed too short to be credible.

Universal jurisdiction has come a long way since it first jolted to world attention with the detention of the former Chilean dictator Augusto Pinochet in London on an arrest warrant issued by a Spanish judge nearly 20 years ago. Its use still generates controversy, but even in the face of real setbacks in several countries, the principle has evolved into an effective legal tool in the fight against impunity. Driven by violence and slaughter, the millions of Syrian refugees who put their lives at risk in small boats and on long overland treks to reach hoped-for safety in neighboring countries and Europe have provided a powerful spur to these universal jurisdiction cases.  

As they gave accounts of serious crimes they had experienced or witnessed to investigators in Sweden, Germany and France, the authorities began looking at individuals who had made their way to Europe, but who may also have been responsible for crimes in Syria. With prosecutors using their domestic laws and courts to fill the accountability void, two essential structural developments have powered this positive trend.

First, at the national level, The Netherlands, Belgium, Sweden, Switzerland, France and Germany, among others, created specialized war crimes units mandated specifically to investigate and prosecute those accused of grave crimes. The staff in these units are able to draw on institutional experience and lessons about investigating and prosecuting international crimes. This, in turn, enhances the efficiency and proficiency of investigations and allows ongoing accumulation of expertise concerning these cases. Politically, the creation of these units also conveys a national commitment to take these prosecutions seriously.

These countries had incorporated these same international crimes into their domestic law and assumed an obligation to prosecute. In the last year civil society organizations, together with Syrian activists and victims, have been working hard to bring cases to court. In March, a German civil society organization, the European Center for Constitutional and Human Rights, together with Syrian torture survivors and lawyers, submitted a criminal complaint against six high-level officials of the Syrian Military Intelligence Service to the German Federal Prosecutor. The victims said they had been tortured or witnessed torture in the prisons of the intelligence services. The prosecutor responded positively and, using the approach of “structural investigations,” took evidence from the victims even though the accused were not on German territory. 

A French-based civil society group, the International Federation for Human Rights, FIDH, acting on behalf of a relative of the victims, referred the case of the forced disappearance of two Franco-Syrian nationals to the prosecutor of the specialized war crimes unit in Paris. This complaint cited a father and son who had been arrested by the Syrian Air Forces Intelligence Service in November 2013 and were never seen again. The complaint requested an immediate judicial investigation into the events of their disappearance.

But the development of the specialized units is hardly a panacea. Prosecutions by national courts using universal or extraterritorial jurisdiction face daunting obstacles. Gathering evidence in the midst of an armed conflict abroad is dangerous, expensive and time consuming. Protecting witnesses and victims and their family members is enormously difficult.

In some European countries investigators face an overwhelming flow of incoming tips and information from Syrian refugees. The units need more analysts who have expertise in Syria. They need translators to interview refugees and to reach out effectively to refugee communities. Greater outreach and information to the diaspora is necessary, but not sufficient to expand the docket from low-level suspects to former regime officials or armed forces commanders. So far, only insurgents and returning members of ISISrelatively ‘low hanging fruit’, have been in the dock.

The units, not surprisingly, require continued and stepped up support from their governments. This includes the funding and resources necessary to enable the investigators and prosecutors to do their job. The governments that created the units should support them and other governments should consider creating these units or comparable entities.

The second key structural development driving this trend, in dynamic synergy with the specialized units, was initiated by European Union. In June 2002, the EU Justice and Home affairs (JHA) Council called for the creation of a network of investigators and prosecutors from each member state to increase cooperation in cases of grave international crimes. In May 2003, the EU went further and called for the network to hold regular meetings. The decision also recommended that EU states set up specialized war crimes units and emphasized the importance of collaboration between national immigration and law enforcement authorities. 

In the last 15 years, the network has evolved into an invaluable forum for national investigators and prosecutors to develop additional expertise, discuss their experiences, share best practices, and exchange information on specific cases. The network holds twice yearly meetings attended by delegations from nearly all EU member states plus Switzerland, Canada and the United States. Beyond the actual meetings, the network has strengthened the all-important working relationship between national war crimes units. In light of today’s events, these EU decisions, adopted at a very different international moment, seem farsighted, even visionary.

Amid conditions characterized by brutal armed conflicts with devastating effect on civilians, the European Commission also needs to go further in supporting its network. Rather than decreasing the network’s budget as it has done, the Commission should strive – even in difficult financial times— to increase funding so that its small secretariat could do more to assist the work of participating prosecutors and investigators.

With more funding the network secretariat could convene ad hoc meetings with member states that do not have specialized war crimes units to aid their national efforts. With additional funds the network secretariat could convene more meetings focused on specific countries as needed. Given a world situation marred by more crimes and more impunity, this is hardly the time to decrease resources for this network.

In sum, the individual investigators and prosecutors, the specialized units, the network and its secretariat need support – financial and institutional – now more than ever from their governments, from the European Commission, from nongovernmental organizations and refugee communities. The decisions by the EU governments to establish these units and to create a network of focal points have helped to bend the arc of history further toward justice. The scale and gravity of crimes shocking the conscience of humankind today require those in authority to strive to bend that arc even further. 

 

About Human Rights Watch

Human Rights Watch is a nonprofit, non-governmental human rights organization made up of roughly 400 staff members around the globe. Its staff consists of human rights professionals including country experts, lawyers, journalists, and academics of diverse backgrounds and nationalities.

Established in 1978, Human Rights Watch is known for its accurate fact-finding, impartial reporting, effective use of media, and targeted advocacy, often in partnership with local human rights groups.

Each year, Human Rights Watch publishes more than 100 reports and briefings on human rights conditions in some 90 countries, generating extensive coverage in local and international media. With the leverage this brings, Human Rights Watch meets with governments, the United Nations, regional groups like the African Union and the European Union, financial institutions, and corporations to press for changes in policy and practice that promote human rights and justice around the world.

 

About the author

Richard Dicker, director of Human Rights Watch's international justice program since it was founded in 2001, has worked at Human Rights Watch since 1991.

He started working on international justice issues in 1994 when Human Rights Watch attempted to bring a case before the International Court of Justice charging the government of Iraq with genocide against the Kurds. Dicker later led the Human Rights Watch multi-year campaign to establish the International Criminal Court (ICC). He continues to be closely involved on issues that are important at the ICC.

He has also spent the past few years leading advocacy efforts urging the creation of effective accountability mechanisms. He monitored the Slobodan Milosevic trial in The Hague and made many trips to Iraq before and at the start of Saddam Hussein's trial. A former civil rights attorney in New York, Dicker graduated from New York University Law School and received his LLM from Columbia University.

 

This article was first published in Open Democracy.