Dr. Abdul Aziz Aluwaisheg
The conviction in Germany last week of a senior Syrian military officer on crimes against humanity charges is likely to become a landmark case in the use of “universal jurisdiction” to prosecute perpetrators of serious international crimes.
The court in Koblenz found Col. Anwar Raslan, a former Syrian intelligence officer, guilty of 27 counts of murder, rape and sexual assault and sentenced him to life in prison. Although the crimes were committed in Syria, the German court tried him under the doctrine of universal jurisdiction, which allows the prosecution of crimes even if they happened elsewhere.
Raslan is the highest-ranking Syrian officer to be convicted of crimes against humanity. Last February, the same court sentenced a former low-ranking Syrian intelligence officer to four and a half years in prison for aiding and abetting a crime against humanity. He and Raslan worked in the same detention center and were arrested in 2019 after arriving in Germany posing as refugees.
The UN has lauded Germany’s prosecution of these crimes as casting a “much-needed, renewed spotlight on the kinds of sickening torture, cruel and truly inhuman treatment — including abject sexual violence — that countless Syrians were subjected to in detention facilities.” It urged other states to do the same by invoking universal jurisdiction.
German prosecutors charged Raslan with responsibility for the torture of at least 4,000 people in a detention facility in Douma during 2011 and 2012, accusing him of supervising interrogations that employed beatings, electric shocks, rape and sexual abuse, among other crimes aimed at coercing confessions from detainees. More than 80 witnesses testified during the trial.
The court concurred and sentenced Raslan to life in prison, with the possibility of parole after 15 years. His lawyer plans to appeal the verdict. Judge Anne Kerber commended the witnesses’ bravery in coming forward despite credible fears of retribution.
German Justice Minister Marco Buschmann called on other countries to follow what he called the “pioneering work” of his country’s legal system, adding that “crimes against humanity must not remain unpunished. No matter where they are committed, no matter by whom.”
Under international law, crimes such as genocide, war crimes and crimes against humanity are not subject to any statute of limitation and this rule has become a norm of customary international law. This rule was codified in the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which was adopted by the UN General Assembly in 1968 and entered into force in November 1970.
This means that, no matter how much time has lapsed, judicial proceedings can still be initiated against the perpetrators of such crimes. The rule aims to prevent the most serious crimes, and those most difficult to prosecute, from going unpunished. It stems from the fact that those crimes are usually difficult to prosecute immediately after they were committed, making it necessary to wait for a change in the situation — an end to the conflict or a change in regime — for prosecution to become possible.
Although this rule is useful in denying perpetrators any time limit for the prosecution of their crimes, it also means that a long time can pass before justice is served, if ever. This has led to an increasing number of countries, including Germany, invoking universal jurisdiction to prosecute crimes that took place elsewhere. This doctrine is based on the principle that crimes against humanity harm the international order itself, which individual states must protect. It is invoked when “traditional” bases of criminal jurisdiction are not available, such as when the defendant is not a national of the prosecuting state, the crime was not committed in the state’s territory or against its nationals, or the state’s own national interests are not directly affected.
National courts can exercise universal jurisdiction when the state has adopted legislation authorizing prosecution. Sometimes, this national legislation is mandated by international agreements, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires state parties to adopt the laws necessary to prosecute or extradite any person accused of torture who is within the state party’s territorial jurisdiction, even when the crime was not committed there.
However, not all states have accepted or exercised universal jurisdiction; actual state practices vary according to political and legal considerations. But invoking universal jurisdiction has grown in practice in recent years, bolstered by the decisions of highly regarded international tribunals. In 2012, the International Court of Justice confirmed that there is an “obligation” on states to either prosecute perpetrators of heinous crimes or extradite them to another country with jurisdiction for their prosecution. That landmark case involved an official accused of torture, war crimes and crimes against humanity against thousands of victims.
It is hoped these successful prosecutions will act as a deterrent against the perpetration of crimes against humanity.
The trial in Sweden of Iranian Hamid Nouri, which started last year, is another case of the application of both universal jurisdiction and the non-applicability of statutory limitation to serious international crimes. Nouri is a former prosecutor accused of taking part in the 1988 executions of thousands of political prisoners in Iran. The Nouri trial is believed to be the first time someone has been charged in relation to those crimes. Current Iranian President Ebrahim Raisi has also been implicated in the executions.
Raslan’s conviction could bolster the prosecution’s case in the Nouri trial. The conviction and sentencing of the two former Syrian officers in Germany and similar cases elsewhere are likely to have implications in law and practice regarding the rights of victims of serious international crimes. In Syria alone, at least 60,000 people have been killed as a result of torture or mistreatment in detention centers, according to the Syrian Observatory for Human Rights.
It is hoped that these successful prosecutions in Germany will also act as a deterrent against the perpetration of genocide, war crimes, crimes against humanity, rape, torture and other serious international crimes.
Courtesy Arab News
