National Prosecutions based on Universal Jurisdiction: the cases of Germany, Sweden, and “France”
Last June, Germany’s chief prosecutor issued an international arrest warrant for Jamil Hassan, head of Syria’s powerful Air Force Intelligence Directorate, and one of Syria’s most senior military officials. This move comes as a 2017 Human Rights Watch report mentioned [p.36] that, so far, very few members of the Assad government had been the subject of judicial proceedings in Europe based on universal jurisdiction.
At the time these charges (based on command responsibility) were filed with Germany’s Federal Court of Justice, Patrick Kroker (European Center for Constitutional and Human Rights, hereinafter “ECCHR”) commented that this moment was“historical”, adding: “That this arrest warrant has been signed off by the highest criminal court in Germany shows that they deem the evidence presented to the prosecutor is strong enough to merit urgent suspicion of his involvement.”
N.N., a Syrian activist present at the side-event held today mentioned in Part 1 of my post, underlined several times the importance of these arrest warrants. Until their issuance, he said, many Syrians never would have thought that high-level representatives of the Syrian regime would have charges laid against them. For many this is a great sign of hope, a demonstration that we are “not only listening to stories but also doing something about it.” He mentioned this point in part as an answer to a participant at the event who wondered what it could mean to the people still in Syria to see prosecutions happening in Europe, but not in Syria or before the ICC.
Mr. Patrick Kroker, Legal Advisor& Project Lead for Syria at the ECCHR (Berlin) explained the work done by his organization to initiate prosecutions in Germany linked to the Syrian conflict. With regard to Germany, the progress over the past few years has been spectacular: 11 cases have been brought to trial. As well, three were brought to trial in Sweden, one in Switzerland, and another in Austria (for an excellent overview of proceedings linked to Syria, see the Amnesty International page “Justice for Syria” here).
Both Germany and Sweden have on their side many key elements to bring about successful prosecutions:[1]comprehensive legal frameworks (the Code of Crimes against International Law[2] in Germany, which came into force in 2002, and the Act on Criminal Responsibility for Genocide, Crimes against Humanity, and War Crimes in Sweden, adopted in 2014. War crimes committed before that date are being prosecuted under the Swedish Penal Code as “crimes against international law”[3]), well-functioning specialized war crimes units, and previous experience with the prosecution of such crimes (for example following World War II). Germany has “genuine”/“pure”universal jurisdiction for international crimes, meaning that the law does not require any connection between Germany and the relevant grave international crimes committed abroad. The same goes for Sweden for war crimes, crimes against humanity, and genocide. Ms. Aurélia Devos, Head of the Unit for Crimes against Humanity and WarCrimes at the Prosecution Office in France explained that theFrench legislative framework, for its part, requires that the perpetrator be a resident of France[4] (therefore constituting a form of extra-territorial jurisdiction that is not universal jurisdiction).
Ms. Devos explained during the panel that the specialized unit, set in the Paris prosecutor’s division, is composed of 3 prosecutors, 3 officers and 3 investigative judges (juges d’instruction). This is a small number, considering the amount of cases to be dealt with: 120, in more than 50 different geographical zones, with no less than 35 cases in Syria (with many on people in the Assad regime). She qualified the method they use, structural investigations, as “unprecedented”. These structural investigations involve working with States, NGOs, and UN bodies to gather elements potentially relevant for investigations. As Ms. Marchi-Uhel explained, these investigations are also very useful to paint an accurate historical, cultural and political profile of the context in which the crime was committed.
These “structural investigations” were underlined as key factors in the swiftness in filing the cases filed against alleged perpetrators from Syria. Patrick Kroker explained indeed that 4 cases had been filed since 2017 (a relatively high rate) thanks to the amount of evidence already readily available through structural investigations.
Germany and France have partnered to create a joint investigation team, but Ms. Devos underlined the fact that it cannot only be up to a few countries to take on most prosecutions. This must be a shared burden, she argued. This supports what Ms. March-Uhel mentioned earlier this week: even if the ICC had jurisdiction tomorrow over crimes committed in Syria, given the sheer volume of crimes and number of perpetrators, the Court could only handle so much. She explained that comprehensive accountability can only be an integrated process, involving many actors across national and regional contexts. Mr. Kroker reiterated this idea, mentioning that, while Germany can rely on universal jurisdiction and other facilitating factors, it was a “mosaic” of images, of countries and stakeholders, that was necessary. This should resonate with those criticizing the absence of the – too often mentioned, yet still lacking – “political will” to do so by certain states, for example in Canada.
This blogpost and the author’s attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for InternationalJustice and the Social Sciences and Humanities Research Council of Canada.
[1] Human Rights Watch, « These are the crimes we are fleeing – Justice for Syria in Swedish and German Courts », 2017, p. 2, available at https://www.hrw.org/report/2017/10/03/these-are-crimes-we-are-fleeing/justice-syria-swedish-and-german-courts [“HRW”].
[2] Available at https://germanlawarchive.iuscomp.org/?p=758.
[3] Swedish Penal Code 1962:700 (Bottsbalken 1962:700), Justitiedepartementet L5, entered into force December 21, 1962, chapter 22, section 6, available at: http://www.government.se/49cd60/contentassets/5315d27076c942019828d6c36521696e/swedish-penal-code.pdf, cited in HRW, p. 24.
[4] Loi n° 2010-930 du 9 août 2010 portant adaptation du droit pénal à l’institution de la Cour pénale internationale, available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000022681235&categorieLien=id.
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