Outsourcing International Law in Domestic Courts: How to Prepare

Last week, the German court in Koblenz began hearing evidence for the trial against two former Syrian state officials, Anwar R. and Eyad A. The two men came to Germany seeking asylum, after having defected from the Syrian government. Anwar R. was charged with torture, murder, rape, and sexual assault, while Eyad A. was charged with aiding and abetting crimes against humanity.

The Syrian civil war has remained largely unsolvable from a peace-keeping perspective, and largely untouchable from a legal perspective. Yet, Germany is trying one of the most  meaningful criminal cases in the international community in recent years. This comes at a time when local court systems around the world are shutting down, reducing the number of cases heard, or adapting to online forums. Despite a global pandemic, some of the victims of the Syrian civil war are going to have their day in court.

The step to prosecute Syrian state officials is monumental because no other court system has successfully brought such a case to trial. Attempts to try Syrian state officials in other courts have primarily been thwarted, for example Russia and China voted to block United Nations referral to the International Criminal Court (ICC) and Spain’s court dismissed the criminal case against Syrian state officials for lack of jurisdiction. While there has been some notable successes, such as the conviction of a “low-level” soldier in Sweden for war crimes, high ranking officials in the Syrian government have evaded prosecution.

Germany’s progress poses a greater question regarding the future of international crimes: Will they be primarily tried in international courts and tribunals, or will they be “outsourced” to domestic courts? German action in the Syrian case suggests that the future of international criminal prosecution will be in the hands of individual states, who step up when international organisations and courts do not. Additionally, a pattern has emerged among the individual states who are attempting to try cases connected to the Syrian civil war. The pattern indicates that states who experience an influx of refugees and asylum seekers may be the ones best suited for prosecution of international crimes committed on foreign soil. Germany had more access to witnesses and more support for this prosecution in part because of the number of witnesses that are now living within their borders.

To properly prepare for the outsourcing of international crimes committed in other countries, states must consider a few key things. First, does the state recognise universal jurisdiction, and has the state established universal jurisdiction in its domestic legislation? Universal jurisdiction allows states to prosecute a limited number of international crimes in one of the following situations: a foreign national committed the crime; the crime was committed against a foreign national; or the crime occurred on foreign soil. For a state to pursue these limited international crimes under universal jurisdiction, it must ratify certain treaties, e.g. the 1949 Geneva Conventions and the 1984 Convention Against Torture.

Second, does the state have the proper investigatory resources and procedures in place? The prosecution of international crimes requires the gathering of evidence in a manner that is unlike that of domestic crimes. The traditional subpoena power that a domestic prosecutor’s office has is no longer relevant, and the means of collecting documents is more difficult. Depending on the crime, there will be different techniques required throughout the investigation process, such as obtaining, transferring, and storing evidence, as well as interviewing witnesses. States should have specialised departments for the investigation of war crimes and international crimes, with investigators who are well versed in these techniques and will work closely with prosecutors. Further, states may have to rely on assistance from outside agencies. For example, the non-profit Commission for International Justice and Accountability has been assisting in moving government documents out of Syria.

Third, are domestic prosecutors properly trained on how to prosecute international crimes? Prosecution requires skills that are generally transferable from case to case, such as oral advocacy. However, for international crimes prosecutors must be familiar with different bodies of case law, elements, and strategies. For example, crimes against humanity (the underlying offense with which Eyad A. was charged), as encoded in the ICC’s Rome Statute, requires an “[a]ttack directed against any civilian population.” The case law and originating statues for this crime define this element as multiple commissions of certain acts (murder, torture, enslavement, etc.) that were committed “pursuant to or in furtherance of a State or organisational policy.” The concept of what is a “state” or “organisational” policy, and whether it is actually needed (or should be needed) for prosecution of crimes against humanity, has been the subject of debate as more cases have been heard in international courts and tribunals. While this topic is beyond the scope of this blog post, it is important to note that there are intricacies of international crimes that are unlike those of domestic crimes. Thus, lack of proper training on specific international crimes could be detrimental to successful prosecution.

Efforts to better train prosecutor offices on war crimes and international crimes are already underway. Global Rights Compliance held a training for prosecutors of the Donetsk Regional Prosecutor’s Office last year as part of a project to assist Ukraine in the prosecution of crimes committed during the conflict in Crimea and eastern Ukraine. These projects provide domestic prosecutors with a more complete skill set for the prosecution of international crimes.

To better prepare for the outsourcing of international crimes, states should take active steps to consider whether they are adequately prepared to try these cases. Do they have jurisdiction to try these crimes? Do they know how to investigate these crimes? Are their prosecutors equipped to handle these cases? These steps are important not only for addressing recent atrocities, but also those that will occur in the future. If and when international prosecutions land in the hands of individual states, they must be prepared to competently and professionally pursue justice.

 

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