Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 2 of 2)

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).

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Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 1 of 2)

Credit: Lynsey Addario

As of July 2018, more than 500 000 people had been killed as a result of the conflict in Syria, according to the British-based Syrian Observatory for Human Rights. With the UN Special Envoy for Syria having recently resigned, signs of hope seem dire for many Syrians and their supporters, there and abroad.

A side-event held today, on Day 3 of the 17th Assembly of State Parties (ASP) to the International Criminal Court, brought distinguished panelists together to discuss the role of prosecutions held in Europe through universal jurisdiction for international crimes, using Syria as an example. More than only about accountability, the resounding message about these prosecutions was that their role was to give out and to inspire the people to be strong, fight for justice and, maybe, eventually, be able to move on.

Earlier this week, during a keynote address at a reception held before the launch of the ASP, Ms.Catherine Marchi-Uhel aptly said that the ICC is the center piece of the international justice system. However, she also reminded the audience that the role of the international jurisdiction as a springboard for national prosecutions is often overlooked.

Yet, despite the hopes, symbolism and assistance to the rebuilding of judicial institutions that national prosecutions can bring (as I mentioned in my previous blog post on Quid Justitiae in the context of the present ASP), the political context may simply not allow it and, in the case of Syria, there is obviously no need to elaborate on why prosecutions at the national level are not possible.

In the case of Syria, one of the worst situations since World War II, as Ms Marchi-Uhel underlined, the pathway to the ICC is blocked, as a UN Security Council (UNSC) resolution to refer the case to the ICC was vetoed in 2014. With the ICC option gridlocked, Marchi-Uhel said that the international community needed to be creative to find new strategies to supplement the Rome Statue system: there was a need to think outside the international justice box. This is why, in 2016, the UNGA decided to create the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011 (IIIM) to collect and analyse evidence of international crimes committed in Syria (see the IIIM official website here). Not a court or tribunal, it is “a building block for comprehensive justice” and can “turn limitations into opportunities”. This was definitely a smart move, as the call for Syria to be referred to the International Criminal Court by the United Nations Secretary-General Antonio Guterres did not seem to have resonated any more than previous attempts made through the UNSC.

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You can run but you can’t hide? Rwabukombe and universal jurisdiction

As the International Criminal Tribunal for Rwanda (ICTR) officially closed its doors on the 31st of December 2015, one thing still remained certain, the lives of the victims and affected communities of the Rwandan genocide will never be the same. The ICTR may have delivered justice to the best of its abilities but understandably could not prosecute each and every perpetrator, especially those that fled and sought refuge in other countries. However, due to the fact that international crimes like genocide, affect the entire international community, international law obliges states to prosecute perpetrators of international crimes no matter where those crimes were committed through the application of universal jurisdiction. A German court in Frankfurt recently did a service to international criminal justice by prosecuting and sentencing Onesphore Rwabukombe, a former Rwandan mayor for his participation in the Rwandan genocide. Mr Rwabukombe, a Hutu, was sentenced to life in prison for his participation in an attack on a church which had been housing Tutsi refugees during the 1994 genocide. Rwabukombe had relocated to Germany where he had been living under asylum since 2002.

The limelight in terms of international criminal law cases is usually stolen by more newsworthy cases before the International Criminal Court or the respective tribunals and often times, not enough credit is given to domestic courts for their contribution towards fighting impunity. Rwabukombe’s case is significant, not only as an addition to yet another victory for international criminal justice but also as an example of the complementary role that domestic courts play in the fight against impunity. Additionally, the case illustrates the importance of universal jurisdiction towards the enforcement of international criminal law in situations where the perpetrator tries to avoid accountability. The case reiterates that the ends of international criminal justice can be met if more states lived up to their international legal obligations by prosecuting perpetrators of international crimes instead of placing high expectations on international courts and then complaining when they deem the said courts inefficient.

Furthermore, the case brings to mind a number of pertinent questions regarding the accountability of crimes committed on the African continent. Given Germany´s colonial history in some African countries and particularly in Rwanda between the 19th and 20th century, one might be left wondering, who should have been at the forefront of prosecuting Rwabukombe? More generally, who should be at the forefront of prosecutions for crimes committed in Africa? It should be noted that Rwandan officials were the ones that initially transmitted the international arrest warrant to German officials but after his arrest, Germany declined to extradite Rwabukombe on the basis that he would not be afforded a fair trial in Rwanda. This was actually not the first time German courts have tried and sentenced individuals for crimes committed in Africa. In fact, other European based courts have also prosecuted numerous high ranking officials of African origin for the commission of international crimes in Africa. Continue reading

Dismissal of Charges in U.S. v. Ali

United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.  The prosecutorial decision not to pursue the Ali case may come as an unpleasant surprise to come, or as confirmation to others that this controversial case should never have been initiated to begin with.

Much has been written in the academic blogosphere about this case (see here and here and here).  To sum up, Ali was a former Somaliland education minister, who had spent much of his adult life in the United States.  After a Danish ship, the M/V CEC Future, was captured by Somali pirates in late 2008, Ali boarded the ship and translated the pirates’ demands to the ship owners.  The crux of the Ali case (at least factually) centers around his role in this piracy incident: was Ali merely a translator, contributing toward the hostages’ eventual release by enabling negotiation with the kidnappers, or was he a pirate himself, helping his fellow criminals to enrich themselves further through another successful ransom request? It is undisputed that Ali boarded the kidnapped vessel after the violent piracy incident took place, and it is undisputed that Ali boarded the vessel while the vessel was docked in Somali territorial waters.  Thus, Ali’s alleged act of facilitating piracy would have been committed in the Somali territorial waters, and not on the high seas. Despite such unusual “piracy” conduct by Ali, the United States government decided to build a case against him and to essentially ruse him onto American soil.  Toward this end, Ali was invited to an education conference in North Carolina, and promptly arrested on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.  Jon Bellish, in a prior post, has summarized the procedural posture of the Ali case in American courts as follows:

After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.

Following the DC Circuit court opinion, Ali was tried in the district court on charges that survived the appellate challenge, including hostage taking, we well as piracy facilitation, despite the fact, as mentioned above, that the act of facilitation did not take place on the high seas.  Perhaps because of such unusual factual circumstances surrounding Ali’s alleged piracy conduct, his strange arrival to the United States, as well as because of the difficult legal argument necessary in order to convict Ali, the jury found him not guilty of the charge of piracy, but deadlocked on the less serious charge of hostage-taking.  Prosecutors initially sought a retrial on the hostage-taking charges, but just announced a few weeks ago that they would not proceed with the retrial, because of constitutional concerns that Ali was being subjected to double-jeopardy (because the re-filed charges relied on the same basic facts).

All of this leads me to my initial point – that perhaps Ali should never have been prosecuted in the United States to begin with.  The case was legally challenging from the outset.  Ali was a universal jurisdiction case – a prosecution of an alleged piracy facilitator who had no ties to the United States, and who could only be reached through universal jurisdiction, which has historically been available for the crime of piracy.  But in order to prove that Ali had committed piracy (so that he could be prosecuted under universal jurisdiction), American prosecutors had to show that Ali’s facilitative act under Article 101(c) of UNCLOS need not have occurred on the high seas, as long as the underlying act of piracy (committed against the Danish vessel) had itself occurred on the high seas.  In other words, Ali could be convicted of facilitating piracy on dry land or in Somali territorial waters under the concept of universal jurisdiction.  Accepting this argument is difficult to say the least, and commentators had suggested that a high seas requirement for piracy facilitation should always be required.  Factually, the case was difficult as well.  While it was undisputed that Ali had helped negotiated the ransom demand, it was unclear as to what Ali’s role in the piracy endeavor (if any) had been.  Under the Ali precedent, would insurance company mediators, negotiating between pirates and the shipping company, also be subject to universal jurisdiction for facilitating piracy? What about pilots who fly planes which drop the ransom money? And what about the ruse orchestrated by United States’ prosecutors to entice Ali into coming to America? The district court judge herself had been outraged by the prosecutorial conduct, and while this would not be ground for dismissal under American law, most of us agree that this kind of governmental and prosecutorial conduct portrays the United States in a negative diplomatic and political light.  My argument, for the purposes of this post, is not to claim that the Ali appellate court was correct or incorrect, or to try to shed light on what Ali had actually done in this particular piracy incident; instead, let me point out that legally and factually difficult cases, like Ali, should not be the subject of expensive prosecutions thousands of miles away from Somali shores.  Many of us will agree that combatting piracy is a global challenge which involves, among other strategies, creating multiple prosecutorial venues where suspected pirates are routinely charged and convicted (if found guilty).  But the international community actors involved in fighting piracy have limited resources, limited time, and limited attention to this global problem.  Instead of pursuing piracy negotiators like Ali, whose guilt may be doubtful and whose prosecution could only succeed through a stretch of the universal jurisdiction concept, why don’t we focus on those who actually engage in piracy attacks, or, more importantly, on those who plan and finance piracy attacks? Finally, now that Ali’s prosecution has come to a halt, we have to ask ourselves what will happen to this defendant – now that he is on American soil, will he apply for political asylum in the United States or attempt to stay here on other grounds (something that our prosecutors clearly did not have in mind when they lured Ali to America?) The risk of unsuccessfully prosecuting Ali was never worth the potential benefit.

Cross-posted on http://piracy-law.com/2014/02/15/dismissal-of-charges-in-u-s-v-ali/