Baltasar Garzon, who in 1998 made unprecedented use of universal jurisdiction to attempt to try Augusto Pinochet for crimes committed abroad. Wikicommons/Ministerio de Cultura de la Nación. Some rights reserved.Armed
conflicts that have given rise to horrific war crimes in Syria, Iraq, Yemen
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 ISIS,
relatively ‘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.