How can a German court convict for crimes in Syria? • The Syrian Observatory For Human Rights

How can a German court convict for crimes in Syria?


FILE – In this May 3, 2019 file photo, provided by the Syrian Civil Defense White Helmets, which has been authenticated based on its contents and other AP reporting, shows smoke rising after Syrian government and Russian airstrikes that hit the town of al-Habeet, southern Idlib, Syria. In their latest assault on the last rebel-stronghold of Idlib, the Syrian government and its Russian backer have resorted to familiar tactics to break the will of people and pressure civilians to flee: Target residential areas, bomb hospitals and markets, destroy civilian infrastructure. It is a well-established pattern that worked for President Bashar Assad’s forces seeking to recapture Aleppo and other strategic rebel territories during the 8-year war. (Syrian Civil Defense White Helmets via AP, File)



Last month, a German court convicted Eyad al-Gharib, a Syrian who had confessed to participating in the round-up of hundreds of civilians who were protesting the rule of Syrian President Bashar al-Assad and delivering them to a government installation where he knew they would be tortured. Al-Gharib hoped to be granted asylum in Germany by his public apology and by giving evidence against another former Syrian government official. Al-Gharib may receive asylum, but he must first serve a prison sentence.

How can a German court convict a Syrian of crimes committed in Syria? This event is an illustration of the doctrine of “universal jurisdiction,” whereby a country identifies certain crimes, such as torture or genocide, so hideous that they can be prosecuted wherever a suspect may be found. In some cases, countries have even sought extradition of suspects from outside their own country to be tried for crimes also committed elsewhere. The most famous example was the 1998 effort by Spain to extradite former Chilean President Augusto Pinochet when he was visiting the United Kingdom. Eventually, the UK refused, because of Pinochet’s deteriorating health; but Spain was ready, under “universal jurisdiction,” to try Pinochet for torturing and killing thousands of Chileans when he was president — even though no crimes occurred in Spain, no victims were Spanish, and the defendant was not Spanish. (Spain has subsequently amended its universal jurisdiction law to require some connection with Spain, but that element is not part of the doctrine of universal jurisdiction in other countries.)

The concept of universal jurisdiction is centuries old, originating with piracy on the high seas. Pirate ships would prey on the vessels of many different countries. It would be sheer coincidence if a naval vessel of a country whose commercial shipping had been victimized by pirates happened upon the very pirate ship responsible for killing, looting and sinking that country’s ship. So, it was understood that the navy of any country could lay hold of a pirate ship, transport the pirates for trial in the country whose ship had caught the pirate, or summarily try the pirates (and execute them) at sea.  Over the years, the practical necessity of this kind of universal jurisdiction was extended to ships carrying slaves, and, in our own times, ships transporting drugs.

The extension of universal jurisdiction represented in the al-Gharib case in Germany stems from the failure of alternative approaches to crimes against humanity, especially the International Criminal Court (ICC) created by the United Nations. The ideal was that when any country came upon an alleged perpetrator of horrible crimes, it would arrest the suspect and send him or her for trial at the Hague in the Netherlands. The ICC, however, only has jurisdiction over citizens of countries which have agreed to its authority. The U.S., Russia and China, among others, have not opted in. By far the majority of countries that have acceded to ICC jurisdiction have been African nations, leading to allegations by leaders of South Africa, among others, that the ICC has an anti-African bias. At the least, it must be admitted that the ICC goes after wrong-doers from smaller countries because those countries have agreed to be subject to the ICC; the bigger ones haven’t.

The United States has sent its military into action around the world. One consequence is that those soldiers, marines, sailors, and air personnel are occasionally accused (fairly or not) of war crimes. These military personnel, and the U.S. government officials who gave them orders, cannot be indicted by the ICC, but they can be reached under “universal jurisdiction.” One such example might be the abuse of Iraqi prisoners by U.S. military and CIA agents at Abu Ghraib in 2003.

A close U.S. ally such as Germany is now willing to apply universal jurisdiction to the war in Syria. Would Germany refrain from doing so if it

The views expressed in this article do not necessarily reflect the views and editorial stance of the SOHR.

were American military in Syria who were accused?Source: How can a German court convict for crimes in Syria? – Redlands Daily Facts

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