International Criminal Justice
Photo Credit: Global Partnership for Sustainable Development Data
By FELIPE VILLAMOR
The International Criminal Court said on Thursday that it was opening a preliminary investigation into accusations that President Rodrigo Duterte and other Philippine officials had committed crimes against humanity in the course of the government’s deadly crackdown on drugs.
Fatou Bensouda, a prosecutor for the international court, said in a statement that the inquiry would gauge whether there was enough evidence to build a case. She said she would be looking at events since July 1, 2016, “in the context of the ‘war on drugs’ campaign.”
“My office undertakes this work with full independence and impartiality,” Ms. Bensouda said. “As we do, we hope to count on the full engagement of the relevant national authorities in the Philippines.”
Harry Roque, a spokesman for the Philippine president, said that the government’s crackdown was a “legitimate police operation” and that the president welcomed The Hague-based tribunal’s decision.
“He is sick and tired of being accused of the commission of crimes against humanity,” Mr. Roque told reporters in Manila.
In a 77-page complaint filed to the tribunal in April, a Filipino lawyer accused Mr. Duterte and 11 other officials of mass murder and crimes against humanity. He called Mr. Duterte the “mastermind” of a campaign of extrajudicial killings that dated to the late 1980s, when he became mayor of the southern city of Davao, and that greatly escalated after he became president.
The lawyer, Jude Josue Sabio, represented two men who said they had been assassins for Mr. Duterte in Davao.
“I am elated and vindicated,” Mr. Sabio said, adding that he was “confident we will hurdle this first big step, and hopefully a warrant of arrest will be issued by the I.C.C. against Duterte and his cohorts.”
Mr. Duterte, who has bragged about personally killing criminals as mayor of Davao, won the presidency promising to fill Manila Bay with the bodies of drug addicts. After taking office, he urged the police to kill drug suspects and promised to protect officers from prosecution. Thousands of Filipinos have been killed by the police, in what the authorities said were shootouts, or by unidentified gunmen.
Last year, after an outcry over the killings of three teenagers by police officers, Mr. Duterte suspended the police operations and put the antidrug campaign in the hands of the Philippine Drug Enforcement Agency. But he put the police back in charge in December. Last week, the police said that 46 people suspected of using or selling drugs had been killed by the policesince then.
That brought the police’s official death toll from the campaign to over 4,000, a number much lower than the estimated 12,000 deaths reported by various international and local rights groups.
Senator Antonio Trillanes, a prominent political foe of Mr. Duterte, said the news of a preliminary inquiry “should jolt Duterte into realizing that he is not above the law. More important, this is the first step for the victims’ families quest for justice.”
Mr. Roque, the presidential spokesman, played down the significance of the inquiry, saying that the tribunal prosecutor was “merely exercising his mandate to determine whether there is reasonable basis to proceed.”
The tribunal can take cases only if a country’s own judicial system is unable or unwilling to pursue them, a condition that Mr. Roque said did not apply to the Philippines. “We view, of course, this decision of the prosecutor as a waste of the court’s time and resources,” he said.
Published on The New York Times on February 8, 2018
On 15 December 2017, Trial Chamber II of the International Criminal Court (ICC) issued a decision setting the amount of Thomas Lubanga Dyilo's liability for collective reparations at USD 10,000,000. The decision completes the Order for Reparations of 3 March 2015 in the case of The Prosecutor v. Thomas Lubanga Dyilo, which awarded collective reparations to the victims of the war crimes committed by Mr Lubanga, namely: conscripting and enlisting children under the age of 15 into an armed group (Union des patriotes congolais/Forces patriotiques pour la libération du Congo) and using them to participate actively in hostilities.
The Chamber examined a sample of 473 applications representative of all of the victims potentially eligible for reparations and concluded that 425 of them were most likely direct or indirect victims of the crimes of which Mr Lubanga was convicted. The Chamber stated, however, that further evidence established the existence of hundreds or even thousands of additional victims affected by Mr Lubanga's crimes. The Chamber also stated in this respect that some potential victims were no longer willing or able to take part in the reparations process for safety reasons.
The Chamber recalled that the scope of a convicted person's liability is proportionate to the harm caused and, among other things, his or her participation in the commission of the crimes for which he or she has been found guilty, in the specific circumstances of the case. The Chamber further recalled that only collective reparations were awarded in this case. The Chamber assessed the harm suffered by the aforementioned 425 persons recognized as victims of Mr Lubanga at USD 3,400,000, and equitably assessed Mr Lubanga's liability exclusive of the harm suffered by those persons at USD 6,600,000 – bringing the total amount of Mr Lubanga's liability for collective reparations to USD 10,000,000.
In view of Mr Lubanga's indigence, the Chamber invited the Board of Directors of the Trust Fund for Victims to examine the possibility of earmarking an additional amount for the implementation of collective reparations in this case and/or continuing its efforts to raise additional funds. The Chamber also instructed the Trust Fund to make contact with the Government of the Democratic Republic of the Congo (DRC) to explore how the Government might contribute to the reparations process.
On 21 October 2016, the Chamber had approved the implementation of symbolic collective reparations and, on 6 April 2017, it had approved the first stage of the implementation of service-based collective reparations, directing the Trust Fund to begin the selection of implementing partners (after which the Chamber may approve the second stage of the implementation process). The Chamber will decide in due course on the next steps in the implementation of collective reparations.
The members of the Trial Chamber II Bench are Judge Marc Perrin de Brichambaut (Presiding Judge), Judge Olga Herrera Carbuccia and Judge Péter Kovács. The Chamber issued its decision publicly in a hearing at the seat of the ICC in The Hague, Netherlands. The Legal Representatives of both groups of victims, the Office of Public Counsel for Victims, the Defence and the Trust Fund were in attendance.
Published on the ICC on December 15, 2017
After more than 24 years of operations, the United Nations tribunal set up to prosecute crimes committed during conflicts in the Balkans in the 1990s, has now completed all judicial work, the court’s President told the UN Security Council on Wednesday.
“Despite all the sceptics, the naysayers, the deniers who, from the very beginning, embarked on a campaign against the Tribunal and have been at pains to question our legitimacy and integrity and portray a doomsday scenario, I am proud to appear before this esteemed Council today and say: mission accomplished,” declared Carmel Agius, President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in his final briefing to the 15-member body.
Recalling the Security Council’s decision to create the Tribunal back in May 1993, Mr. Agius stated: “In retrospect […] the establishment of the ICTY was one of the international community’s proudest moments.”
Noting that the body had developed a completion strategy and delivered judgements in the final trial case against Ratko Mladic on 22 November and the final appeal case against Jadranko Prlic et al. on 29 November, Mr. Agius said that in supporting the creation of the court, his predecessors had put their signature on an important page in the history of international justice and the fight against impunity.
There was another history, however, he said, namely of those who were afraid to accept the Tribunal and even denounced it, “of those who did not choose to fight impunity, but, for reasons of political or personal gain, blind nationalism and ethnic hatred,” preferred immunity and even glorified those who had committed atrocities.
The Tribunal’s achievements did not begin and end in The Hague, where the body is headquartered, Mr. Agius continued. He was disturbed by the numerous crimes yet to be prosecuted before domestic courts in the Former Yugoslavia. The rise of revisionism and nationalism throughout the region could not be ignored.
“Do not delude yourselves; the absence of war does not mean peace,” he said. Ending impunity for mass crimes is not the preserve of any one institution – it is a common goal that ties all together in the shared quest for justice, peace and stability.
In closing, President Agius stated: “As the international community now looks on while mass crimes continue to take place, even as I speak, and geopolitical roadblocks impede any kind of comprehensive justice solutions, we must not forget the political courage that sparked the ICTY’s existence, the Tribunal’s long trajectory, and the need to stay the course.”
Beyond the Tribunal’s success, reconciliation remains a significant challengeTheodor Meron, President of the International Residual Mechanism for Criminal Tribunals, affirmed that the Tribunal had made plain that even complex trials could and must be conducted in accordance with the panoply of due process guarantees. As a result, the principles of international law were stronger and, “accountability for grave crimes is increasingly the expectation rather than the exception.”
Describing the current activities of the Residual Mechanism, which will maintain the Tribunal’s legacy and carry out its remaining functions, he said it is “serving as a new, effective and efficient model of international court” in carrying out duties such as preparations for administration disposition of records, in further developing its legal and regulatory framework and working on provision of assistance to national jurisdictions.
The fulfilment of the Mechanism’s mandate depends on the ongoing support of the Council and the broader international community and on the commitment to all concerned to the invaluable legacies of the tribunals for Rwanda and the former Yugoslavia.
In his remarks, the Prosecutor of the International Residual Mechanisms for Criminal Tribunals, Serge Brammertz, said his Office remains focused on expeditiously completing the limited number of trials and appeals transferred from the ICTY and on locating and arresting the remaining eight fugitives indicted by the International Criminal Tribunal for Rwanda (ICTR).
He acknowledged that the Tribunal failed to achieve reconciliation in the Former Yugoslavia, where many still viewed convicted war criminals as heroes while victims and survivors were ignored and dismissed. “The reality is that there is still no true will within the region to accept the immense wrongdoings of the past and move forward – sadly, most of all among the political leadership,” he said.
Too many people listen to war criminals, who hide behind claims of collective responsibility, when in fact no community bore responsibility for what those men had done. He emphasized that justice is an essential precondition for achieving reconciliation.
Published on UN News Centre on December 6, 2017
By Eric Oteng
Two Africans have been elected as judges of the International Criminal Court in the Hague, the Netherlands during the Assembly of State Parties meeting in New York on Wednesday.
The election procedure required a two/thirds majority of eighty votes for one to be elected as a judge of the International Court which adjudicates on cases of genocide, war crimes and crimes against humanity..
After four rounds of voting, Justice Reine Alapini-Gansou from Benin and Justice Solomy Bossa of Uganda got elected with a total of eighty three (83) and eighty one (81) votes respectively.
Ghana’s Henrietta Mensa-Bonsu failed in her bid to join the court as she ended with a total of sixty votes which fell short of the votes required.
Elected judge of the ICC, Reine Alapini Gansou is a Lawyer to the Bar of Benin since 1986 and Law lecturer at the University of Abomey-Calavi (Benin) since 2000.
Justice Alapini Gansou is the Chairperson of the African Commission on Human and People’s Rights since 2009.
She has been a member of the Commission since 2005 and was formerly the Special Rapporteur on Rights of Human Rights Defenders in Africa (2005-2009).
She served as a member of the UN Permanent Court of Arbitration since July 19, 2011, and Laureate of the Prize of Human Rights for the Fiftieth year of African Countries independence in 2010.
Her good works saw her selected as a member of the United Nations International Commission of Inquiry on post-electoral violence in Cote d’Ivoire (May-June 2011)
She holds two High Level University degrees, in Common Law at the University of Lyon in 2007 and in Environmental Law and Politic at the University of Lome, Maastricht and Bhutan in 1999.
She is also an author and co-author of research papers in Human rights and Law.
Justice Solomy Balungi Bossa on the other hand is a national of the Republic of Uganda who was elected Judge of the African Court on Human and Peoples’ Rights in June 2014, for a term of six years.
She has served as Judge with the High Court or Uganda for sixteen years (1997-2013).
She also served the East African Court of Justice for five years (2001-2006), the United Nations International Criminal Tribunal for Rwanda (UNICTR) for nine and half years (2003-2013) and currently serves as Judge on the Court of Appeal/Constitutional Court for Uganda.
She was once a Lecturer/Law Reporter at the Law Development Centre of Uganda for seventeen years (1981-1997).
She is a member of the International Commission of Jurists, the international Association of Women Judges, the African Centre for Democracy and Human Rights and the East African Judges and Magistrate’s Association, among others.
At national level, she is a member of International Federation of Women Lawyers (FIDA) Uganda Chapter, the National Association of Women Judges, and the Uganda Association of Judges and Magistrates.
She also participated through the aegis of the International Commission for Jurists, in the initial stages of drafting of the Additional Protocol on Women to the African Charter.
She holds a Bachelor of Law Degree (LL.B) Honors from Makerere University.
She is a candidate for a Master of Law Degree (LL.M) from the University of London.
She has received various national, regional and inter-national awards in recognition of her distinguished services as a legal practitioner, judge and human rights activist.
The two African justices join four others from Japan, Canada, Peru and Italy to fill six slots available.
Published on Africa News on December 7, 2017
THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT, FATOU BENSOUDA, REQUESTS JUDICIAL AUTHORISATION TO COMMENCE AN INVESTIGATION INTO THE SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN.
The Situation in Afghanistan has been under preliminary examination by the Office of the Prosecutor since 2006. After a comprehensive and careful scrutiny of the information available to the Office, applying the applicable Rome Statute legal criteria, the Prosecutor has determined that there is a reasonable basis to proceed with an investigation of the Situation in Afghanistan.
As required by the Statute, the Prosecutor has, therefore, requested authorisation from Pre-Trial Chamber III, for an investigation into alleged crimes committed on the territory of Afghanistan in the period from 1 May 2003, as well as other alleged crimes linked to the armed conflict in Afghanistan and committed on the territory of other States Parties to the Statute, since 1 July 2002. The Court does not have jurisdiction over alleged crimes committed in the context of the Situation in Afghanistan before these cut-off dates.
As a result of its examination, the Office of the Prosecutor has determined that there is a reasonable basis to believe that the following categories of crimes within the Court's jurisdiction have occurred:
The Office has carefully assessed available information on any relevant, genuine national proceedings in relation to the conduct of these identified groups. In light of the gravity of the acts committed - the details of which are outlined in the Request - and the absence of relevant national proceedings against those who appear to be most responsible for the most serious crimes within this Situation, the Prosecutor considers that the potential cases that she has identified and that would arise from an investigation in this Situation, would be admissible pursuant to article 53(1)(b) of the Statute.
Furthermore, the Office has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims.
Today, as per the applicable rules, the Prosecutor also notified victims or their legal representatives, of her intention to request authorisation to initiate an investigation in the Situation in Afghanistan informing them that they have until 31 January 2018 to submit representations to the Judges of Pre-Trial Chamber III on her Request.
If the Pre-Trial Chamber authorises the Prosecutor to begin an investigation, as mandated by the Rome Statute, the Office's sole objective will be to independently, impartially and objectively investigate and prosecute alleged war crimes and crimes against humanity, committed in the context of the conflict in Afghanistan.
Based on the evidence collected by the Office during the course of an investigation, if authorised, the Prosecutor can request ICC Judges to issue either summons to appear or arrest warrants, against those, as a rule, believed to be most responsible, no matter who the perpetrator, for alleged atrocity crimes committed in connection with the Situation in Afghanistan.
Published on the ICC on November 20, 2017.
ICC prosecutor urges handover of Al-Saiqa brigade commander, others wanted for alleged crimes in Libya
The International Criminal Court has issued an arrest warrant for Major Mahmoud Mustafa Busayf al-Werfalli, a commander in the Al-Saiqa Brigade accused of murdering 33 people in the context of the ongoing conflict in Libya, ICC Prosecutor Fatou Bensouda told the United Nations Security Council.
Addressing the Council in New York, the Prosecutor also urged the international community to turn over Al-Tuhamy Mohamed Khaled, former head of the Libyan Internal Security Agency, and Saif Al-Islam Gaddafi.
Mr. Busayf Al-Werfalli, is a commander in the Benghazi-based Al-Saiqa Brigade, who, according to Ms. Bensouda, has been – and possibly still is – active in the Libyan National Army’s (LNA) ‘Operation National Dignity.’
In her remarks to the Council, the ICC Prosecutor appealed directly to General Khalifa Haftar, head of the Libyan National Army, “to demonstrate, by concrete actions, respect for international justice by ensuring Mr al-Werfalli’s immediate transfer to the Libyan authorities so that he may be surrendered to the court without delay.”
“My Office continues to request States Parties, non-States Parties and organizations to assist in securing the arrest of persons subject to an ICC warrant,” Ms. Bensouda told the Council.
The call for accountability comes amidst continued concern over the security situation in Libya, which has been in conflict since a disputed election in 2014 following the 2011 toppling of long-time leader Muammar Gaddafi.
In recent months, Ms. Bensouda said she noted “with grave concern” reports of unlawful killings, including the execution of detained persons; kidnappings and forced disappearances; torture; prolonged detentions without trial or other legal process; and arbitrary detention, torture, rape, and other ill-treatment of migrants in official and unofficial detention centres.
Reports have also emerged that 36 male corpses were found in the totem of al-Abyar, outside of Benghazi.
“This is also of grave concern,” she said. “The bodies were reportedly handcuffed, showed signs of torture, and displayed bullet wounds to the head.”
The prosecutor also echoed Ghassan Salamé in condemning recent airstrikes in a residential neighbourhood in Derna that appear to have resulted in the tragic deaths of civilians, including at least 12 children and women.
Published on UN News Centre on November 8, 2017.
Burundi has become the first country to withdraw its membership from the International Criminal Court (ICC).
It accused the ICC of deliberately targeting Africans for prosecution.
The government of Burundi is accused of committing crimes against humanity, including execution and torture. The UN Commission of Inquiry is urging the ICC to open a prosecution soon.
In theory its withdrawal from the ICC has no effect on the court's ongoing investigations on the country.
Fadi El-Abdallah, a spokesman for the ICC, told the BBC's Newsday programme that "article 127 states that withdrawal does not affect the jurisdiction of the ICC over the crimes that have been committed" while the country was a member.
But the case of Sudan's President Omar al-Bashir, one of the ICC's "most wanted", has highlighted the difficulty of getting a non-member to co-operate in surrendering suspects.
The withdrawal comes a year after Burundi lodged an official notice to quit the organisation, which has 122 member countries, 34 of which are African nations.
In 2015, Burundi saw major unrest and a crackdown by the security forces after President Pierre Nkurunzize decided to run for office for a third time, leading to protests from the opposition which deemed it unconstitutional.
The BBC's Anna Holligan in The Hague, where the ICC is based, says Burundi's decision to leave the ICC is unprecedented - a statement that if you don't like the focus of the prosecutor, you can simply leave.
She adds that the real impact - and whether or not it creates a domino effect - will be determined by what happens next.
Kenya and South Africa have made similar threats to withdraw their membership.
Published on BBC News on October 27, 2017.
The trial of more than 1,600 people suspected of ties with Boko Haram was expected to begin in Nigeria on Monday behind closed doors, in the biggest legal investigation into the eight-year militant Islamist insurgency.
More than 20,000 people have been killed and two million forced from their homes in northeastern Nigeria during the insurgency, contributing to what the United Nations has said is among the world’s worst humanitarian crises.
Nigeria’s ministry of justice said last month the trial of around 1,670 people held at the Kainji detention facility would begin at the site, in the central Niger state, on Monday and would be presided over by four judges.
A spokesman for the ministry did not respond to requests for confirmation that the trial had begun. A military spokesman declined to comment, saying questions should be addressed to the judiciary.
The ministry has said that after the Kainji trials are completed, a further 651 people suspected of having links to Boko Haram and currently being held at prisons in Maiduguri, the capital of the northeastern state of Borno, would go on trial.
Clement Nwankwo, a human rights lawyer based in the capital, Abuja, said the trials would provide a more effective deterrent if they were open to the media and public.
“On the Boko Haram issue, stories need to be told for the public to be made aware what has been going on and understand the nature of the crimes committed,” said Nwankwo, adding that secrecy also made it hard to determine whether trials were fair.
“The Nigerian authorities have not been known to be diligent in investigating and properly prosecuting suspects,” he said, warning that a sense of injustice could breed resentment among relatives that could yield future radicalisation.
However, Fatima Akilu - who headed the government’s counter violent extremism programme under the previous administration - said secrecy was needed to encourage witnesses and judges to take part in the trials because Nigeria does not have a witness protection programme.
“A lot of witnesses were afraid to come forward,” Akilu, who was based in the Office of the National Security Adviser from 2012 to 2015, said of previous efforts to pursue trials.
She said judges and witnesses had previously been subjected to death threats.
“If the witnesses don’t come forward there is limited evidence in terms of reaching a conviction, so I think there was little choice,” she said, adding that there were no clear alternatives in the absence of an amnesty programme.
Nigeria’s handling of thousands of people accused of ties with Boko Haram insurgents has previously attracted criticism.
The legal process marks a steep escalation in the number of insurgency-related cases being handled by Nigerian authorities.
The Ministry of Justice has said that, as of Sept. 11, only 13 “terrorism cases” had been concluded and nine convictions had been secured.
”The decision to start the trials is a response to persistent complaints by local and international human rights groups over thousands of persons detained without access to lawyers and without any specific charges, said Nnamdi Obasi, of International Crisis Group. (Reporting by Camillus Eboh, Paul Carsten and Alexis Akwagyiram in Lagos; Editing by Gareth Jones)
Published on Reuters on October 9, 2017.
By MICHAEL SHERMER
In the wake of the Las Vegas massacre — the worst in modern American history, with 58 dead and some 500 wounded — the onus falls once again to those against gun control to make their case. The two most common arguments made in defense of broad gun ownership are a) self protection and b) as a bulwark against tyranny. Let’s consider each one.
Stories about the use of guns in self-defense — a good guy with a gun dispensing with a bad guy with a gun — are legion among gun enthusiasts and conservative talk radio hosts. But a 1998 study in The Journal of Trauma and Acute Care Surgery, to take one of many examples, found that “every time a gun in the home was used in a self-defense or legally justifiable shooting, there were four unintentional shootings, seven criminal assaults or homicides and 11 attempted or completed suicides.” That means a gun is 22 times more likely to be used in a criminal assault, an accidental death or injury, a suicide attempt or a homicide than it is for self-defense.
A 2003 study published in the journal Annals of Emergency Medicine, which examined gun ownership levels among thousands of murder and suicide victims and nonvictims, found that gun-owning households were 41 percent more likely to experience a homicide and 244 percent more like to experience a suicide. The Second Amendment protects your right to own a gun, but having one in your home involves a risk-benefit calculation you should seriously consider.
Gun-rights advocates also make the grandiose claim that gun ownership is a deterrent against tyrannical governments. Indeed, the wording of the Second Amendment makes this point explicitly: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That may have made sense in the 1770s, when breech-loading flintlock muskets were the primary weapons tyrants used to conquer other peoples and subdue their own citizens who could, in turn, equalize the power equation by arming themselves with equivalent firepower. But that is no longer true.
If you think stock piling firearms from the local Guns and Guitars store, where the Las Vegas shooter purchased some of his many weapons, and dressing up in camouflage and body armor is going to protect you from an American military capable of delivering tanks and armored vehicles full Navy SEALs to your door, you’re delusional. The tragic incidents at Ruby Ridge, in Idaho, and Waco, Tex., in the 1990s, in which citizens armed to the teeth collided with government agencies and lost badly, is a case study for what would happen were the citizenry to rise up in violence against the state today.
And in any case, if you’re having trouble with the government, a lawyer is a much more potent weapon than a gun. Politicians and police fear citizens armed with legal counsel more than they do a public fortified with guns. The latter they can just shoot. The former means they have to appear before a judge.
A civil society based on the rule of law with a professional military to protect its citizens from external threats; a police force to protect civilians from internal dangers; a criminal justice system to peacefully settle disputes between the state and its citizenry; and a civil court system to enable individuals to resolve conflicts nonviolently — these institutions have been the primary drivers in the dramatic decline of violence over the past several centuries, not an increasingly well-armed public.
States reduce violence by asserting a monopoly on the legitimate use of force, thereby replacing what criminologists call “self-help justice,” in which individuals settle their own scores, often violently, such as drug gangs and the Mafia. Homicide rates, for example, have plummeted a hundredfold since 14th-century England, in which there were 110 homicides per 100,000 people a year, compared with less than one per 100,000 today. Similar declines in murder rates have been documented in Germany, Switzerland, Italy, the Netherlands and Scandinavia. (American homicide rates are around five times higher than in Europe, owing primarily to the deadly combination of guns and gangs.)
There’s no question that tyrannical states have abused the freedom of their citizens. But it is no longer realistic to think that arming citizens to the teeth is going to stop tyranny should it arise. Far superior are nonviolent democratic checks and balances on power, constitutional guardians of civil rights and legal protections of liberties.
Published on The NY Times on October 5, 2017.
Efforts to bring those responsible for atrocities in Syria before European courts are starting to bear fruit, notably in Swedish and German courts, Human Rights Watch said in a report released today. While various authorities in Europe have opened investigations of serious international crimes committed in Syria, Sweden and Germany are the first two countries that have prosecuted and convicted people for these crimes.
The 66-page report, “‘These Are the Crimes We Are Fleeing’: Justice for Syria in Swedish and German Courts,” outlines efforts in Sweden and Germany to investigate and prosecute people implicated in war crimes, crimes against humanity, and genocide in Syria. Drawing on interviews with 50 officials and practitioners working on these cases and 45 Syrian refugees in the two countries, Human Rights Watch documented the difficulties German and Swedish investigators and prosecutors face in taking up these types of cases, and the experience of refugees and asylum seekers with the authorities.
“With other avenues for justice currently blocked, criminal investigations in Europe are a beacon of hope for victims of crimes in Syria who have nowhere else to turn,” said Maria Elena Vignoli, Leonard H. Sandler fellow in the international justice program at Human Rights Watch. “As the first two countries to hold trials and convict people for atrocities in Syria, Sweden and Germany are putting war criminals on notice that they will have to pay for their crimes.”
Syrian refugees consistently stressed to Human Rights Watch the importance of bringing to justice those responsible for atrocities committed in Syria.“My brother was killed with 14 bullets by the regime,” said Samira, who lives in Sweden and lost several family members in the war. “All my family died. I saw five children being executed, I saw their heads being cut off. I couldn’t sleep for a week. […] It’s very important to have justice, which will let me feel that I’m human.”
Muhammad, an activist working on behalf of some Syrian victims in Germany, said of the Syrian government: “These people think that the political solution will come and they will be able to escape to Europe. I want them to feel haunted like they’ve haunted people all their life. We need to send a message of hope to victims and to send the message to criminals that they will not escape.”
On September 25, Sweden became the first country to convict a member of the Syrian army for crimes in Syria. The accused, identified through a photo in which he posed with his foot on the chest of a dead victim, was found guilty of violating the dignity of a dead body.
Both Sweden and Germany have elements in place to allow for the successful investigation and prosecution of grave crimes, including comprehensive laws, well-functioning specialized war crimes units, and previous experience with such cases. In addition, due to the large numbers of Syrian asylum seekers and refugees, previously unavailable victims, witnesses, material evidence, and even some suspects are now within the reach of the authorities in these countries.
Nonetheless, Human Rights Watch found that both Sweden and Germany are facing some difficulties.
“The standard challenges associated with pursuing these kinds of cases are compounded by an ongoing conflict in Syria, where there is no access to crime scenes,” Vignoli said. “Swedish and German authorities have to turn elsewhere for information, including from Syrian refugees, people doing similar work in other European countries, UN entities, and nongovernmental groups documenting atrocities in Syria.”
Human Rights Watch found that many Syrian asylum seekers and refugees are not aware of the systems in place to investigate and prosecute grave crimes in Syria, the possibility of their contributing to justice efforts in these countries, or the right of victims to participate in criminal proceedings.
Gathering relevant information from Syrian refugees and asylum seekers has also proved difficult due to their fear of possible retribution against loved ones back home, mistrust of police and government officials based on negative experiences in Syria, and feelings of abandonment by host countries and the international community.
Both Sweden and Germany have systems to protect victims and witnesses in criminal cases. Consistent with fair trial standards, both countries should explore options to increase protections in these cases for witnesses’ families in Syria, Human Rights Watch said.
Because of the difficulties involved, Human Rights Watch found only a small number of cases have been concluded, which do not represent the scale or nature of the abuses suffered by victims in Syria. Most cases have been against low-level members of non-state armed groups opposed to the Syrian government.
In Germany, the majority of cases are brought under terrorism charges rather than for grave international crimes. That could send the message that the authorities’ only focus is to combat domestic threats, Human Rights Watch said. Efforts to pursue terrorism charges should go hand in hand with efforts and resources to investigate and prosecute war crimes, crimes against humanity, and genocide.
Authorities in both countries are working to address some of these issues, although more needs to be done, Human Rights Watch said. Sweden and Germany should ensure that their war crimes units are adequately resourced and staffed, provide them with ongoing training, and consider new ways to work with Syrian refugees and asylum seekers on their territory through outreach and public information efforts.
“European countries should follow Sweden and Germany’s lead and work to expand these justice efforts for Syrians in Europe,” Vignoli said. “Overall, these cases are not enough on their own and highlight the need for a more comprehensive justice process to address the ongoing impunity in Syria.”
Published on HRW on October 3, 2017.