Universal jurisdiction, Al Hol and the contradictions of European justice

Syrian war criminals are prosecuted in Europe while European suspects are abandoned in Syria

Syrian defendant Eyad A. arrives to hear his verdict in the courtroom in Koblenz, Germany February 24, 2021. Thomas Lohnes/Pool via REUTERS REFILE - CORRECTING YEAR

Between 2015 and 2016, Germany welcomed about 1.2 million asylum seekers, many fleeing Syria's civil war. Ordinary people who suffered the most extraordinary traumas suddenly found a refuge in the heart of Europe.

In the fog of the migrant crisis, it was also inevitable that a small number of the Syrian war’s most serious criminals would take advantage, seeing Germany and other European states as havens in which to flee responsibility for their actions.

In Syria’s messy conflict, crimes have been committed on every side. ISIS, the terrorist group that once occupied large swathes of Syrian territory, has committed just about every imaginable offence – from theft to systematic rape and torture to attempted genocide. The Syrian security forces’ own charge sheet would be strikingly similar.

In 2019, Germany arrested on its soil an ISIS member accused of enslaving and killing a Yazidi girl in Syria four years earlier. The same year, it also arrested Eyad Al Gharib, a former Syrian secret police officer accused of overseeing the torture of 4,000 people in Damascus.

Syria lacks any infrastructure capable of sifting through the myriad atrocities of its war. It is unlikely that the country will deliver meaningful justice to the millions of victims of those atrocities any time soon.

In Al Hol camp, north-eastern Syria, one can find both victims and suspects crammed together in miserable conditions. The site is at once a refugee camp and a prison, housing 68,000 people, including 10,000 foreign fighters suspected of being ISIS members, along with their wives and children – the latter, of course, having committed no crimes. There are also Syrians and Iraqis suspected of links to ISIS.

Al Hol’s residents, guarded by a meagre troop of Syrian Kurdish soldiers, languish there indefinitely because of a complete unwillingness by their home countries to accept them for repatriation or trial. Among its most famous residents is Shamima Begum, a British-born woman who has been rendered stateless by the UK government after she was groomed to join ISIS at age 15.

The camp’s conditions worsen by the day. Over the weekend, two children were killed in a fire.

Wars such as these and the instability that lingers after them motivated the 20th-century desire to create an international legal system in which certain crimes, regardless of where they are committed, are acknowledged to be universal in their gravity and magnitude. The International Criminal Court and various international tribunals held over the years are designed to give force to that system and, ultimately, a rules-based international order.

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Syria's Al Hol camp is at once a refugee camp and a prison

In Syria, however, the ICC has proven entirely ineffectual. The Syrian government has not signed onto the Court's founding treaty, effectively barring ICC prosecutors from investigating it. A referral to the ICC by the UN Security Council would circumvent that obstacle, but the involvement of powerful council members in the war makes that possibility remote. Like the unresolved status of Al Hol camp, the ICC's paralysis with respect to Syria is a stark exposure of gaping holes in our treaty-based view of universality in justice.

In light of these flaws, German courts have turned to the still-nascent legal principle of “universal jurisdiction” to pursue justice for Syrian victims unilaterally, independent of any international process. Al Gharib was convicted and sentenced in Germany last week.

Universal jurisdiction is not an ideal tool for justice. It relies on domestic courts, mainly in Europe, acquiring evidence and context for crimes in foreign countries. It is, largely, a stand-in for accountability in places like Syria. But it is, for the moment, the best that victims in these situations can hope for. If only European nations could apply a similar initiative and a hunger for justice to their people stranded in Al Hol.