The principle of universal jurisdiction rests upon the idea that a state can exercise jurisdiction over crimes to which it has no territorial, national or other connection with on the basis that the alleged crimes committed are of such gravity to the international order that the responsibility to end impunity for such crimes goes beyond borders. Universal jurisdiction is rooted in moral principles and the belief that the international community cannot watch from the sidelines while international crimes such as war crimes, genocide and crimes against humanity occur and let these crimes go unpunished. Indeed, this belief has continuously made its way in international criminal law since the Second World War but has been met with difficulty in its application, notably because it allows a state to trespass on another state’s sovereignty. This controversy and other procedural requirements have resulted in a limited application of the principle. However, a trend amongst European countries is perceivable in recent years in the application of the principle to individuals accused of committing international crimes in the Syrian war. Germany, France and The Netherlands have been amongst them. How do European countries compare in their application and can the case of crimes in Syria be considered a success story for universal jurisdiction?
Practice in regard to jurisdiction asserted over international crimes committed in Syria.
Germany, France and The Netherlands are amongst the European states who have discussed the principle, considered or successfully tried individuals in connection to crimes committed in the course of the Syrian conflict. German law has accepted one of the broadest applications of universal jurisdiction, which it has demonstrated by convicting Anwar Raslan in 2022, a former colonel of co-perpetration in crimes against humanity. It is a landmark case, convicting the highest-ranking official of the Syrian government and the first country to do so in Europe. France has issued arrest warrants against high-ranking Syrian officials, but through the passive personality principle, which allows a state to assert jurisdiction when victims of a crime are nationals. In regards to universal jurisdiction however, France has struggled to reconcile domestic law and the principle, notably due to its requirement of double criminality which requires that the crime has to be criminalised in both France and in the state in which such a crime took place in order for jurisdiction to be asserted. Nevertheless, France has demonstrated that it has the capacity of exercising universal jurisdiction when convicting Liberian rebel Kunti Kamara of crimes against humanity committed during the Liberia’ civil war. Indeed, France has the tools to exercise this principle, but perhaps procedures around this principle should be revisited in order for it to reach its full potential. Furthermore, Dutch law allows for limited universal jurisdiction as it is constrained by nationality and territoriality requirements. However it has nevertheless produced results and tried several individuals accused of international crimes and crimes against humanity in the Syrian conflict since 2019.
What should be retained from this trend?
The conflict in Syria erupted in 2011 has since then caused large-scale suffering amongst civilian populations which remains largely unaddressed and unpunished, including by the fact that the government accused of such crimes is still in power. The international community has a responsibility to address and investigate such grave accusations, especially when the International Criminal Court is unable to assert jurisdiction. Indeed, inability to take action or passivity is at the core of the existence of universal jurisdiction and why states should assert it. The credibility of this principle hinges on the moral responsibility of states to act. European states have a unique chance to take action, especially as they have a large Syrian refugee population that also consists of victims of such crimes who can therefore lodge claims and be a part of the investigations and the trials. As such, more states should take the approach of Germany and demonstrate that the principle of universal jurisdiction can be a success.
By The European Institute for International Law and International Relations
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