THE BALDING figure looks frail and harmless, sitting in the dock behind a Perspex screen in the German town of Koblenz, where the rivers Rhine and Moselle unite. But appearances can deceive. Anwar Raslan, 57, once a Syrian policeman, has been charged with torturing more than 4,000 people and murdering at least 58 between 2011 and 2012, when Syria’s dictator, Bashar al-Assad, set about crushing the initially peaceful demonstrations that shook his regime as the Arab spring took off.
Mr Raslan is on trial because, by his own lights, he made a mistake. Having fallen out with the regime, in 2012 he joined the exodus of Syrians who ended up in Germany, where he seemed to be settling down nicely with his family in a Berlin suburb, until one of his alleged victims, by a fluke, spotted his presence—and told a human-rights group. With the encouragement of NGOs, in particular the Berlin-based European Centre for Constitutional and Human Rights (ECCHR), Germany’s judicial authorities applied the principle of universal jurisdiction, whereby human-rights violators of any nationality can be charged in any country, no matter where the crimes were committed. Mr Raslan was arrested in 2019. His trial began in Koblenz in April 2020 and may last for more than a year.
Scores of witnesses will be called before five German judges. Thousands of photographs collected by a Syrian military photographer may be shown. A gravedigger has described the condition of hundreds of bodies, often mutilated in the dungeons of the building where Mr Raslan is said to have worked, which were thrown into mass graves. A catalogue of torture is being spelt out in court, including electric shocks, the pulling out of fingernails, beatings with cables and whips, hanging upside down, dousing with cold water and rape—nothing was too cruel.
The idea of universal jurisdiction won global attention in 1998 when a murderous former president of Chile, Augusto Pinochet, mistakenly presuming diplomatic immunity, was arrested in Britain at the request of a Spanish judge—and was eventually sent home. Since then the practice has gathered pace. A new case opened on December 3rd in a court in Switzerland, where Alieu Kosiah, a Liberian former commander, is being tried for crimes such as mass murder and recruiting child soldiers, allegedly committed during a civil war more than 20 years ago in his home country.
The number of universal jurisdiction cases is rising. Máximo Langer, an Argentine expert at the University of California, Los Angeles, counts 815 such cases from 2008 to 2017, nearly as many as in the previous two decades put together. At least 16 countries have heard cases under universal jurisdiction; 71 cases have been completed, mostly with convictions. About 40% of the defendants have been African, a quarter from the Middle East, a fifth from Europe and 8% from Asia. Other regions may follow; Argentina is keen to use this powerful tool. Some countries allow universal-jurisdiction trials in absentia.
Spain and Belgium led the way in pursuing cases under universal jurisdiction. The Netherlands, the Nordics and Switzerland are prominent among countries where such cases are being tried. Germany is in the vanguard. According to Patrick Kroker of the ECCHR, which has helped at least a dozen plaintiffs in the Koblenz trial, 110 cases are now being investigated under universal jurisdiction in Germany, most of them to do with Iraq and Syria (concerning both the Assad regime and the slave-owning jihadists of Islamic State). The Koblenz case is the first where a member of the Syrian regime, albeit of middle rank, is facing justice in court.
Human-rights campaigners do not see universal jurisdiction as a rival system to the various international courts set up in the past two decades or so, culminating in the International Criminal Court (ICC). Rather, it is complementary. It is useful because the old system has holes in it. For example, the creation of UN-backed international courts and tribunals for Syria has been stymied by powerful countries (often China and Russia) which scorn the concept of individual rights and are bent on protecting their protégés. “The ICC has been blocked over Syria,” laments Fergal Gaynor, an Irish human-rights lawyer who is bidding to be the ICC’s next chief prosecutor. “So an expansive universal justice system has had to step in.”
The ICC, which started to operate in The Hague in 2002, remains the cornerstone of an ambitious new architecture of international justice. It is the sole permanent court where grand-scale offenders, including heads of governments and states, can face justice for serious crimes, the “core” ones being torture, crime of aggression, crimes against humanity, war crimes and genocide. Two-thirds of the world’s countries—123 at last count, 33 of them African—have signed up to it. Its main message is that no leader should consider himself (rarely, so far, herself) to have impunity.
The ICC has stumbled largely because of geopolitics. It can function properly only if its signatories fulfil their obligations to arrest and send those indicted to The Hague. A clutch of important countries—the United States, China, Russia and India—have refused to sign up, citing encroachments on sovereignty. Cases can be referred to the ICC only by the UN Security Council or with the consent of the country where the crimes occurred. The council has referred only two cases, during brief moments when America, China and Russia decided not to block: Omar al-Bashir, Sudan’s president, was indicted for alleged genocide in his country’s western region, Darfur; and Libya’s late dictator, Muammar Qaddafi, was indicted at the height of the Arab spring, when he was bombing civilians in the city of Benghazi.
Going down in Africa
The ICC has succeeded in convicting only a handful of big men, all of them African. Several African governments, at first keen on the court after the genocide in Rwanda, have concluded that it was anti-African, though all the African cases, bar Libya’s and Sudan’s, had been referred to the ICC by African governments themselves.
It was thanks to the mediation of a recently retired secretary-general of the UN, Kofi Annan, a Ghanaian, that in 2011 Kenya’s then government was persuaded to let the ICC indict two rivals, after a bloodily disputed election. It charged Uhuru Kenyatta and William Ruto, who later became president and vice-president, with crimes against humanity, but later had to drop the charges. “The ICC was no match for Kenya’s government,” says Reed Brody, an American human-rights lawyer. “It controlled everything—the country, the witnesses, the evidence. No way could the people in The Hague win.” The ICC was humiliated.
The failure of states to arrest Sudan’s Mr Bashir as he swanned around Africa, even though they had signed up to the ICC, was another reminder of the court’s lack of authority: South Africa rolled out the red carpet for him. Another low point for it was when Laurent Gbagbo, a former president of Ivory Coast, whom it had charged with crimes against humanity, was acquitted eight years later.
Supporters of the ICC cite other tribunals backed by the UN that did bring justice to the many victims of atrocities during Yugoslavia’s break-up in the 1990s and during Rwanda’s genocide, which saw perhaps 500,000 people murdered, mostly with machetes, in 1994. Around 90 ex-Yugoslav and 61 Rwandan culprits were sentenced to prison, many for life. A final appeal by Ratko Mladic, the general who oversaw the massacre of 7,000 Bosnian Muslim men and boys at Srebrenica in 1995, will be heard in 2021, closing a judicial process that has lasted a generation.
While the ICC has struggled, other “hybrid” courts have been more effective, embracing a medley of ad hoc judicial systems operating under a mix of home-grown and foreign judges. “The ICC will never be a solution for all human-rights violations,” says Serge Brammertz, a long-serving chief prosecutor for the Yugoslav tribunal. “I believe in an à la carte system: the ICC has an important but not the only role.”
Mix and match
That may be the best way to go. Mr Brody led a successful campaign to convict Hissène Habré, a mass-murdering former president of Chad who had fled into exile in Senegal, where he was tried and sentenced to life in 2016 by a special UN-backed African court. In that case, though justice was achieved in an ad hoc court, the legal process against Mr Habré was initiated under universal jurisdiction by Belgium, eventually cajoling a new government in Senegal, backed by the African Union, into setting up a special court. Mr Brody says that Mr Habré’s Chadian victims were inspired to seek justice by the Pinochet precedent.
Another recent case illustrates the enduring effectiveness of UN-backed tribunals. Félicien Kabuga owned a Rwandan radio station that helped orchestrate the genocide, urging neighbour to slaughter neighbour. He evaded arrest for 26 years; an informant who tried to lead police to him in Kenya in 2003 was found dead in a pool of blood. He was arrested near Paris last May, where he was living under a false identity, and sent to the ICC. He may be sent on to the Tanzanian city of Arusha, where a “special mechanism” has taken over from the Rwandan tribunal (it closed in 2015) to try the last of the génocidaires.
In the past decade or so other human-rights bodies have also set their sights on the worst offenders. The UN’s Human Rights Council (HRC), the nearest thing to a permanent global state-backed monitor, is often ridiculed because its 47-strong membership, chosen in regional groups, often on uncontested slates, always includes a clutch of egregious violators. As of January 1st it embraces the likes of Bahrain, China, Cuba, Eritrea, Russia and Somalia. The council keeps Israel permanently under special scrutiny—the sole country it constantly scolds.
Less toothless than it appears
The United States, an active and effective HRC member under Barack Obama, refused to take part under Donald Trump. Yet despite its faults the HRC is useful. Its system of Universal Periodic Review puts every country in the spotlight every four years. The commissions of inquiry it can order have often laid the groundwork for further investigations, sometimes by other bodies with more teeth. And many of its 50-plus “special rapporteurs” and “independent experts” have written trenchant exposés of torture, disappearances and extrajudicial executions—along with more arcane topics such as the mistreatment of people with albinism and leprosy.
In 2005 the UN endorsed the principle of a “responsibility to protect” in cases of genocide or mass atrocities, justifying liberal military interventions. This has largely fallen into disuse. China and Russia are likely to veto any such proposal that comes before the UN Security Council.
However, governments that care about human rights have become savvier at getting around such obstacles. Although Mr Assad’s regime shows no sign of collapse, a vast body of damning evidence is being collected, which may one day be used in court against the regime’s chief villains. The Commission for International Justice and Accountability (CIJA), a Dutch-based NGO involved in the Koblenz case, is said to have collected 800,000 documents incriminating Mr Assad and his torturers.
Another way of circumventing the big human-rights blockers is to work through the UN General Assembly instead of the Security Council. A resolution presented in 2016 by tiny Liechtenstein led to the creation of the International, Impartial and Independent Mechanism (IIIM) to investigate crimes in Syria since 2011. Not to be outdone, the almost as tiny Gambia pulled off a similar judicial coup, after the HRC had passed a resolution in 2018 to create an “Independent, Investigative Mechanism for Myanmar”. The Gambia got the backing of the 57-country Organisation of Islamic Co-operation to take Myanmar to the UN’s International Court of Justice (ICJ), the world’s highest court where states may contest each other, for its mistreatment of the Rohingyas, a Muslim minority. In September the Netherlands said it would hold Syria responsible, also at the ICJ, for gross violations under the UN’s Convention against Torture.
Is this panoply of tribunals, laws and reports, which name and shame countries and people, a true deterrent? “It’s impossible to prove a negative,” says Andrew Gilmour, former deputy head of the UN’s High Commission for Human Rights. “But yes, they do mind—they hate being shamed,” he says, citing the lengths to which countries such as China go to prevent scrutiny. “Anyone who says they don’t care—it’s nonsense,” says Prince Zeid Raad al-Hussein, the UN’s former high commissioner for human rights, who adds hopefully that “One day the ICC will become a powerful court.”
Moreover, there are signs that weaker countries that once kowtowed to China at forums such as the HRC are increasingly reluctant to do so. A row is brewing over the election of the council’s next agenda-setting president. China seems bent on stopping Fiji, which takes human rights seriously, from winning the post. Instead it is promoting a pliable candidate of its own, Bahrain. Five years ago China would easily have prevailed; now it is less cocksure.
Back on track
Whereas Mr Trump cared little for human rights, campaigners are confident that President Joe Biden will promote them. He is unlikely to sign up to the ICC, particularly as it may investigate America’s protégé Israel and perhaps, for alleged crimes in Afghanistan, America itself. But Mr Biden is likely to drop Mr Trump’s bizarre executive order to put sanctions on the ICC’s staff, including its chief prosecutor, Fatou Bensouda, should they visit America. The United States may once again tacitly support the ICC, as it did before. Mr Biden may also seek to rejoin the HRC, where America under Mr Obama often led the way.
Human-rights campaigners say the enduring web of tribunals and the spread of universal jurisdiction are raising hopes. “Things are moving in an interesting direction,” says Marc Limon of the Universal Rights Group, a think-tank in Geneva. “We need a range of tools,” he adds, hailing the EU and various states for enacting Magnitsky laws (named after a tax accountant murdered for exposing government chicanery in Russia) to prosecute individuals for human-rights violations or grand corruption. “It’s a very different climate,” says Mr Brody, who is seeking to have Yahya Jammeh, the Gambia’s former dictator, extradited from his exile in Equatorial Guinea to face charges of complicity in murder.
“A whole lot of things are happening that make international justice possible,” says Stephen Rapp, Mr Obama’s ambassador for war-crimes issues, who calls himself “a fan of universal jurisdiction and of hybrid courts”. Patience is in order. Mr Bashir, in detention since he was overthrown in 2019, may yet face justice, perhaps in a hybrid court in Sudan. Mr Raslan, the Syrian policeman on trial in Koblenz, may not be the sort of bigwig the ICC is intended to nail. But for torture victims in Syria, the trial is a welcome step. The evidence piling up, thanks to universal jurisdiction in Germany and elsewhere, suggests that Mr Assad may not enjoy impunity forever. ■
This article appeared in the International section of the print edition under the headline “No time to give up”