05.07.2018

Prosecution of War Crimes Committed during the Syrian Armed Conflict on the Basis of Universal Jurisdiction

The Master’ Thesis with the title „Prosecution of War Crimes Committed during the Syrian Armed Conflict on the Basis of Universal Jurisdiction” was written by Nailia Mirsaitova as part of her studies at the European University Viadrina (Germany) with advisory assistance of her supervisor Prof. Bernard J. Dougherty and supported by The Boris Nemtsov Foundation for Freedom.

The Syrian conflict is one of the biggest challenges for the international community. The conflict is long lasting, complex, and evidences the occurrence of international crimes on a concerted basis. It involves at least six states and numerous non-state armed groups. Impunity is an important issue in this conflict and one of the causes of the ongoing violations of international humanitarian law. Many of these violations committed on a daily-basis constitute international crimes, including war crimes. Consequently, there is a question of accountability of perpetrators of these crimes.

There are several possibilities to bring justice to the Syrian armed conflict, including international and national mechanisms. In the current political situation, referral of the case to the International Criminal Court or creation of a new international criminal tribunal is highly difficult. At the same time, some states have already started to use universal jurisdiction in the prosecution of crimes committed in Syria, including war crimes.

This research has indicated the capacity and limits of universal jurisdiction as an instrument to bring accountability for perpetrators of war crimes committed in the conflict. Although some scholars use the term universal jurisdiction to refer to the jurisdiction of international criminal courts and tribunals, in this paper universal jurisdiction means exclusively the competence of states to consider a case regardless of the link, or lack thereof, with the place where the crime was committed, the nationality of the perpetrator or the victim, or the existence of harm to the interest of the state.  

Treaty and customary law provide states with a legal basis to exercise universal jurisdiction in prosecuting war crimes committed in the situation in Syria. International and national case law have confirmed the legality of the application of universal jurisdiction, leaving open some questions of the application of universal jurisdiction and obstacles to it, such as the possibility of prosecutions in absentia. At the same time, an analysis of legal sources allows the conclusion that the application of universal jurisdiction in absentia, in principle, does not violate international law. It was concluded that some factors may constitute barriers to the exercise of universal jurisdiction, such as immunity and state abuses (e.g., bias and non-impartial procedures), while some factors do not affect the applicability of universal jurisdiction for war crimes, such as amnesties for war crimes.    

The aim of this paper is to analyse the potential of universal jurisdiction to contribute to the accountability process. The thesis can be used by researches and practitioners whose activities are related to the topic. In addition, this paper focuses only on the applicability of universal jurisdiction for war crimes. Nonetheless, even though this research aims to indicate a legal framework only for war crimes, it can be used mutatis mutandis in the further analysis of the prosecutions of other crimes committed in the Syrian conflict and subject to universal jurisdiction.

The author welcomes your further comments or questions on the topic. Please feel free to email them to mirsaitova@gmail.com.  

Full text: Prosecution of War Crimes Committed during the Syrian Armed Conflict on the Basis of Universal Jurisdiction.