Spanish Court Case Tests the Challenges of Universal Jurisdiction on Syrians

Guernica 37 lawyers Almudena Bernabau and Maite Parejo speak to SyriaUntold about the labyrinth of limitations on universal jurisdiction in national Spanish legislation.

02 October 2017

Maya Abyad

Syrian journalist and trainer, PhD candidate in media.

[This piece is re-published on Global Voices as part of a partnership agreement].

For many years now, Syrian activists have been risking their physical and psychological well-being to document the Asad regime’s violations. Now, an international law firm in Spain is saying that thanks to these efforts "the Syrian conflict […] is going to be one of the most documented national conflicts in history, more than the Holocaust.” Nonetheless, the road to universal jurisdiction is still fraught with political and legal obstacles.

Universal Jurisdiction

The photos leaked by former Syrian military photographer known as Caesar were the only source of information thousands of Syrians had about the fate of their disappeared. One of those Syrians, Amal H., who had learned of the fate of her brother, Abdul-Mumen, through this leak, also happened to hold Spanish citizenship. This allowed Guernica 37 International Justice Chambers, a legal advocacy group, to invoke universal jurisdiction in Spain against regime officials responsible for his abduction, torture, and consequent death.

There is no one definition of universal jurisdiction; definitions seem to vary between the many academics, treaties and laws related to it. But one salient definition of universal jurisdiction defines the concept as criminal  jurisdiction based  solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. This is particularly relevant to cases of grave international crimes such as torture, genocide, forced disappearance, crimes against humanity, war crimes and state terrorism.

However, as G37 lawyers Almudena Bernabau and Maite Parejo told SyriaUntold, things in Madrid are not as ideal. They spoke to us about the labyrinth of limitations on universal jurisdiction in national Spanish legislation, as well as the international and Syrian efforts that finally led them to Amal. Stephen J. Rapp, former United States ambassador at large for the Office of Global Criminal Justice, established contacts between Amal and G37.

However, despite their efforts to keep Amal a confidential source, her family in Syria had to relocate from regime-controlled to rebels-controlled areas, now living under constant risk of shelling.

The Legalities and the Politics

Despite her Spanish citizenship, Amal’s case did not progress smoothly. The Spanish state prosecutor quickly appealed Judge Eloy Velasco’s decision to accept the case. The prosecution contested the decision to consider Amal a victim, despite having forcefully lost her brother without trial and endured the consequences of his incommunicado disappearance for over two years, before his tortured corpse's photo was identified by his son in the leaked Caesar photos.

According to international law, families of those disappeared or killed without trial are also considered victims. Spanish laws also tend to have a broad definition of victimhood, even more so after the latest amendments of 2015, and the Spanish Constitution upholds the victims’ right to access justice. However, Ms. Parejo explained that some previous cases against countries like China and the US have left Spanish prosecutors with very conservative tendencies towards such legal actions. It even led to legal reforms (in 2009 and 2014) limiting the jurisdiction in international cases to a great extent. Although Syria does not enjoy the same leverage of the aforementioned countries, the laws are the same for everyone. But this does not mean it’s the end of the road, because even a Tibet case against China has now reached the Supreme Court.

The Arrest Dilemma 

Although universal jurisdiction and a wider definition of victimhood could allow the case to be filed, the actual trial proceedings need the accused to be under custody at the time in order to take place. The nine accused officials, Head of National Security Bureau Ali Mamluk, his deputy Abdul-Fattah Qudsiyeh, Head of General Security Directorate Mohammad Dib Zeitun, Head of Air Force Intelligence Directorate Jamil Hasan, former Vice President Faruq Al-Sharaa, deputy Head of ruling Baath Party Mohamed Said Bekheitan, as well as Major General Mohammad Al-Hajj Ali, General Jalal Al-Hayek and Colonel Suleiman Al-Yusuf, have been carefully maneuvering their travels abroad since the uprising begun in 2011. That makes it difficult for Spanish police to detain any of them, but the mere filing of the case allows for international arrest warrants to be issued against them, further limiting their mobility and risking their assets abroad being confiscated.

This means that such a case "starts a process of accountability,” according to Stephen J. Rapp, the former United States ambassador at large for the Office of Global Criminal Justice. As Asad regime officers have been administering organized violence with impunity for years, the mere existence of such legal investigation hinders their confidence, and adds hurdles in the face of state terrorism.

Latest Updates

After Judge Manuel García Castejón took over the case from Judge Velasco, the prosecutor’s appeal was processed and accepted by the majority of a panel of high ranking judges on July 21, for reasons relating to the definition of victimhood. This reasoning has not yet been officially communicated to G37, who thus preferred not to comment on the verdict yet.

However, they confirmed to Syria Untold that "if the Spanish National Court’s decision is based on the arguments put forward by the Office of the Prosecutor, that were contested by our legal team, the decision could be subject to appeal before the Spanish Supreme Court." G37 added that the acceptance of the appeal does not constitute a defeat, as their legal team “will exhaust all available means and legal resources at its disposal to pursue justice for the thousands of victims of the Syrian conflict. This is a setback and we are of course disappointed, but this is just a step in the legal process. We remain confident in the strength of our case and its firm jurisdictional basis.”

[Main image: 'Aleppo(nica)' by Portuguese cartoonist Vasco Gargalo - 3-10-16 (Vasco Gargalo Twitter page/Fair use. All rights reserved to the author)].

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