Bénédict de Moerloose is a lawyer and head of International Investigations and Litigation at TRIAL International.
Interview conducted by Kenza Gueddi
1. Do you see universal jurisdiction before European courts as the last and only option for Syrian victims to access justice? Can we hope for a better, more comprehensive alternative in the future?
For now, it is the only option. As we know, there has been no referral from the UN Security Council of the situation in Syria to the ICC because of Russian and Chinese vetoes. Today, there is therefore no alternative for Syrian victims apart from filing complaints before national courts in the West, not only in countries of the European Union, but also in Switzerland, Norway, the US.
If universal jurisdiction is well managed and if the German complaints against high-ranking officials go forward, then it has a potential similar to the potential of international courts. There are political obstacles and the challenge is quite huge, but in my opinion, if universal jurisdiction is well used, I am not sure that there will be a need for an international tribunal. Besides, it’s going to be very difficult to establish such an ad hoc tribunal, because now that the Syrian war has become so complex and involves so many actors, many of them will want to prevent the creation of an international court – including maybe the US. If we don’t have the US and Russia backing up the creation of such a court it will be very unlikely to happen.
2. What are the main challenges in the investigation and prosecution of universal jurisdiction cases in the case of Syria – especially in terms of victims’ participation?
I think that one of the biggest challenges is that most Western countries have legislations imposing limitations on universal jurisdiction. The biggest one is the presence requirement in every single European country but Germany, Sweden and Norway, which means that you need to have the presence of the suspects on the territory in order to be able to prosecute their crimes. And you have other requirements in other countries. In France, for example, the person actually has to be a resident. If perpetrators are clever enough, they simply won’t travel to countries where they potentially risk investigations and prosecutions.
Then, you have legal-political obstacles. High-level officials are, for now, unlikely to be arrested soon. For instance, in Sweden, until now, there hasn’t been any case against a high-level official. And you have also the problem of immunities. In international courts, usually you don’t have this problem because even State officials do not enjoy immunity. But before national courts it’s a different story. National courts now cannot prosecute Bashar al-Assad because he is a sitting President.
You also have the difficulty for investigators of not being able to travel to the country where crimes have been committed. So they need to rely mostly on testimonies. But in fact for Syria it is a bit different, because a lot of documents have been collected. It is a very bureaucratic regime and some NGOs, such as CIJA [Commission for International Justice and Accountability], have been gathering a lot of documentation. Apparently about 600,000 official documents have been secured out of Syria. These guys have been doing an impressive job and collecting a lot of evidence, which will probably be very useful for future prosecutions. However, regarding areas that have always been controlled by the government, the information available is more limited. For these places, we will need to rely mostly on testimonies, which makes it always difficult. In the case of Syria, now that the regime is winning the war, people are very scared. You need to find witnesses that want to go forward. In some countries you have witness protection measures in place, but in many you don’t – or insufficient ones.
Finally, you have the question of resources. In some European countries you have so called war crimes units: well staffed prosecuting authorities dedicated full-time to investigating international crimes. Most of the time they work with police officers specialised also in those types of crimes. It is important to underline that they are very specific types of crimes and their prosecution is different than for regular criminal crimes. It is complicated because you need to rely on witnesses that come from other backgrounds. You need to understand how they will tell their stories. You need to have very good translators. And there is also a specific crime-related context that you need to understand. And then you need to have sufficient resources to prosecute so many crimes.
3. Would you say that there is a form of complementarity between the UN International Impartial and Independent Mechanism Investigating Serious Crimes in Syria and universal jurisdiction before European courts?
Yes of course. I think that the creation of the IIIM by the UN General Assembly can be of great help to national prosecutions. In the context of this mechanism, they will collect, analyse and prepare cases that might be prosecuted in national courts. One of the main objectives of this mechanism will be to support national courts by providing cases to whichever court that respects due process and will prosecute international crimes related to the Syrian conflict. They are not going to document cases as proper “investigators”, but they are going to collect the evidence out there, hopefully working with the UN Commission of Inquiry on Syria, NGOs and victims. Then, according to their case-building policy that they are creating as we speak, they will prioritize cases. They are probably going to build something like a contextual and structural understanding of the war, of the different actors. This is going to help analysts and investigators at the national level to understand the common structure of the cases. I guess that, at one point, the team of the IIIM is also going to be able to raise some specific cases which they think there is a need to prosecute, for which there is sufficient evidence, etc.
However, expectations should not be too high either. For now IIIM members are 20, although they want to be 60. There are hundreds of thousands of war crimes and crimes against humanity that have been committed in Syria. The IIIM Mechanism will definitely be of great help, but still, not every victim is going to find justice. Besides, if you take Germany now, for instance, they are doing structural investigations, looking into crimes committed by the regime as well, but they are currently overloaded with work and they will not be able to prosecute every single crime. So, that is another major issue: so many crimes have been committed in Syria, it’s going to be impossible to prosecute them all.
4. What can be done to enhance victims’ participation and access to justice in their country of refuge?
First, depending on the country, victims have different participation rights. Common law countries give little rights to victims; there are no civil parties. In civil law countries where there are civil parties statutes, victims need to be aware that some cases are being prosecuted and need to be helped and supported in order to participate in the prosecutions. National authorities need to reach out to victims within Syrian communities. And I think that the IIIM has also a huge role there. NGOs also need to emphasize victims’ participation and within the dialogue between NGOs supporting victims and the IIIM, they need to highlight that victims are important and are the first to be concerned by these cases. Also, victims are important for the construction of the cases. Civil parties are able to trigger prosecutions. They can appeal the decisions, they can participate in the prosecutions and in the trials.
5. How does TRIAL engage with victims and help them access justice and participate in the proceedings?
TRIAL does different types of investigative and legal work related to international crimes and we have one programme dedicated to universal jurisdiction. Sometimes it is actually victims themselves that trigger our action by reaching out and asking us to work on a case, for instance on a universal jurisdiction case. And sometimes we start working on a case, we document it and we decide to file a complaint to the relevant authorities, and then, during the documentation work we reach out to victims. We explain to them that a criminal complaint will be filed or that an investigation is ongoing and that they have a right to be part of the proceedings. And if they want to be part of it, then we put them in touch with lawyers who will act on their behalf, file complaints and support them throughout the process