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With coordinated international action stymied by division on Syria between the major world powers, individual legal teams and prosecutors in a number of European states have taken up the challenge of seeking justice for crimes committed during more than seven years of war.
They base their efforts in the principle of universal jurisdiction, whereby a state or international body can claim jurisdiction over the perpetrator of a crime regardless of where that crime was committed.
Ahmad Z., an attorney at the Syria Legal Network, an initiative of the Netherlands-based Nuhanovic Foundation and the War Reparations Centre at Amsterdam University, said that he was collecting evidence and locating witnesses and potential suspects in the Netherlands.
In a telephone interview, Ahmad said they were discussing several cases against individuals who worked for the Syrian state but had since left.
“We are still talking to the victims,” Ahmad told BIRN. “We are still considering and collecting information on these cases.”
Given Syria is not a signatory to the Rome Statute, the International Court of Justice, ICC, in The Hague has no jurisdiction to investigate Syrian leader Bashar al-Assad, unless instructed to by the United Nations Security Council.
But there, Syria has veto-wielding allies in Russia and China, also ruling out the kind of ad hoc tribunal that tried war crimes in the likes of Yugoslavia, Sierra Leone and Cambodia.
Instead, individual cases have been pursued in Sweden, Germany and France, largely based on evidence smuggled out of the country and the witness testimony of some of the thousands of Syrians who have made their way to safety in Europe since a 2011 uprising against Assad spiraled into a brutal civil war.
In the latest development, in November, a French court issued arrest warrants for three senior Syrian intelligence officials: the director of the Syrian Intelligence Agency, Ali Mamlouk, his deputy Abdel Salam and aviation chief Jamil Hassan, who is also sought by Germany on accusations of war crimes.
They are wanted in connection with the detention and subsequent disappearance of two French-Syrian nationals.
Ahmad said the creation of a tribunal for Syria “is impossible.”
“We have political problems as Russia is putting a veto on any discussion of international investigations into war crimes at the United Nations,” he told BIRN. “So we are focussing on the local judiciary to get reparations.”
Besides searching for witnesses, Ahmad said he was also seeking out “potential perpetrators who have settled in the Netherlands.”
But victims, he said, are often reluctant to speak out publicly, “out of fear for their families or because they think it could jeopardise their efforts to seek asylum.”
The United Nations created the International Independent Commission of Inquiry on the Syrian Arab Republic in 2011 to probe alleged violations of human rights, and five years later the UN General Assembly voted to establish the International, Impartial and Independent Mechanism, or IIIM, to investigate violations of international law in Syria, but their effectiveness is limited.
IIM and national prosecutors often rely on evidence gathered by civil society organisations, media and other non-governmental organisations, including the Commission for International Justice and Accountability, CIJA.
“The point of establishing the Commission was to do what we can to process those crimes while the wars are still ongoing and the political will at the international level is non-existent,” said Nerma Jelacic, head of external relations and communications at the CIJA.
“What we are seeing in Syria has not been seen before,” Jelacic told BIRN. “I am not only referring to the use of chemical weapons and modified bombs, which are even worse than those fired at [the Bosnian capital] Sarajevo, but I am speaking about the approach to torture, about huge organised systems, detention camps, prisons, above and below ground.”
Cases being brought in Europe often rely on archival records and evidence collected by the CIJA to bring to justice “those who are trying to disguise and present themselves as refugees in Europe,” said Jelacic.
In total, around 70,000 people were granted asylum status in the Netherlands between 1 January 2014 and 1 July 2016, while two thirds of them, 44,000, were Syrians, according to the Netherlands Institute for Social Research.
The Nuhanovic Foundation, created in 2011 to assist victims of war in seeking reparation, restitution or compensation, took as its title the surname of Srebrenica survivor Hasan Nuhanovic, an interpreter for the Dutch UN peacekeeping force stationed in the designated UN safe haven of Srebrenica and whose father, mother and brother were among those killed.
Nuhanovic, represented by Dutch lawyer Prof. Liesbeth Zegveld, and another Bosniak family fought for 11 years to hold the Netherlands responsible for not preventing the murder of three of their relatives, eventually winning in the Dutch Supreme Court in 2013.
Zegveld founded the Nuhanovic Foundation in 2011.
Ahmad said Syrian victims in the Netherlands faced considerable obstacles.