Spanish Court Case Tests the Challenges of Universal Jurisdiction on Syrians

“Alepponica” by Vasco Gargalo, used with permission.

This story is republished here as part of a partnership agreement with Syria Untold

For many years now, Syrian activists have been risking their physical and psychological well-being to document the Assad regime’s violations. Thanks to these efforts, the Syrian conflict “is going to be one of the most documented national conflicts in history, more than the Holocaust,” say lawyers for Guernica 37 International Justice Chambers, a legal advocacy group.

Nonetheless, the road to justice for the victims and their families is fraught with political and legal obstacles, as the case of Amal H. in Spain has proven. 

Amal's brother, Abdul-Mumen, disappeared during the war, and like thousands of other Syrians, the only source of information she had about the fate of her loved one were photos leaked by a former Syrian military photographer known as Caesar. 

Abdul-Mumen happened to hold Spanish citizenship, which allowed Guernica 37 to invoke universal jurisdiction in Spain against regime officials responsible for his abduction, torture, and consequent death.

Official logo of ‘Guernica 37′. Source: Official Website

Universal jurisdiction

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 Guernica 37 lawyers Almudena Bernabau and Maite Parejo told Syria Untold, things in Madrid are not 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 Guernica 37.

Despite their efforts to keep Amal a confidential source, her family in Syria had to relocate from regime-controlled to rebel-controlled areas, which now live under constant risk of shelling.

In this video interview, Parejo explains why they had to find a victim with a Spanish nationality:

The provision of universal jurisdiction [in Spain] was reformed in 2014, and they legislated with a lot of requirements for the crime of ‘terrorism of the state’. We need to have, or the victims must have, the Spanish nationality.

Bernabau explained that finding Amal was key:

They told me there's a woman we believe has the country code, 34 [Spain's Dialing Code], which means she lives in Spain and I told them ‘give me the phone number!’ I called and [Amal] was wonderful, and ready. She was ready to do something [about her brother].

Legalities and politics

Despite her Spanish citizenship, Amal’s case has not progressed smoothly.

Judge Eloy Velasco decided to accept the case, but the Spanish state prosecutor quickly appealed. 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 a photo of his tortured corpse 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 tend to have a broad definition of victimhood, even more so after the latest amendments of 2015. The Spanish Constitution also upholds the victims’ right to access justice.

However, 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 Spanish Constitutional Court.

In the above video, Parejo told Syria Untold that others prosecutors wanted ‘direct victims’ like Amal's brother to be present in Spain with a Spanish nationality, which she found to be ‘absurd’ as he is among the disappeared in Syria.

Bernabau argued that it is ‘ridiculous’ and ‘unconstitutional’ to to dismiss Amal's case because she wasn't a ‘direct’ victim as international law defines families of victims as victims as well.

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 Syrian officials are:

  • 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;
  • Major General Mohammad Al-Hajj Ali;
  • General Jalal Al-Hayek;
  • And Colonel Suleiman Al-Yusuf.

All of them have been carefully maneuvering their travels abroad since the Syrian 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 Assad regime officers have been administering organized violence with impunity for years, the mere existence of such legal investigation hinders their confidence and adds hurdles to committing further violations.

A setback, but the case remains strong

After Judge Manuel García Castejón took over the case from Judge Velasco, the prosecutor’s appeal was 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 Guernica 37, whose lawyers 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.” 

They added that the acceptance of the appeal does not constitute a defeat:

[Our 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.

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