Justice for Syria: An Argument in Favor of Utilizing the United States’ Universal Jurisdiction

The world is currently living through the greatest humanitarian crisis to have occurred since World War II—a crisis known as the Syrian conflict.[1] From 2011 to 2017, the international community has watched as President al-Assad’s regime and opposition forces fight for control of the country.[2] As of May 2017, the Syrian crisis has resulted in the deaths of more than 470,000 individuals, the internal displacement of 6.3 million Syrians, 5 million refugees, and the placement of 640,000 people under long-term siege.[3]

Since taking office in January 2017, the Trump administration and Congress has paid little to no attention to the Syrian predicament—with the exception of a tomahawk missile attack on April 6, 2017, that was aimed at a Syrian airbase and was in response to al-Assad’s most recent use of chemical weapons.[4]  But, following the attack, the question becomes whether a show of muscle is the best approach for bringing about the end of strife in Syria? Given the longevity of the crisis and the possible continuation of chemical weapon use following the Trump administration’s missile launch,[5] it would appear that the United States’ focus should shift to bringing about justice for Syrian civilians. Therefore, the most prudent course of action at this time for the Trump administration and the 115th Congress would be to pursue criminal prosecution against President al-Assad through the concept of universal jurisdiction.

Universal jurisdiction is defined as a “principle allowing jurisdiction over acts of non-nationals where the circumstances, including the nature of the crime, justify the repression of some types of crime as a matter of international public policy.”[6] Essentially, a State whose legislation has allowed for universal jurisdiction may criminally prosecute a non-national for certain serious violations of international human rights law.[7] While universal jurisdiction is considered a drastic measure,[8] this international legal remedy prevents “the impunity of high-ranking dignitaries” and “expresses a strong commitment to the protection of human rights.”[9] Moreover, the rationale behind the doctrine is “based on the notion that certain crimes are so harmful to international interests that states are entitled—and even obliged—to bring proceedings against the perpetrator.”[10] Undoubtedly, this type of jurisdiction should apply to the al-Assad regime. Under universal jurisdiction, President al-Assad could be tried and prosecuted for crimes of genocide, war crimes, or crimes against humanity.[11]

While the Human Rights Watch contends that trying a case before the International Criminal Court (ICC) would provide a more streamlined procedure than universal jurisdiction, the United Nations Security Council (UNSC) would have to refer the case due to the ICC’s jurisdictional statute.[12] This referral would be futile due to an inevitable veto from Russia or China—an act that has been repeatedly utilized by the countries to “shield Syria from international condemnation.”[13] Inevitably, prosecution of President al-Assad seems to be coming down to the invocation of universal jurisdiction. While the United States does not have a formal statute that relies on the concept of universal jurisdiction, it has been argued that Congress controls the use of such jurisdiction and as such, can invoke it when they believe it best to do so.[14]

The situation in Syria, with the State’s use of chemical weapons upon its own civilian population, is incomparable to any other mass atrocity that has occurred within this era.[15] While the human rights violations have continued on for seven years, the international community has sat, seemingly idly by.[16] As such, President Trump should encourage and Congress should choose to pursue the drastic remedy of universal jurisdiction against President al-Assad. While the measure may be extreme, it is a move that can effectively bring justice and reconciliation in a time when it is desperately needed for the Syrian civilians.

[1] European Civil Protection and Humanitarian Aid Operations, Syria Crisis, European Commission (Mar. 2017) https://ec.europa.eu/echo/files/aid/countries/factsheets/syria_en.pdf. The European Civil Protection and Humanitarian Aid Operation states that the Syrian crisis has “triggered the world’s largest humanitarian crisis since World War II. Id.

[2] Civil War in Syria, Council on Foreign Relations, ‌‌www.cfr.org/conflicttracker (last visited June 27, 2017).

[3] Syria, Human Rights Watch, www.hrw.org/middle-east/n-africa/syria (last visited June 27, 2017).

[4] Michael R. Gordon, Helene Cooper, and Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, ny times (Apr. 6, 2017) www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html.

[5] Jared Malsin, Trump’s Chemical Weapons Warning Raises the Stakes for War in Syria, time (June 27, 2017) http:‌/‌/ti‌me.com/4834872/donald-trump-syria-assad-chemical-weapons-war-isis/.

[6] Basic Facts on Universal Jurisdiction, Human Rights Watch, (Oct. 19, 2009) www.hrw.org/ne‌ws/‌‌2‌009/10/19‌/basic-facts-universal-jurisdiction.

[7] Ralph G. Steinhardt, Paul L. Hoffman, and Christopher N. Camponovo, International Human Rights Lawyering: Cases and Materials 414 (2009).

[8] See generally Phillippe Kirsch, The International Criminal Court: From Rome to Kampala, 43 J. Marshall L. Rev. 515 (2010)(walking readers through the development of the International Criminal Court (ICC) and along the way notes why universal jurisdiction is seen as a much more dramatic concept than the ICC—which functions through the fundamental principle of complementarity).

[9] Hilly Moodrick-Even Khen, Revisiting Universal Jurisdiction: The Application of the Complementarity Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War, Emory Int’l L. Rev., http://law.‌emory.‌e‌d‌u‌/‌eilr/‌‌content‌‌/volume-30/issue-2/articles/universal-jurisdiction-complementarity-principle-courts-syrian-civil.html (last visited May 1, 2017)

[10] Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 862 (2006) www.icrc.org/eng/assets/files/other/irrc_862_philippe.pdf.

[11] Syria: Time for Global Leaders to Ensure Justice, Truth and Reparation for Millions of Victims of War, Amnesty International, (Mar. 15, 2017) www.amnesty.org/en/press-releases/2017/03/syria-time-for-global-leaders-to-ensure-justice/.

[12] Understanding the International Criminal Court, International Criminal Court, ww.icc-cpi‌.int/icc‌do‌c‌s‌/pids/publications/uicceng.pdf (last visited May 3, 2017). Syria is not a party to the ICC. As such, the ICC can only exercise jurisdiction over the country if it accepts the ICC’s jurisdiction or if the UNSC refers the case to the ICC. Id. It is unlikely that President al-Assad will accept the court’s jurisdiction due to his criminal actions.

[13] Id; Syria: Criminal Justice for Serious Crimes under International Law, Human Rights Watch, (Dec. 17, 2013) www.hrw.org/news/2013/12/17/syria-criminal-justice-serious-crimes-under-international-law.

[14] Curtis A. Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, http://scho‌larship.‌law.‌du‌k‌e‌.e‌du/cgi/viewcontent.cgi?article=1969&context=faculty_scholarship (last visited June 28, 2017).

[15] European Civil Protection and Humanitarian Aid Operations, supra note 1.

[16] Anne Barnard, Ben Hubbard, and Ian Fisher, As Atrocities Mount in Syria, Justice Seems Out of Reach, N.Y. Times (Apr. 15, 2017) www.nytimes.com/2017/04/15/world/middleeast/syria-bashar-al-assad-evidence.html?_r=0.