For justice in Syria, hope comes from Geneva rather than The Hague

Alain Werner | The ICC is playing a key role in the fight for accountability for the atrocities committed in Ukraine. However, the growing importance of national trials—in which Geneva plays a full part—is crucial in the fight against the global cancer of impunity for mass crimes.

By Alain Werner*

It was an operation which had remained secret for more than a year to ensure its success, but on August 16, Geneva-based organization Trial International revealed that the Federal Criminal Court had, in a judgement of July 19, 2022, ordered the Federal Office of Justice (FOJ) to issue an international arrest warrant for the former Syrian Vice-President and uncle of Bashar al-Assad, Rifaat al-Assad. The news confirmed that when looking for justice and accountability in Syria, hope comes more from Geneva than from The Hague. 

In 2013, Rifaat al-Assad became the subject of a criminal denunciation issued from Geneva by Trial International, a non-governmental organization “fighting impunity for international crimes and supporting victims in their quest for justice”. He had been accused of committing war crimes as commander of the Syrian Defense Forces in the 1980s: Under his command, troops are suspected of having participated in the slaughter of several thousand people in Tadmor and Hama. Regarding the atrocities committed in Hama, following the city’s uprising against the regime in 1982, sources put the death toll between 10,000 and 40,000. Al-Assad is said to have been present in the city of Hama, and to have instructed members of the security forces to “clean it of the thugs,” to transport all men between the ages of 14 and 65 to detention centers, and to kill any survivors.

The Swiss Office of the Attorney General (Ministère public de la Confédération or MPC in French) initially opened an investigation on December 19, 2013, as Rifaat al-Assad was staying in a 5-star hotel in Geneva at the time. In September 2015, al-Assad was interviewed by the MPC in the same hotel. However, only on November 30, 2021 did the MPC finally instruct the FOJ to issue him with an international warrant for arrest and extradition, for war crimes. After an investigation criticized for its length, it was a decision that came just a month too late: Al-Assad had been residing in France, but had left the country in October to escape a 4 year prison sentence handed down to him for amassing €90 million of assets in a “fraudulent way.”

The legal paralysis of the International Criminal Court

How is it possible that Switzerland and France were unable to work together to prevent al-Assad from sneaking out of France in October 2021 and returning to Syria? His ability to slip through the cracks has jeopardized not only the execution of his sentence in France, but also any prospect of a hearing in Switzerland before the MPC.

The twists and turns of this sensitive case did not stop there, as on December 9, 2021, the FOJ in Bern simply refused to act on the OAG’s request that they publish the international warrant for al-Assad’s arrest and extradition. According to the FOJ, as al-Assad has no personal connection with Switzerland—he is not Swiss, has not killed any Swiss citizen, and does not currently reside in Switzerland—the office determined that, in these circumstances, Swiss law does not allow for his extradition.

On July 19, 2022, the Federal Criminal Court set the record straight. It ruled that the FOJ could not vest itself the authority to verify whether a measure requested by the MPC was justified or not, as the latter enjoys broad discretionary powers under Swiss law.

It now remains to be seen whether Rifaat al-Assad will ever be tried in Switzerland for the alleged crimes committed in Tadmor and Hama. But thanks to the tenacity of Trial International in Geneva and the OAG in Berne, an international arrest warrant against him for war crimes has now been issued, and this is in itself immensely important for the numerous Syrian victims.

For crimes committed in Syria since 2011, Geneva has also played a decisive role, given the legal paralysis affecting the International Criminal Court (ICC) in The Hague. The latter has no jurisdiction to investigate or judge crimes committed in Syria, since the country has not ratified the Rome Statute on which the ICC is founded. In addition, any resolution by the UN Security Council to refer the situation to the Court is systematically blocked by Russia, which has used its veto powers 17 times between 2011 and 2022 to protect the Syrian regime’s abuses from investigation. In light of this situation of deadlock, in December 2016, the UN General Assembly established the International Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for international crimes committed in Syria since 2011.

More and more proceedings for Syria

For the past six years, this Geneva-based UN mechanism has been gathering and analyzing evidence. It then collaborates with state authorities to obtain—in the absence of any proceedings in The Hague before the ICC—as many trials as possible before national jurisdictions. To this end, upon the physical presence in various European countries of persons suspected of international crimes, the principle of universal jurisdiction is used.

This collaboration between the IIIM and national authorities has produced concrete results, such as the January 2022 judgment against Anwar R. in Koblenz, Germany. Anwar R., former head of the investigation department of Branch 251 of the Syrian intelligence services, was sentenced to life imprisonment for crimes against humanity in the form of torture, murder and sexual violence. 

Through these exchanges between a UN mechanism and national courts, these national proceedings for Syria are multiplying, not only in Germany but also in France and elsewhere. A few days ago, for example, a complaint was submitted in Norway against an Iraqi national who has been living there for six years, suspected of crimes committed during the war in Syria.

The ICC is playing a key role in the fight for accountability for the atrocities committed in Ukraine, and should, of course, remain the symbolic flagship of international justice. However, the growing importance of national trials—in which Geneva plays a full part at various levels—is crucial in the fight against the global cancer of impunity for mass crimes.

*An international lawyer, Alain Werner is Founding Director of Civitas Maxima, an organization which "facilitates the documentation of international crimes, and pursues the redress of such crimes on behalf of victims who do not have access to justice."