Can “universal jurisdiction” protect the residents of northeastern Syria from Turkey?

Today, the call to condemn the violations and crimes committed against Syrians by Turkey, and to hold those responsible accountable, has become an urgent demand—not only to compensate victims and achieve the justice sought, but also to preserve and protect what remains of the population of northeastern Syria.

Since Turkey has not yet ratified the Rome Statute of the International Criminal Court, calls to refer the case of the crimes it has committed in Syria to that court remain unrealistic, as such a step would require the approval of the United Nations Security Council. And even if, for the sake of argument, one of the Security Council’s member states were to propose a draft resolution referring Turkey’s crimes to the International Criminal Court—an unlikely scenario—more than one veto would likely await such a resolution.

In the face of this international legal deadlock, Syrians today have no option but to turn to European and Western courts whose laws allow the prosecution of perpetrators of international crimes, especially war crimes, crimes against humanity, and genocide, under the principle of “universal jurisdiction.” Universal jurisdiction is an exception to the principle of territoriality in criminal law. It is based on the defense of interests and values of universal significance and rests on the idea that any national judge may apprehend and try perpetrators of crimes recognized in international conventions or customary international law on behalf of the international community, regardless of where the crime was committed, the nationality of the perpetrator, or the nationality of the victims.

Perhaps the most prominent example of universal jurisdiction being used to prosecute international war criminals is the law adopted by the Belgian judiciary in 1993, before Belgium retreated from it under pressure from the United States and Israel.

The Belgian universal jurisdiction law of 1993

On June 16, 1993, Belgium adopted a universal jurisdiction law aimed at suppressing grave breaches of international humanitarian law, granting Belgian courts the authority to prosecute perpetrators of international crimes regardless of their nationality, the nationality of the victims, or the place where the crime was committed. Belgium had already ratified the 1949 Geneva Conventions.

Based on a lawsuit filed by victims in 2002, a Belgian court accused former Chadian president Hissène Habré of committing crimes against humanity, particularly torture and other crimes. When a Belgian judge issued an arrest warrant against him, Habré fled to Senegal, which initially refused to extradite him before later agreeing to try him.

Lawsuits were also brought before Belgian courts against many political figures, including Hashemi Rafsanjani (Iran), Paul Kagame (Rwanda), Laurent-Désiré Kabila (Congo), Saddam Hussein (Iraq), Fidel Castro (Cuba), Laurent Gbagbo (Ivory Coast), and others.

But the only case that caused a major uproar and became the straw that broke the camel’s back was the one against then-Israeli Prime Minister Ariel Sharon, who was accused in 2001 of killing at least 900 Palestinian women and children in the Sabra and Shatila camps on the outskirts of Beirut in 1982. This lawsuit triggered a ferocious Israeli campaign against Belgium and its judiciary. After pressure from Israel, the Belgian judiciary deemed the case brought against Sharon inadmissible on the grounds that the accused was not present on Belgian territory.

At the beginning of 2003, Iraqi families filed lawsuits against George H. W. Bush, Dick Cheney, and Colin Powell on charges of committing crimes during the 1991 Gulf War. But less than a month after these lawsuits were filed, the Belgian parliament amended the universal jurisdiction law. Under the amendment of April 23, 2003, the Belgian government could transfer a case to any other country if the crime had no connection to Belgium. But U.S. pressure continued, prompting Belgium to change the law once again. Under the new change, for a case to be admissible, the accused had to be present on Belgian territory.

The second disappointment came from the judges of the French Court of Cassation. In its ruling issued in November 2021, the court narrowed the jurisdiction of French courts over international crimes committed in Syria, ruling that the application of universal jurisdiction is subject to two basic conditions when neither the perpetrator nor the victim holds French nationality. The first is that the suspect must be present or resident on French territory. The second is that the war crime or crime against humanity must also be criminalized under Syrian legislation.

This was not the first disappointment in the French judiciary. In March 2001, the French Court of Cassation definitively closed the issue of prosecuting Libyan leader Muammar Gaddafi in the case of the UTA plane bombing over Niger in 1989. The criminal chamber of that court overturned the ruling issued by the Court of Appeal, which had allowed Gaddafi to be tried. The Court of Cassation relied on a principal argument rooted in customary international law: the recognition of immunity for heads of state while they are carrying out their functions, meaning that they may not be prosecuted.

So do heads of state and government still enjoy this immunity?

The issue of diplomatic immunity has long been a matter of debate among scholars of international law. The Vienna Conventions on diplomatic relations and consular relations expressly provide immunity for those working in the diplomatic corps, without any mention of the head of state or head of government. However, international custom has recognized such immunity for presidents as long as they remain in office. This immunity regime challenged the Belgian universal jurisdiction law in the Congo v. Belgium case before the International Court of Justice in 2000, where the latter declared in its judgment that Belgium’s arrest of the foreign minister of the Democratic Republic of the Congo constituted a violation of a legal obligation owed to the Congolese state—namely, respect for the full jurisdictional immunity enjoyed by that official under international law.
The Rome Statute of the International Criminal Court then came to deny the effect of immunity before the Court, even though immunity has traditionally been regarded as one of the recognized international legal guarantees protecting state figures who symbolize national sovereignty, whose protection and preservation have been affirmed by the rules of international law.

Article 27 of that Statute provides as follows: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

It is as though this article was designed to cut off the path before those who argue over the nature of presidential immunity in order to evade punishment. The International Criminal Court was indeed given the opportunity to apply the principle of non-recognition of immunity when it issued an arrest warrant against Sudanese President Omar al-Bashir, making him the first head of state against whom an arrest warrant was issued while he was still in power. Nevertheless, Article 98 of the same Statute gives states a pretext not to comply with the Court’s decisions regarding the surrender of suspects, especially if the accused is a head of state protected by immunity granted under customary international law.

The most important question remains: can Syrians benefit from the application of universal jurisdiction in relation to the serious crimes and violations that have been committed, and continue to be committed, against them by Turkey?

The answer is yes. Despite the restrictions states have imposed on the application of the principle of universal jurisdiction, Syrians can still resort to these courts. Arrest warrants can be issued against the accused even in absentia, as has happened and continues to happen in Germany today. As for states that require the perpetrator to be present on their territory, as soon as any of those accused of committing these atrocities arrives in those countries, their judiciary will be waiting for them.

And given that international crimes are not subject to statutes of limitation, the hope of prosecuting presidents and officials responsible for these crimes and violations remains alive even after the president or official leaves office.