Building the First Criminal Case Against Assad’s Regime

Lawyers Maite Parejo and Almudena Bernabeu discuss how they built the first criminal case against Syrian officials to be accepted in a foreign court, and the impact it will have on bringing perpetrators of abuse in Syria to justice.

BARCELONA – On Monday, a Spanish judge ordered an investigation into allegations that Syrian government officials committed state terrorism – a case that international lawyers Almudena Bernabeu and Maite Parejo have been building since 2016. Theirs is the first criminal case against Syrian president Bashar al-Assad’s government to be accepted in a Western court, a victory that marked “the dawn of justice for Syria,” former U.S.ambassador for war crimes Stephen Rapp told the AP.

Even before the conflict began in Syria, human rights and international monitoring groups made allegations of state-sanctioned torture, forced disappearances and executions in the country’s detention centers, but international mechanisms have not yet been able to hold perpetrators accountable. Bernabeu, Parejo and their colleagues at the Guernica 37 International Chambers argued that the laws of universal jurisdiction permit Spain’s national court to prosecute the nine Syrian government officials allegedly linked to the disappearance and death of Abdulmuemen Alhaj Hamdo. The Syrian truck driver was detained in early 2013 and allegedly tortured and killed in Branch 248, a government-run detention center in Damascus.

“The principle of universal jurisdiction allows national courts to investigate international crimes and to hold criminals responsible regardless of where the crime was committed and independently of the nationality of the perpetrators or the victims,” Parejo told Syria Deeply.

However, many countries have restricted this definition; cases investigated in Spain must be brought on behalf of a Spanish resident and national. Though Hamdo was Syrian, the lawyers are representing his sister, Amal Hag Hamdo Anfalis, a Spanish national who, they argue, should be considered an indirect victim. Hamdo’s sister identified her brother’s body in a photo from the Caesar File, a collection of more than 50,000 photographs that document the deaths of over 6,000 people in government-run detention facilities. A defected Syrian forensic officer codenamed Caesar smuggled the photographs out of Syria in 2013. Spanish judge Eloy Velasco called on Anfalis and Caesar to testify on April 10.

Syria Deeply spoke with Bernabeu and Parejo about their work on the Syria case, its significance for international justice and the possibility of future cases investigating abuses in Syria.

Syria Deeply: How has the principle of universal jurisdiction changed and how is it applied differently from country to country – why do some countries restrict it more than others?

Almudena Bernabeu: The idea comes from Nuremberg. The whole idea is that these crimes offended all of humanity – human consciousness. In 1989 the convention against torture was passed and that was the window. The language of the convention commands the states to do whatever it takes.

Maite Parejo: Starting in 1996, at the beginning, a lot of cases were successfully brought to the national court in Spain. But when you start touching countries like the U.S., Israel, China … the political and economic pressure on the Spanish government was hard. It led to a reform of the law on universal jurisdiction. [Spain] had a reform in 2009 and 2014. Spain now has a very restrictive law. In other European countries, the same, more or less, has happened: After having proceedings against powerful countries, they had to reform their law.

Syria Deeply: So it’s up to individual countries to take action. As it stands, what options are available to investigate international crimes?

Parejo: There isn’t an international convention on the universal jurisdiction principle that’s compulsory for everybody. It shouldn’t be like that. If a crime has been committed, the best option is to investigate the crime where it took place. But when we’re speaking about core crimes – genocide, war crimes, crimes against humanity – most of the time these crimes are committed by people who belong, or are close, to the government. So you cannot start a proceeding to investigate these crimes in the country where they took place.

The second option would be an international criminal court, but we don’t have a proper one. The actual ICC [International Criminal Court] is good, but it has a lot of limitations. A lot of crimes can’t be investigated, and there is impunity in a lot of countries.

The last resort to get justice for the victims is using the principle of universal jurisdiction to start a proceeding in another country’s domestic court.

Syria Deeply: There was quite a bit of evidence for your case – can you talk about the process of gathering, fact-checking and using it, given how sensitive the topic is?

Bernabeu: The Syrian diaspora tried to identify the people in [Caesar’s] photos through social media. It was hard for relatives, and still is. In our case, despite [the victim’s] extreme thinness and many signs of torture, you could see his face. His son, who was in Egypt at the time, was able to identify him through social media. He called his aunt, our client, in Spain, and said, “I found this photo, I think this is my dad.”

Around May 2016, exiled Syrian community members gave me one photo of the torso. They also gave it to our client, and they requested she send a photo of her brother when he was alive, to corroborate. We’re going to bring forensic experts to court – but if you look at both photos, there’s a lot of features that tell us it’s the same person. We met our client last October and showed her and his widow, who was still in Syria, the full body photos.

I was also given two or three photographs with the metadata, to prove their authenticity. Caesar has his testimony about who gave him these photos, and the chain of command since he left Syria with them is very clear. We were able to verify that these photos corresponded to our client’s brother.

We deduced the detention facility that the victim’s body had been associated with (Branch 248) from the different ways the photos are marked. Then we started searching through networks of Syrians, especially in Germany and Lebanon, for survivors from the same facility. I’ve only found one [who was there] within the same period as our victim, but we found others who have survived torture in this facility. We traveled to the border [of Syria], to Gaziantep [in southern Turkey], and took their testimony.

We hope to take testimonies from women and children survivors from the same facility. We were also given access to documents from different documentation centers created when the conflict broke out. We need to start systematizing and organizing those documents to bring to the Spanish national court.

Syria Deeply: Are the nine government officials being prosecuted likely to be extradited to Spain and punished, or are you hoping for a different outcome with this case?

Bernabeu: In a criminal case, you’re trying to get someone to pay for a crime. These people are in power, but I think this could undermine that power and this is more important to me. Bashar al-Assad told the world that he is fighting Islamic terrorism, but this had nothing to do with repressing people when they were uprising and they were asking for a change. He was opportunistic enough to take advantage of the chaos caused by that repression.

It’s unfair for anybody now to say that these crimes are going to save the world from jihadists, because that is not what the people in Syria experienced. For me, naming these individuals is more important than putting them in jail.

Syria Deeply: Should we consider cases such as this one to be exceptional – perhaps symbolic – or could a lot of new cases be opened in the future?

Parejo: Hopefully this case will get more people going to courts and trying to hold criminals responsible. Hopefully we will start having closer cooperation with other countries, other prosecutors and the international mechanism of the United Nations, created to help domestic tribunals.

Bernabeu: Perhaps this is an opportunity for the international community. We have the biggest crisis since probably Rwanda and the Balkans, and we have no idea what to do. We cannot stop it, regardless of how many mechanisms, instruments or institutions we have, because we have one country that’s actually bullying the entire world: Russia. [The ICC normally handles such cases, but as Syria isn’t a signatory on the Rome treaty, the U.N.must refer the case. Russia, a permanent member of the U.N. Security Council, has used its veto seven times in the past six years to protect the Syrian government.]

What’s happening now shows this hypocritical failure: You have everything in place, but you still cannot do anything to save lives. This forced countries, people and ambassadors to regroup, and everybody starts saying, “Well, what can we do?” I think the U.N. high commissioner for human rights [Zeid Ra’ad al-Hussein] is showing a lot of courage by putting a mechanism or even the idea forward, and saying, “If Russia’s gonna bully us, I’m gonna come up with something.” So I think there’s going to be a before and an after Syria.

Parejo: It’s a new step in the development of the universal jurisdiction principle. Now we are saying, “You are not going to be alone anymore. You can have a case in a national court, but you will get international support.”

Syria Deeply: Why haven’t more cases been opened in national courts?

Bernabeu: The limitations are major. Spain is one of the few countries left in the world that has private prosecution – private attorneys can actively participate in the prosecution, in the name of the affected party, the victim. In other countries, those who denounce, open the cases and investigate them are public prosecutors, who are ascribed to governments and don’t have the same freedom. That’s what happened in the case of the Syrian conflict. Public prosecutors didn’t act for a long time because it wasn’t clear what Europe’s position toward Russia, and toward Bashar, was. Now I think there’s a general understanding in Europe that Bashar has to go, that the war has to end.

Syria Deeply: Earlier this year, Spanish Congress approved a motion to reform the law on universal jurisdiction. Are you optimistic that the restrictions on universal jurisdiction will be lifted?

Parejo: Yes. All parties are in agreement except for Partido Popular [the government party that holds most seats]. Given the makeup of parliament, the modification will pass for sure. It’s a matter of time.

Bernabeu: The question is how far the reform will go – whether it’s better to return to 2009 or whether we can go further and remove the passive personality principle, [which requires the victim to have nationality in the country where the case is opened], which was never part of universal jurisdiction.

Syria Deeply: What impact will these changes have on the victims of the Syrian war?

Bernabeu: If the law goes back to the way it was in 2009, we could immediately include different claims, such as crimes against humanity – torture, in our case. These [crimes] are very much present in our case, but since the 2014 reform of the law, we cannot make all of these claims at once. We’ll need to make those claims, and call this what it is.

There might also be the possibility, which I would love, to have non-Spanish victims in the case. We know survivors from the same detention facilities where we allege most people were killed. There are survivors out there who have publicly complained, using media and social media to tell their story, but they cannot be part of any criminal case. We could bring plaintiffs, humans who are alive, and have personal stories [in court]. It will elevate the case with extraordinary strength.

This article originally appeared on Syria Deeply, and you can find the original here. For important news about the war in Syria, you can sign up to the Syria Deeply email list.

Photograph courtesy of Antonio Marin Segovia. Published under a Creative Commons license.