Since 2011, Syrian human rights activists have sought to hold former Syrian president Bashar al-Assad and his regime’s senior officials accountable for their grave violations of human rights and international humanitarian law. While the regime stood strong in Damascus, efforts were focused on either pursuing referrals to international courts or trials in countries – mostly Western – with universal jurisdiction over certain categories of crimes. With the fall of the regime in Syria in December 2024, calls are understandably and legitimately growing for the prosecution of al-Assad and former senior officials in Syria where the crimes were committed and where most of the victims are still present.
Successful accountability efforts are not just needed from a justice perspective but will be essential to reduce the temptation of revenge cycles and ensure a successful political transition. However, many of the regime’s top officials seem to have escaped from Syria in recent weeks raising the issue of whether these suspects can be extradited to stand trial in Syria. Another question is what to do about existing judicial proceedings already in place against Syrian suspects living abroad and whether these proceedings and any suspects already in custody should be transferred to Syria.
This article tries to answer these questions by examining the legal frameworks in some of the countries to which the suspects may have escaped as well as the ability of Syria’s legal system to hold trials that meet international fair trial standards. It argues that an essential step in bolstering demands for the extradition of suspects to Syria will be ensuring that Syria’s new justice system abandons torture and strengthens the rule of law. It recognizes the challenges facing Syria’s current legal system – and the terrible judicial record of Damascus’ new rulers – and proposes a potential hybrid process that ensures Syrian ownership of the process while also providing international guarantees of due process.
I. International Law and the Duty to Extradite
International law does not establish an absolute duty to extradite. A legal obligation for a State to extradite exists either on the basis of bilateral extradition agreements, or on the basis of certain international treaties that establish a duty to extradite or, in the alternative, impose an obligation to prosecute or investigate certain crimes. Examples of such treaties include the Geneva Conventions for the Protection of War Victims, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), and the UN Convention against Transnational Organized Crime (UNTOC). The UNTOC, which has 192 State parties – including Lebanon, United Arab Emirates, Jordan, Saudi Arabia, and Iraq, all of which have been impacted by Syrian drug trafficking –, imposes an obligation to extradite for cases of drug trafficking.
At the same time, international law prohibits extradition in certain cases. For instance, human rights law prohibits extradition to States that practice torture. The UNCAT states in its Article 3.1:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Moreover, extradition to countries that apply the death penalty is prohibited by many countries, especially in Europe.
However, the impossibility of extraditing for fear of torture is not meant to act as a shield from prosecution. The same UNCAT calls on countries that may not be willing to extradite a suspect accused of committing torture to “submit the case to its competent authorities for the purpose of prosecution” (Art. 7.1 of UN CAT).
II. Extradition Treaties with Syria for Countries Where many Suspects Fled
Suspects of serious international crimes in Syria have been relocating to other countries around the world. In previous years, some of the perpetrators joined the flow of Syrian refugees and ended mainly in EU countries such as Germany and Sweden. Since the fall of the regime, top officials are reported to have traveled to countries that were close allies of the former regime or where they may have some business interests. Former Syrian president Bashar al-Assad is reported to have relocated to Russia. Meanwhile, unconfirmed media reports indicate that many regime strongmen have traveled to Lebanon, the UAE, Iraq, and Libya.
Russia
The Russian state-owned News Agency, TASS, cited unnamed sources in the Kremlin to report that Russia granted Bashar al-Assad asylum on humanitarian considerations.
It is not clear on what legal basis Russia has granted al-Assad asylum. The 1951 Refugee Convention, to which Russia is a party, states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons to suspect that he has committed a war crime or a crime against humanity. However, it is left to the politicized legal system in Russia to decide if there are serious reasons for suspecting that al-Assad – a former close ally of Russia – committed any crimes.
Whether Russia granted al-Assad full refugee status or temporary asylum for humanitarian reasons, Russia seems unlikely to extradite her former ally to Syria. While any future decision around the extradition of Assad will likely be political, Russia could argue that many international treaties it is party to, notably the UNCAT, prevent it from extraditing Assad or other senior regime officials to Syria as they may be at risk of torture. However, Russia would still be bound by international law to investigate Assad’s crimes.
Sweden
The conditions for extradition from Sweden to a State outside the EU are regulated by the Extradition for Criminal Offenses Act (1957:668). Any State seeking the extradition of a person must submit a formal request to the Swedish Central Authority, enclosing the report of the investigation on which the application request is based.
The Act specifies a number of instances in which extradition may not be granted:
- It is prohibited to extradite Swedish nationals.
- A person who is extradited may not have the death penalty imposed for the offense.
- The act for which extradition is requested corresponds to a crime, for which, according to Swedish law, imprisonment for one year or more is prescribed.
- If the person does not consent to be extradited, the case shall be tried by the Supreme Court to examine whether extradition can be legally granted under the conditions laid down by law.
- Extradition may not be granted for military offenses (usually understood for merely participating in military duties) or offenses arising from legitimate political activity.
- Extradition may not be granted if there is reason to fear that the person runs a risk – on account of his or her ethnic origins, membership of a particular social group or religious or political beliefs – of being subjected to persecution threatening his or her life or freedom, or is serious in some other respect.
- Extradition may not be granted if it would be contrary to fundamental humanitarian principles, e.g., in consideration of a person’s youth or the State of this person’s health.
- In principle, extradition may not be granted if a judgment has been pronounced for the same offense in Sweden.
- Extradition may not be granted if the offense would have been barred by a statute of limitation under Swedish law.
Germany
The Act on International Mutual Assistance in Criminal Matters regulates extradition from Germany. According to the Act:
- Germany does not extradite its nationals; however, extradition is possible within the EU and to international criminal courts.
- Extradition is only permissible if the offense is also an unlawful act under German law and is punishable under German law with a sentence of imprisonment of at least one year.
- Extradition is not granted if prosecution or enforcement is statute-barred under German law or is ruled out under German immunity law.
- If the person sought does not consent to his extradition, the Higher Regional Court has to decide if the extradition is to be allowed.
- Extradition is not permissible for an offense that only constitutes a breach of military duties.
- If the offense is punishable by the death penalty under the law of the requesting State, then extradition is only permissible if the requesting State gives an assurance that the death penalty will not be imposed or will not be enforced.
- Extradition is not permissible if final judgment has already been passed upon the person pursued in another Member State for the same offense that gave rise to the request, provided that, in the event of a conviction, the sanction has already been enforced, is currently being enforced or can no longer be enforced under the law of the sentencing State.
Arab Countries
Syria is a State Party to the Extradition Agreement between the States of the Arab League (1952), that regulates extradition between Arab countries:
1. Pledge to extradite: Each of the Arab League countries that signed this agreement undertakes to extradite criminals requested by one of these countries in accordance with the conditions stipulated in this agreement.
2. Extradition: Extradition shall be obligatory if the person whose extradition is requested is being pursued, accused, or convicted of a crime stipulated in Article 3 if he committed this crime in the territory of the country requesting extradition.
Lebanon, where many Syrian regime officials are suspected to have fled or at least transited through, is a State Party to the UNCAT and UNTOC. Under these conventions, Lebanon is required to either extradite suspects or submit the case to its competent authorities for prosecution.
Lebanon and Syria have also several bilateral agreements that could be relevant in extraditing, investigating, or prosecuting suspects of crimes, including drug trafficking, and extradition and enforcement of penal judgments that regulate the extradition of suspects between Syria and Lebanon.
Article 1 of the Extradition Agreement states:
Extradition of persons between Lebanon and Syria and enforcement of penal judgments rendered by the judicial authorities of either State in the territory of the other State shall be carried out in conformity with the provisions of the present chapter.
Article 2:
Extradition is due to take place if the following conditions are met:
- If the claimed person is prosecuted for, accused or convicted of a punishable criminal offense under the law of the requesting State, or prosecuted for, or suspected of a misdemeanor which entails, under the law of the requesting State, a penalty of deprivation of liberty for a term greater than one year, or sentenced to prison for a minimum period of two months.
- If the criminal offense was committed in the territory of the requesting State or if, although committed outside the territory of both States, it is punishable under the law of both States when committed outside their territories.
Syria also has bilateral agreements on judicial cooperation, including extraditing suspects, with several other Arab countries, such as Tunisia and UAE. Iraq and Syria have recently signed a memorandum on security that included extraditing suspects between the two countries.
III. A Hybrid Approach to Strengthen Accountability
Syria’s judicial and prison system is reeling from decades of abuse. The Syrian authorities under the Assads employed arbitrary arrests, enforced disappearance, and torture, in investigation, interrogation, trial, and detention. Detention facilities in Syria fall far below the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
New governing powers that ousted the Assad regime also have a history of similar abuses, and their prisons did not respect the Nelson Mandela Rules. It is not clear yet how the judicial process will evolve under their leadership and whether it will meet fair trial standards and ensure no abuse and torture during investigations.
The desired form and scope of justice in Syria, along with the nature of the judicial mechanisms for criminal trials, will require a comprehensive national dialogue. This dialogue outcome must rigorously uphold the rights of victims and adhere to international human rights standards, including the right to a fair trial and humane detention conditions.
One potential option is establishing a hybrid mechanism for justice within Syria which would be led by Syrians but with support provided at various levels by the UN, the international community, and experts in post-conflict justice. This mechanism should be acceptable to Syrians and should guarantee international legal standards.
An example of a hybrid court established after the fall of an authoritarian regime is the Extraordinary Chambers in the Courts of Cambodia. This court was created to prosecute senior leaders and other responsible members of the Khmer Rouge for alleged violations of international law and serious crimes committed during the Cambodian genocide. While the legacy of the Cambodia Tribunal continues to be debated, with discussions ongoing about its impact on Cambodian society and the challenges of achieving justice in the aftermath of mass atrocities, it provides a valuable case study for consideration when exploring the potential formation of a hybrid tribunal for Syria.
Live Broadcasting on Syrian TV of Existing Trials in Europe
In the meantime, there are quick steps that can be adopted to address existing Syria-related trials that are already ongoing in Europe. Those will likely continue at least until the situation in Syria stabilizes and it becomes evident that Syria has a justice system that respects international law and fair trial standards, before those arrested in Europe are extradited to Syria to stand trial. However, immediate measures could be taken to ensure participation and inclusion of Syrians who remain in Syria notably by ensuring live broadcasting of these trials on Syrian television.
Those trials in Europe offer a unique opportunity for Syrians to observe and benefit from international experiences and fair trial standards and accelerate the development of their own judiciary. Criminal trials can also be a powerful tool for healing societies in transition.
The live broadcasts can serve as an educational tool, informing the public as well as Syrian lawyers and judges about the fair legal system and the rights of the accused. The trials can serve as a model or catalyst for reforms within Syria’s own judicial system. These trials can provide valuable insights into international standards of justice, fair procedures, and the prosecution of serious crimes. By studying these trials, Syrian legal professionals can learn new approaches and techniques that can be adapted to their own system.
A memorandum of understanding or agreement should be signed between governing powers in Syria and other countries that have Syria-related trials and include live broadcasts of all court sessions on Syrian State television with simultaneous translation into Arabic provided by the court itself.
Conclusion
Until Syria establishes a fair judicial system that adheres to international standards, guarantees freedom from torture and mistreatment, and respects the Nelson Mandela Rules, most countries will oppose extradition to Syria. Given the priority and time-sensitive nature of justice and accountability, establishing a hybrid tribunal within Syria could be an option. This tribunal should be led by Syrians, with support provided at various levels by the international community. Meanwhile, all Syria-related trials in Europe should be live-streamed on Syrian State television with simultaneous Arabic translation provided by the court itself.
The views represented in this paper are those of the author(s) and do not necessarily reflect the views of the Arab Reform Initiative, its staff, or its board.
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