Enab Baladi – Hani Karazi
With the fall of the regime in Syria, calls have increased for the prosecution of Bashar al-Assad and senior officials in Syria, who have committed war crimes and crimes against humanity against the Syrians. However, the accountability process faces several obstacles.
Syrians demand the need to extradite al-Assad to Damascus after his escape to Russia. They do not settle for a change of authority and closing the political chapter of the former president; they aspire to go further and achieve justice in front of national or international courts.
Russian arguments against extraditing al-Assad
On December 9, 2024, the Novosti agency reported that the Kremlin stated Russia granted Bashar al-Assad asylum for humanitarian reasons. However, it is unclear on what legal basis he was granted asylum.
Regarding the likelihood of Russia extraditing al-Assad, Russian Deputy Foreign Minister Sergey Ryabkov stated that “Russia is not a party to the Rome Statute that established the International Criminal Court,” indicating its reluctance to extradite al-Assad.
Human rights journalist Mansour al-Omari prepared a legal study published in the Arab Reform Initiative on ways to extradite al-Assad’s criminals. He argues that according to the Refugee Convention of 1951, which Russia is a party to, the provisions of the convention do not apply to any individual against whom there are serious grounds to suspect the commission of war crimes or crimes against humanity.
Nevertheless, the decision remains in the hands of the politicized legal system in Russia to determine whether there are serious grounds to suspect al-Assad, a former close ally of Moscow, of any of these crimes.
Whether Russia grants al-Assad full refugee status or temporary asylum for humanitarian reasons, it seems unlikely that Russia will extradite its former ally to Syria.
In his study, al-Omari, who holds a Master’s degree in transitional justice and conflict, believes that although any future decision regarding al-Assad’s extradition will likely be of a political nature, Russia could rely on various international treaties it is a party to, especially the United Nations Convention Against Torture, to justify its refusal to extradite al-Assad or other senior officials of the regime to Syria for fear they may face torture.
The UN Convention Against Torture states in Article “3-1” that no state party shall expel or return or extradite any person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. Additionally, the extradition of criminals to countries that impose the death penalty is prohibited in many countries, particularly in Europe.
However, the impossibility of extradition due to fears of torture does not serve as a shield against legal prosecution, according to the study.
The Convention itself encourages countries that may not wish to extradite a suspect accused of committing torture to “submit the case to its competent authorities for prosecution” (Article 7-1).
Despite Russia’s reluctance to extradite al-Assad, the new Syrian government insists on it. Reuters revealed new details about the meeting that took place between the transitional Syrian president, Ahmed al-Sharaa, and Russian President Vladimir Putin’s envoy in Damascus over a month ago.
On March 2, Reuters, citing eight Syrian, Russian, and diplomatic sources, reported that al-Sharaa sought during the meeting held on January 29 in Damascus to urge Russia to extradite Bashar al-Assad.
One source noted that the Syrian officials raised the issue of extraditing al-Assad to Syria during the three-hour meeting with Russian Deputy Foreign Minister Mikhail Bogdanov, but in general terms, indicating that it is not a significant obstacle to rebuilding relations.
A high-ranking Russian source stressed that Russia would not agree to extradite al-Assad, nor was it requested to do so.
Criminal law attorney al-Mutassim al-Kilani believes that Russia is obligated to extradite al-Assad and his associates, as it signed the Interpol international agreement in 1990. He pointed out that there would be international pressure on Russia to extradite al-Assad, and if it does not comply, there will be sanctions from Interpol against Russia.
Al-Kilani added to Enab Baladi that the asylum right granted by Russia to al-Assad does not protect him from accountability, as the Geneva conventions relating to refugees do not grant those involved in war crimes any benefits of humanitarian or political asylum or any protection from prosecution.
Blocked path to the International Criminal Court
Despite the fall of the Syrian regime, the path remains blocked for the extradition of al-Assad for trial in the International Criminal Court (ICC).
Attorney and legal expert Abdel Nasser Hoshan believes that the file of war crimes and crimes against humanity has not been referred to the International Criminal Court due to the lack of any means of referral. No resolution has been issued by the Security Council to refer al-Assad.
Additionally, no state party to the Rome Statute has requested a referral, nor has the Prosecutor of the International Criminal Court done so, making it impossible for the court to open an investigation into Bashar al-Assad’s crimes and request his extradition from the Russian authorities.
Hoshan added to Enab Baladi that Syria is not a signatory to the Rome Statute of the International Criminal Court, and therefore cannot request an investigation into his crimes unless it requests to join the court’s statute, which does not benefit Syrians at this stage because the temporal jurisdiction to consider war crimes in Syria by the International Criminal Court begins 60 days after a request for membership, and thus the court will not have the authority to consider the crimes committed by Bashar al-Assad and his associates.
Over the past years, the Security Council has repeatedly attempted to refer the Syrian file to the International Criminal Court but has failed due to the Russian-Chinese veto. This has led some countries and human rights organizations to seek accountability for the regime through European courts, which are empowered under universal jurisdiction to prosecute criminals outside their territories who have committed violations against citizens residing in Syria.
In 1998, 108 countries signed the Rome Statute of the International Criminal Court, and many countries, including Syria and Iraq, have not signed the treaty, meaning the court does not intervene in cases on Syrian territory, while the court can automatically exercise jurisdiction over crimes committed in the territory of any member state or committed by individuals belonging to any member state.
Laws hindering accountability
The Syrians are not only calling for the surrender of Bashar al-Assad but also of all officials from the previous regime who committed crimes against the Syrians and fled to Arab or Western countries following al-Assad’s downfall.
In his legal study, Mansour al-Omari mentioned that the law for the extradition of criminals in criminal offenses regulates the conditions for extraditing criminals from Sweden or Germany to a country outside the European Union. This law requires any country seeking to extradite an individual to submit an official request to the Swedish or German central authority, accompanied by an investigative report on which the extradition request is based.
The Swedish or German law specifies several cases in which extradition of criminals is not permissible, including the prohibition of sentencing the person being extradited to the death penalty for the crime, and that the act for which extradition is requested corresponds to a crime punishable under Swedish or German law by imprisonment for a year or more.
Extradition is also prohibited in military crimes or if there is a reason to fear that the individual could face persecution due to their ethnic origins, membership in a specific social group, or their religious or political beliefs.
Extradition of fugitives to Arab countries
Many Syrian regime officials are suspected of having fled to Lebanon or transited through it. Lebanon is a party to the United Nations Convention Against Torture and the United Nations Convention Against Transnational Organized Crime, and under these agreements, Lebanon is required to either extradite the suspects or refer the case to its competent authorities for prosecution.
Moreover, Lebanon and Syria have concluded several bilateral agreements that may relate to the extradition of suspects in crimes or investigating or prosecuting them, including drug trafficking, the extradition of criminals, and the enforcement of criminal judgments that organize the extradition of suspects between Syria and Lebanon, according to the legal study by Mansour al-Omari.
Article 1 of the Extradition Agreement states that individuals should be extradited between Lebanon and Syria and that any criminal judgments issued by the judicial authorities of either state in the territory of the other state should be executed according to the provisions of this chapter.
Extradition must occur if the following conditions are satisfied: if the requested person is pursued, accused, or convicted of a criminal offense punishable under the law of the requesting state, or pursued or suspected of committing a misdemeanor that, according to the law of the requesting state, warrants a penalty of imprisonment for more than one year, or is sentenced to imprisonment for no less than two months.
If the criminal offense was committed within the territory of the requesting state, or if the crime, although committed outside the territory of both states, is punishable under the laws of both states when committed outside their territories.
Lebanon has handed over to the interim government in Damascus dozens of soldiers and officers belonging to Bashar al-Assad’s regime who fled to Lebanon after the fall of the regime.
According to a security source reported by Reuters on Saturday, December 28, 2024, Lebanon returned 70 soldiers and officers after they entered its territory illegally through smuggling routes.
Syria has signed bilateral agreements for judicial cooperation, including the extradition of suspects, with several other Arab countries, such as Tunisia and the United Arab Emirates. Recently, Iraq and Syria signed a security memorandum that included the extradition of suspects between the two countries.
Syria is a party to the Extradition Agreement among Arab League states (1952), which regulates the extradition of criminals between Arab countries.
Under this agreement, each signatory Arab League state commits to extraditing criminals requested by another state.
Extradition is mandatory if the sought individual is pursued, accused, or convicted of a crime mentioned in Article 3, provided that this crime was committed on the territory of the requesting state.
Legal avenues
Despite some obstacles that may hinder the accountability of Bashar al-Assad and his accomplices accused of committing war crimes and crimes against humanity in Syria, there remain some legal avenues for pursuing accountability.
Lawyer Abdel Nasser Hoshan believes that the solution for accountability lies in returning to the rules of judicial jurisdiction, which state that the primary authority to adjudicate these crimes lies with the Syrian national judiciary, and that the International Criminal Court is a complementary path as well as foreign courts that adopt universal jurisdiction.
According to the legal study published by Mansour al-Omari in the Arab Reform Initiative, the inability of some countries to extradite al-Assad and his aides for fear of them facing torture does not mean that this acts as a shield against legal prosecution.
The United Nations Convention Against Torture itself calls on countries that may not wish to extradite a suspect accused of committing torture to present the case to their competent authorities for legal action.
The legal paper emphasizes that the fundamental step in strengthening the demand for the extradition of suspects to Syria is to ensure that the new Syrian judicial system renounces torture and strengthens the rule of law.
The judicial system and prison system in Syria suffer from decades of violations, as the Syrian authorities under al-Assad resorted to arbitrary arrests, enforced disappearances, and torture during investigations, interrogations, trials, and detention, in addition to the fact that detention facilities in Syria significantly lag behind the United Nations minimum standards for the treatment of prisoners.
Furthermore, the new ruling powers that ousted al-Assad’s regime have a history of similar violations, and their prisons do not adhere to the minimum standards for the treatment of prisoners. It remains unclear how the judicial process will evolve under this new leadership and whether it will adhere to fair trial standards and ensure that no violations or torture occur during investigations.
In light of this reality, the study calls on the new Syrian government to adhere to international human rights standards, including the right to a fair trial and humane detention conditions.
One potential option to achieve this is to establish a mixed justice mechanism within Syria, led by Syrians but supported by the United Nations, the international community, and post-conflict justice experts at various levels. This mechanism must be acceptable to Syrians and adhere to international legal standards.
Trials in Europe
Several trials are taking place in Europe targeting Syrians based on jurisdiction that allows those countries to prosecute individuals from Syria who have committed violations against their citizens, as was the case in the trial of Syrian officer Anwar Raslan in Germany.
It is likely that trials of Syrian regime criminals in Europe will continue, at least until the situation in Syria stabilizes and it becomes clear that it has a judicial system that respects international law and fair trial standards before any detainees in Europe are extradited to Syria for trial.
Mansour al-Omari stated that immediate measures can be taken to ensure the participation of Syrians who remain in Syria and engage them in these trials, particularly by ensuring that these trials are broadcast live on Syrian television.
Live broadcasts can serve as an effective educational tool, allowing the public, as well as Syrian lawyers and judges, to understand the fair legal system and the rights of defendants.
These trials can also become a model or an impetus for reforms within the Syrian judicial system, and they may provide valuable insights into international standards of justice, due process, and the prosecution of serious crimes. By studying these trials, Syrian legal professionals can learn new approaches and techniques that can be adapted to the Syrian judicial system.
Arrest warrant against al-Assad
On January 21, a French court issued a new arrest warrant against the ousted Syrian president Bashar al-Assad for complicity in committing war crimes in Syria.
Two French judges issued the arrest warrant against Bashar al-Assad concerning a bombing by the previous regime that occurred in Daraa in 2017, which resulted in the death of civilian Salah Abu Nabout (59 years old), who held both French and Syrian nationalities.
The arrest warrant is set to be reviewed by the Court of Cassation following an appeal from the public prosecutor in Paris on March 26.
The French arrest warrant against Bashar al-Assad is the second of its kind.
French investigative judges previously issued an arrest warrant against al-Assad and his brother Maher, in addition to two of his aides, for using chemical weapons in Ghouta in August 2013, following a criminal investigation conducted by the unit specialized in crimes against humanity and war crimes under the judiciary in Paris.
This post was originally published on this site be sure to check out more of their content.
