AMMAN — Entire families laid out on the floors of their homes, frozen in their last throes for air. Rows of tiny bodies wrapped in white cloth, neatly aligned, like a classroom of corpses. These are the images that circulated all over the world in the aftermath of the 2013 chemical attacks on Douma in Ghouta in the outskirts of Damascus. Over 1,400 people were murdered, including hundreds of children.
This massacre and a subsequent one in the town of Khan Sheikhoun in the northern Idlib province in 2017 have been widely attributed to the Syrian regime, based on the analysis of the rockets and rocket launchers used in the attack. Evidence points to the likely use of Sarin gas, an odorless nerve agent that attacks the nervous system, paralyzing the body and resulting in suffocation.
To this day, there has been no justice for victims and survivors. On Monday, three non-governmental organizations, including the Syrian Center for Media and Freedom of Expression (SCM), Open Society Justice Initiative and Syrian Archive, submitted a case in Paris requesting France to investigate and subsequently prosecute those responsible for the 2013 attacks.
According to the lawyers of the case, this is the first complaint ever filed before French courts addressing the use of chemical weapons in Syria. It is built on several testimonies from survivors of the attack and first aid responders and the impressive documentation work carried out by Syrian activists and organizations.
In October 2020, the three organizations presented a similar case in German courts pertaining to chemical attacks carried out in Ghouta in 2013 and Khan Sheikhoun in 2017. “The goal of the NGOs we represent is to file as many complaints as possible before European jurisdictions,” Clémence Witt and Jeanne Sulzer, the two lawyers of the case, told Syria Direct.
Victims and survivors of mass crimes in Syria have turned to European jurisdictions due to the impossibility of seeking justice through the International Criminal Court (ICC). Syria is not a party to the Rome statute establishing the ICC, which means that the ICC cannot investigate alleged crimes committed in Syria unless mandated to do so by a resolution from the United Nations Security Council.
“We know that the way to justice is difficult and long; there are political obstacles in place. Russia and China have used their veto more than once at the Security Council to block any attempts to bring the regime to justice,” Taher (who asked that only his first name be used), a survivor of the 2013 attacks who contributed to the legal cases in France and Germany, told Syria Direct. “We don’t have many options to obtain justice; this is all we have.”
“We will keep fighting because these crimes must never be allowed. They must be accounted for.”
The ability to prosecute Syrian war crimes in European courts relies on legal principles that allow European states to investigate and prosecute those responsible for the gravest international crimes.
Germany enacted the principle of universal jurisdiction for certain crimes, including war crimes, in 2002. This means that the gravest international crimes can be brought to German courts, even when these are committed abroad and against foreign citizens.
This principle has been used at least twice in Germany to convict perpetrators. In 2015, Germany found two individuals guilty of war crimes and crimes against humanity for their contribution to the genocide that took place in Rwanda in 1994. Last month, an ex-member of the Syrian secret police was found guilty of crimes against humanity by a court in Koblenz, and the verdict of a second individual is expected in the coming months.
In France, the newly submitted case is not based on the universal jurisdiction principle but on extra-territorial competence. “Extra-territorial competence allows French jurisdictions to hear [cases for crimes against humanity and war crimes], as long as there is an established link with France,” Witt and Sulzer added. “In this case, one of the plaintiffs [the SCM] is a nonprofit organization based in France.”
France has also enshrined the principle of universal jurisdiction for certain crimes, provided, among other criteria, that France is a party to an international convention giving jurisdiction to French tribunals. This is the case, for example, for torture and forced disappearance. In 2018, this allowed France to issue international arrest warrants against three Syrian officials after finding them guilty of torture.
“Without universal jurisdiction, there would have been no trials in France for those responsible for [the genocide against the Tutsis in Rwanda],” Alain Gauthier, a human rights activist seeking justice for the victims of the genocide, told Syria Direct. Gauthier and his Rwandan-born wife Dafroza have devoted their lives to identifying and helping prosecute suspected genocide perpetrators who moved to France.
The Gauthiers’ lifelong struggle is a powerful precedent, sketching out a blueprint of hope for the Syrian survivors and activists trying to bring their perpetrators to justice in Europe.
“France is starting to have significant experience that could indeed help other communities that have been victims of crimes against humanity, like the Syrian community,” Gauthier said.
“The French judiciary has developed a unique expertise in dealing with such cases,” confirmed Witt and Sulzer, highlighting that the Paris Court has a specialized unit in charge of investigating mass crimes committed abroad.
A long road to justice
“The crimes committed in Ghouta took place in 2013, and we are now in 2021. This is a long time to start bringing the regime to justice,” Taher regretted. But the road to justice is still long.
Now that a complaint has been filed, the next step is a judicial investigation, which could last several years before a trial opens. “In order for anyone to eventually be found guilty, the investigative judges will firstly have to enlighten the different responsibilities within the Syrian regime and indict the suspect,” Witt and Sulzer added.
Once indicted, the suspects can be tried in absentia in a French court but ultimately this may have no concrete consequence if they remain out of reach in Syria. Furthermore, should the investigation identify Syrian President Bashar al-Assad’s responsibility in these crimes, as many expect, the prosecution would be hindered by his immunity as a current head of state.
“All trials that take place in Europe are a door to justice and to the future trial of criminals,” Musellem Abdulbasit, a freelance photojournalist who covered the attacks in East Ghouta, told Syria Direct. But ultimately, “justice can only be achieved with the trial of Bashar al-Assad, and his security services.”
Although the prospect of justice remains uncertain, ongoing cases in Europe are “a beginning,” according to Taher. “It is essential to present cases in several countries in order to attract wider attention in the European community. It is essential to shed light on these crimes, to never let them be forgotten.”
“We hope that other people will come forward and talk, but many do not because they are afraid of the regime,” Taher said. Syrian survivors of crimes against humanity are still taking personal risks to tell their story. “Many people still have their family in Syria, and the regime keeps pressuring us,” Taher added.
More cases may be brought in the near future in other European countries hosting large Syrian communities, provided they recognize some form of universal jurisdiction and are able to accept the case.
“We will keep fighting,” Taher stressed, “because these crimes must never be allowed. They must be accounted for.”