David Bosco is an associate professor at Indiana University’s School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court.
The appalling news of an apparent chemical attack against civilians in Syria’s Idlib province reminds us once again of the elusiveness of justice for the countless victims of the civil war.
The International Criminal Court (ICC), established in 1998 to address just the kind of crimes unfolding there, cannot act because Syria’s regime is not a court member. The United Nations Security Council could give the ICC the reach it needs, but Russia and China have vetoed attempts to do so. The U.N. General Assembly endorsed accountability in Syria but lacks the power to create a functioning international tribunal.
The seemingly dead end of international justice has led some victims and activists to national courts far from battle-scarred Syria. And in what could be an important breakthrough, a Spanish judge last week authorized an investigation into alleged crimes by nine senior Syrian officials.
The complaint accuses them of authorizing the torture and killing of a Syrian man, identified by his lawyers as A.H., whose sister has Spanish nationality. Photographs of his lifeless and apparently tortured body appear in the “Caesar files,” which were made public by a Syrian military police officer who fled the country.
The Spanish court’s decision offers a glimmer of hope that the regime’s crimes might be addressed in a credible court. But the case is also exposing a long-running debate in Spain — and within Spain’s judiciary — about how many of the world’s ills its courts can handle.
For years, Spain adopted a broad view of its legal jurisdiction that required only a limited connection between the alleged crimes and Spanish territory or nationals. The landmark 1998 case against former Chilean dictator Augusto Pinochet was followed by a string of others, including against Chinese officials for abuses in Tibet and against a group of senior U.S officials for authorizing torture at the Guantanamo Bay detention facility.
Those cases generated plenty of publicity, but they also brought major headaches for the Spanish government, which found itself on the receiving end of angry démarches from foreign capitals. One Chinese official called the Tibet cases “absurd and ridiculous,” and the Chinese foreign ministry demanded that Spain repair “the severe damage” that the cases were causing. The American government was less voluble but equally firm in its opposition to Spanish jurisdiction over former U.S. officials.
Fear that the country’s roving judges could impose economic and diplomatic costs on the country produced a major legislative reform in 2014, which imposed stiff new requirements on cases involving atrocities outside of Spain. Spain’s move was part of a broader retreat from “universal jurisdiction” in other parts of Europe. Belgium’s government, for example, slammed the door on cases against U.S. military officials after U.S. officials warned that they might try to move NATO’s headquarters out of the country.
The Syria case just authorized will be an important test of that reform — and a tough decision for Spain’s prosecutor, who must decide whether to challenge the investigative judge’s decision to proceed.
The lawyers representing A.H.’s sister believe that they have navigated their way through the obstacles thrown up by the 2014 changes. Toby Cadman, founder of the London-based human rights law group working with her, told me that the case is on solid ground. He argues that Spanish and European courts have often allowed jurisdiction to be based on the nationality of a victim’s family member. And by accusing regime officials of “state terrorism” rather than just crimes against humanity, the complaint has skirted requirements that the alleged perpetrators be present on Spanish soil for a case to begin. The opening of the case, Cadman said, “sends a clear message to those responsible for the commission of atrocities that they will be held accountable.”
But some Spanish judges will certainly look askance at the effort to adjudicate Syria’s crimes in Spain. According to Lydia Vicente Márquez, executive director of Rights International Spain, the country’s Supreme Court has blocked several such cases, in part on the grounds that its courts cannot be expected to ignore the diplomatic impact of adjudicating crimes committed in other parts of the world. Those diplomatic costs will be lower in confronting Syrian officials than Chinese or Americans, but any precedent from this case could be used in much more sensitive contexts.
Even if the A.H. case proceeds, Vicente explains, there are limits to how far an investigative judge can go. The judge can gather victim testimony and other documentary evidence, but at a certain point Spain’s rules require that the alleged perpetrators have the chance to answer the charges against them directly. And there is little chance that the senior Syrian security officials will be visiting Spain anytime soon. Without their presence, the investigation will stall.
Spain is not the only hope for Syrian victims. A similar effort is underway in Germany. And lower-level Syrian perpetrators may stumble into the arms of other national judicial systems with a desire to prosecute. For the moment, piecemeal justice is the best the world can offer Syria’s victims.