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A U.S.-pioneered tactic may now offer justice for Syrian victims in German courts

The rise of universal jurisdiction and its role in righting wrongs

Former Syrian intelligence officer Anwar Raslan appears in court in Koblenz, Germany, on Jan. 13, the last day of his trial. He was convicted on 27 counts of torture, murder, rape and sexual assault. (Thomas Frey/Pool/AFP/Getty Images)

Germany is leading the way toward a profound shift in global human rights. Currently, German prosecutors are trying a Syrian doctor for war crimes in their own national courts. In the trial of Alaa Mousa, the German prosecution accuses him of torturing opponents of Bashar al-Assad’s regime, including setting fire to a teenage boy’s testicles and killing another by lethal injection, while they were both in the hospital. His trial began a week after a German court convicted former Syrian colonel and intelligence officer Anwar Raslan on 27 of 58 counts of torture, murder, rape and sexual assault that included electrocuting, bludgeoning and stuffing victims into vehicle tires. The 58-year-old is expected to spend the rest of his life in prison.

Decades ago, it was Germany that had committed the worst atrocities of the era, under the Nazi government. In response to these and other egregious violations, the United States took a leadership role in preventing and mitigating human rights violations and redressing victims. Ideas articulated in President Franklin D. Roosevelt’s 1941 State of the Union address, which argued that “freedom means the supremacy of human rights everywhere,” propelled the development of the United Nations and the Nuremberg trials, in which Nazi war criminals were prosecuted.

The goals, particularly of redressing these wrongs, developed further from the work of American civil rights lawyers who used civil litigation to advance international human rights through our own federal and state courts.

But today, these Syrian cases suggest it is Germany that is standing up for the survivors and prosecuting the violators, while the United States has backpedaled on its human rights commitments.

Yet the legal framework that Syrian refugees and survivors are using to demand justice and redress these wrongs has roots in the history of the United States, both in its earlier era of human rights leadership and in its more recent failure to uphold those standards in the “war on terror.”

In the late 1970s, a small group of civil rights lawyers began using litigation to expand gains they had made during the country’s civil rights movements to those who had suffered beyond our borders. Pioneering lawyers from the Center for Constitutional Rights, Peter Weiss and Rhonda Copelon, were the first to extend these pathways to justice to foreigners who had survived egregious human rights violations abroad, such as torture and genocide, but had nowhere else to turn for recourse.

Their civil rights colleagues, including Beth Stephens, Jennifer Green, Paul Hoffman and David Cole, picked up the mantle from there. They pursued cases against international figures who had committed such violence. Argentine Gen. Carlos Guillermo Suarez Mason had commanded the interrogation, torture or disappearance of some 5,000 Argentines in the country’s “dirty war,” under military dictatorship (1976-1983). After Argentina’s return to democracy, the general fled to Foster City, Calif., where survivors successfully sued him in federal courts.

Philippine survivors won a multimillion-dollar judgment against the country’s former president, Ferdinand Marcos, who oversaw the jailing, torture and killing of thousands of students, journalists, farmers and leftists. And years before the International Criminal Tribunal for the former Yugoslavia tried and convicted Radovan Karadzic for genocide, war crimes and crimes against humanity, Karadzic found himself sued in the United States by thousands of survivors of Bosnian camps who said they were raped.

These cases brought to life the concept of universal jurisdiction, the idea that the most heinous crimes should be prosecutable anywhere, enabled by a centuries-old American statute that granted federal courts jurisdiction in cases in which the torts violated the law of nations.

But after the watershed moment of Sept. 11, 2001, the United States itself turned to torture. Yet the federal courts dismissed the cases that sought to hold our own top officials accountable for these egregious abuses and deliver justice to their victims. In one case, for example, Canadian engineer Maher Arar, a Syrian national who had stopped to change planes in New York’s John F. Kennedy Airport, found himself questioned by the FBI about alleged ties to terrorists and renditioned to Syria, where he was interrogated, whipped, hung, battered and electrically shocked, according to media and court records. The district court questioned “whether torture always violates the Fifth Amendment” and ultimately dismissed the case, primarily for reasons of national security. The full U.S. Court of Appeals for the 2nd Circuit upheld the dismissal.

Prisoners detained by the U.S. military at Guantánamo Bay and released without charges also sought redress for their suffering. For example, in Rasul v. Rumsfeld, the U.S. Court of Appeals for the D.C. Circuit said aliens were not “persons” with constitutional rights for purposes of the Religious Freedom Restoration Act, one of the statutes used in the case.

These failures of justice sent Weiss looking abroad for statutes that enabled universal jurisdiction to bring these crimes to justice. Germany, he said, featured the strongest law in Europe.

Partnering with Berlin-based lawyer Wolfgang Kaleck, Weiss brought a case to the German prosecutor to hold top U.S. officials accountable. Although that effort failed because the German prosecutor declined to advance the case, Weiss, Kaleck and other human rights lawyers gained support for their universal jurisdiction movement. Together they founded the European Center for Constitutional and Human Rights, which is pursuing Syrian war crimes cases under German law.

Working with Syrian lawyers, defectors, students, rebels, journalists, witnesses and a network of Syrian civil society groups — many of whom risked their lives to seize, catalogue and analyze forensic data, including orders, chains of command and technical analysis — the group amassed the necessary evidence to persuade the German prosecutors to pursue these cases. Evidence included the photographs taken by “Caesar,” an official Syrian government photographer who risked his life to smuggle photos of mutilated bodies in his shoes and belt past multiple checkpoints.

These and many other universal jurisdiction cases throughout the world bring to light the important role of persistent creative advocacy and leadership over the arc of modern history in delivering justice, sometimes in unexpected ways — even when it seems impossible. As we await the outcome of Mousa’s trial in Germany, it is good to be reminded of the historic roles the United States played in addressing global injustices and bringing to life the concept of universal jurisdiction, even if it has been on the other side of human rights violations in recent history.