From Madrid to D.C.: Could an American Court Invoke Universal Jurisdiction to Try Syrian President Bashar Al-Assad for War Crimes

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On October 16, 1998, London police, acting on Spanish Judge Baltasar Garzón’s warrant, arrested former Chilean dictator Augusto Pinochet for authorizing the killing, kidnapping and torture of Chilean and foreign nationals.[1] Judge Garzón’s arrest warrant was based on the rarely invoked principle of universal jurisdiction.[2] Universal jurisdiction empowers national courts to prosecute serious violations of international law “regardless of the location of the crime[s] or the nationality of the [actors] or the victim[s].”[3] In light of the grave human rights abuses committed by the Syrian government during the Syrian Civil War,[4] a conflict that has claimed almost 40,000 lives according to some estimates,[5] several scholars have argued that universal jurisdiction should be invoked to try Syrian government officials, including Syrian President Bashar al-Assad.[6] While the principle of universal jurisdiction would seem to allow an American court to try Syrian President Bashar al-Assad for war crimes, Assad is an incumbent head of state however and is thus immune from criminal liability[7]; furthermore, even if Assad were not immune from prosecution, unless some of his victims were US citizens or part of the US military, federal statutory law would not permit an American court to prosecute him.[8]

On its surface, the principle of universal jurisdiction would permit American courts to try Assad. The Princeton Principles on Universal Jurisdiction, a set of nonbinding standards defining the use of universal jurisdiction, permit national courts to invoke universal jurisdiction when prosecuting war crimes.[9] The UN Independent International Commission of Inquiry on Syria in fact “ha[s] found reasonable grounds to believe that [Syrian] Government forces and members of the Government-controlled militia . . . ha[ve] committed war crimes . . . .”[10] Additionally, Principle 5 of the Princeton Principles stipulates that the “official position of any . . . head of state or government or . . . responsible government official, shall not relieve such person of criminal responsibility . . . .”[11] In other words, under the Princeton Principles, heads of state do not enjoy substantive immunity by virtue of their posts. Moreover, “the US Constitution does not impose any significant restraint on the exercise of universal jurisdiction.”[12]

However, notwithstanding the Princeton Principles’ rejection of substantive immunity, it is a settled principle of international law that incumbent heads of state remain procedurally immune from criminal prosecution.[13] As a result, national courts are jurisdictionally barred from initiating criminal proceedings against sitting heads of state. Furthermore, even if Assad does not have head of state immunity, the “prescriptive jurisdiction by the United States is [ultimately] determined by Congress, not international law . . . .”[14] On this issue, Congress has determined that war criminals can only be tried if they belong to the US military or are U.S. Citizens, or, alternatively, when their alleged victims are either U.S. citizens or part of the US military.[15] Although at least one American has been killed during the Syrian Civil War,[16] both Article 147 of the Fourth Geneva Convention and the War Crimes Act require a “willful killing,”[17] and it is unclear whether this constituted a “willful killing.”[18]

In sum, while the principle of universal jurisdiction would seem to allow an American court to initiate criminal proceedings against Assad, as Syria’s current head of state, Assad has “unqualified ‘head of state’ immunity during [his] term of office.”[19] Furthermore, no federal statute permits the prosecution of foreign war criminals on U.S. soil. If Assad is to ever be held accountable for his crimes, it would have to be after his term ended; furthermore, if the trial were to take place outside of Syria, it would have to be in a country permitting the prosecution of foreign war criminals.


[1] Symposium, UNIVERSAL JURISDICTION: MYTHS, REALITIES, AND PROSPECTS: The Pinochet Precedent and Universal Jurisdiction, 35 New Eng. L. Rev. 311 (2001); Pinochet arrested in London, BBC News, Oct. 17, 1998, http://news.bbc.co.uk/2/hi/europe/195413.stm.

[2] See Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives , in Oxford Monographs in International Law, at 185 (Ian Brownlie & Vaughan Lowe eds., 2003).

[3] Mary Robinson, Preface , in Universal Jurisdiction 16 ( Stephen Macedo ed., 2004).

[4] Crisis in Syria, International Coalition for the Responsibility to Protect, (last visited Nov. 28, 2012).

[5] Saad Abedine & Ben Brumfield, Over 37,000 have died in Syria's civil war, opposition group says, Cnn (Nov. 15, 2012), http://edition.cnn.com/2012/11/15/world/meast/syria-civil-war/index.html.

[6] See, e.g.,Stephanie Nebehay & Louis Charbonneau, No clear way to court for Syria war crimes suspects, Reuters, Mar. 29, 2012, http://www.reuters.com/article/2012/03/30/us-syria-justice-idUSBRE82T04F20120330.

[7] See Commentary, in Universal Jurisdiction 31-32 (Stephen Macedo ed., 2004).

[8] Curtis Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 328 (2001).

[9] Commentary, supra note 7, at 30.

[10] Head of UN independent panel urges diplomatic solution to worsening Syria conflict, UN News Centre, Oct. 16, 2012, http://www.un.org/apps/news/story.asp?NewsID=43303&Cr=syria&Cr1=#.UIViGcU1-68.

[11] The Princeton Principles on Universal Jurisdiction, in Universal Jurisdiction 22 (Stephen Macedo ed., 2004).

[12] Bradley, supra note 8, at 323. E.g., In re Yamashita, 327 U.S. 1, 7 (1946). See US Const. art. I, § 8, cl. 10.

[13] Commentary, supra note 7, at 31-32 (“Immunity from international criminal prosecution for sitting heads of state is established by customary international law.”). See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo. v. Belg.), 2002 I.C.J. 121 (Feb. 14) (Judgment) (holding that Belgium violated international law when it sent an arrest warrant against then Congolese foreign minister Abdoulaye Yerodia Ndombasi), available athttp://www.icj-cij.org/docket/files/121/8126.pdf.

[14] Bradley, supra note 8, at 329.

[15] The War Crimes Act of 1996, 18 U.S.C. § 1441(b) (2006), Bradley, supra note 8, at 328.

[16] Khaled Yacoub Oweis & Erika Solomon, US and French Journalists killed in Syria, Reuters, Feb. 22, 2012, http://www.reuters.com/article/2012/02/22/us-syria-journalists-idUSTRE81L0FU20120222.


Posted by Munashe Magarira on Sun. March 24, 2013 11:11 PM
Categories: International Human Rights

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