NEW YORK – News of the imminent closure of the U.S. war crimes office has raised concerns that alleged war crimes in Syria could go unpunished, but its former head, ambassador Stephen Rapp, is seeking out other ways to prosecute the accused.
Rapp, who served as ambassador-at-large for war crime issues from 2009 to 2015, is now working with prosecutors in Spain who have raised the first criminal case against Syrian officials in a foreign court.
Syria Deeply spoke with Rapp about the different legal avenues to prosecute alleged war crimes in Syria, the importance of growing civil activism and the potential consequences for perpetrators.
Syria Deeply: Given your extensive experience, how do you think the possibility of holding war criminals accountable has changed over the course of the Syrian conflict?
Stephen Rapp: Well, it’s improved. Though it’s still disappointing compared to other conflicts where it has been possible to establish an international tribunal or a court with international jurisdiction while the conflict was ongoing, like some of the situations the ICC (International Criminal Court) has dealt with.
When I was a prosecutor in the Rwanda tribunal, I worked quite closely with European prosecutors, who found, years after the genocide, that many lower level Rwandan perpetrators had come to their countries pretending to be refugees. But they were, in fact, being identified by other refugees as participants in the genocide.
[The European prosecutors] were seeking information from [me and my colleagues at the time] on prosecuting those cases. In the course of the last decade or so, there have been maybe 11 countries in Europe plus Canada that have actually succeeded in prosecuting someone for the Rwandan genocide. It’s been possible, but it usually [happens] some time after the event and when the threats to witnesses and those kind of things have substantially diminished.
Syria Deeply: Do you face jurisdiction issues when it comes to prosecuting war crimes in Syria?
Rapp: This is much more challenging in the context of Syria, particularly when it comes to regime crimes, because many regime actors are still in power [and still in Syria]. They cannot be subject to prosecution on the basis of being physically present in some other country. There are a few, however, particularly some of the security leaders in areas that were at one point lost to the opposition, who may have joined the refugee stream. There are about a dozen cases in Europe being investigated.
We’ve sought the use of a jurisdictional basis to prosecute those who are still in Syria. That would have to be either on the basis that the victim of the crime had European nationality, giving the [European] country what we call passive personality jurisdiction. A kind of jurisdiction a country established to protect their own passive citizens from being violated elsewhere.
[Another option is] universal jurisdiction, which is much more controversial, and some of what has been viewed as the overreach of universal jurisdiction by Spain and Belgium led to their laws becoming much stricter during the course of the last decade. There are still some countries that do have universal jurisdiction, Germany for instance. Sweden and Norway have similar laws that would permit them to prosecute.
On these two basis, we’re largely seeking to develop some high level cases against regime people, particularly those involved in the detentions and mass killings that are evidenced by the Caesar photos and featured in the movie “Syria’s Disappeared: The Case Against Assad.”
Syria Deeply: What are some of the main factors that help the prosecutors?
Rapp: There’s the one case in Spain, where we were able to locate a sister of one of those killed in the Caesar photos. It was determined to be within the jurisdiction of Spain, and a formal investigation was opened up. [The brother of the victim petitioning in the Spanish court] was killed in a particular institution, which we don’t name to avoid identifying too many who are putting their extended family at risk. We’re charging three key officials within that prison, the people that were above them in the state security and military intelligence area, all the way up to the vice president of the Ba’ath Party, vice president of the country, head of the National Security Bureau. The judge in Spain could decide to issue arrest warrants for those people to be arrested, to be brought to Spain and interrogated on these cases.
In Germany, there’s a major effort by the federal prosecutor to investigate a case of detainees in Syria on the principle of universal jurisdiction, an old concept, sometimes controversial, that has it that some crimes are so serious that they’re crimes against all the people in the world. Germany has, subject to the prosecutor’s decision making, the power of determining whether the case is substantially in German interests. Of course, one of the things that’s happened since even Caesar defected in August of 2015, is the massive influx of refugees into Germany and Europe and fantastic welcoming reception for those refugees in Germany. That’s created a situation where there are many witnesses and survivors to this torture and family members of those that died.
My experience generally brings me into contact with all of these prosecutors. CIJA has just in the last year received 400 requests from governments or law enforcement in 12 countries. There’s a lot of active work that’s being done in this area. The investigation and connections have only begun to be made. These are some of the reasons why things are finally moving in this area. Obviously, from the point of view of the victims and survivors, not fast enough.
Syria Deeply: Will it have an impact on the perpetrators?
Stephen Rapp: We will see. Maybe they think they can survive in power and they’ll never really have to worry about it if there’s an international arrest warrant out for them. But frankly, that can be a problem. The Pinochets of the world go to the U.K. for medical treatment and suddenly find themselves arrested. These warrants do have a way of catching up with people and profoundly restricting people’s ability to move around. It’s not as perfect as one would like, but we’re finally seeing the dawn of justice for the victims in Syria.
Syria Deeply: There’s been a lot of engagement of civil activists and journalists who are collecting evidence, for example with their cell phones. How useful is that for the prosecution?
Rapp: This is an important question. When I first became engaged on the Syrian conflict at the end of 2011 and met with Syrian refugees in Istanbul, it was in a training session on how to better collect evidence. What you really wanted was information that would indicate responsibility for a horrible injury. There’s been a lot of effort made to improve the quality and at least the initial credibility of the materials gained by citizen activists.
Of course, in any conflict zone the evidence that you obtain is not going to be obtained in the same way as you might after a bank robbery, when the police arrive 10 minutes later and is able to check the whole site for fingerprints, put a barrier around it until every bit of the surface is investigated and probed for evidence. Quite often there’s going to be a break between where the information is taken and when it finally arrives somewhere where the person is safe.
In international courts formal rules of evidence don’t apply and it’s a question of reliability. Different national systems may have stricter systems, though frankly all of them, to my experience, deal reasonably with evidence and look for ways to verify it. For instance, in the case of audio-visual material, it may be possible to evaluate it through the exploration of metadata that accompanies digital images and recordings. It often will tell you precisely the second when it was taken and will also, by doing that, tell you whether that image consists of pictures taken at different seconds, which obviously would suggest some kind of composite. It would tell you if there was any kind of effort to alter it.
This interview has been edited for length and clarity.