In Spain, will a pioneering case bring justice for Syrian victims?

When Spanish judge Eloy Velasco agreed in March to open an investigation into the alleged crimes of nine Syrian government officials — the first investigation led by a European judge against President Bashar al-Assad’s regime — human rights activists around the world rejoiced. 

Manuel Vergara, legal director of the Madrid-based human rights non-profit Baltasar Garzón International Foundation, called the case a “brilliant” move against impunity. However, the public prosecution quickly filed an appeal to the judge’s go-ahead, threatening the case’s progress.

In cautiously optimistic news for international justice, on June 2 it was decided that the appeal will be settled by the National Court’s Plenary section of the Criminal Court, rather than the Criminal Court’s second section, hopefully giving the appeal a better chance at a favourable decision, according to the lawyers who originally brought the case on Feb. 1. 

Almudena Bernabeu and Maite Parejo, two lawyers from Guernica 37 International Justice Chambers, a London-based group of human rights lawyers, are accusing the nine Syrian officials of state terrorism against the late brother of their client, Amal Hag Hamdo Anfalis, a Spanish national. Her brother, Abdulmuemen Alhaj Hamdo, a Syrian truck driver, was allegedly forcedly disappeared, tortured and killed in an illegal government prison in Damascus in 2013. Pictures of his dead body emerged as part of the Caesar files, a collection of 50,000 photographs smuggled out of Syria in 2013 which document the deaths of over 6,000 prisoners. The detentions were allegedly part of a systematic plan, drawn up at the highest levels of government, to suppress dissent after the 2011 Arab Spring uprisings.

The Guernica 37 lawyers argue that Hamdo’s sister should be considered an indirect victim — which satisfies Spanish law’s requirement that a victim in a criminal case should have Spanish nationality at the moment when the alleged crime was committed.

But the public prosecution, a judicial organ representing public interest and the law, disagrees with this interpretation. In her Feb. 15 report to Judge Velasco, public prosecutor Teresa Sandoval argued that only someone who has directly suffered personal harm can be considered a victim, and that the Spanish court therefore has no jurisdiction in the Hamdo case. Four days after Judge Velasco gave, against Sandoval’s negative recommendation, the go-ahead to investigate, Sandoval appealed his decision to a higher court. 

A question of interpretation — and politics

The matter was scheduled to be settled by the Criminal Court’s second section, but earlier this month the National Court’s press cabinet confirmed to OpenCanada that the Guernica 37 lawyers’ request to take the matter before the Criminal Court’s Plenary (which brings together all four sections of the Criminal Court) has been granted.

This is encouraging news for the Guernica 37 lawyers and their client, who argue that the matter needs to be settled by the Plenary because of the nature of the case and the fact that the appeal is based on questions of interpretation — of the content of the law and the definition of the concept of the victim. They also hope that taking the appeal before the full Criminal Court might give them a better chance at a favourable decision. 

Although judges are in theory impartial and politically independent, in Spain, which has been rocked by several political scandals recently, separation of powers is somewhat blurrier in practice. All the legal experts interviewed for this piece declined to go on the record discussing magistrates’ conservative or progressive leanings, but it is common knowledge that several members of the second section of the Criminal Court are conservative and have ties to the right-wing governing party, Partido Popular (PP).

Just last month, two of the second section’s five magistrates were removed from an investigation on corruption in the PP because of their closeness to the party. In 2014, the PP passed a law making it virtually impossible to apply universal jurisdiction, the principle that allows national courts to investigate international crimes considered so grave they offend humanity in its entirety, like the ones being investigated in the Hamdo case.  

But taking the appeal to the Plenary is far from a guarantee of a decision to keep the case open. Ángel Sánchez, an international public law professor at the University of Castile-La Mancha, points out that many Spanish judges have been very favourable of universal jurisdiction in the past, but that their job is to apply the law — and since 2014, the law leaves them with few options when it comes to these cases.  

A spotlight on Syrian crimes or unrealistic expectations?

Parejo, one of Hamdo’s lawyers, says she remains optimistic for a favourable outcome, which would set a precedent for future cases trying to get some accountability for Syrian victims. “This sends a message,” she says. “Impunity is not going to last forever.”

National courts in foreign countries are the only possible road to accountability for Syrian victims at the moment. The International Criminal Court needs a referral from the United Nations Security Council in order to investigate crimes in Syria, but several referral attempts have been blocked by Russian and Chinese vetoes.

As the Spanish case proves, however, finding the “jurisdictional hook” that would allow the opening of such cases is tricky, explains Alex Whiting, a Harvard Law School professor who specializes in international criminal prosecutions. 

Manuel Vergara is not surprised that the public prosecutor opposed the case, firstly because it’s a very novel interpretation of the law, and secondly because the public prosecution is not independent from the government and its political agenda. Universal jurisdiction can be a political hot potato for states, he says. 

Spain spearheaded many international justice cases in the past using this principle. In 1998, Spanish judge Baltasar Garzon famously issued an arrest warrant for former Chilean dictator Augusto Pinochet — his subsequent arrest in Britain for crimes against Spanish nationals in Chile was the first time a former head of government was arrested using universal jurisdiction.

But in recent years, cases accusing Israeli and Chinese officials of human rights abuses in Palestine and Tibet, respectively, led to political and economic pressure on Spain from the Israeli and Chinese governments to stop the investigations. The 2014 law severely restricted universal jurisdiction, causing almost all existing universal jurisdiction cases, one by one, to be archived, says Sánchez. In fact, almost all countries in the world have put similar restrictions in place to avoid these diplomatic headaches. 

International lawyers and human rights activists are cheering on this milestone case, but some are warning that the case — even if it were to go forward — may not change much on the ground in Damascus, Aleppo and other parts of Syria devastated by the civil war.

In Spain, as in most countries, the law requires that the accused be present and heard in court. The chances are obviously zero that the nine Syrian officials accused of terrorism will voluntarily come to Spain to stand trial. The most Spain can do is issue international arrest warrants, which would stop them from travelling abroad, at least to countries likely to extradite them.

Mohammad Al Abdallah, a Syrian refugee and the director of the Syria Justice and Accountability Center (SJAC), says he supports efforts to bring Syrian cases to foreign courts, but he is concerned that they may be creating unrealistic expectations, especially for victims who want to see their torturers punished. These cases are unlikely to put anyone behind bars, he says, nor will they deter Assad. 

On the other hand, Guernica 37 lawyer Almudena Bernabeu takes the view that the case puts a spotlight on the Syrian government’s crimes against its own people. “These people are powerful, and I think [this case] could undermine that power. Naming [these high-level officials] is, to me, more important than putting them in jail,” she says.

Jurists concede that foreign courts are inadequate for addressing the crimes perpetrated in Syria. But they do serve an important purpose by building momentum for accountability. “It gets hard to ignore the evidence,” says Whiting.

For now, it’s a waiting game to see whether the Spanish case will be allowed to continue, and how far it will be able to progress. The Plenary has not yet set a date to examine the appeal.

Meanwhile, the investigation itself — which wasn’t suspended by the appeal — has stalled as Judge Velasco moves to a new post in a different court. The new judge, Manuel García Castellón, will need to be filled in on the case, so the Plenary’s decision is expected to be made before the investigation has made any further progress. 

Like many others in the international community, Vergara hopes the investigation will be allowed to continue, and that “from that small window, a bit of air can keep coming through.”