2017 | SJAC - When Public Interest Litigation Isn’t in the Public Interest: Universal Jurisdiction and the Case against Assad
In this report, the Syrian Justice and Accountability Centerfocuseson the use of public interest litigation in the context of universal jurisdiction. While stating that foreign courts are the most feasiblevenues for justice for Syria in the pre-transition period, SJAC warns of possible risks involved in this approach and of potential harm to the longer-term transitional justice process for Syria.
Public Interest Litigation is definedas the pursuitof a legal case as part of a broader strategyto promote human rights, and not with the sole objective of winning. Such a strategymay for example be aimed at promoting policy changes, political debate, raising awareness around the case. Nevertheless, a prosecutorial failure may enshrine retrograde jurisprudence and precedents, and risks undermining existing jurisprudence and making prosecutors reluctant to pursue such cases in the future.
The report considers two cases, one brought in France, in its special War-crimes unit, and one in Germany, under the principle of universal jurisdiction, relating to crimes against humanity and war crimes committed by the Assad government. The authors warn that, while promoting international criminal justice by drawing attention to impunity in international and national venues, such cases may riskundermining a legal framework that, if appropriately adopted, could more properly provide justice and reparations to the victims.
For this reason, SJAC argues that lawyers pursuing universal jurisdiction cases in Europe, with a public interest approach, should:
- choose cases for their strong jurisdictional and substantive merits and not merely for advocacy purposes;
- choose smaller cases that can lead to convictions, andcreate legal precedents that may have impacts onfuture justice efforts;
- inform victims and Syrians regarding the cases and what to expect from them, in order not to foster further disillusionment in international justice;
Despite the great urgency to address the international crimes committed in Syria, SJAC believes that a postponed justice is better than a flawed process, which may fail to meet victims’ need and create disillusionment with formal judicial process, and cause damage to a long-term transitional justice process for Syria.