Don't forget the suffering and pain

“The meaning of my life is to help build a democratic Syria that offers the same rights to men and women, and a life in dignity. Only then will the struggle be over.”

Those are the inspiring words of Syrian lawyer and women’s rights campaigner, Joumana Seif, today’s Anna Klein Women’s Award laureate.

But, standing up for human rights, democracy and freedom in Syria means pain. A pain that Joumana, her family, and too many Syrians know all too well.

Joumana’s family has suffered immense persecution, including torture, enforced disappearances, and murder, which eventually forced them to flee Syria. From an early age Joumana experienced how family members were arrested and disappeared by the regime -only to never be heard of again. To this day, she doesn’t know the fate of her little brother, Eyad. Joumana’s father, who is here with us tonight, spent eight years behind bars. His crime? Working for an end to corruption and political reforms. Of course advocating for the respect of human rights is NOT a crime, but in Syria those who do so face severe punishment by the regime. Joumana says she studied law to counter the regime’s persecution against her family, against activist and against women! Today, even from afar she is using that legal knowledge and training to advance the rights of Syrian women’s rights, and to bring perpetrators of heinous crimes to justice. As she says the struggle will continue until democracy, equal rights, freedom and dignity will be respected in her come country, Syria.

Let the world look to Syria

In preparing my remarks for my friend Joumana, -a woman, and fellow jurist who I so greatly admire- I thought about a long evening talk that we had just across the street from here in Deutsches Theater’s bar a year ago.

It was a beautiful almost Spring-like evening. The atmosphere was relaxed, around us people were having a good time, but the topic of our discussions were not for the lighthearted.

Joumana recounted the horrifying evidence of torture, rape and sexual violence against women -and men-, arrested and disappeared into the Syrian regime’s extensive network of prisons, detention and interrogation facilities. Evidence that she and her colleagues had gathered. In Syria, so Joumana emphasized, for women; being arrested means humiliation, sexual violence and even rape.

We talked about the fears of the torture and rape survivors who had escaped to tell the story; their fears of reprisals from a long arm of the Syrian regime’s intelligence henchmen; and lives marked by trauma and of a state of being on constant alert -even after settling in Germany.

And, then it struck me that Joumana’s own biggest fear -in relation to her work collecting the evidence of these heinous crimes and assisting the victims- was that the world would ignore their anguish and pain. That governments would simply move on and normalize relations with the Syrian regime despite its responsibility for atrocious crimes, more than 130.000 disappeared, hundreds of thousands of deaths and the suffering of millions.

Joumana feared that Syrians who have been punished, tortured, raped, and killed because they had the ‘audacity’ to demand something that so many of us are taking for granted: -the right to live without fear of persecution in a country where freedom, rights and democracy are respected- would become ‘mere numbers’, and that we would forget their names and their stories. She feared that Syrian leaders and their security thugs responsible for despicable crimes -that continue to this day- would never be held accountable. She feared that there will be no comprehensive justice for the suffering of millions of Syrians.

From the outset of the Syrian regime’s purge on dissent and opposition, and its subsequent brutal war against civilians it was clear that although governments around the world were quick to condemn violations and declare their support for the Syrian people, the power to protect victims and halt crimes was minimal. In statements and UN resolutions they insisted that perpetrators would be held accountable, but it was obvious that achieving justice for the victims of atrocious crimes was going to be a challenge.

Showing the perpetrators that their crimes will be brought to justice

Pursuing justice before Syrian courts was -and remains- a non-starter. In Syria the courts are used to punish people who stand up for human rights, not the regime officials violating people’s rights.

In principle the International Criminal Court (ICC) -that has the mandate to investigate and prosecute war crimes, crimes against humanity and genocide when states are unwilling or unable to do so- should be activated. But, Syria is not a member of the Court, and the UN Security Council was paralyzed by Russia and China that vetoed a resolution that would have given the Court jurisdiction over atrocities in Syria.

So we decided that instead of banging our heads against the UN Security Council doors where Russia -supported by China- was set to use its veto power over and over again to protect the Syrian regime and shield its officials from the reach of international justice, we fixed our attention on one imperative: securing the evidence of crimes in a manner that would stand the test of court.

We turned to the UN General Assembly -where all UN members are represented and no one has a veto-. And, here we worked with like-minded states to establish a UN mechanism that would be mandated to investigate, gather, analyze and secure evidence of grave international crimes in Syria for the purpose of assisting future criminal prosecutions before courts that observe international due process standards. We wanted to give Syrian victims hope, and we wanted perpetrators to know that evidence of their crimes would be secured and be ready to assist criminal prosecutions. We wanted those who believed that they would get away with rape, torture, killings, and the shelling of civilian homes, hospitals and schools to know that they would face justice -maybe not immediately, but one day.

There was no shortage of what I would call ‘polite skepticism’ expressed by many diplomats to this initiative. “The General Assembly has never done this before, it can’t be done” some argued. Others told us not to “waste our time, because Russia would surely rally enough support to bring the initiative down”. But, there’s a first for everything, and honestly, what did we have to lose? Not even trying simply wasn’t an option. And step by step states started to came on board, and many became powerful advocates themselves -among them was Germany.

Finally in the evening of December 21, 2016,  –to Russia’s and Syria’s utter dismay- the UN General Assembly, with overwhelming majority, adopted Resolution A/71/248 establishing this new and historic UN investigative body for Syria – and gave it the impossible name: The International, Impartial and Independent Mechanism -in short the IIIM.

Catherine Machi-Uhel, a French judge with decades of experience working for international ad-hoc Tribunals, was appointed to set up the IIIM and lead its important work. Today, Catherine and her colleague Michelle Jarvis, who is here with us tonight, and the IIIM’s teams of experts are actively assisting investigations and prosecutions by more than a dozen national prosecutors acting under the principle of Universal Jurisdiction. This principle -which is enshrined in many national laws and consistent with international law- provides national judiciaries with the jurisdiction over crimes considered so grave that they can be prosecuted regardless of where the crimes were committed, and regardless of the nationality of the victims or the suspected perpetrators.

The world's first verdict was handed down in Germany, in Koblenz

Germany has one of the best laws in the world embracing the Universal Jurisdiction paradigm and it has borne fruit particularly with regards to atrocity crimes in Syria.

On January 13, 2022 the first trial in the world involving the Syrian regime’s crimes against humanity came to an end here in Germany. The Higher Regional Court of Koblenz found Anwar R, a former Syrian regime intelligence officer, guilty of crimes against humanity, as a co-perpetrator of the murder of 27 people, the deprivation of liberty and torture of at least 4000 people, and grave sexual violence including the rape of female and male detainees, and sentenced him to life in prison. The Court found that the atrocities were part of a state policy to eliminate peaceful protest and curb public dissent. For the first time in the world an independent court established a policy of crimes against humanity by the Syrian regime going straight to the top!

The Koblenz trial -and subsequent trials underway here in Germany against Syrian regime representatives- would most likely not have happened had it not been for the tireless and determined efforts by incredibly brave Syrian lawyers, like Joumana, who worked with Syrian activists, witnesses, victims and their families. Together with lawyers from the European Center for Constitutional and Human Rights here in Berlin they turned testimonies and other evidence into substantial criminal complaints that were submitted to Germany’s Federal Prosecutor.

Sexualised violence is punished. Thanks to Joumana Seif

Thanks to Joumana and her colleagues that sexual violence and rape were finally added to the criminal charges leveled against Anwar R. Thank you Joumana, what a difference you have made for the brave Syrian women you assisted!

One of the plaintiffs in the Koblenz trial was Wassim Mukdad, who’s beautiful music is accompanying us this evening -music that makes me smile and cry at the same time. In his moving and powerful closing statement to the court Wassim said: “I stand before you today, demanding justice; I do not seek revenge or retribution. The Syria that I dream of and that I struggled and continue to struggle for must be based on the foundations of justice and the rule of law, not on violence, counter-violence, [and] revenge” and Wassim continued; “As Syrians, we look forward to the day when our country … will be a country that respects our rights and does not attack us.” “We are tired of the intractable situation in Syria For decades our blood has been shed without anyone being held accountable.”

After the Court ruling Joumana wrote that the Koblenz trial represented a “major step” in the quest for justice, and “marks the beginning of the reckoning with the crimes of the Assad regime, which have gone unpunished for more than 50 years.”

Another Syrian plaintiff told me about how the trial had given him a feeling of empowerment; “In this courtroom I was not merely a victim of torture, I was there to seek justice” he said.

And, a Syrian trial observer told me; “This is the first time I am in a courtroom where facts and evidence matter, and where the outcome of the trial is not a foregone conclusion. This is actual justice.”

Yes, the Koblenz trial is an important milestone of international justice and it sets a powerful example: Facts, evidence and justice matter! You can bring perpetrators of atrocious crimes, including sexual violence and rape, to justice before national courts. And national courts have a vital role to play also with regards to truth telling and historical memory about the heinous crimes of dictators and their regimes. And the hard work by Joumana and her colleagues combined with the remarkable courage of Syrian activists and survivors made it happen!

Thanks should also go to the office of the German Federal Prosecutor and to the German Judiciary for their determination and professionalism, and to quote Joumana, for “opening a pathway for justice for Syrians while other pathways were blocked.”

Also warm thanks to the Heinrich Boell Stiftung for your critically important financial and other support to the justice efforts by Syrians. From the get-go you understood the importance of embarking on this principled justice journey. Your unwavering support made such a difference. Thank you!

Improvements in law enforcement are on the way

But, the Koblenz trial also exposed a number of shortcomings including legal gaps with regards to definitions of crimes, ridiculous translation restrictions, lack of access to information for members of the press and observers during the trial proceedings, insufficient support and protection of the rights of plaintiffs, victims and witnesses, and failure to recognize the importance of trial records for historical memory and truth-telling.

Based on these hard lessons learned Joumana and the European Center for Constitutional and Human Rights submitted recommendations for urgently needed improvements to the Justice Ministry and members of the German Parliament. I am happy to report that just a few days ago, on February 23, the Justice Minister presented a list of reforms that to a large extent reflect the proposals made by Joumana and her colleagues. Bravo!

Yes, justice matters, and we need to constantly improve law and practice to ensure that justice is actually served because it matters to the victims, and because impunity for atrocity crimes fuels further crimes.

Impunity encourages perpetrators in Syria

Impunity encourages those who cynically calculate that they can -without consequences- deploy horrific crimes, including torture and rape, to silence dissent by spreading fear and terror.

Impunity for bombing hospitals, schools, markets, civilian homes and infrastructure only encourages brutal dictators and their thuggish regimes to continue deploying such war crimes as effective means to achieve their goals; and to solidify their unchecked power, wealth and privileges.

Impunity for war crimes, crimes against humanity, genocide and the crime of aggression today will have devastating consequences for the world our children will inhabit tomorrow.

The Syrian regime has been able to sustain its violent repression in large part due to the unwavering support from Russia and Iran. Both countries have been directly involved in the commission of war crimes perpetrated in Syria; Russian forces have bombed hospitals, schools and civilians from the air reducing Syrian towns to rubble. Iranian militias have worked hand in glove with Syrian regime forces committing crimes on the ground.

Meanwhile, the fate of thousands of people kidnapped by ISIS remains uncertain. Restrictions on human rights and freedoms continue in parts of northeast Syria occupied by Turkey. Kurdish-led -US backed- Syrian Democratic Forces have also arrested activists and journalists. And, the US-led global coalition against ISIS has conducted several military operations in parts of Syria. More than 60.000 ISIS suspects and members of their families, women and children are held in appalling conditions. Israel also has conducted targeted military strikes in Syria.

Syria is not safe! Syrian refugees have the right to seek and receive protection, and no one should be forced to return to a country where their human rights will not be protected.

Yes, impunity remains the order of the day in Syria, but evidence of crimes by all parties is being collected, and justice will remain on the table thanks to the tenacity of Syrian activists and lawyers like Joumana.

Justice matters!

Russia's war challenges the international legal system

Will Russia’s crime of aggression against Ukraine be the ‘kiss of death’ for international rules? Or, the beginning of a new aera of protection and justice?

When Russia launched its full scale military invasion of Ukraine -accompanied by a brutal campaign of war crimes- many were quick to declare that this blatant violation of the Charter of the United Nations -our ‘global constitution’- and the scale of laws of war violations, not only represented the greatest threat to our international rules based order, but marked the end of it.

But, is that indeed the case? Couldn’t the exact opposite be true! My answer is it’s up to us!

In response to Putin’s manifestly illegal war we are actually experiencing the awakening of ‘sleeping’ international institutions along with an unprecedented resolve to both enforce the prohibition on war, and to advance justice for this supreme crime.

And, the scale of Russian atrocities; the destruction, the killings, the rape, the torture, the deportation and kidnapping of children, have ignited unprecedented international, regional, and national resolve to secure evidence of the heinous crimes, and to pursue justice for the victims.

Ukraine is not a member of the International Criminal Court, but Kyiv referred jurisdiction over all of its territory to the Court already back in 2013 and 2014. The Court is actively investigating crimes in Ukraine, and it has received significant additional financial support from several states to do so. The ICC can prosecute top political leaders -including possibly the Presidents of Russia and Belarus- for atrocity crimes. National courts -acting under universal jurisdiction- on the other hand do not have the power to prosecute acting presidents, prime ministers and foreign ministers -who enjoy immunity from the reach of national courts.

Ukrainian investigative authorities -assisted by experts from a number of states- are gathering evidence of war crimes. Several European national prosecutors, including the German Federal Prosecutor- are conducting investigations, and EUROJUST, the European Union’s Agency for Criminal Justice Cooperation, acts as a focal point for these evidence gathering efforts.

But, an important piece of the ‘justice puzzle’ is missing. There is currently no avenue available to hold Russian -and possibly Belarusian- political and military leaders accountable for the illegal war itself; -the crime of aggression against Ukraine and the supreme crime from which all the other atrocities flow. Unfortunately the ICC’s jurisdiction over this leadership crime is restricted to citizens of states that have given the Court jurisdiction. Neither Russia nor Belarus have done so. Of course the UN Security Council could refer the crime of aggression against Ukraine to the ICC, but Russia would surely veto any attempt to do so.

Preserving world order needs bold international advances

So is there nothing we can do? Is our message to other leaders going to be; “if you want to change borders by force, just go ahead. You may face international condemnation and sanctions, but that’s all.” No! When the very preservation of world order is a stake we need bold international responses; And, in this case we need a Special International Tribunal for the Crime of Aggression against Ukraine. With the Security Council blocked we need to, once again, turn to the UN General Assembly that can, and should, adopt a resolution that would pave the way the establishment of such a Tribunal. And, states need to urgently reform the ICC to ensure that the Court will have full jurisdiction over the crime of aggression in the future.

Contrary to war crimes and crimes against humanity, the crime of aggression is not that complicated to prove before court as Professor of Law, Philippe Sands said in an interview: “frankly, the crime of aggression is a slam dunk … The indictment writes itself. There’s no difficulty of proof. There’s no great difficulty in evidence. It’s not only the decision to wage war, it’s the decision to continue waging it … Every act, every attack, every bomb on a theatre with 1,000 people in it is a crime of aggression. I don’t want to let these people off the hook.”

With so much attention on Ukraine and the myriad of international efforts underway to ensure justice for the crimes committed there, some critics are rightly pointing out double standards and raising serious concerns that other conflicts and atrocity crimes elsewhere have been -and continue to be- ignored. They argue that victims of horrific crimes in other places around the world are being forgotten. And, yes, they are right! And, yes, that must change!

But, the answer to their legitimate criticism should not be to deny Ukrainian victims justice. The answer should be to redouble our efforts on behalf of victims of grave crimes everywhere!

We cannot allow the failure to deliver justice in the past, dictate injustices and failures in the future.

Instead, we should use this moment -this wake-up call- to reinforce international resolve to protect our international rules based order. We should insist on the respect of international law and we should work to ensure justice for violations anywhere. Only then can international rules serve as credible tools for the protection of people and their human rights everywhere.

Everyone has a right to justice

Last summer I joined a meeting with Dr. Denis Mukwege, the 2018 Nobel Peace Prize laureate. He spoke about the ongoing war crimes in this home country, the Democratic Republic of Congo. In gruesome detail he described the suffering of women and children -including infants- who have been brutally raped and sexually abused by rebel forces, victims who are now receiving treatment for their physical wounds and phycological scars at his Panzi Hospital. Dr. Mukwege stressed the importance of justice for these horrendous war crimes intended by the perpetrators to destroy the lives of the women and children, their families and the very fabric of their communities. He then turned his attention to the war against Ukraine and to the gruesome sexual violence the rape perpetrated by Russia soldiers there. Working in a hospital in the Democratic Republic of Congo where atrocities continue with impunity while receiving little international attention, he said, one could be tempted to become ‘jealous’ of the international focus afforded to the horrors in Ukraine and the commitments to pursue justice for the victims.

But then Dr. Mukwege paused, and with a firm voice he said: “No, I’m not jealous, I say Bravo! And, I say; let’s repeat that same commitment everywhere, let’s stand with victims and survivors of rape and other despicable crimes all over the world -they all have the right to see justice done!”  

Yes, justice matters, and it must be applied without discrimination. We cannot insist on justice for international crimes in one place and ignore -or even deny justice- in other places. We cannot ignore crimes just because those responsible may be considered allies, or because demanding justice for the victims in a particular place would not serve our national interests. We cannot treat the application of international law as an ala carte menu where we pick and choose.

Let us be inspired by the tenacity and the bravery of Joumana and our amazing Syrian colleagues, who have the humanity and dignity not to demand revenge for the crimes that they themselves and their loved ones have suffered, but to insist on justice as the only patch forward.

Let’s listen to Joumana Seif and Dr. Mukwege, and let’s escalate this international momentum to advance justice for victims of heinous crimes everywhere.

Crimes must be prosecuted internationally, no matter where they occur

Let’s make sure that Russia’s war against Ukraine will not be the end of international law and rules-based order, but instead the new starting point for our legal resolve and our political determination to ensure that perpetrators will not continue to get away with torture, rape, and killings, that the prohibition of war will be taken seriously, and that international crimes will be prosecuted whether in Europe, Africa, Asia, the Middle east, North or South America.

Let’s commit to a new and ambitious Agenda For Justice that will have the people and the communities most affected by the crimes at its very center.

Dear Joumana, I cannot begin to tell you how honored I am to be here this evening celebrating you, your work, your courage and your humanity. You inspire us to do better, to do more, to never give up on the fight for women’s rights, to challenge human rights abusers, and to insist on accountability and justice for grave violations, no matter who the victims or the perpetrators are. You and your wonderful colleagues have shown us that with hard work there is a path for justice. You have moved mountains, and, the work continues.

You have reminded us that for the survivors, the victims and their families, justice for rape and other atrocity crimes is not a moral luxury, it is a right!

Thank you dear Joumana, and warm congratulations on receiving the Anna Klein Women’s Award.