Can toppled Syrian president Bashar al-Assad and his operatives be brought to justice?

In Syria, celebrations of the fall of Bashar al-Assad have been mingled with a sense of horror, as gruesome evidence of the atrocities committed by his regime emerge.

Mass graveyards and the infamous prisons that were central to the deposed dictator’s coercive rule have been uncovered.

They bear traces of the brutal suffering inflicted by the regime.

Chaotic scenes of former detainees, their relatives and journalists trawling through paperwork in the detention centres have sparked international pleas on Syria’s new de facto leaders to ensure evidence is preserved for future criminal prosecutions.

Al-Assad and his father, Hafez, have been accused of a litany of crimes and abuses over the past 54 years, including torture, rape, mass executions, enforced disappearances and chemical attacks. 

The Syrian Network for Human Rights (SNHR) estimates that at least 15,000 Syrians have been tortured to death since the civil war broke out in 2011.

But with al-Assad in exile in Russia and many of his entourage suspected to be in Iran, there are several legal and political obstacles that stand in the way of criminal accountability.

The Hague-based International Criminal Court (ICC) is the most obvious international court of law for prosecuting individuals for such serious crimes. But the ICC does not have jurisdiction over Syria as the country is not a state party to the court’s treaty, the Treaty of Rome.

The UN Security Council can in principle refer a case to the ICC, granting it jurisdiction. But that would certainly be vetoed by the Kremlin, given its alliance with al-Assad and its own complicity in the crimes.

Both Russia and China blocked such a referral ten years ago.

Speaking to Euronews, Balkees Jarrah, associate director for international justice at Human Rights Watch (HRW) called on Syria’s new de facto authorities to consider granting jurisdiction to the ICC: “We believe Syria’s new leadership should immediately make clear its commitment to justice and accountability,” she said.

“This includes ratifying the Rome Treaty and giving the International Criminal Court retroactive jurisdiction so that the prosecutor can examine crimes committed over the last years.”

All eyes on de facto Syrian leaders

A more viable option in the current political climate is for trials to be held in criminal courts both within and outside Syria. 

Experts say it’s too soon to tell whether the new de facto rulers will be able to ensure any Syrian criminal proceedings are carried out safely and in line with international standards.

“We don't know what the future state of Syria will look like, how the different institutions will work and how well they will cooperate with each other. So this is just something we cannot predict,” according to Elisabeth Hoffberger-Pippan of the Leibniz Peace Research Institute Frankfurt (PRIF).

“The ideal option is to have criminal proceedings in Syria itself that meet fair trial standards, without use of the death penalty. And there is a need to ensure the safety for witnesses and victims to come forward with testimonies,” Vito Todeschini, legal advisor for Amnesty International, told Euronews.

The main rebel group in the new administration is the Hayat Tahrir al-Sham (HTS), designated a terrorist group by the UN Security Council and formerly linked to al-Qaeda.

Its leader, Ahmed al-Sharaa, formerly known as Abu Mohammed al-Jolan, has vowed to “pursue” the regime’s henchmen in Syria and has called on countries to “hand over those who fled” so that justice can be served.

The rebel fighters have also spoken of an amnesty for all military personnel conscripted into service under al-Assad.

But it is currently inconceivable for al-Assad himself to be extradited to stand trial in either a Syrian or non-Syrian court, as there is no political appetite or motive for Moscow to hand him over. Iran is also unlikely to extradite regime officials who have fled there.

Yet, experts consulted by Euronews have expressed hope that al-Assad and the regime’s high-level torturers can one day be held accountable, if the geopolitical conditions change.

“If the sudden fall of the al-Assad regime has shown us anything it is that things can change quite rapidly,” Human Rights Watch’s Jarrah said. “We can't predict what happens in the future nor preclude the possibility of Assad answering for his crimes one day in a court of law.”

“What we also need to consider right now is how intense and how strong the bond is between Vladimir Putin and Bashar al-Assad,” Hoffberger-Pippan of PRIF said. “I do think that there is a chance Russia might not be as interested in al-Assad in the future because the geopolitical environment is changing in a way that makes it less important for Russia to protect him.”

Calls for international collaboration and preservation of evidence

Universal jurisdiction also allows non-Syrian courts to prosecute Syrians for crimes against humanity, war crimes, and torture.

Criminal cases against regime officials have already been filed in Austrian, French, German, Norwegian, Swedish and US courts, many of which have already successfully pressed charges.

The first international trial on torture in Syria was heard before the Koblenz Higher Regional Court in Germany in 2020. Two former high-level officials of the al-Assad regime were charged, one of whom was found guilty of crimes against humanity and handed a life-long sentence.

In November 2023, a French court issued international arrest warrants for Bashar al-Assad, his brother and two officials over an attack against civilians using chemical weapons in 2013.

According to the Berlin-based European Center for Constitutional and Human Rights (ECCHR), universal jurisdiction carries promise but should be a “fall-back option” if processes within Syria fail.

The push towards justice should be "Syrian-led", it says.

For any trials, well-preserved evidence is crucial.

During the decades-long regime, offenses were documented by international organisations and Syrian civil society with the help of whistleblowers. The so-called ‘Caesar’ photos, taken by a Syrian military police officer who defected a decade ago, are perhaps the most well-known evidence of torture which has led to criminal proceedings in European courts.

The UN's International, Impartial and Independent Mechanism (IIIM) has a mandate to collect, preserve and analyse evidence to be used in criminal proceedings and supports Syrian civil society in judicial processes.

Its lead investigator Robert Petit has described "papers strewn all over the floor, people leaving with computers, hard drives burned and smashed” in regime centres during the rebels’ offensive.

“Those in control of these prisons need to safeguard materials in these facilities so that the truth can be told and so that those responsible are held accountable,” HRW’s Jarrah explained.

Euronews reached out to the UN to ask whether its investigators have yet been authorised by Syria's de facto leaders to gain access to the ground, but has not yet received a reply.

According to the ECHHR, there is also real risk that evidence can be confiscated “to be used as political or commercial capital” or be compromised by secret services agents from countries “interested in destroying evidence and archives.”