Europe on trial

Grace Gardiner | Europe & Eurasia Fellow

It has been an enormous month in the world of international justice. The world’s first trials of ISIL genocide and members of the Syrian security forces have begun. Two alleged perpetrators of historic genocides - Rwanda and Darfur - have been caught after decades in hiding. Yet for all the think-pieces on these cases, little has been said of the common power pursuing them, nor of the strategic motivations that drive it.


Over the last decade, Europe has been beset by serious challenges to its power. It has been nearly twenty years since Ian Manners called the European Union a ‘normative power’, at once consolidating and demonstrating its influence by shaping what is considered ‘acceptable’ in international politics. The idea of normative power has been central to the EU’s foreign policy, and human rights has, historically, been a norm it has particularly emphasised. The ways in which Europe promotes the cause of human rights today says a great deal about how it envisions its place in the international community.


This July marks 25 years since the massacre at Srebrenica and the beginning of a long process of international investigations and trials seeking to bring justice to the victims of Europe’s last genocide. In this spirit, Europe today is defending the liberal norms of international law enforcement and world cooperation in the pursuit of justice in the face of growing hostility to international governance. Confronting the unknown, Europe is resorting to this principle through which once upon a time it imagined it might lead the world.


The twin trials


The EU, through its foremost state leaders, is modelling itself as a world leader in prosecuting crimes against humanity that are not presently being investigated in international courts. Germany, in particular, has taken this as a cause celebre, and is at present conducting a number of trials targeting ISIL crimes and their alleged perpetrators. In May, the trial of a German-Syrian woman accused of arranging marriages for ISIL members commenced. Viewed in isolation, this does not appear to be a matter remarkable than any other country prosecuting nationals for alleged membership of terrorist organisations. Yet Germany has taken more extraordinary steps in the prosecution of ISIL. Currently proceeding in Frankfurt is the world’s first trial alleging ISIL genocide of Yazidi people in Iraq. This trial is a curiosity even beyond its lack of precedent. Its jurisdiction is entirely German, even though the crime it alleges is an international one. The trial is thus not directly backed by the EU; however, it is still distinctly linked to European interests. Germany is a de facto leader of the Union, and as such its international dealings are a statement and reflection of the EU’s interests.


That ISIL treatment of Yazidis can be classified a genocide is by no means unanimously agreed upon. The resistance of some countries to this classification is one reason why the Yazidi case has not been prosecuted by international bodies. The EU is most interested in projecting an image of power and strength to Russia, whose silence on the matter of genocide is particularly glaring. The trial is thus domestic only by necessity and in technical classification: the international implications, affecting Yazidi victims and third-party states alike, are far-reaching.


The present torture trial of two former members of the Syrian government’s security forces is strikingly similar to the Frankfurt process. It, too, is the first trial of its kind – the first addressing actions of the Syrian government against its people. It is also being conducted in Germany, by the Higher Regional Court in Koblenz. As in the Yazidi case, there is no international tribunal in the mould of the ICTY or the ICTR on the Syrian Civil War. Russia’s veto power in the UN and close ties to the Syrian regime ensure a tribunal will likely not be established in the foreseeable future.


This said, the Koblenz trial is the fruit of significant international labour. Investigations into the two accused were prompted by a complaint filed by the European Centre for Constitutional and Human Rights, the Syrian Centre for Media and Freedom of Expression, and the Syrian Centre for Legal Studies and Research. The Koblenz trial is thus an approximation of an international tribunal into the Syrian war, and it is being conducted by the greatest champion of the EU.


The ECCHR is not an institution of the EU, but its ability to petition member states on matters of international and European law arguably makes it an instrument of EU soft power. This makes the Koblenz trial an even more assertive statement by the EU than that of the Yazidi genocide. Russia is likely paying close attention: Syria is one of many areas in which Russia and the EU have competing interests. Tensions were exacerbated in June when the US ordered the withdrawal of 9,500 American troops from Germany, sparking concerns that the balance of power in the region will be tipped in Russia’s favour. Now more than ever, Europe is looking to express strength and oppositional force to Russia. Reasserting its normative power in the realm of human rights and directing it towards areas of Russian interest is an effective way to do just that.


Power in international justice?


Europe’s current efforts to exert normative power are many and decidedly strategic. European powers contributed greatly to the recent captures of two wanted international criminals: Rwandan genocide financier Félicien Kabuga and Ali Kosheib, accused of crimes against humanity in Darfur. It is significant that these cases all have a strong focus on upholding international legal mechanisms. Europe is moulding itself as a leading proponent of international justice just as Donald Trump announced sanctions against ICC employees investigating US conduct in Afghanistan.


Renewing influence through norms is, however, not as straightforward as perhaps it once was. Europe will not easily shrug the tribulations of the last decade. Sadly, the wheels of human rights and international justice turn slowly and often not at all. It is risky for Europe to claim this as a pillar of its power. Certainly, the past few months have offered hope to a great number of people who have suffered. This is itself a noble pursuit. The future of European power, however, remains inscrutable.


Grace Gardiner is the Europe & Eurasia Fellow for Young Australians in International Affairs.

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