A Tale of German Global Criminal Justice: A TWAIL Perspective on the Syrian Torture Trial

A trial against Anwar Raslan and Eyad Al Gharib, two suspected (former) members of President Bashar al-Assad’s security services, began before the Higher Courts in Koblenz, Germany, on April 23. They are on trial for, among other things, committing crimes against humanity. While many have praised the trial as a triumph for accountability, its focus on lower level perpetrators offers impunity to higher-level perpetrators and entrenches Western complacency with such impunity. When considering the trial in the context of the German global criminal justice system, it also showcases a dubious approach to achieving international criminal accountability while perpetuating Western hegemony.

The legal basis for Raslan and Al Gharib’s prosecution is the German Code of Crimes against International Law (CCAIL). This piece of legislation was drafted and introduced against the backdrop of the creation of the International Criminal Court (ICC) in 1998. As others have described, the Rome Statute, which established the Court, provides in Article 17 that a case is admissible at the ICC if a state that has jurisdiction over the case is “unwilling or unable genuinely to carry out the investigation or prosecution.” Accordingly, member states are not only under the obligation to prosecute international crimes undertaken by its citizens and representatives, but national courts also must assist in the ICC’s work, as stipulated in Article 86 of the Rome Statute. The “complementarity principle” enshrined in Article 17 reflects that there is a duty to share the world community’s burden of effectively and comprehensively investigating and prosecuting international crimes.

Germany already has a reservoir of recent instances in which it has played a key role in global justice. The 1994 arrest and extradition of Duško Tadić to the International Criminal Tribunal for the former Yugoslavia (ICTY) provided the tribunal with the accused in its first landmark judgment. In 2015, the first trials under the CCAIL began against Rwandan warlords Ignace Murwanashyaka and Straton Musoni. And now, German authorities are investigating a range of Syrians for alleged war crimes under the principle of universal jurisdiction enshrined in section 1 of the CCAIL, which gives German courts jurisdiction over international crimes that have no direct connection to Germany.

These investigations have resulted, among other things, in the so-called torture trial against Raslan and Al Gharib, who came to Germany as refugees. (Interestingly, Raslan was recognized in the streets of Berlin, just like Tadić was in the streets of Munich in the 1990s.) The trial against Raslan and Al Gharib is considered by lawyers, judges, justice ministers, and human rights activists to be the first of its kind against members of the Assad regime.

The Syrian Reality on German Soil

In a coordinated operation, Raslan and Al Gharib were arrested by German and French authorities in early 2019. Both are accused of war crimes: Raslan is believed to have been a leading colonel of the Assad regime and is accused, among other things, of having overseen torture and rape, while Al Gharib was a low-level official who was tasked with rounding up and torturing protestors. Raslan is charged with a range of crimes under the CCAIL and German Penal Code — namely, various counts of crimes against humanity under section 7 of the CCAIL, 58 murder charges under section 25 of the Penal Code, and rape and sexual assault under section 177 of the Penal Code. Al Gharib is charged with aiding crimes against humanity under section 7 of the CCAIL and section 27 of the Penal Code. The charges against both accused were supported by a report of the Independent International Commission of Inquiry on the Syrian Arab Republic, which was established by the United Nations Human Rights Council in Resolution S-17/1.

The case against Raslan and Al Gharib reveals the weaknesses of international criminal law when geopolitics paralyze legitimate quests for justice and powerful hegemons use conflicts to superimpose their frameworks of power. Where hegemony and neo-colonial power plays impede international justice consensus, universal jurisdiction tries to break the gridlock — but by doing so, it only reproduces a victor’s justice with racialized undertones. One way it does so is through the problematic preponderance of cases against lower-level perpetrators, leaving an impunity gap for high-level perpetrators.

Accountability for the Peasants and Impunity for the Kings

The majority of cases in the field of international criminal law prosecute lower-level perpetrators with insufficient attention to state policy. Even before the creation of the ICC, national jurisdictions have extensively tried lower-level perpetrators. And while it is true that international criminal justice has tried high-level perpetrators — such as Slobodan Milošević, Laurent Gbagbo, Charles Taylor, and Hissein Habré — these cases paint a fragmented picture of international criminal accountability.

As one view holds, nascent international criminal law required proceedings and trials against lower-ranking perpetrators to gain legitimacy. However, this legitimacy-seeking strategy has depleted resources that could have been used for trying higher-level perpetrators. It also invites the criticism of Third World Approaches to International Law (TWAIL), which holds the view that international criminal law’s doctrines are intertwined with its political and economic biases of instrumentality and selectivity. Instrumentality, because international criminal law manifests itself as a hegemonic tool to fortify alleged leadership of the Western world. Selectivity, because international criminal law is complacent to crimes committed by the West, focusing myopically on crimes in the Global South and reproducing a troubling “civilizing mission” narrative that was used in attempts to justify colonialism itself. Accordingly, the Global South is problematically framed as “an unruly space to which the rule of law must be delivered as part of the newfangled civilizing mission.”

Western states pacify their own consciences with smaller trials, like the one against Raslan and Al Gharib. By prosecuting these smaller players, these states can claim they are doing enough in the quest for justice, despite remaining unable to capture or prosecuted the main perpetrator, Assad himself. While the German justice minister is quick to point out that the trial against the suspected Syrian torturers will set standards for other cases, this begs the question of whose standards these will be. In the end, Raslan and Al Gharib may be solely the sacrificial lambs of Western ventures in international criminal justice and allow complacency in the search for global justice. As Asad Kiyani writes, international criminal law often compounds “long-standing social patterns that foment ethnic factionalism and socio-economic dispossession, and, in the worst-case scenario, precipitat[e] further atrocity.”

Some Animals Are More Equal Than Others

Even prosecutions against higher-level perpetrators, however, perpetuate biased international criminal standards insofar as those standards are applied to individuals from the Global South but disregarded when it comes to those from the Global North. Consider the Kunduz airstrike case.

While taking the lead in the case against Raslan and Al Gharib, as well as cases related to genocide claims in Rwanda and Iraq, German authorities have remained complacent and unwilling to prosecute Colonel Georg Klein, who ordered a deadly airstrike on oil tanks in 2009. While only poor intelligence from the ground and no proper assessment of the situation was available, Klein ordered a NATO airstrike on two stranded oil tanks, which had been stolen by the Taliban, near Kunduz, Afghanistan, on September 4 of that year. The strike led to the death of 91 people, most of whom were civilians siphoning free fuel from the tanks.

The German federal prosecutor opened an investigation in March 2010 but closed the case in April 2010 on the grounds that there was insufficient evidence of a prosecutable criminal offense. The federal public prosecutor took it as proven that Klein was unaware of any civilian presence at the scene and had not intended to kill or harm civilians or civilian objects, which would have been disproportionate to the military benefit of the airstrike. However, while it never became clear whether the airstrike was offensive of defensive, Klein himself reported and media reports corroborate that Klein “wanted to ‘destroy’” the insurgents he presumed were surrounding the tanks.

The father of two of the victims launched multiple proceedings before the German courts, but to no avail. He filed a further case with the European Court of Human Rights, alleging that Germany had violated the European Convention on Human Rights’ Article 2 right to life and Article 13 guarantee of an effective remedy. Rather than examining the airstrike as such, the case before the European Court is concerned with the German proceedings (or lack thereof).

And in fact there are a range of issues that relate to these proceedings, such as Klein’s involvement in on-site investigations. A report by the German Parliament revealed that various actors in politics and the military were interested in a favorable outcome and tried to influence the investigations. The European Center for Constitutional and Human Rights — the same organization representing nine of the victim-plaintiffs, a role provided in German criminal cases, in the case against Raslan and Al Gharib — has noted that victims’ testimonies were not consulted and victims’ access to files was impeded. At the same time, the German authorities are eager to consult and rely on the testimony of victims in the Raslan and Al Gharib case where the perpetrators are racialized, international consensus is greater, and potential damage to domestic institutions and politics is lower.

Thus international criminal law in Germany, with its enabling universal jurisdiction principle, becomes a tool of selectivity, as Kiyani has elegantly put it and as TWAIL scholarship generally argues. Moreover, as Vasuki Nesiah stresses, victims lose their subjecthood and agency in this quest for global governance, with victims’ issues becoming solely footnotes in the pursuit of justice. Western states, as illustrated in the case of Germany, choose to prosecute racialized others, rather than investigate the criminals they have created. Law to this end is not law for equals, but for those who were never equal.

Conclusion

As much as one appreciates that global criminal justice is of concern to many states, one cannot ignore that criminal justice is served by the powerful against the less powerful. As Ernst Hirsch Ballin writes:

International criminal justice appeared … to have become a new cornerstone of “governing the world.” The re-emergence of power politics and the rise of inward-oriented politics have since, however, thwarted these ambitions. The idea of governing the world is becoming yesterday’s dream.

Like Klein’s Kunduz airstrike, bombings of Doctors Without Borders hospitals, alleged British and U.S. crimes in Iraq and Afghanistan, Western aid in the Yemeni civil war, and many more will go unaccounted for. The fact is that the norms and structure of international criminal law need to undergo decolonization, from reexamining understandings of violence, to expanding the concept of a “criminal,” to investigating the institutions of global power.

Germany has taken a bold step to prosecute suspects from the Assad regime. However, as long as international criminal law serves the interest of the powerful few and racializes perpetrators under the guise of universal jurisdiction, it will be solely the tool of the powerful Western actor who wishes to set the standards others must abide by but that they are free to ignore.

Image: LEFT – Syrian defendants Anwar Raslan (L), 57, and Eyad al-Gharib (R), 43, wait in the courtroom before the start of an unprecedented trial on state-sponsored torture in Syria, on April 23, 2020 at court in Koblenz, western Germany. (Photo by THOMAS FREY/POOL/AFP via Getty Images). RIGHT – Picture taken on September 21, 2009 in Kunduz shows German military in Afghanistan commander Colonel Georg Klein giving an interview to AFP on the September 4, 2009 airstrike carried out by NATO. (Photo by MASSOUD HOSSAINI/AFP via Getty Images)

 

About the Author(s)

Thamil Ananthavinayagan

Lecturer in International Law, Griffith College. Follow him on Twitter (@DrTva1607).