April 23 marks one year since the start of the Syrian torture trial in Koblenz, Germany. The case was initiated through the exercise of “universal jurisdiction,” which allows States to claim jurisdiction for serious crimes that violate international law regardless of where the alleged crime was committed or the nationality of the person being accused. The groundbreaking trial of Syrian government officials in Germany has been celebrated as a historic victory for justice. Eyad Al-Gharib, a low-level guard at the Syrian intelligence Branch 251, was convicted in February of aiding and abetting torture, as well as severe deprivation of liberty, and sentenced to 4.5 years in prison. Today, the trial continues against the head of interrogation at the Branch, Anwar Raslan, with a judgement expected by the end of this year.
Having completed direct monitoring of the daily trial proceedings for the last year, the Syria Justice and Accountability Centre (SJAC), where I serve as legal director, can now offer some preliminary lessons for future “universal jurisdiction” prosecutions in order to maximize impact and ensure inclusivity.
Background
Syrian President Bashar Al-Assad maintains his grip on power in Syria through an interlocking web of intelligence agencies, with a host of powers normally disaggregated between the police, military and intelligence agencies. Branch 251, also known as the Al-Khatib Branch due to its location, forms part of the General Intelligence Directorate (GID), and was used as a way station where suspected enemies of the government were detained and tortured before they were sent to other prisons for long-term confinement (and torture) or were released. Numerous Syrian witnesses (see also, here and here) testified as to their arrests and detention in the basement cells of Branch 251, where they were interrogated and often subjected to torture. An insider witness testified that those who died in the various detention centers were transferred to hospitals where death certificates were forged citing natural causes in order to obfuscate the government’s systems of mistreatment.
Both defendants in the Koblenz trial fled Syria in 2012 and eventually made their way to Germany where they sought asylum. Raslan first came to the attention of authorities when he complained that he was under surveillance by Syrian intelligence in Germany. His case was referred to the German Federal Criminal Police (BKA) and after several criminal complaints were filed by Syrian victims through human rights organizations, Raslan was arrested. The case had special resonance because some of the victims from Branch 251 were depicted in the Caesar Files which show the bodies of several thousand victims of torture in photographs smuggled out of Syria by a military photographer. Al-Gharib was initially questioned by the BKA as a witness in the same case. During the questioning however they realized that he was also implicated in criminal conduct. Some of his early statements were excluded for failure to properly advise him of his rights. Since German law does not allow for in absentia proceedings, the presence of Raslan and Al-Gharib in Germany allowed the case to move to trial.
Al-Gharib, who was convicted largely on the basis of his own self-incriminating statement to German police, was found to have worked at Division 40, a sub-division of Branch 251, and to have been aware of abuse at the detention center. The court found that Al-Gharib took part in arresting protestors at a 2011 demonstration and transported them to Branch 251. It did not find that he, personally, beat any prisoners. It is further worth noting that none of the victims who joined the trial as civil parties (i.e. “plaintiffs”) brought complaints against Al-Gharib personally.
Given the lack of evidence particular to Al-Gharib, the Higher Regional Court in Koblenz severed the trial, issuing an early verdict against him. The trial continues against Anwar Raslan, who was senior to Al-Gharib and allegedly the head of interrogations at Branch 251. There is more significant evidence against him, although there remain some challenges in proving his culpability. For example, detainees were normally blindfolded (see also, here and here) so witnesses had difficulty identifying Raslan in court. In addition, it is alleged that since Raslan was not from the Alawi sect associated with Assad’s rule, he did not have substantial power within the Branch.
Significance of the Trial in Germany
Russian vetoes have ensured that no member of the Syrian government has been tried before an international tribunal despite the fact that the government is responsible for the vast majority of atrocities during the conflict. Because of this, the U.N. Security Council was unable to refer the case to the International Criminal Court. A work-around was devised by the U.N. General Assembly in the form of an investigative mechanism (the IIIM) with a mandate to compile evidence, but with no designated venue for prosecution.
So far, universal jurisdiction has proven to be the most viable option for Syrians to obtain a measure of justice in the near term, particularly in Germany, Sweden, the Netherlands, and France where there are sizeable populations of Syrians and special war crimes units mandated to conduct such investigations. To date, most trials have focused on non-State actors, so it was a welcome development when Germany announced the prosecution of Syrian government officials for abuse of the State apparatus by arbitrarily arresting and torturing its citizens. The trial in Koblenz is therefore a significant milestone in the pursuit of justice for Syrians.
An important legal milestone was also achieved in discarding the notion that lower-level State officials can be shielded from criminal prosecution based upon functional immunity (ratione materiae). The immunities to prosecution afforded by international law are the subject of considerable debate. Head of state immunity (ratione personae) applies at least to the heads of state, heads of government, foreign ministers, and possibly defense ministers. Whereas functional immunity (ratione materiae) may offer protection to other government officials for official acts taken on behalf of the state. There remains controversy as to whether immunities should prevail in cases involving international crimes. The German Federal Court of Justice (BGH) has now held that State officials and members of the military (at least those of lower rank) do not enjoy functional immunity under customary international law in foreign criminal proceedings for war crimes. Though the ruling came in a separate case, the Koblenz proceedings were influential, particularly as the BGH cited litigation arising from Koblenz as a basis for finding the absence of functional immunity.
Plaintiffs in Koblenz also succeeded in a request to add charges of sexual violence as crimes against humanity. Though the facts underlying the charges were already included as domestic crimes – satisfying due process concerns – the court granted the request of plaintiffs to recharacterize charges as the crime against humanity of sexual violence. This helps to emphasize that sexual and gender-based violence were wielded as weapons and as a matter of policy by the Syrian government.
Limits of Universal Jurisdiction
Despite these important milestones, the trial in Koblenz faced a number of important challenges which SJAC, in conjunction with its partners at the International Research and Documentation Centre for War Crimes Trials (ICWC), has highlighted in its report on the trial released on Thursday. Universal jurisdiction trials serve justice by fighting against impunity for serious crimes, depriving human rights offenders of safe havens, and symbolizing greater accountability by prosecuting senior leaders and those most responsible for atrocity crimes. But “Not only must justice be done; it must also be seen to be done.”
Hundreds of thousands of Syrians have sought refuge in Germany, yet very few have attended the proceedings in Koblenz or even know what is happening there. The German Federal Prosecutor chose to file charges in the provincial court likely to avoid a backlog of cases in other locales such as Berlin, where there is a large Syrian population. But the result was to deprive many Syrians of an opportunity to see justice at work. When they did attend, they were not permitted access to the Arabic language interpretation, which is produced for the benefit of the defendants and plaintiffs. The opportunity to learn from this historic trial was likewise curtailed when a motion to audio record the hearings for later academic use was denied. There are efforts underway to monitor the trial in the form of detailed notes. Other participants published short summaries of important events and thematic podcasts. But there is no publicly available official record of proceedings. These are significant lost opportunities.
The court’s approach to witness protection could also be described as clumsy. On several occasions, witnesses were hesitant to speak and expressed concerns for the safety of family members living in Syria, Turkey, and even Europe. It was not apparent that the court had advance notice of these concerns and the issues were addressed as they arose in court. Although German law permits a range of protective measures, the court limited such measures to allowing witnesses to conceal their personal identifying information from the public and/or wear a mask during their testimony. Some witnesses were granted this protection in court only to step outside the courtroom and unveil their face and name other protected witnesses. In light of the significant dangers faced by many witnesses and to their families, a more rigorous approach to witness protection should be pursued by courts holding universal jurisdiction trials. International tribunals are staffed with professionals responsible for witness protection matters and national war crimes units could benefit from this expertise.
Syrian audiences were likewise perplexed by the decision to charge Eyad Al-Gharib despite his low rank and the fact that he defected from the regime, not to mention his apparent cooperation with authorities in the investigation of Anwar Raslan. Other witnesses with the same or more significant responsibility testified in the trial and were not charged by the prosecutor. This created confusion as to the German Federal Prosecutor’s policy, leading Al-Gharib’s counsel to question what criteria were used to open criminal proceedings in Germany. It also contributed to the reticence of insider witnesses to cooperate with investigators and prosecutors. This will likely create obstacles to building cases against senior leaders and begs the question as to who of the millions of Syrians with some connection to the Syrian government should be prosecuted. This will be a significant challenge as Syrians grapple with the conflict of the last 10 years and chart a path forward that includes comprehensive justice and the possibility of reconciliation.
Conclusion
The trial of Eyad Al-Gharib and Anwar Raslan continues to be an important milestone for Syrian justice. It should be celebrated while acknowledging that an international tribunal is a more suitable venue to try the senior leaders of the Syrian government. As universal jurisdiction trials remain at the forefront, the trial in Koblenz teaches important lessons as to how to conduct such proceedings, including sufficient public outreach, meaningful inclusion of victims, and clear policies on the selection of witnesses vs. defendants. As more structural investigations move forward in other European States, such as Sweden and France, war crimes units in these countries should take heed of these lessons to maximize the impact of their efforts.