Today, a court in Koblenz, Germany convicted former Syrian state intelligence officer Anwar R. of crimes against humanity, making him the highest-ranking Syrian official to be held to account for the rampant torture and rights abuses perpetrated by the Assad regime. Many observers and practitioners are eager to glean guidance from the verdict for future universal jurisdiction cases seeking accountability for atrocities committed abroad, including in the context of Syria. Beyond the verdict, however, this trial should also serve as a reminder of a key shortcoming that commentators have pinpointed throughout the Koblenz trial, and which may threaten future attempts to bring human rights abusers to justice: the inadequacy of witness protection measures in human rights litigation.
In the battle against impunity, the availability of witness protections is often the deciding factor for victims and witnesses weighing whether to come forward. In the Koblenz trial, despite significant security concerns – including the leaking of witness names to the press, witness testimonies on fears of reprisals, and in one case, the physical intimidation of family members by Syrian intelligence officers – the court barely used any of the variety of witness protection measures available under German criminal procedure law. Such measures include video testimony from a remote location and witness anonymity, potentially including alterations to physical appearance to avoid identification. In December 2021, the plaintiffs’ lawyers in the Koblenz trial criticized the court for its failure to adequately protect witnesses, noting that “other trials will have to deal with these same challenges, which is why it is important to learn from this one.”
Taking stock of the protections available to witnesses across jurisdictions is vital at this juncture, especially as Germany and other countries continue to take on universal jurisdiction cases for serious crimes under international law. Protecting witnesses against intimidation and reprisals is not only instrumental to effective and sustainable human rights litigation, it is required under international human rights law. As the Special Rapporteur on the independence of judges and lawyers has clarified, “[w]itness protection is not a favour granted to the witness but a duty of States under international law,” including pursuant to international human rights treaties and jurisprudence. Witness protection measures must be adequately tailored to the “particular capacity and needs” of the individual – with sensitivity to their gender, their personal circumstances, and the nature of the underlying crimes – and evaluated for effectiveness over time.
In the Koblenz trial, there were plainly shortcomings in the minimal procedural safeguards adopted. As outlined by the Open Society Justice Initiative in March 2021, the human costs of German courts’ reluctance to allow witnesses to testify anonymously – purportedly out of fear that it would weaken their credibility – have been high, particularly for witnesses and their families living in Syria, who have been left on their own, vulnerable to reprisals. The Open Society Justice Initiative called on States to do more to adequately protect witnesses, including in similar universal jurisdiction cases arising out of the Syrian conflict. Nevertheless, and despite the decision of many witnesses to withdraw, the Koblenz court continued to neglect the breadth of witness protections at its disposal throughout the trial.
In the international context, the International Criminal Court and other tribunals offer a wealth of lessons learned for better protecting witnesses while also preserving the fundamental rights of the defendant. Domestic courts adjudicating universal jurisdiction crimes can also glean key guidance from the approaches taken by other national jurisdictions confronted with similar problems.
Lessons from W. v. Thomas
One recent case that may shed light on the issue of witness protection is Jane W. et al. v. Thomas, in which the U.S. District Court for Eastern Pennsylvania issued a momentous decision last September. The court granted summary judgment in favor of four anonymous Liberian survivors of the 1990 St. Peter’s Lutheran Church Massacre, thereby bringing newfound hope to victims of human rights abuses committed abroad. The facts of the case – covered here – are shocking: plaintiffs represent survivors and decedents of one of the deadliest massacres in Liberia’s history, in which the Armed Forces of Liberia (AFL) slaughtered approximately 600 armed civilians sheltering in a Red Cross-designated church compound. For over 30 years, these survivors and descendants were denied justice – in part because of the dangers of bearing witness.
As with the situation in Syria and countless other settings of mass atrocity crimes, domestic accountability efforts in Liberia proved futile. To date, the Liberian government has failed to prosecute a single case involving the war crimes and human rights violations stemming from the country’s 14 years of civil war. One of the root causes for this entrenched impunity for wartime atrocities in Liberia (and in post-conflict settings the world over) is the risk of retaliation and violent reprisals. In Liberia, the alleged perpetrators – including individuals recommended for prosecution by the Liberian Truth and Reconciliation Commission – enjoy positions of power, including in the Liberian legislature, executive, judiciary, and law enforcement. These individuals have repeatedly used their political influence to obstruct accountability efforts in Liberia and beyond. To date, Liberian plaintiffs, witnesses, and NGOs supporting analogous cases brought in the United States, Switzerland, and Belgium have faced verbal and physical threats.
In Thomas, which was initiated in 2018, the threat posed to plaintiffs, witnesses, and other participants was exacerbated by the defendant’s return to Liberia sometime after August 2019, where he mobilized soldiers formerly under his command to harass and intimidate suspected participants in the case. This should come as no surprise: the severity of reprisals is often correlated with the gravity of the underlying crimes being alleged, and the allegations of torture, extrajudicial and attempted extrajudicial killings, war crimes, and crimes against humanity in Thomas were particularly serious.
The availability of protective measures played a vital role in breaking this pattern of impunity, ultimately defending the safety of Liberian plaintiffs and witnesses while also respecting due process concerns and ensuring public access to a robust historical record of evidence. (Note: I previously served as one of the plaintiffs’ counsel during the summary judgment proceedings.) Protecting the security and safety of individuals involved in the case was essential to the participants, and necessary for the case to move forward. Indeed, for some, participation in the proceedings was contingent on anonymity.
In Thomas, the District Court issued two protective orders – one at the motion to dismiss stage, one at summary judgment – instituting procedural safeguards that struck the difficult balance between witness security concerns and any resultant prejudice to the public or defendant.
At the motion to dismiss stage, the court granted a protective order permitting the plaintiffs to proceed anonymously, despite the defendant’s opposition. The court applied a balancing test, finding that the plaintiffs’ justified and reasonable fear of retaliation outweighed the factors supporting disclosure of their identities, including the public’s interest in open litigation.
At the summary judgment stage, the court granted a supplemental protective order permitting, among other measures, the non-disclosure of certain plaintiffs’ and witnesses’ identities from the defendant and the public. Specifically, based on the abundance of record evidence establishing the serious threats posed to the Liberian plaintiffs’ and witnesses’ safety, the court granted leave for four plaintiffs and four witnesses – all Liberian citizens living in Liberia – to file sworn declarations under pseudonyms, with all personally identifiable information redacted. The court determined that only these redacted versions of the sworn statements were to be disclosed to the defendant and filed on the public docket. The defendant did not take a position on these protective measures.
When granting the supplemental protective order, the court recognized the direct correlation between the ongoing threat of retaliation and the ability of individuals to participate in the proceedings. The court reasoned: “Plaintiffs have already established the ambient threat of retaliation for speaking out against human rights abuses during the First Civil War; those fears justify the very existence of this legal action. As a result, this Court will grant the new Protective Order.” In other words, the court recognized that, without sufficient protective measures, including anonymity from the defendant, the individuals likely would not have brought suit in the first place.
Striking the Balance in Koblenz and Beyond
This case study underlines the crucial, often-overlooked role that protective safeguards and security measures play in the pursuit of international justice for atrocity crimes. Of course, extreme care and diligent balancing of countervailing interests, including the rights of the accused, are needed before permitting anonymity. Further, there may be limitations to the applicability of Thomas given its . But the defendant’s right to confrontation in either civil or criminal proceedings is not absolute. Certain limitations including the non-disclosure of identities may therefore be permissible depending on the gravity of the safety concerns. In the Liberia case, although certain individual identities remain confidential, the continued use of pseudonyms and the availability of the redacted versions of the sworn declarations still enables access to hundreds of pages of record evidence cataloging the alleged events of the Lutheran Church Massacre, including the widespread and systematic attack against civilians based on their purported membership in particular ethnic groups in the weeks leading up to the slaughter.
It is unfortunate that the court in Koblenz did not take further measures to protect the identities of witnesses throughout the trial. Dozens of witnesses were still incredibly courageous, and willing to take the risk to testify against Anwar R. without additional procedural safeguards, thereby enabling the case to proceed to today’s conviction. But they need not have faced these risks, and only time will tell how they and their families will continue to be impacted.
Looking forward, by more proactively considering ways to tailor protective measures to specific identified security risks, courts and tribunals may be better able to protect victims and witnesses of grave crimes, mitigate the physical and psychological toll often posed by their participation, and encourage more witnesses to testify in future universal jurisdiction cases.
(The views expressed in this post are solely those of the author and do not necessarily reflect those of any organizations with which she may be affiliated.)