On Thursday, the Higher Regional Court of Koblenz, Germany, convicted a former Syrian secret intelligence officer for crimes against humanity and sentenced him to life imprisonment. The Court found the accused responsible as a co-perpetrator for the murder of 27 and for the deprivation of liberty and torture of more than 4,000 persons, all acts committed between April 2011 and September 2012 as part of a systematic and widespread attack against the civilian population in Syria. Already in February last year, the Koblenz Court had found a lower-ranking Syrian accused guilty of having aided, in 2011, in the commission of multiple acts of torture and imprisonment committed as part of that same systematic and widespread attack. In its first judgment, the Koblenz Court had established that from at least the end of April 2011, Syria’s security forces and, in particular, several of its intelligence services have been carrying out a campaign of killing, arbitrary detention and torture against actual or presumed members of a peaceful opposition movement to the Assad regime. The Court had further determined that this campaign was carried out pursuant to a policy to eliminate the rapidly growing peaceful protest and to intimidate the Syrian population to prevent possible future protests. This policy, the Court had found, was the policy of the State leadership of Syria, that is the government under President Bashar al-Assad. Apart from Germany, criminal proceedings for crimes under international law have been instituted in certain other countries, and perhaps most notably in Sweden. But to the best of my knowledge, the two Koblenz judgments were the first to reach a finding on crimes against humanity committed pursuant to policy of the Syrian government as a result of a criminal trial, and based on the taking and the evaluating of an extensive body of evidence. Both judgments were declared in open court and they are not yet final.
Arguably, Thursday’s judgment has been the most important instance to date of the application of Germany’s Code of Crime Against International Law. This Code, which came into force in 2002, contains a comprehensive codification of crimes under customary international law, and it allows Germany’s Federal Prosecutor to activate, where practically feasible, Germany’s universal jurisdiction over international crimes committed abroad. It is this jurisdictional power that enabled the international criminal law experts within Germany’s Federal Prosecutor’s Office to open investigations of a more general scope into crimes allegedly committed in Syria as early as September 2011. Germany’s Federal Prosecutor as well as Germany’s Federal Police Agency were thus prepared when, several years later, the accused persons arrived in Germany. Apart from the power of universal jurisdiction, the Koblenz proceedings were possible because the suspects did not enjoy immunity despite having acted in official capacity. In that context it bears recalling that just a month before the first Koblenz judgment, Germany’s Federal Court of Justice, in a landmark judgment, had confirmed the principle of the non-applicability of “functional immunity” in proceedings for war crimes or certain other crimes of concern to the international community as a whole, at least with respect to State officials in a subordinate position.
The two Koblenz judgments provide a measure of justice for Syria. Yet, it is no more than a small measure in view of the unspeakable pain that so many Syrian victims have been suffering and continue to suffer. Hence, it is to be hoped that national criminal proceedings in countries beyond Germany and Sweden will proceed, where already ongoing, and will be instituted, if necessary or useful, with the support of the International, Impartial and Independent Mechanism, which has been established by the UN General Assembly to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011. Not to forget the potential of a Security Council referral of the Syrian conflict to the International Criminal Court which could, if political will supported such an action, contribute much to the effort to achieve justice for Syria in a more comprehensive fashion.