This month, a Dutch court will consider charges against a Syrian man accused of committing war crimes and crimes against humanity during the Syrian civil war.

The trial, which is set to begin on Nov. 30, is the latest in a series of cases brought in European national courts seeking to hold alleged perpetrators accountable for grave crimes committed in Syria. While such prosecutions have proven successful in Germany, this is the first time a member of an organization linked to the Assad regime will face charges in the Netherlands. If successful, the case could set important legal precedents for future cases in the Netherlands and beyond, and showcase how courts can increase access to justice and victim participation.

From the 1982 Hama Massacre to the Arab Spring: An Assad Family Affair

When the Arab Spring revolutions ignited Tunisia in December 2010 and then spread across the Middle East and North Africa, the president of Syria, Bashar al-Assad, led an authoritarian regime that stretched back to his father, Hafez al-Assad, who seized power in a 1971 coup. The Assad family built, and maintain, their regime through violence, terror, and fear. Before 2011, the Assads had waged military campaigns against entire towns and cities. In 1982, Hafez and his brother Rifat al-Assad razed the Syrian city of Hama, a massacre that killed tens of thousands of people, under the guise of combating terrorism and quelling a Sunni rebellion.

Yet, from the moment the regime brutally cracked down on the pro-democracy demonstrations that began in Syria in early 2011, the scale of horrors shocked the world. It started with violent responses to peaceful protests and the ensuing detentions, and then the torture of detained protesters. It has since included the use of chemical weapons and indiscriminate barrel bombs, attacks on hospitals, enforced disappearances, and other atrocity crimes. Half a million people have died in the conflict, according to some estimates, including more than 25,000 children, and more than 11 million people have had to flee their homes as internally displaced people or refugees in neighboring countries and across the world.

Prosecuting Syrian War Criminals in European Courts

For years, political blockades and vetoes from Russia and China frustrated the legal response to these horrors at the United Nations Security Council, where coalitions of States attempted to refer the situation to the International Criminal Court. However, less than a year before the 10-year anniversary of the 2011 revolution, the first criminal trial against a Syrian regime official finally kicked off in Germany in April 2020. Twenty months later, in January 2022, the Higher Regional Court in Koblenz found the main defendant in that pioneering case, Anwar Raslan, guilty of participating in crimes against humanity orchestrated and executed by the Assad regime (listen to a podcast series that followed the trial here; available in English and in Arabic). Raslan, a former colonel in the Syrian General Intelligence Services, was the head of interrogation at detention center Branch 251, also known as the al-Khatib Branch, in Damascus. He was sentenced to life imprisonment.

The Koblenz decision marked the start of a number of cases that are reaching the final stages of investigation, triggering high-level arrest warrants, and proceeding to trial. With the Syrian justice system still lacking genuine fair trial standards and with Russia and China still blocking the international avenues for accountability in the Security Council, victims have turned to foreign national courts as avenues for redress. Germany is the jurisdiction that has shown the strongest political will and dedication to playing its part in an international effort to deliver some measure of justice for Syrians survivors and victim families. The lead prosecutor in the trial in Koblenz said in his closing statement: “We in Germany owe this to the victims of crimes under international law.”

An additional trial in Berlin has led to a conviction and a life sentence. Another trial is underway in Frankfurt, and authorities are making additional arrests. One of these came as a result of a remarkable civil society effort in the case of the Tadamon massacre, a brutal 2013 execution of 41 civilians by a notorious militia, which was recorded on video and later leaked by a whistleblower.

Following Germany’s lead, investigations and prosecutions are also moving forward in Sweden, Austria, Switzerland, and France, where magistrates most notably issued an arrest warrant for Assad himself on Nov. 15, 2023. The warrants against the Syrian leader, his brother Maher al-Assad, and two high-ranking officials of Syria’s chemical weapons program accuse them of complicity in crimes against humanity and complicity in war crimes for the chemical weapons attacks on Eastern Ghouta and Douma in August 2013. The French magistrates’ decision to call for the Assad’s arrest marks a potentially groundbreaking development in international law as a whole, as it shows that nobody is above the law, not even foreign heads of state in national courts.

Just one day after this remarkable development in France, on Nov. 16, the International Court of Justice ordered Syria to immediately take all measures to prevent any torture and ensure its officials do not commit any acts of torture. This provisional measures order came a month after the initial hearing in a case at the “World Court” that the governments of the Netherlands and Canada brought against Syria for alleged violations of the U.N. Torture Convention, which Syria joined in 2004. (Listen to another podcast series, which puts all these puzzle pieces together (The Syria Trials), here; also available in English and in Arabic)

A New Case in the Netherlands

The latest addition to this growing list of concrete legal outcomes is the first regime-related investigation going to trial in the Netherlands. This is partially yet another result of the tireless work of Syrian and international civil society organizations like The Nuhanovic Foundation (where we work), which have collected and analyzed information to help prosecutors bring cases in national courts.

The international crimes unit of the Dutch police arrested the now-35-year old Syrian man, referred to in court proceedings as Mustafa A. in the city of Kerkrade last May. He is accused of crimes against humanity and war crimes, as well as participating in Liwa al Quds, a pro Assad militia from the Aleppo region, which the regime armed and financed to support its brutal response to the 2011 revolution. More specifically, the prosecutor accuses the defendant of involvement in the 2013 arrest, abuse, and torture of two civilians at detention centers of the notorious Syrian Air Force Intelligence Service.

The arrest made headlines in the Netherlands and it is groundbreaking both for an innovative approach to victim engagement and for the legal precedents it could set.

Increasing Access to Justice and Victim Participation 

The case offers a concrete illustration of the significant role civil society, especially Syrian groups, have been playing in chasing justice and accountability for Syria.  For years these groups have collaborated with the Netherlands prosecutor and international crimes unit of the Dutch police. In this case, The Nuhanovic Foundation and the Syrian Center for Media and Freedom of Expression (SCM) have supported witnesses and a victim of the alleged crimes by facilitating legal and logistical aid, particularly during what can be an emotionally distressing experience of attending court proceedings or offering testimony. When trials take place far from home and in a foreign legal system, it is imperative that resources are allocated to make witness and victim participation a reality.

To that end, the Dutch authorities have undertaken commendable efforts to provide simultaneous in-court translation from Dutch to Arabic and vice versa to those attending the trial in the public gallery. This seemingly simple, yet practical, solution offers increased access to justice for trial visitors who do not understand the local language and cannot be taken for granted. While the trial in Koblenz, Germany, was otherwise positive the court prohibited simultaneous interpretation for visitors observing the trial, which meant that many Syrians who attended in the public gallery were unable to follow the proceedings in their native language.

Not everyone who has an interest in the case has the ability to attend or would feel safe doing so in person. Here, too, the court is setting a positive example for other jurisdictions hosting international crimes trials, as interested parties will have the opportunity to apply to the court to receive a web link for a live stream of the proceedings. Recognizing the significance of the case and the need for a degree of Syrian ownership of the proceedings, the Dutch authorities seem to be choosing a practical approach to answering to the needs and sensitivities of the affected community.

Potential Legal Precedents

This case is also significant because it is the first time that a member of an organization linked to the Assad regime faces accusations in the Netherlands. In recent years, Dutch courts have heard several Syria-related cases against members of organizations opposing the regime such as the so-called Islamic State (ISIS or Daesh), Jabhat al-Nusra and Ahrar al-Sham. However, the Syrian community in the Netherlands have told us that an unsettling number of individuals who fought for pro-Assad militias in Syria, including members of Liwa al Quds, are now residing on Dutch soil. Credible reports indicate that there could be as many as 50 and 100 such individuals in the Netherlands. Pursuing cases against groups and individuals that supported the Assad regime, which committed 90 percent of the civilian casualties in Syria since the 2011 revolution, is essential to the rule of law and to holding alleged perpetrators to account.

What is more, a potential conviction could set important legal foundations for future cases. This is the first time the Dutch prosecutor has alleged “participation in an organization that aims at committing international crimes” in relation to Liwa al Quds. The court can only find this participation if there is sufficient evidence to show that the accused was indeed a member of a group that aimed at and perpetrated international crimes, such as war crimes.

The legal test also prescribes that the accused must have had a share in, or provided support for, conduct aimed at or directly related to achieving the group’s violent objective. Mere sympathizing with such a group is insufficient. A conviction including the participation element would not only allow for a higher sentence, but also potentially subject other members of Liwa al Quds and similar groups to liability.

To exercise the jurisdiction and be able to start an investigation in cases like these where neither suspect nor perpetrator are Dutch (universal jurisdiction), the Dutch prosecutor requires a suspect to be on Dutch territory. If the prosecutor can obtain a conviction, this case may provide a template for similar investigations, arrests, and cases against other Assad henchmen who are in the Netherlands, but who have so far evaded arrest.

While some legal impacts of the case are specific to the Dutch criminal law framework, the accusations of crimes against humanity offer broader implications for the many other cases developing in mostly European national courts. As with the Koblenz trial in Germany, to prove the charge of crimes against humanity (a widespread or systematic attack on a civilian population) the prosecutors in The Hague must present evidence regarding the overall crimes committed by the Syrian regime against civilians, in the context of which they argue the defendant’s individual actions took place. This enlarges the context which the court must consider and requires the prosecutor to provide greater detail and depth than in a usual war crimes case.

As such, the trial, and the court’s decision, will be about more than just a single defendant’s actions. It will have to make a finding on the regime’s alleged criminality itself, thus contributing to a growing dossier of evidence and legal analysis which could prove instructive for other investigators, prosecutors, and courts dealing with similar cases. The case also adds to a broader effort on the national, regional, and international level to legally document and archive the atrocity crimes committed by the Syrian regime.

At The Hague District Court and Beyond

The trial hearing will take place on Nov. 30 and Dec. 4, 2023. During the hearing, a panel of three judges will review the case file presented to the judges by the prosecutors. The hearing provides the judges an opportunity to ask questions that arise from their case file review. They will give the victim, who joined the case as an official party to the proceedings, the time and space to address them, state his formal case for damages and, more importantly, recount his experience and express his views on the case and its larger context. Independent of the eventual court decision, this type of official recognition of harm is critical to victims.

As a pre-trial judge has already reviewed and assessed the vast majority of evidence and witness testimony in the case file, the hearing will likely only take a day or two, as is general procedure in the Netherlands. While it is certainly possible, it is rather unusual for Dutch criminal courts to hear additional witnesses during this trial stage. The court usually renders its judgment two weeks after the trial ends. In complex cases, however, the court may request additional time to deliver its decision.

While the trial’s outcome remains uncertain, cases like these carry a strong message and bolster similar efforts in other countries. As Assad attempts to normalize political relationshipssuccessfully to a certain extent, at least in the region – the growing dossier of court decisions serves as a reminder that the world will not look away or forget the regime’s brutality. Now that the legal response to this atrocious violence is finally catching up, it becomes increasingly clear that impunity will not have the last word.

IMAGE: The Hague in the Netherlands (via Getty Images)