Justice Prevails over Realpolitik at Koblenz: International Law offers a Rare Glimmer of Hope after a Decade of Disappointments for Syrians

Justice Prevails over Realpolitik at Koblenz: International Law offers a Rare Glimmer of Hope after a Decade of Disappointments for Syrians

[Dr Caroline Sweeney is a lecturer in International Human Rights Law with a particular research interest in the intersection between international law and international politics in Syria. She has published on accountability for international crimes committed in Syria since 2011.]

On 13 January 2022, the Higher Regional Court in Koblenz, Germany convicted Anwar Raslan, a former Syrian intelligence officer, of the crimes against humanity of killing, torture, severe deprivation of liberty, rape and sexual assault, in combination with 27 counts of murder, 25 counts of dangerous bodily injury, particularly serious rape, two counts of sexual assault, 14 counts of deprivation of liberty for over a week, two counts of hostage-taking and three counts of sexual abuse of prisoners. The Court sentenced Raslan to life imprisonment for his role as a co-perpetrator of these crimes. Raslan can apply for parole after 15 years despite the prosecution’s efforts to eliminate this possibility in light of the ‘exceptional gravity’ of his guilt.

The verdict is significant for several reasons. It represents the first conviction of a mid-ranking former Syrian official for international crimes committed in Syria since 2011. Whilst the same court convicted Eyad al-Gharib of aiding and abetting crimes against humanity in 2021, al-Gharib was a very minor figure in  Syria’s intelligence apparatus. In contrast, from January 2011 to December 2012, Raslan served as head of investigations at Branch 251 of Syria’s General Intelligence Directorate, one of the Assad regime’s most infamous torture centres. Notably, the trial confirmed that Raslan perpetrated the impugned acts pursuant to a state-sponsored policy aimed at undermining support for legitimate pro-democracy protests and opposition actors. In this regard, it serves as a timely reminder that the Assad regime cannot be readmitted into the international community simply because it prevailed on the battlefield with the help of its allies, Russia, Iran and Hezbollah. On the contrary, it should be held accountable for the atrocities that enabled its military triumph. This symbolism is important in light of recent moves by Jordan, Saudi Arabia, the United Arab Emirates, Qatar and Egypt to reintegrate the Assad regime into the Arab world (see here, here and here). Even the US recently authorised the transfer of natural gas from Egypt to Lebanon via a Syrian pipeline. Whereas the decision is likely aimed at minimising Iran and Hezbollah’s capacity to capitalise upon Lebanon’s economic crisis, it nonetheless has the unintended side-effect of benefitting the Assad regime both symbolically and financially. 

The Raslan verdict is also notable in that it represents a rare and successful deployment of the customary international law principle of universal jurisdiction to fight impunity for international crimes. Germany played a key role in this regard both by establishing specialist war crimes units and by enshrining a pure form of the principle in its Code of Crimes against International Law (CCAIL). This enables Germany to prosecute core international crimes regardless of where they were committed and even absent a jurisdictional link to the perpetrator or the victim. That said, the prosecutor may use their discretion to refrain from investigating if the suspect is not present, or expected to be present, in Germany. This did not pose a barrier in the Raslan case as the accused was resident in Germany. Indeed, Germany is particularly well placed to prosecute international crimes committed in Syria given that it is home to approximately 700,000 Syrian refugees. This affords Germany access to a large pool of potential witnesses as well as some potential perpetrators.  

Significantly, the Raslan verdict reinforces the argument that functional immunity, namely, the immunity that state officials enjoy from prosecution before foreign courts for acts performed in an official capacity, does not extend to acts that constitute international crimes. This interpretation is supported by the International Law Commission, however is not universally accepted. Another remarkable feature of the trial was the evidentiary contribution of UN-mandated mechanisms. Three reports prepared by the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) were read into evidence. The COI was established by the UN Human Rights Council in August 2011 to document violations of international law in Syria. The prosecution almost certainly also received assistance from the International, Impartial and Independent Mechanism, which was established by the UN General Assembly in 2016 to assist in the investigation and prosecution of individuals responsible for international crimes committed in Syria since March 2011. Reminiscent of the Third Reich, the Assad regime also helped the prosecution by maintaining a meticulous photographic record of the victims who died in its detention facilities. Thousands of these photos were smuggled out of Syria by a defector code-named Caesar. They formed a key component of the prosecution’s case. 

One ground-breaking aspect of the trial was the enormous contribution of civil society actors, working both inside (for example, Caesar Files Group) and outside (for example, ECCHR and SJAC) of Syria. These actors collected and documented evidence, provided legal representation for victims, and recorded the proceedings in the absence of an official record (see here and here). ECCHR partner lawyers also successfully petitioned the court to include sexual violence on the indictment as a crime against humanity. Raslan’s conviction  for this crime represents a rare judicial acknowledgment of the state-sanctioned weaponization of sexual violence in conflict settings for strategic ends. Unfortunately, ECCHR partner lawyers failed in their attempt to also have enforced disappearances added to the indictment as a crime against humanity, most likely due to evidentiary difficulties in proving its constituent elements. Notably, the definition of enforced disappearance as a crime against humanity under the CCAIL includes an additional three elements, which are omitted from the definition of enforced disappearance under Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED). These elements are very difficult to prove. One requires proof that an inquiry was lodged with the relevant authorities concerning the fate and whereabouts of the victim. This type of requirement is incongruous in a context such as Syria where enforced disappearances form part of a state-sponsored strategy to repress regime opponents and spread terror amongst the population, and where official inquiries are often not only redundant but also dangerous. The omission of enforced disappearances as a crime against humanity caused much disappointment for the families of the approximately 102,000 individuals who have been ‘disappeared’ in Syria since 2011. The ECCHR has called upon Germany to update the definition of enforced disappearance as a crime against humanity under the CCAIL to ensure correspondence with CED. 

The Raslan trial had additional shortcomings, which have already been comprehensively discussed (see here, here and here). One such shortcoming was inadequate witness protection measures (see here and here), a particularly egregious omission given the substantial risk of regime reprisals against witnesses and their family members, especially those based in Syria. The fact that the German authorities first identified Raslan as a person of interest when he complained to them that he was being followed by Syrian intelligence officers, a not unlikely scenario given that Raslan was a defector, is itself indicative of the regime’s far-reaching tentacles. Significantly, the Victims’ Directive (EU Directive 2012/29/EU) obliges EU member states to implement measures to protect victims and their families from further victimisation, intimidation and retaliation. 

Other significant shortcomings included the omission of an effective outreach programme to engage affected communities, and problems concerning accessibility due to the Court’s refusal to maintain an official written transcript or provide Arabic translation for Syrian observers in the public gallery and non-accredited Arabic-language speaking journalists. The Court also refused to allow the proceedings to be audio-recorded asserting that it would compromise witnesses; however, this argument has been challenged. The Court even refused to audio-record the closing arguments and verdict as it didn’t consider the trial to be of paramount significance for Germany’s contemporary history, a statutory requirement for the audio-recording of trials. This position is difficult to justify considering (a) the large number of Syrian refugees living in Germany, and (b) the trial’s contribution to the evolution of the universal jurisdiction principle and the global fight against impunity for international crimes. The trials against Raslan and al-Gharib were also criticised because they concerned low-mid ranking defectors as opposed to senior regime elites. Al-Gharib’s prosecution was particularly controversial not only because of his lower rank, but also because most of the evidence against him derived from self-incriminating statements, which he asserts were made ‘as a witness’ not a suspect. Some argue that al-Gharib’s prosecution was counter-productive as it will deter other low-level defectors from cooperating as insider witnesses in future cases. 

The groundwork laid at, and lessons learned from, the Koblenz trials should assist and inform future prosecutions of international crimes committed in Syria. Indeed, in July 2021 the German Federal Prosecutor General filed an indictment against a Syrian government-affiliated doctor, Alaa M., for alleged crimes against humanity committed in Syria. Indeed, since 2016 criminal complaints concerning acts of torture perpetrated in Syria have been filed by victims in Germany, Austria, Sweden and Norway. In June 2018, Germany’s Federal Court of Justice issued an arrest warrant for Jamil Hassan, the former head of Syria’s dreaded Air Force Intelligence. A few months later, French judges also issued an arrest warrant for Hassan as well as two other high-ranking regime officials: Ali Mamlouk, Director of the National Security Bureau, and Abdel Salam Mahmoud, Head of Air Force Intelligence’s Investigative Branch at Mezzeh military airport. These arrest warrants may be enforced internationally and send an important signal that certain parts of the world are a no-go area for regime elites. In addition, the Netherlands and Canada have invoked Syria’s responsibility for violations of the Convention Against Torture and requested the Assad government to enter into negotiations. These proceedings could potentially lead to a hearing before the International Court of Justice. Whilst not criminal in nature, they reinforce the message that the Assad regime is a gross violator of international norms, which must be held to account. They also help to demonstrate that Syria is not safe for Syrian returnees, in particular regime opponents (see here and here). This is important given recent moves in certain Middle Eastern and European states toward forcibly returning Syrian refugees, including through the withdrawal of resident permits for refugees from Damascus in Denmark and the reported summary deportation of Syrians from Lebanon.

To a limited extent, the Raslan verdict helps to restore faith in the positive role that international law can play in the pursuit of justice. Unfortunately, for much of Syria’s history, this has not been the case. Since 2011, Russia and China have repeatedly exploited their veto power under the UN Charter to prevent the UN Security Council from responding effectively to the Syrian crisis. They famously thwarted an attempted referral of the situation in Syria to the International Criminal Court in 2014. Despite being widely criticised, their vetoes were hardly surprising given that Russia is a core ally of the Assad regime whose military has since been implicated in the commission of international crimes in Syria, and bearing in mind China’s opposition to any dilution of the sovereignty principle. The US in turn has rendered its support for referrals conditional upon the inclusion of clauses, which ensure that perpetrators from states that aren’t a party to the Rome Statute, including the US, are excluded from the Court’s jurisdictional reach. 

Given that international law is weighted in favour of the world’s most powerful actors and often depends upon their connivance for its enforcement, the Raslan verdict is all the more significant as it represents a rare victory for victims. Ultimately, it was the victims who secured the conviction by smuggling evidence out of Syria, acting as joint plaintiffs and reliving unimaginable horrors in front of their former tormentor, all at considerable risk to their own welfare and that of their families. However, their victory is bittersweet. As victims’ associations stressed:

our satisfaction at this verdict is overshadowed by our long and continuing suffering as we seek our missing loved ones and demand justice for the crimes against us. This important conviction is just a first step on the long and arduous path toward justice.

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Courts & Tribunals, Europe, Featured, General, International Criminal Law, Middle East, Public International Law
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