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European cases to test the reach of prosecuting Syria war crimes

‘What we are doing is a message to the whole world: the time for impunity is over.’

Mohammed Badra/REUTERS
Blood covers the hands of an injured boy following airstrikes believed to have been carried out by forces loyal to Syrian President Bashar al-Assad in Damascus, February 2015. A key Syria war crimes trial is set to begin this week in Koblenz, Germany.

The most significant trial of Syria’s nine-year civil war is set to begin this week, but it won’t be held in The Hague, or organised by a regional tribunal. Instead, two members of President Bashar al-Assad’s regime will stand trial in Koblenz, a German city on the banks of the Rhine.

German prosecutors have charged Anwar Raslan and Eyad al-Gharib under the principle of universal jurisdiction, which allows them to bring cases involving war crimes, crimes against humanity, or genocide even when the actions occurred outside the country and were perpetrated by or against non-nationals.

Most countries recognise the concept, though Germany and Norway are the two European nations that interpret it most broadly. Countries such as France, Sweden, the United Kingdom, and Spain have adopted less sweeping versions.

For now, universal jurisdiction is one of the only judicial tools available to prosecutors because Syria isn’t a party to the Rome Statute, which governs the International Criminal Court; and because Russia has vetoed all UN Security Council attempts to refer Syrian-related matters to the ICC.

Syrian activists, international rights groups, and national prosecutors are now collaborating across Europe – including in France, Germany, the Netherlands, Norway, Spain, Sweden, and Switzerland – to leverage universal jurisdiction in prosecuting the most serious offenders of the Syrian conflict. Years of work have finally borne fruit, and Raslan and al-Gharib, charged with crimes against humanity, are set on Thursday to become the first high-ranking figures close to al-Assad’s government to face trial.

The two men were arrested in February 2019 in a joint operation by German and French police. Prosecutors allege that Raslan, who defected to the opposition in 2013, was director of a prison between 2011 and 2012 when 4,000 people were subjected to “systematic and brutal torture.” Al-Gharib is accused of reporting to Raslan, arresting protesters, and delivering them to the prison.

The New Humanitarian was not able to reach either of the men’s lawyers for comment, as their identities are not public.

“What we are doing is a message to the whole world: the time for impunity is over,” said Anwar al-Bunni, a Syrian rights lawyer and activist who works in partnership with the European Centre for Constitutional and Human Rights (ECCHR) in Berlin, which collected witness testimony that helped lead to the charges.

“What we are doing is a message to the whole world: the time for impunity is over.”

The journey so far

Perhaps the most famous case involving universal jurisdiction was the 1998 arrest in London of former Chilean president Augusto Pinochet, who had travelled to the United Kingdom for medical treatment and was arrested at the behest of a Spanish judge who sought to extradite him to Madrid in connection with allegations of genocide, torture, and kidnapping.

Authorities across Europe have used the same principle to look into atrocities committed in Syria since at least 2015, but at first the cases mostly involved low-level fighters, including members of the so-called Islamic State.

“[The early trials] were seen as relatively insignificant,” said Steve Kostas, senior litigation officer with the Open Society Justice Initiative (OSJI), which has submitted evidence to law enforcement in five countries in Europe. “Together with the absence of an ICC referral, [this] led to the concern that there would not be a meaningful justice response.”

Once it became clear that universal jurisdiction might be the only legal tool available, a new strategy began to take shape. The aim was to obtain arrest warrants against those bearing significant responsibility for Syrian atrocities who had served in the al-Assad government.

This involved a dual approach of searching for people with some authority who might be in Europe and can therefore be brought to trial, as well as pushing for warrants against absent senior regime members.

Organisations such as ECCHR, TRIAL International in Switzerland, the International Federation of Human Rights (FIDH) in Paris, and OSJI – which collect evidence, present it to government prosecutors, and ask them to file charges – are all involved in this effort.

Kostas says his London-based organisation, in partnership with Syrian and international groups, is currently working on 12 universal jurisdiction cases.

“We are aiming for high-level, responsible people,” said Patrick Kroker, head of the Syria Programme at ECCHR.

The strategy led ECCHR to file a criminal complaint in July 2017 against Jamil Hassan, former head of the Syrian Air Force Intelligence Service. In 2018, the German Federal Court of Justice followed up by issuing an arrest warrant for Hassan, accusing him of heading up a prison where arbitrary detention, torture, persecution, sexual violence, and humiliation have been widely used.

No German citizens are involved in the case, and Hassan lives in Syria, making his arrest unlikely.

But advocates say the outstanding warrant serves two important purposes. First, it sends a message that no one can act with impunity. Second, it makes travel difficult.

That was made clear when Hassan was admitted to a hospital in Beirut last year and Berlin asked the Lebanese authorities to extradite him. They didn’t, but Kroker said the action showed people with outstanding warrants against them that they can’t be sure they won’t someday be arrested.

The FIDH in Paris is also guiding prosecutors toward senior regime figures, but is much more restricted by French law. Under the universal jurisdiction principle as interpreted by France, the suspect must be in the country. But that country also has the option of using French criminal law, specifically the passive personality doctrine, which applies to crimes committed abroad against their own citizens.

In 2016, the FIDH used the French law to file a complaint against Hassan in connection with the disappearance of a brother and uncle of two Franco-Syrian nationals. The complaint alleges the men were arrested in 2013 and taken to the prison Hassan controlled. In 2018, French authorities issued an arrest warrant for Hassan in connection with the case.

Critics of this approach say issuing warrants against people who cannot be arrested anytime soon risks unrealistically raising the hopes of victims.

Kostas at the OSIJ said the strategy had been a good one but there was also a need to find “cases that would be seen as significant to Syrian groups and which could result in prosecutions of higher level perpetrators in the near term”. That meant searching for suspects currently in Europe, like Raslan and al-Gharib.

Looking forward

The hope is that if these early cases go well it will show that the evidence collected by Syrian activists and researchers, at great personal risk and cost, stands up in court and can support a larger criminal justice mechanism, says Kostas.

One man who says he was tortured under Raslan’s command in a Syrian government jail told TNH that the arrests had given him hope. While TNH could not independently confirm his account, brutal treatment in Syrian prisons has been widely documented and reported. “When I saw… [Raslan] was arrested, the hope came back that one day there will be justice for every Syrian,” the man said, speaking on condition of anonymity. “Maybe it starts small, with just one or two arrests, but I hope that later there will be justice for everyone.”

“Not since the Nazis has there been so much evidence.”

In some ways, war crimes in Syria have been easier to investigate than previous atrocities because of the extraordinary amount of high-quality evidence amassed. Throughout the conflict, the UN, human rights groups, and journalists have documented the repeated bombing of hospitals and civilian areas, the use of chemical weapons, and torture.

“Not since the Nazis has there been so much evidence,” said Stephen Rapp, a former US ambassador for war crimes who has also served as an advisor to the Commission for International Justice and Accountability (CIJA), which documents violations committed during the Syrian war and helps authorities build cases against perpetrators.

Most civilian deaths have been caused by the regime, but opposition groups, including IS, have also committed horrific violations.

IN DETAIL: The evidence

Hundreds of thousands of Syrians now live in Germany, Sweden, Austria, the Netherlands, and other European countries. Many have witnessed war crimes, and their statements form an important part of the complaints filed.

The conflict has also been one of the most well-documented of all time. Reels and reels of open source evidence show hospitals being bombed and victims dying of chemical weapons attacks. The images were shot on phone cameras and uploaded to YouTube, Facebook, and other platforms. It has to be verified by experts before it can be used as evidence, but the fact that it exists will certainly help in court.

There is also a vast amount of evidence linking high-ranking officials to the crimes. That’s mostly thanks to CIJA, which operates from an undisclosed location and has no website. The group has been extracting internal documents from government- and IS-run buildings since shortly after the war began.

“In order to hold high-ranking leaders responsible, you need to have evidence that links them to the crimes, when normally these leaders are nowhere near the crime scene. This is the kind of evidence that CIJA specialises in,” said Nerma Jelacic, the commission’s external relations officer.

And then there are the famous Caesar Files – the photographs and documents from a military photographer who defected and fled to Europe with a thumb drive filled with 53,000 photographs taken between May 2011 and August 2013. It shows over 6,000 corpses of detainees marked by torture, as well as vital internal documents.

“The sheer scale and weight of the evidence will make it extremely difficult to ignore these crimes,” said Balkees Jarrah, a senior attorney at Human Rights Watch.

There are around 5.6 million registered Syrian refugees, and more than one million have made it to Europe. That’s a potential wealth of witnesses, though many fear reprisals against their families back in Syria if they cooperate. Others are wary of European law enforcement.

Moreover, many Syrian asylum seekers and refugees aren’t aware of the ongoing investigations, said Balkees Jarrah, senior counsel in the International Justice Program at Human Rights Watch.

Her organisation also warns that prosecutorial capacity is a problem. Not all European countries have dedicated war crimes units, and those that do are overstretched; some are still looking for perpetrators who operated during the 1990s war in Bosnia and Herzegovina or during the genocide in Rwanda.

Kroker, the Syria programme leader with ECCHR in Berlin, said his biggest worry is that global leaders will be keen to restore relations with the Syrian government in the future, blocking future trials: “I am concerned that countries will normalise their relations with Syria and that reconstruction and political normalisation will take precedence, and justice will be sacrificed.”


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