The first trial worldwide on state torture in Syria is expected to start in Germany in 2020. At the Higher Regional Court in Koblenz, the German Federal Public Prosecutor filed charges against Anwar R. and Eyad A., two former officials of President Bashar al-Assad's security apparatus.
ECCHR supports Syrian torture survivors who are joint plaintiffs in the proceedings. In the course of the German Federal Prosecutor's investigations, the Federal Criminal Police Office heard testimony from 14 Syrian witnesses, seven of whom are joint plaintiffs in the case.
Anwar R. is suspected to be complicit in the torture of at least 4,000 people between 2011 and 2012 in the General Intelligence Al-Khatib Branch in Damascus. This torture resulted in the death of 58 people and included cases of sexual violence. Anwar R.'s colleague, Eyad A., has been charged with torture in at least thirty cases.
"This process in Germany gives hope, even if everything takes a long time and nothing happens tomorrow, or even the day after tomorrow. The fact that it continues at all gives us as survivors hope for justice. I am ready to testify," said a Syrian who was tortured in the Al-Khatib detention facility.
Testimony from witnesses supported by ECCHR, and the organization's research contributed to the German Federal Supreme Court issuing arrest warrants for Anwar R. and Eyad A. in February 2018.
The trial in Koblenz is also the result of a series of criminal complaints regarding torture in Syria, which ECCHR and nearly 50 Syrian torture survivors, relatives, activists, and lawyers have filed since 2016 in Germany, Austria and Sweden.
In June 2018, the German Federal Court of Justice (Bundesgerichtshof) an international arrest warrant for Jamil Hassan, who was head of the Syrian Air Force Intelligence until July 2019. ECCHR and its Syrian partners' submissions to the Federal Prosecutor played an important role in that case as well.
Q&A on the legal background of the case
Currently, there is absolute impunity in Syria, and the Assad regime is neither interested in investigating the cases of torture, nor in bringing the perpetrators and the responsible officials before a court.
Through adoption of the Rome Statute, and establishment of the International Criminal Court (ICC) in 2002, international criminal justice was enabled to prosecute war crimes, crimes against humanity, and genocide before the court in Den Haag. However, this option is currently not available for the crimes committed in Syria. The ICC is not authorized to start an investigation into the crimes, as Syria is not a party to the Rome Statute. At the same time, a referral to the court by the UN Security Council is currently blocked by Russia and China.
However, the Independent International Commission of Inquiry on the Syrian Arab Republic (UN CoI Syria) was established in August 2011 by the Human Rights Council through resolution S-17/1 adopted at its 17th special session with a mandate to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic.
On one hand, UN CoI Syria’s investigators have been gathering evidence against all parties to the conflict for more than six years. They also work in the neighboring countries of Lebanon, Jordan, Iraq and Turkey. On the other hand, recently established "International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011" (IIIM) is tasked with collecting, preserving, and consolidating evidence, while also preparing strong evidentiary files that can be used by prosecutors for independent criminal proceedings. The information gathered by the corroboration of the UN-Commission and the UN-Mechanism is therefore essential for future legal proceedings in national, regional, or international courts. The principle of universal jurisdiction enables domestic courts to initiate judicial proceedings and to hold perpetrators of all ranks accountable. In Germany and other European Union (EU) Member States, investigations have been brought in this regard.
Serious crimes concern international society as a whole, and must be responded to. For this reason, it is a duty of the national jurisdictions of third party states, like Germany, to investigate the serious crimes committed in Syria and to prosecute the responsible officials.
The German Code against International Crimes (CCAIL), which entered into force in 2002, enables German courts to prosecute international crimes committed in Syria. By adopting the CCAIL, Germany adapted its national criminal law to the standards set by International Criminal Law, and in particular by the Rome Statute of the ICC.
The CCAIL affirms the principle of universal jurisdiction, which constitutes the legal basis for prosecution of genocide, crimes against humanity, and war crimes by German courts. According to the CCAIL, the Federal Public Prosecutor can investigate international crimes, even if they were committed outside of Germany. This means that jurisdiction of the courts is independent from the location of the crime as well as from its victim or perpetrator.
Since 2011, the Federal Public Prosecutor has been conducting several person-related investigations as well as a general investigation (Strukturverfahren), which addresses the overall situation in the country and goes beyond individual cases.
A criminal complaint is often the first step to initiate an investigation by the authorities of a third country. The complaints should make the Public Prosecutor aware of a certain situations or acts which from the perspective of the complainants meet criteria of a criminal offence.
Within the general investigation of the situation in Syria, the Federal Public Prosecutor has already gathered and secured evidence. However, this investigation mostly targeted the perpetrators of lower ranks. The criminal complaints submitted by ECCHR should persuade the Federal Public Prosecutor to target high-level officials of the Syrian Intelligence Service, to investigate their crimes and to issue international arrest warrants against them.
In June 2018, it was finally time: German authorities issued an international arrest warrant for Jamil Hassan, who was head of the Syrian Air Force Intelligence Service until July 2019.
A criminal complaint presents an avenue in the German legal system to report an assessment of facts in form of a crime or multiple crimes. It is the task of the investigative authorities to determine the suspect responsible.
The criminal complaints submitted by Syrian torture survivors as well as ECCHR, SCM and SCLRS address the policy of systematic torture in prisons of the Syrian Military Intelligence Service. According to the Code of Crimes against International Law (CCAIL), systematic torture is to be qualified as a war crime and a crime against humanity.
For example, the first criminal complaint lists five officials known by name and further unknown officials of the Syrian Military Intelligence Service and the Syrian government as those who bear responsibility for the addressed crimes.
The primary goal of submitting criminal complaints is to initiate further person-related investigations, which will legally address the described crimes in a dignified way.
The investigations initiated by the Federal Public Prosecutor in 2011 were an important first step. Seven years later, however, it is time to take further steps: the German judiciary should not focus on low-rank perpetrators, but must investigate the acts of those officials who bear the actual responsibility for the crimes. Even though those officials are still in Syria, certain steps can be taken, e.g. by issuing international arrest warrants like the one for Jamil Hassan. To take these steps, the Federal Public Prosecutor and the Courts should be given additional resources by the state. There is a growing need for educated investigators and better protection for witnesses.
The criminal complaints are based on testimonies of women and men, who were imprisoned in different 'branches' (detention facilities) of the Syrian Military Intelligence Service in Damascus, and photographical evidence accompanied with metadata that was provided by the group around the former Syrian military police employee, "Caesar."
In addition to the testimonies of the victims, photographical evidence, and metadata, numerous public documents and reports have also been used as sources for the criminal complaints. Many of the crimes committed in Syria, including the crimes of torture, have been well documented through the years by international and Syrian human rights NGOs.
Testimonies of the survivors and witnesses, official documents, as well as pictures of the victims and sites of crime, considered as a whole, demonstrate that the Syrian regime is guilty of crimes against humanity and war crimes.
In order to achieve accountability for the systematic and widespread human rights violations in Syria further legal interventions have to follow – against the Assad government, against transnational corporations, against third states involved in military intervention in the conflict as well as against organizations such as IS.
Without justice for those affected by the crimes committed in Syria, there is no prospect of a political solution. Justice for human rights crimes are essential for affected individuals. However, accountability has contributed to the prevention of other conflicts and for the development of the rule of law as well as democratic principles after the end of war in Syria.
Further fields of possible legal interventions may be exports of conventional weapons, other armaments or surveillance technologies to the conflict parties, as well as targeted sexual violence against women and the use of chemical weapons in Syria.