In June 2018, it was announced that the Germany Federal Court of Justice (Bundesgerichtshof – BGH) had issued an arrest warrant against Jamil Hassan, head of the Syrian Air Force Intelligence Service. This measure is a milestone towards justice and accountability for all those affected by Assad's torture system, particularly the 24 Syrian torture survivors and activists whose testimonies contributed to the arrest warrant.
In November 2017, ECCHR together with nine Syrian women and men as well as the lawyers and activists Anwar al-Bunni (SCLSR) and Mazen Darwish (SCM) filed a criminal complaint concerning crimes against humanity and war crimes in Syria with the German Federal Public Prosecutor (Generalbundesanwalt – GBA).
The complaint is directed against ten high-ranking officials of the National Security Office and Air Force Intelligence, among them Jamil Hassan. The crimes addressed in the submission – killing, persecution, torture and sexual violence – were committed between September 2011 and June 2014 in five Air Force Intelligence branches in Damascus, Aleppo and Hama.
Torture in Air Force Intelligence detention facilities was also the subject of another criminal complaint filed by ECCHR and the group around Syrian defector "Caesar" in September 2017.
ECCHR and its Syrian partner organizations SCLSR and SCM believe that Germany can play an important role in efforts to end impunity in Syria. The Federal Public Prosecutor uses the principle of universal jurisdiction and since 2011 investigates crimes of torture committed under Syria's President Bashar al-Assad.
Claimants profiles: "We survived Assad's personal machinery of repression and extermination."
Anwar al-Bunni is a well-known Syrian human rights lawyer. He is one the founders of the Human Rights Association Syria (HRAS) and the Syrian Center for Legal Research and Studies (SCLSR), an organization which supports political prisoners.
As a lawyer, al-Bunni defended many human rights activists and others who were arrested and persecuted on account of their political positions in the wake of the protests in 2000 and 2001 in Damascus. Al-Bunni also became a target of repressive measures due to this work. He and members of his family were systematically threatened, persecuted and defamed by the authorities. He was debarred by the Bar Association in Damascus.
In May 2006, al-Bunni was arrested along with several other human rights activists after they signed the Beirut-Damascus Declaration, in which 274 Lebanese and Syrian intellectuals called for a normalization of the relations between the two states. During his pre-trial detention, al-Bunni was tortured several times. In April 2007, after proceedings that did not meet international fair trial standards, al-Bunni was convicted of "disseminating false information threatening the state." By that time, he had already spent almost one year in the infamous Adra prison in Damascus. "It's a miracle that I am still alive," al-Bunni told ECCHR. He was not held with the other political prisoners but instead with the non-political inmates. On one occasion, some detainees who were loyal to the regime tried to throw him from a second-floor balcony. He survived only thanks to the help of other detainees.
Al-Bunni was released in May 2011. He now lives in Berlin. In 2008, he received the Front Line Award for Human Rights Defenders at Risk. In the same year, he was also awarded the annual Human Rights Prize of the German Richterbund (Judges Association).
Q&A: Legal background of the criminal complaint on Syrian torture cases filed in Germany.
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 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.
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, head of the Syrian Air Force Intelligence Service.
Arrest warrants against those responsible for systematic repression and torture under Assad would be an important signal for survivors, relatives of those affected, and those still detained in the prisons of the Assad regime.
The fact that the German Federal Prosecutor opened investigations focusing on Jamil Hassan as a specific Syrian officials concerning international crimes in Syria, and the Federal Court of Justice (Bundesgerichtshof) issued an international arrest warrant, is a milestone and represents an important step towards ending impunity for torture in Syria.
Like Jamil Hassan, most of the high-ranking officials responsible for torture and other human rights violations in Syria still live in the country. But if they are subject to an international arrest warrant and were to travel outside Syria, they can be arrested and extradited to Germany. Germany could then file charges and open criminal proceedings.
The case of the Chilean dictator Augusto Pinochet shows that international arrest warrants against high-profile politicians and military figures are possible and effective. In 1998, the Spanish investigative judge Baltasar Garzón issued an international arrest warrant against Pinochet for genocide and other crimes. While Pinochet was visiting London, he was arrested by Scotland Yard and his extradition to Spain was approved by the then Home Secretary Jack Straw. The Chilean government negotiated that he be freed on humanitarian grounds, but Pinochet's arrest in London ultimately triggered a broader process of legal reckoning with the crimes of the dictatorship in Chile.
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.