Syria - Torture - Saydnaya

Saydnaya Military Prison – Objective is to physically and psychologically break detainees

German Federal Prosecutor must issue arrest warrants for Assad's inner circle

Syria - Torture - Saydnaya

Saydnaya Military Prison – Objective is to physically and psychologically break detainees

German Federal Prosecutor must issue arrest warrants for Assad's inner circle

Saydnaya, al-Mezzeh and the Aleppo Air Force Intelligence Branch: for the vast majority of people in Syria, these prison names are synonymous with systematic degradation, unimaginable torture and mass executions. Senior officials of President Bashar al-Assad's government are responsible for the international crimes committed at these prisons.

Case

On 6 November 2017, ECCHR together with four Syrians and the lawyers Anwar al-Bunni and Mazen Darwish filed a criminal complaint with the German Federal Public Prosecutor (Generalbundesanwalt, GBA) in Karlsruhe concerning crimes against humanity and war crimes in Syria. The criminal acts in question – including intentional killing, persecution, torture and prosecution without due process – were committed against detainees at the Saydnaya military prison. The crimes took place between December 2011 and June 2014 in the prison itself as well as at the Tishreen military hospital and the military field court. This criminal complaint is directed against seven high-ranking Syrian military officials including Defense Minister Lieutenant General Fahd Jassem al-Freij and Military Prosecutor Brigadier General Mohammed Hassan Kenjo as well as the head of the military police and the Saydnaya military prison. The complaint was supported by Heinrich-Böll-Stiftung.

Context

The criminal complaint supplement previous criminal complaints and evidence submitted by Syrian torture survivors in March 2017 and by the Caesar Files Group in September 2017. ECCHR, Anwar al-Bunni (Syrian Center for Legal Research and Studies, SCLSR) and Mazen Darwish (Syrian Center for Media and Freedom of Expression, SCM) believe that Germany can play an important role in efforts to end impunity in Syria. The German legal system recognizes the principle of universal jurisdiction and the Federal Public Prosecutor in Karlsruhe is already investigating torture committed under Assad since 2011.

Persons

Claimants profiles: "The sense of fear and helplessness was overwhelming. We wanted to die."

Witness 16 (referred to in the following text as W 16) is Kurdish and previously lived in Qamishli in northern Syria. He was politically active even before the outbreak of protests against Assad's government in 2011. From that time he became active in the organization of demonstrations in his area. He was arrested by Air Force Intelligence officers in September 2011. He spent several weeks in various Air Force Intelligence detention centers, during which time he was subjected to various modes of torture. In February 2012, W16 was transferred to Saydnaya military prison where he remained until May 2013. W16 told ECCHR about the inhumane detention conditions in military prisons as well as the systematic abuse and torture. Daily life at Saydnaya was strictly regimented. Between 3 and 5 in the morning the detainees were woken by guards and had to roll up their blankets. Then they received their only meal of the day: a small amount of (usually stale) bread, an egg, some rice or potatoes. Detainees had to collect water from a barely dripping tap. They were only allowed to use the back section of their cell. During the day they had to stand there in a row with their faces to the wall. At night the guards signaled it was time to sleep and the prisoners had to immediately roll out their blankets. W 16 was released in May 2013 after 16 months in detention. He managed to escape Syria and he now lives with his family in Germany.

Witness 19 (referred to in the following text as W19) served in the Syrian Marines. In November 2011, he was arrested by the Military Intelligence Service for refusing to take part in brutal attack against unarmed protestors. He initially spent one month in Military Intelligence detention centers (branches) in Damascus. From December 2011, he was detained in Saydnaya for two and half years. Immediately after his arrival at Saydnaya W19 and the other new detainees were forced to undergo a procedure known as a "Welcome Party," during which they were brutally and arbitrarily beaten by guards. W19 shared his small cell with several other detainees. For a toilet he used a hole in the ground, and the only light came from a lamp in the corridor that shone through bars in the cell door. The detainees wore only underwear and were freezing. The only blanket they had was infested with lice and other insects. Each interaction with the prison staff involved further torture, be it at mealtimes or during family visits. The guards beat and humiliated the detainees at every opportunity. "The sense of fear and helplessness was overwhelming. We wanted to die," W19 told ECCHR. W19 was released from Saydnaya in June 2014 together with 90 other prisoners. He managed to leave the country and now lives in Germany but had to leave his family behind in Syria.

Witness 29 (referred to in the following text as W29) held a position in the Syrian Marines. He was arrested in November 2011 along with W19. He spent several months in various Military Intelligence branches in Damascus where he was interrogated and mistreated. He was transferred to the Saydnaya military prison in late December. Like W19, W29 also describes the strict rules at the prison. A policy of silence was strictly enforced; detainees were not allowed to speak, whisper or pray. They had to stay absolutely still while the guards made their inspection rounds. If a detained screamed while being punished, he would be punished. Torture was conducted using cables, electric shocks, belts, pipes, poles and shoes. W29 was released under an amnesty in June 2014 after two and a half years in jail. He fled to Germany where he has lived since 2015. His wife and daughter also now live here in Germany.

Witness 26 (referred to in the following text as W26) served in the Syrian Air Force before his arrest. When the command was given to use violence against those taking part in protests against Assad, he did not publicly challenge it but he avoided taking part in the actions. As a result he was arrested along with other officers by Air Force Intelligence officials in November 2011. He spent almost three years in various Air Force Intelligence detention centers and in March 2014 was transferred to the Saydnaya military prison where he was held for almost four months. When he arrived in Saydnaya, W26 was taken to a part of the prison holding civilians as well as members of the Syrian military suspected of sympathizing with the opposition. W26 initially shared a one-person cell that was 1.5 x 1.5 meters. There was a toilet and a sink, but detainees were not allowed to drink without permission. They received very little food. After a week W26 and others were brought to a larger cell. The cell "leader" stood in the middle of the cell and explained the rules: no talking, stay away from the entrance, roll up blankets immediately after waking and do not unroll until ordered to. The guards would punish the detainees even if they hadn't broken any rules. On several occasions W26 was subjected to torture. W26 told ECCHR that it was forbidden to report the deaths of fellow detainees. It was also forbidden to report it if someone was dying. When on one occasion W26 asked for help because one of his cellmates was about to die, he was not merely ignored – as punishment the guards left the corpse lying in the cell for three days. W26 was released in October 2014. He left Syria and came to Germany where he has lived with his family since December 2014.

Mazen Darwish is a Syrian human rights activist, journalist, and president of the Syrian Center for Media and Freedom of Expression (SCM), which he set up in 2014 in Damascus. The organization documented numerous violations of the right to freedom of expression and freedom of the press. It also worked on journalists' working conditions and assisted media professionals in disputes with the authorities. When the government refused to allow the organization to be officially registered, they went underground to continue their work. Darwish was imprisoned several times on account of his work. One of these arrests occurred in April 2008, after Darwish and his colleagues reported on uprisings in Adra, a city near Damascus. Darwish was sentenced to ten days' imprisonment for "defamation and slander of state authority." Following the start of the peaceful mass protests against President Bashar al-Assad in the spring of 2011, the SCM began documenting the names of activists who had been imprisoned, disappeared or killed. In 2012, he was named Journalist of the Year by Reporters without Borders. In February, Darwish and his colleagues were arrested at their offices by Air Force Intelligence. "After my arrest I was brought to various different secret military prisons, they kept taking me from one torture jail to the next," Darwish said in an interview with DIE ZEIT. He says the conditions in the torture centers are catastrophic. Aside from the lack of hygiene and cramped conditions, he also describes the torture methods, including: electric shocks, hanging detainees by the hands, beatings and sleep deprivation. More than 70 human rights organizations campaigned for years for the release of the SCM team. The UN General Assembly and the European Parliament also called for their release. Darwish was freed in August 2015 on the condition that he appear one month later before the anti-terror court in Damascus. On 31 August 2015, the court held that the cases of Darwish and his colleagues were covered by an amnesty that had been declared in 2014. The judge also explicitly rejected the central charges of supporting terrorism. Darwish, who has first-hand experience of the methods used and the conditions in Syrian prisons, told ECCHR that "torture was not an isolated case in Assad‟s prisons, it was something that was systematically used." As a key witness to the events in Syria, Darwish continues to be involved in the fight for justice in his country.

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).

Principles

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.

As president and commander-in-chief of the armed forces of the Syrian Arab Republic, Bashar al-Assad is at the top of the military chain of command. He has ultimate command over acts of all security and military institutions, including the four Syrian intelligence services, the Ministry of Defense, and the National Security Bureau. President Assad thus undoubtedly bears responsibility for their crimes.

As a sitting head of state, however, al-Assad is shielded from prosecution before national courts in third countries. In Germany he is protected by the international law concept of immunity ratione personae as set out in Paragraph 20(2) of the Courts Constitution Act (GVG) and Article 25 of the German Basic Law (GG). This means that no criminal proceedings can be undertaken against him at this time. However, as part of its investigations, the German Federal Public Prosecutor is gathering evidence on potential crimes by Assad. This information could be used in the future, for instance when he is no longer president, or if charges are leveled against him by the International Criminal Court or a Special Tribunal.

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.

Related Topics

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glossary

The Office of the German Federal Public Prosecutor is Germany's highest prosecutory authority.
A criminal complaint provides prosecutory authorities with information on a potential crime.
Crimes against humanity are grave violations of international law carried out against a civilian population in a systematic or widespread way.
Universal jurisdiction allows states to prosecute crimes against international law that were committed elsewhere.

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