More than ten years after the start of the civil war in Syria and the subsequent refugee movement to Europe, the German judiciary is becoming accustomed to trials addressing international crimes committed on Syrian soil. In January 2022, the first-ever trial worldwide concerning Syrian state crimes concluded before the Higher Regional Court (OLG) in Koblenz. Two former employees of the Assad regime were held accountable. The main perpetrator received a life sentence; the verdict is not yet final. In February 2023, the 2nd Criminal Senate of the Berlin Court of Appeal imposed the same sentence on a member of the armed militia “Free Palestine Movement.” A trial against a doctor accused of torturing imprisoned opposition members in military hospitals has been ongoing for two and a half years before the OLG Frankfurt. Since May, another alleged militia member has been facing charges before the OLG Hamburg.
Before the Federal Prosecutor’s Office files charges in a new criminal case, extensive investigations are conducted, for which the Karlsruhe authority is well-prepared: As early as September 2011, it initiated a so-called structural investigation procedure for Syria. In such a procedure, the Federal Criminal Police Office secures and documents evidence against unknown perpetrators suspected of committing crimes under the International Criminal Code, particularly war crimes and crimes against humanity. Information about possible perpetrators and their offenses also comes from the victims themselves, who often reach out to the Federal Prosecutor’s Office through human rights organizations. Observers of the Frankfurt trial note that the Federal Prosecutor’s Office and the BKA are very thorough in their approach.
But why can Germany and other states even prosecute such crimes? The answer can be boiled down to one term: the principle of universal jurisdiction. States that adhere to this principle are enabled to prosecute international crimes even if they were not committed on their territory, not against their citizens, and not by one of their citizens. Without the principle of universal jurisdiction, those who committed human rights violations in their home countries could generally feel safe from prosecution while abroad. The fact that the legal examination of systematic murder, manslaughter, and state-ordered torture by courts in third countries like Germany, as well as France, Sweden, the Netherlands, and the USA, is closely watched in the government palace in Damascus is evidenced by attempts to influence the testimony of witnesses. In the Koblenz trial, witnesses reported intimidation faced by themselves or relatives. Intelligence officers visited the homes of family members still living in Syria and suggested that the witness carefully consider their words.
In the ongoing trial in Frankfurt, after almost 140 days of hearings, the judge of the State Security Senate has become adept at not solely attributing hesitant and incomplete accounts to poor memory. He frequently encourages the witnesses, urging them to contribute to clarifying structures and responsibilities. Recently, he told a doctor who had worked with the defendant in the notorious military hospital Al-Mezzeh: “I believe one owes it to the victims to report, in hindsight, what happened.”
For the witnesses who must recount the suffering they endured in court, this is regularly a significant challenge. A co-plaintiff reported that testifying in court can be very distressing. “However, it is important to them to testify and be heard.” In addition to the desire for recognition of their own suffering, his clients also feel an indirect obligation to the murdered, disappeared, and tortured. Given that human rights continue to be systematically violated in Syria and that there has been no change in the situation there to date, he views the discussion about deporting refugees to the country critically.
Meanwhile, the Syrian diaspora remains divided in its opinion on the outcomes of the trials so far. The ECCHR, a human rights NGO based in Berlin and one of the co-plaintiffs’ representatives in the Koblenz trial, knows from many conversations that the legal examination is generally welcomed and seen as significant. However, there are also many voices that feel the “right people” have not yet been held accountable. “The first trials make a crucial contribution to addressing the past,” they say. “In these proceedings, it is legally necessary to consider the broader context. In cases of crimes against humanity, this involves the widespread and systematic attack against a civilian population, which is a massive undertaking. As a result, these trials contribute significantly to addressing the past beyond individual cases. To some extent, these trials take into account the full scope of this state criminality.” The findings from these trials can be built upon in the future, even in distant locations and times. In fact, the findings have already significantly contributed to the development of the German International Criminal Code, which was passed this year. Victims’ rights were strengthened, and gaps in accountability were closed, particularly concerning sexualized violence.
At the same time, it is evident that the individuals who have been prosecuted in Germany so far were not decision-makers within the system. The convicted individuals from the Koblenz and Berlin trials lived in Germany as recognized refugees; some were identified by chance. Trials like the one in Paris in May, where three senior military officers close to President Bashar al-Assad were convicted in absentia for crimes against humanity, cannot take place in Germany. The German Code of Criminal Procedure does not allow for in absentia trials. However, part of the Syrian community remains skeptical about these trials, as the convicted individuals remain at large.
The debate over who should be held accountable and who should not—just recently, a defendant in Stockholm was acquitted due to lack of evidence—is seen by experts as necessary for Syrians to come to terms with their country’s past. Whether Assad will ever face a criminal court is questionable. Although several avenues for prosecution are possible, they are currently not realistic. For example, France has issued an arrest warrant against the dictator. Whether this will be upheld remains to be seen, as sitting heads of state are protected from prosecution by the principle of personal immunity. Should Assad no longer be President of Syria, however, he could be tried in France.
Another option would be: Although Syria does not recognize the jurisdiction of the International Criminal Court, the UN Security Council could refer the “Syria case” to the International Court of Justice. This would require the consent of all permanent members, including China and Russia. The last such attempt at referral was in 2014, when both countries vetoed it. No further attempt has been made since. Therefore, the trials in Germany and beyond currently represent the only means of contributing to the general uncovering of atrocities in Syria through truth-finding in individual cases.
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