Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction.

At the EU Day of Impunity in May 2016, a number of NGOs released a statement demanding enhanced efforts by EU Member States to commit to prosecution of international crimes in national courts. In July, the Centre for Justice and Accountability filed a criminal charge with the U.S. District Court for the District of Columbia against the government of Syria for the murder of Marie Colvin. In the European fora, isolated attempts have been undertaken to bring perpetrators to justice (POLITICO, IRIN). In France, the genocide and war crimes prosecutors have a handful of investigations open into Syrian nationals, including a preliminary investigation into possible war crimes in the context of the Caesar photos, 28,000 photos of deaths in government custody that were smuggled out of Syria. Besides, investigations have been underway and in isolated cases led to criminal charges in Sweden, Norway, the Netherlands, Switzerland and Germany.

First Syrian War Crimes Trial in Germany

On 12 July 2016 Germany concluded its second trial on the basis of the Code of Crimes against International Law (CCAIL) and its first war crimes trial in relation to atrocities committed in Syria. The Higher Regional Court in Frankfurt sentenced Aria L. to two years’ imprisonment for the war crime of treating a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner in the context of a non-international armed conflict (Section 8 (1) (9) CCAIL) by posing in three pictures in front of two severed heads, mounted on metal spears, of murdered members of Assad’s forces. Aria L., a now 21 year-old German national, who has been a committed member of the Islamist and Salafist scene in the Rhine-Main region since July 2013, travelled to the Binnish in Idlib governate in Syria in February 2014 for three weeks. During this time he was photographed in front of the severed heads, in what the Court described as an effort to deny the “honourless infidels” any form of dignified commemoration. These pictures were publicly disseminated via Facebook by Aria L.’s mentor and host in Syria, also a German national.

More Trials to be Expected

About two weeks before the verdict against Aria L. was handed down, the Federal Prosecutor filed a criminal charge against the 25 year-old Syrian national Suliman Al-S. before the Higher Regional Court in Stuttgart. Suliman Al-S. is charged with committing a war crime against humanitarian operations (Section 10 (1) (1) CCAIL) for directly attacking personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. The accused was arrested on 21 January 2016 on the suspicion of having participated as a member of the terrorist organization Jabhat al-Nusra in the kidnapping of the UN worker Carl Campeau on 17 February 2013. Campeau worked in Syria as a legal adviser to the United Nations Disengagement Observer Force, observing and keeping the ceasefire between Israel and Syria in the Golan Heights area.

On 31 May 2016, the Federal Prosecutor brought a criminal charge against the 30 year-old German national Abdelkarim El B. at the Higher Regional Court in Frankfurt with his trial set to begin on 22 August 2016. Shortly after his return to Germany, he was arrested in Frankfurt in February 2015. Originally charged with encouraging violent threats to national security, Abdelkarim El B., who was a registered member of Daesh fighting on the frontline close to the northern Syrian city of Aleppo, is now, like Aria L., accused of treating a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner in the context of an non-international armed conflict (Section 8 (1) (9) CCAIL). Specifically, the charge relates to filming members of his organisation mutilating a dead soldier of the opposing side on his mobile phone while commenting on the incident in a degrading manner and kicking the mutilated soldier in the face. Thus far the schedule for the trial dates hints at much more lengthy and complex proceedings than in the case of Aria L.

On 6 April 2016, 41 year-old Syrian national Ibrahim Al F. was arrested in the Westphalia region of Germany, facing accusations of torture (Section 8 (1) (3) CCAIL) and pillaging (Section 9 (1) CCAIL). Ibrahim Al F. is believed to have been the leader of a 150-man district militia in Aleppo belonging to the Islamist rebel group Ghuraba al-Sham (Foreigners of the Levant), part of the Free Syrian Army, which as of summer 2012 has been fighting President Bashar Assad’s regime.

Altogether, there were 15 ongoing investigations of crimes under the CCAIL committed in Syria and Iraq conducted by the Federal Prosecutor by the end of February 2016. This number is likely to increase in the next months, as asylum applicants are now systematically asked if they have witnessed war crimes or could name perpetrators of violations when they apply for asylum in Germany.  The Federal Office for Migration and Refugees forwarded over 2000 indications of international crimes to the Federal Prosecutor in 2015, as opposed to less than a hundred in the years before. The vast majority of cases concerning this region, especially the ones related to the 760 German nationals who traveled to Iraq and Syria to fight with extremist groups since 2012, do not refer to the perpetration of international crimes but to accusations of being a member, participant or supporter of a foreign terrorist group according to Sections 129a and b of the German Criminal Code. By February 2016, 136 such proceedings against 199 suspects in relation to Syria were underway. One can only hope, for a number of reasons, that German prosecutors will not take recourse to these (extremely far-reaching) terrorism laws to deal with international crimes committed in Syria as these provisions fail to reflect the extent of the wrongdoing in such situations.

Prosecuting International Crimes in Germany

When it comes to legal means, German prosecutors are comparably well equipped to prosecute international crimes. It is one of the few countries in Europe with genuine Universal Jurisdiction for international crimes, meaning that the law does not require any connection between Germany and the relevant grave international crimes committed abroad. This principle is laid down in Section 1 CCAIL. However, if neither the suspect nor the victim of the crime is a German national, prosecutors have a wide discretion to decline investigating if the suspect is not present in Germany and his or her presence is not expected. This mechanism, designed to avoid overburdening German investigative resources with cases that have no connection to Germany, has been used by the prosecutors quite frequently in the past and has been criticized by human rights organisations as leading to a de facto presence requirement.

Germany adopted the CCAIL in 2002, implementing the criminal provisions of the 1998 Rome Statute and taking note of the principle of complementarity as enshrined in Article 17 of the Statute. It took 13 years, however, before the first judgment was handed down under the CCAIL. In September 2015 the Higher Regional Court of Stuttgart convicted the president and the vice president of the Forces Démocratiques de Libération du Rwanda (FDLR) of crimes against international law committed by the FDLR in eastern Democratic Republic of Congo in 2008/2009. The two were sentenced to thirteen and eight years in prison respectively; an appeal is currently pending before the Federal Court of Justice.

The mere conclusion of this trial was a success in itself, as it showed that a German court can, even under difficult circumstances, deal with international crimes committed abroad. At the same time, the FDLR trial revealed many weaknesses which might equally apply to cases dealing with international crimes committed in Syria: Despite the fact that German law contains a robust set of rights for the participation of victims, there was no victim participation in the FDLR trial, partly due to unresolved questions of witness and victim protection in international proceedings. There was complete inaction on the side of the court in terms of public outreach and a complete ignorance of the need to communicate information about the trials towards the affected population. Further, all counts of sexualized violence, which is endemic and well documented (paras 347 et seq) in the conflict in eastern DRC, were dropped throughout the proceedings, raising questions regarding the (opaque) strategy of the prosecutors investigating these crimes.

A Strategy for Prosecuting International Crimes in Syria

With the case of Aria L., the Federal Prosecutor – not unlike the ICTY with its decision to begin by bringing charges against Tadič  – chose a relatively straight-forward case of a low-ranking individual. But it would be problematic if the German Federal Prosecutor continues to concentrate his efforts on suspects that reside permanently in Germany. This would make prosecutions dependant on the mere fact of residence in Germany. Further, this means that almost all proceedings will be (at least for now) directed against lower-ranking perpetrators from the side of non-state actors as most of the powerful perpetrators still reside in Syria. There is no doubt that perpetrators who are on German territory need to be punished. Indeed, the prosecutor is under a legal duty to investigate in these cases. Yet, this does not reflect the reality of gross human rights violations in Syria and worldwide. International crimes are typically state crimes. They are enabled by or perpetrated through the apparatus of the state. In Syria, although there is a growing record of human rights violations on the sides of all actors involved, the vast majority of atrocities can be attributed to the Syrian government.

What is needed in the case of Syria is a coherent strategy by the prosecution authorities to hold those to account who bear the greatest responsibility for the most heinous crimes committed in Syria. Already the the issuing of an international arrest warrant against a higher level perpetrator could have a deterrent effect. It would be a signal to potential perpetrators that there is no absolute impunity and that one day day they might have to face prosecution. It would also substantially limit the perpetrators’ freedom of movement, if she or he has to flee the country. At the same time, important evidence for potential future trials in national and international fora could be secured. With only six prosecutors currently working on all international crimes committed worldwide, German authorities do not have the resources needed to carry out strategic investigations, however. But with more resources Germany would be in the position to make a valuable contribution to end the impunity in Syria. It cannot be said that Aria L. constituted a ground-breaking case in this regard. But it can be seen as a first step.