One Year On – Remembering the Al-Khatib Syrian Torture Case and Reflecting on the Documentation of International Crimes Cases in German Courts

One year ago, on 13 January 2022, the Higher Regional Court of Koblenz, Germany, convicted Anwar R, a senior member of the Syrian General Intelligence Service, of at least 4,000 cases of torture, the murder of 27 people and multiple cases of sexual violence as a crime against humanity in the context of the infamous Al-Khatib prison in Damascus, Syria. This was the first trial for state torture and crimes against humanity committed by the Syrian government against its own people. While the trial received worldwide attention (see for many here, here and here; it was even debated by the United Nations Security Council), public access to these historic proceedings was limited to those lucky few who could travel to Koblenz and get one of the, at times, much sought-after observer seats.  

Several civil society organizations (CSOs) have tried to fill this gap by compiling trial monitoring reports (see for example here and here) or  producing outreach material (see for example here). In order to preserve these reports as well as other important trial documents such as interventions by joint plaintiffs and CSOs, the European Center for Constitutional and Human Rights (ECCHR) and its partners have collected them in one comprehensive resource (Al-Khatib CSO Documentation). After having been published already in German and Arabic, this resource is now also available in English, providing access to a broader, international readership.

Using the Al-Khatib trial and CSO Documentation as an example, this blog post reflects on (some of) the problems with and reasons for documenting international crimes cases in national, particularly German courts, before offering a few insights into potential reforms.

Problems with Documentation

The situation in the Al-Khatib trial, with access being limited to those who were able to attend in person and follow the proceedings in German (and, in case Syrian witnesses testified, Arabic), is not at all unusual.

German criminal procedure law requires, amongst others, that hearings before German adjudicating courts are public (so-called principle of publicty, see section 169 para. 1 sentence 1 Courts Constitution Act) and their judgments and rulings based on what has been orally presented in the hearing (so-called principle of orality, see section 261 Code of Criminal Procedure). In particular, these principles ensure public control and serve society’s interest in information as well as the realization of special and general preventive aims of criminal prosecution. However, audio-visual recordings intended for publication are not permitted (section 169 para. 1 sentence 2 Courts Constitution Act).

A recently introduced exception to the rule in section 169 para. 2 Courts Constitution Act has not changed this status quo in legal practice. According to the provision, a court can permit audio recordings of the hearing for academic and historical purposes if the proceedings are of paramount historical importance for the Federal Republic of Germany. Yet, the Higher Regional Court of Koblenz rejected such recordings in the Al-Khatib proceedings, arguing that the historical importance of the proceedings for the Federal Republic of Germany was not evident and that negative effects on the witnesses’ willingness to testify were to be feared. Other courts have taken a similar approach (see for example the Higher Regional Court of Frankfurt in the proceedings against Alaa M, where the Court even prohibited courtroom observers from taking written notes).

Adding to the difficulties for observers to follow the trial, the Higher Regional Court of Koblenz rejected the request by Syrians from the public gallery to have access to the simultaneous Arabic-translation that was provided to the accused and the joint plaintiffs. It was only after a preliminary injunction by the Federal Constitional Court, that the Koblenz-court granted accredited Arabic-speaking journalists access to the translation devices. The Federal Constitutional Court’s decision (which can be found on p. 143 Al-Khatib CSO Documentation) contains important obiter dictum statements about the significance of the proceedings for the Syrian public, which will also be relevant in future German prosecutions for international crimes.

In practice, this means that public access and documentation is regularly very limited, the latter being restricted to the verdict, which may be published in anonymized form in case law registries. However, this is not always the case and especially in proceedings involving international crimes it may be difficult to obtain a copy of the verdict.

Reasons for Documentation

The reasons for documenting trial proceedings in German (and other domestic) courts involving international crimes committed abroad are diverse and complex, and cannot be addressed in any detail in (one part of) a blog post (for a more comprehensive analysis, see for example the Application submitted by Academics and Academic Institutions for Audio Recordings to be made part of the Proceedings, p. 148 Al-Khatib CSO Documentation). Our aim here is thus limited to sharing some of the experiences and observations made in the context of the Al-Khatib trial along three broader categories of reasons.

First, the documentation of proceedings based on principles of extraterritorial and especially universal jurisdiction, typically dealing with systemic injustice and serious mass crimes, is important because it can inform debates in and about the situation in diaspora communities, which appear to be a decisive factor when it comes to universal jurisdiction activity in Germany as as well as in the country of commission. As such, it provides important testimony to victims that their suffering and resistance does not go unseen. At a collective level, well-documented international crimes cases may support and shape in-country (transitional) justice efforts. From an international perspective, they may also serve as a reminder to the international community of unaddressed injustice and prevent the creeping ‘normalization’ of relations with national regimes that are responsible for the commission of international crimes. Conversely, it may be argued that domestic trials of international crimes committed abroad derive their legitimacy in significant respects from the effect that these trials have on the affected country and people.

Second, documentation may provide historical accounts that are relevant beyond concrete and immediate efforts of addressing international crimes. While generally limited to reflecting a ‘juridical’ as opposed to historical truth, these trials may still enable future generations to work on education and remembrance, as well as historical research and truth-finding, which is of outstanding value, especially in post-conflict scenarios. In terms of finding the ‘juridical truth’, documentation can also provdide an account of the underlying processes and legal struggles – an aspect that rarely finds its way into final verdicts. In this respect, the Al-Khatib CSO Documentation contains two detailed motions of the joint plaintiffs to amend the original indictment against Anwar R. That indicment did not include two of the most emblematic crimes committed by the Syrian governemnt in response to the uprising in 2011 and the years thereafter. Incidents of rape and sexual coercion had originally been indicted by the Federal Prosecutor merely as singular incidents and not as part of the crimes against humanity committed by the Syrian government against its people. The crime of enforced disappearance was not part of the indictment at all. With their motions (at p. 175 and p. 189 Al-Khatib CSO Documentation), the joint plaintiffs  requested – in the case of sexualized violence successfully – that the indictment be amended to include these crimes. On a more general note, under universal jurisdiction, the German judiciary conducts proceedings on behalf of the world community, which it may be argued creates a responsibility to make these proceedings accessible to said community as part of a common historical heritage. The Al-Khatib CSO Documentation contains, for example, the closing statements of some joint plaintiffs, which capture the powerful and historic moment when, for the first time, survivors of Syrian state torture were able to publicly accuse their government of crimes against humanity and demand justice and reddress (at p. 207 Al-Khatib CSO Documentation).

Finally, documentation that goes beyond publishing only the verdict can make a valuable contribution to the development of the law on international crimes and its application by law enforcement authorities, defense counsel and joint plaintiff representatives. This holds true not only for the German context but also applies to other domestic legal systems and enforcement regimes, which may benefit from the detailed factual and legal accounts. In the closing arguments of the Al-Khatib trial, for example, the Federal Prosecutor adopted a rather progressive interpretation of the offence of ‘sexual coercion’ as part of a crime against humanity. When analyzing whether the forced undressing of many detainees during the physical examination after their arrival at the Al Khatib prison fulfilled the elements of the crime under section 7 para. 1 no. 6 of the Code of Crimes against International Law (CCAIL), the Federal Prosecutor  argued that as the CCAIL was intended to reflect, at the German level, the crimes contained in the Statute of the International Criminal Court, the German Constitution required the CCAIL to be interpreted in a manner that was favorable to international law (at p. 130 Al-Khatib CSO Documentation). More generally, in terms of the aims associated with the pursuit of international criminal justice, especially positive and negative general prevention, it would seem that they will be more likely achieved if the public is actually able to take note of them.

Status of and Potential Reforms to Documentation

Despite a relatively high number of trials in Germany concerning international crimes, there are still significant shortcomings as regards their documentation and the outreach efforts around them. For instance, in the trial of Moafak D, involving war crimes under the siege of the Yarmouk neigbourhood in Damascus, which is currently pending before the Higher Regional Court of Berlin (Kammergericht), the Court has not even issued a press release. Much of the burden is currently carried by CSOs, which are neither able nor mandated to do this in a comprehensive and sustainable manner (as has been pointed out regularly, see for example here and in more detail (in German) here).

However, we can also note some cautiously positive developments. For example, after rejecting all requests for documenting the content of the proceedings, the Higher Regional Court of Koblenz had the oral pronouncement (via loudspeakers) as well as the press release of the verdict translated into Arabic. Further, the Federal Ministry of Justice has communicated that it would translate the Koblenz verdicts into English.

Also, the total refusal of the German judiciary concerning documentation of criminal trials –  even for internal purposes – may soon be a thing of the past: The Federal Ministry of Justice has determined that the introduction of a content documentation of the main hearing is not only technically and legally feasible but also desirable and thus recently published a draft law to that effect. According to the draft law, trials involving international crimes in Germany would be audio- and video-recorded from 2026 onwards and an automated written transcript would be produced. This documentation would be made available to the parties to the proceedings as a resource. It is, however, to be deleted once the procedure has been completed and its publication would constitute a criminal offence.

The draft law would therefore not change the fact that the already existing possibility for courts to audio-record trials for academic and historical purposes pursuant to section 169 para. 2 Courts Constitution Act is not used in (even widely deemed historic) trials involving international crimes in Germany. For this to happen, it would seem necessary to amend said provision in a way that recordings are the rule in these trials and not solely subject to the discretion of the trial court.

Finally, these domestic developments may reflect a certain amount of international momentum, with an organization like the EU Genocide Network regularly publishing collections of recent national jurisprudence on its website. The International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM) has communicated plans to translate the Koblenz judgments into Arabic and make them available to Syrian CSOs. There are also positive examples in other jurisdictions such as the documentation of the trial of Kunti K, who was convicted by the Paris Cour d’assises in November 2022 for complicity in crimes against humanity committed in the context of the first Liberian civil war. As has been noted, in light of the exceptional nature of this trial, the President of the Court authorized its full recording for the purpose of constituting historical archives.