On 7 February 2019, the investigative judge of the German Federal Court of Justice issued arrest warrants against two former secret service officers from the Syrian government, since they were strongly suspected of having carried out or aided torture and crimes against humanity. On 12 February 2019, the German Federal Prosecutor – through officers of the Federal Criminal Police Office (Bundeskriminalamt) – arrested the two suspects in Berlin and Zweibrücken. As a result of the creation of a French-German Joint Investigation Team, another Syrian alleged to have worked for the secret service was arrested by Parisian prosecutors. This is the first time western criminal prosecutors have arrested alleged torturers working for Bashar al-Assad.
The strong suspicion that the suspects had carried out the alleged crimes is based – to a considerable extent – on evidence that has been collected by private individuals and entities: First, the photographs taken by the “Group Caesar”, the code name of a former Syrian military photographer who brought over 50,000 photographs out of the country, 28,000 of which show detainees in Syrian prisons killed by torture, outright execution, disease, malnutrition or other ill-treatment. Second, the assistance of the European Center for Constitutional and Human Rights, which provided the testimony from six survivors of torture in Al Khatib detention center in Damascus. Third, the Commission for International Justice and Accountability (CIJA), who provided documentary evidence against one of the two former secret service officers. Nerma Jelacic, CIJA’s deputy director, announced on Twitter: “#CIJA is proud to have supported the #German prosecutor’s investigation and arrest of the first high-ranking Syrian regime official”.
This shows that the appeal of private investigations has now reached the level of International Criminal Justice. Of course, investigatory work done by private non-state agencies is not novel, considering that there are countless Non-Governmental Organisations (NGOs) and Inter-Governmental Organisations (IGOs) who interview witnesses and collect documents. The aim is that this material may be used in International(ised) Criminal Tribunals or before a national court trying international crimes. Private investigations are indispensable on the international level, and privately funded international human rights organisations have been crucial to hold perpetrators of international crimes accountable.
Advantages of Private International Criminal Investigations
The advantages of investigations conducted by private entities in the international field are obvious – even when there is, at a later moment, an official investigation. Members of those entities are often among the first persons to view crime scenes. Investigators of Prosecutor’s Offices of International Criminal Tribunals rarely have the opportunity to inspect a crime scene until well after the underlying conduct has been perpetrated.
In Syria, CIJA has not only preserved and analysed over 600,000 pages of original documentation, including regime military and intelligence documents. It also focuses on the linkage evidence in order to build leadership cases and indictments. As Elliott describes, “it has a ‘names database’ with over one million entries, and three indictments/pre-trial files against 25 top regime officials including Assad, and a further three indictment/case files against over 35 Da’esh operatives in Syria and Iraq”. Nevertheless, CIJA’s purpose is to assist national and international prosecutions. As mentioned at the outset, this assistance proved to be quite effective in Germany. It also led to an internationalised arrest warrant for Jamil Hassan, head of Syria’s Air Force Intelligence Directorate on charges of war crimes and crimes against humanity, that was issued by the German Federal Prosecutor on 8 June 2018. In addition, an earlier call for an international criminal trial in Germany was made in November 2016, when six German lawyers filed a criminal complaint against the Syrian President Bashar al-Assad for his involvement in the commission of war crimes and crimes against humanity between 26 April and 19 November 2016 in the Syrian town of Aleppo. The evidence was mainly collected by NGOs such as Amnesty International, Human Rights Watch and Physicians for Human Rights. It is argued that Germany is the appropriate place to hold a trial against Assad, since the country has accepted over half a million Syrian refugees within the last six years, the highest number in Europe. These refugees could be used as potential witnesses – in the case of the arrest of the two former Syrian officials, it is said that Syrian asylum seekers recognised one of those officials and reported him to the German authorities.
Challenges for Private International Criminal Investigators
If investigations by non-state entities are so effective, especially in times where there is a lack of political will to end impunity, why then has this model not become a success story much earlier? In national jurisdictions, private investigations are nothing unusual. However, their use with regard to the investigation of international crimes raises a number of challenges, which I explore in more detail in a recent paper.
First, there is an ethical problem. Lawyers are expected to abide by laws, professional rules, and informal professional norms, and in many jurisdictions, they are also required to abide by a professional code of conduct. Professional legal ethics involve a recognition that lawyers are often confronted with ethical dilemmas. This is not the place to go too deep into the matter of prosecutorial ethics, I have done this elsewhere with Shannon Fyfe. While the particular features of what constitutes justice vary between, and sometimes within, criminal legal systems, it is always tied to the concept of fairness. One aspect of the procedural fairness is that staff employed by international criminal jurisdictions are ethically bound to search for inculpatory as well as exculpatory evidence from the start of an inquiry. It is not clear if the staff of private organizations employed in investigation of international crimes abide by the same ethical obligations. This does not mean that NGOs or IGOs can never be trusted to comply with certain ethical obligations. However, human rights organisations are – usually – more concerned with issues of monitoring and protection (of human rights violations) through advocacy than with investigating and collecting material that would contribute to criminal prosecution. The problem arises largely in relation to entities who do mainly investigatory work and have donors at the same time. Here, concerns about the substantive outcomes of investigations and criminal trials, the overall performance or record of an investigator/prosecutor, or the social and political impacts of criminal trials will likely involve more consequentialist considerations – to the detriment of procedural fairness. Leaders and members of NGOs have private interests, such as financial interests, the increase of group membership, personal career motivations, or simply personal relationships (Roach, Governance, Order, and the International Criminal Court, 2009, p. 115).
Evidence and Disclosure
The private investigator is often the “last hope for many people” (McMahon, Practical Handbook for Private Investigators, 2001, p. 22) and it is certainly fair to say the same applies to CIJA’s investigations in Syria. This is the reason why the information CIJA collects must be admissible in Court as evidence – and this is unclear (Rankin, Global Responsibility to Protect 9 (2017), 395 (400–401)). For CIJA’s material to be admissible, its work must satisfy international standards of an evidentiary nature – even though the principle of the free assessment of all evidence at many International Criminal Tribunals today might work in favour of CIJA. As long as CIJA investigators do not commit a serious rights violation, it could be speculated that their information will at least not be ruled inadmissible prior to a judgment. Furthermore, on the international level, the importance of documentary evidence cannot be overstated (in more detail Ambos, Treatise on International Criminal Law, Vol. 3: International Criminal Procedure, 2016, p. 487). The admissibility of documentary evidence depends on its relevance and probative value (reliability) and here again the flexible approach of International Criminal Tribunals might work in favour of private investigations. Furthermore, the “chain of custody”, that is, the document’s production process from its creation to the submission to a Chamber, is to be considered. The demonstration of that chain of custody is certainly one of the main challenges for the work of CIJA-investigators.
Last but not least, CIJA will encounter (or is already encountering) problems when it comes to confidentiality agreements. We all remember the Lubanga case at the ICC, where the Prosecution obtained large portions of its evidence on the basis of confidentiality agreements with NGOs. Many of the documents were exculpatory in nature and should have been turned over to the defence (see Heinze, International Criminal Procedure and Disclosure, 2014, p. 344 et seq). At the ICTR, many international and local NGOs:
“did not provide the OTP with the supporting documentation it needed. They maintained that doing so would breach express or implied promises of confidentiality or endanger informants. In some cases such concerns were addressed by redacting certain information” (Jallow, in: Decaux/Dieng/Sow (ed.), From Human Rights to International Criminal Law, 2007, pp. 438-9).
Private investigations may be the future of International Criminal Justice. However, this comes at a price. Privatisation of public goods is a common tool for governments to increase efficiency and save money. However, subjecting important public goods such as transport, electricity and water supply to the rules of the market – without some sort of regulation – will eventually leave certain groups of people without transport, electricity and water. In other words: fair distribution will not be the main criterion any more. The same applies to private international criminal investigations. We need to be conscious of the challenges that lie ahead, such as ethical boundaries and evidentiary rules. A minimum regulation and the creation of at least some sort of (external) guidelines could be a first step in the right direction.