War crimes in Syria: a step on the road to justice for the victims?
Syrian lawyer Anwar al-Bunni, photographed here in Berlin in 2017, is working with the European Center for Constitutional and Human Rights (ECCHR) to gather evidence and testimonies regarding the involvement of leaders of Bashar al-Assad’s regime in torture and war crimes and to bring them before the German courts.
Anwar al-Bunni does not hide his joy over the sentencing, on 24 February 2021, of former Syrian intelligence agent Eyad al-Gharib to four and a half years in prison for ‘complicity in crimes against humanity’. “This is a historic verdict. I am happy, not because of the conviction of this individual, but because the judge stated very clearly that he was a cog in the wheel of a state policy to use widespread and systematic torture. Bashar al-Assad’s name was mentioned five times in the verdict,” says the 62-year-old Syrian lawyer, who himself testified at the High Regional Court in Koblenz, Rhineland-Palatinate, Germany.
Al-Gharib was found guilty of having taken part in the arrest of at least 30 protesters in Douma, on the outskirts of Damascus, in autumn 2011, and their transfer to Branch 251, one of the regime’s many detention centres. Eyad al-Gharib is the first of two Syrian defendants being tried in Koblenz. The second, a ‘bigger fish’, Colonel Anwar Raslan, who headed investigations at Branch 251 until autumn 2012, will receive his sentence at the end of the year.
Al-Gharib is not the first member of the regime to be convicted of crimes committed in Syria. In September 2017, a former soldier was sentenced, in Sweden, to eight months in prison for the war crime of ‘violating human dignity’, for having proudly posed in a photo with his foot on a pile of corpses. The charge of crime against humanity had to be dropped due to insufficient evidence. On delivering her verdict, the judge went as far back as the 1970s, to the time when the current leader’s father, Hafez al-Assad, had used the secret services as an instrument of power, and concluded that “Bashar al-Assad had taken control of these structures, especially from 2011 onwards, to intimidate and annihilate the opposition”.
National rather than international courts
Germany and Sweden were able to try these defendants under the principle of universal jurisdiction, whereby perpetrators of the most serious crimes can be prosecuted regardless of their nationality or where the crimes were committed. It is a legal concept that has received wide media attention since the sensational arrest, in 1998, of former Chilean dictator Augusto Pinochet in London, on charges of torture.
“Universal jurisdiction was widely used in Spain and Belgium but started to lose credit following considerable diplomatic pressure, having been accused of only targeting non-Western parties. It has been making a comeback in recent years, but with a stronger framework than in the early days,” says Wolfgang Kaleck, general secretary of the European Center for Constitutional and Human Rights (ECCHR), an independent, non-profit legal and educational organisation.
The presence of large numbers of Syrian refugees in Germany and Sweden (around 800,000) has given added legitimacy to the prosecution of suspects there.
“The presence of many Syrian victims who can testify and bring cases before European courts is a major factor that has enabled the development of universal jurisdiction over Syria,” says lawyer Al-Moutassim al-Kilani, who coordinates a team of investigators working on Syrian crimes at the Paris-based Syrian Center for Media and Freedom of Expression.
“The drive for universal justice in Europe for crimes committed in Syria really gained momentum in 2013-2014, when it became clear that an international tribunal would not be set up,” says Clémence Bectarte, a lawyer at the International Federation for Human Rights (FIDH). The International Criminal Court (ICC) in The Hague could not be called upon, as Damascus has not ratified the Rome Statute that created the institution. The only way to refer such cases to the ICC is through the UN Security Council. In May 2014, France submitted a resolution to this effect, but Russia and China vetoed it.
At least 20 trials against people accused of crimes committed in Syria have taken place over the past four years in various European countries, where dozens of investigations are still ongoing. “More members of opposition groups have been tried so far. Not many high-ranking officials have taken refuge in Europe. The defections took place during the first three years of the conflict, when the regime was in trouble, but there has not been any since the Syrian army regained its military advantage in 2015,” says Nerma Jelacic, director of external relations at the Commission for International Justice and Accountability (CIJA), an NGO working to promote justice by investigating crimes and preparing the ground for the prosecution of their perpetrators.
A first step on the long road to bringing high ranking officials to justice
Some Syrians have expressed their frustration with the Koblenz trial against Eyad al-Gharib, in the sense that he is just a low-level player in the chain of command. “He deserted and was convicted based on the testimony he had given when applying for asylum, without knowing that he would subsequently be arrested. The verdict is a first step towards ending impunity, but it is not a substitute for a trial against Bashar al-Assad or high-ranking officials. They are the ones who should be tried,” says 18-year-old Sedra Ali Alshehabi, a young Syrian woman whose father was arrested in December 2012 and has not been seen since.
Syrian NGOs, supported by European NGOs such as the ECCHR, have also built legal cases against high-level officials responsible for the crimes in Syria, including those not on European territory. The broad concept of universal jurisdiction in Germany and Sweden means that proceedings can also be initiated against suspects that are not in their countries.
Thanks to this approach, arrest warrants can be issued, followed by extradition requests, as seen in 2019 when Germany asked Lebanon to extradite Jamil Hassanhttps://www.aljazeera.com/news/2019…, head of the Syrian Air Force Intelligence Service, who was in the country for medical treatment.
In France, the basis for legal proceedings of this kind is not ‘universal’ but ‘extraterritorial’ jurisdiction. It is based on dual nationality that such action can be taken. “Universal jurisdiction can only be used in France if the person accused is habitually resident in the country,” explains Bectarte. It was on this basis that two French-Syrians were arrested in November 2013 and arrest warrants were issued in November 2018 against three top Syrian officials involved in the Dabbagh case.
More recently, extraterritorial jurisdiction was used for the action filed by three NGOs in Paris, on 1 March 2021, for crimes against humanity and war crimes. The case is built on around 20 testimonies and relates to the two rounds of chemical attacks conducted on the outskirts of Damascus in 2013. A similar case was filed with the Federal Prosecutor’s Office in Karlsruhe, Germany, a few months earlier.
A mammoth investigative task involving hundreds of activists
Investigations of this kind are often extremely complex and require resources that national courts do not have, even when they have specialised investigation units. Such a large number of lawsuits would be impossible without the invaluable help received from Syrian activists and NGOs in the process of gathering evidence, cross-checking it and building legal cases.
Anwar al-Bunni is one of the most widely known ‘Syrian torturer hunters’. “We gathered testimonies from 12 of Anwar Raslan’s victims, who testified in the German court, which was a crucial part of the proceedings,” says the lawyer. “Families have been encouraged to come forward and testify ever since the Koblenz trial began a year ago. My phone hasn’t stopped ringing ever since,” exclaims the Syrian lawyer, who spent five years in jail in Syria.
The CIJA plays a key role in the gathering and examination of evidence. The mission of this NGO is to retrace the chain of command that led to the crimes, which is often the most difficult thing to prove in court. It focuses on high-ranking officers. As of the summer of 2011, the NGO set about the task of collecting documents from the areas that had been liberated from the Syrian regime. The organisation was founded by Canadian Bill Wiley, who was involved in the international criminal tribunals for the former Yugoslavia and Rwanda.
“Over the past 20 years, many international courts have failed to convict perpetrators because of a lack of physical evidence linking them directly to their subordinates who committed the abuses. We wanted to fill this gap,” explains Nerma Jelacic of the CIJA.
The NGO collected 1.3 million documents in Syria, thanks to a network of 26 investigators on the ground. “In 2020, we received 37 requests from police services in 13 European countries, and the demand is growing,” says Jelacic. The CIJA has also played an important role in Koblenz. It was able to provide two documents with Colonel Anwar Raslan’s signature showing that he was in charge of the investigations in Branches 251 and 285. “We also produced evidence to the court of an official document from April 2011 requesting the security branches to use violence against demonstrators,” the lawyer continues.
In December 2016, the UN General Assembly voted in favour of setting up an “International, Impartial and Independent Mechanism” (IIM), as an alternative to an international tribunal, to assist with the investigation and prosecution of those responsible for serious crimes committed in Syria. Its mandate includes collecting, examining and consolidating evidence and preparing files to facilitate proceedings in courts with jurisdiction over these crimes.
“The mechanism aims to be the main repository of evidence on crimes committed in Syria. It could prove very useful if an ad hoc tribunal is ever established,” explains Joël Hubrecht, head of the international criminal justice and transitional justice programme at France’s independent judicial research and advisory institute, the IHEJ.
“There is a wealth of documentation on the Syrian conflict, and the IMI will help avoid the fragmentation and overlap of investigations into the same crimes. It also has more resources than NGOs, having recourse to artificial intelligence analysis, which enables it to cross-check the huge mass of information,” continues Hubrecht.
Ten years after the Syrian revolution, as the Baathist regime attempts to impose its own version of the conflict in which it presents itself as the victim, justice stands as a reminder that the crimes committed in Syria will not go unpunished.
The views expressed in this article do not necessarily reflect the views and editorial stance of the SOHR.