Killing and torture in Syria: why the German Federal Public Prosecutor charges Syrian officials with crimes against humanity rather than war crimes

Published: 13 November 2019  Authors: Stefan Talmon and Mary Lobo  DOI: 10.17176/20220122-161354-0

On 22 October 2019, the German Federal Public Prosecutor filed an indictment for crimes against humanity against two former members of Syria’s General Intelligence Directorate before the State Security Senate of the Higher Regional Court in Koblenz. This was the first time Syrian State officials were indicted before German courts for international crimes committed during the recent conflict in Syria. Previously, only members of the Islamic State and the Free Syrian Army had been indicted and were sentenced for committing or aiding the commission of war crimes.

The first accused, Anwar R., was charged, inter alia, with crimes against humanity according to Section 7(1), nos. 1, 5 and 9 of the German Code of Crimes against International Law (CCAIL). Section 7 of the CCAIL provides in the relevant parts as follows:

“(1) Anyone who, as part of a widespread or systematic attack directed against any civilian population,

1. kills a person,

5. tortures a person in his custody or otherwise under his control by inflicting on that person severe physical or mental pain or suffering, which is not inherent in or incidental to lawful sanctions,

9. deprives, in an aggravated way, a person of physical freedom in violation of a general rule of international law,

shall, in cases under nos 1 and 2 above, be liable to imprisonment for life, in cases under nos 3 to 7 above, to imprisonment of not less than five years and, in cases under nos 8 to 10, to imprisonment of not less than three years.”

The relevant parts of Section 7 of the CCAIL mirror Article 7(1) (a), (f) and (e) of the Rome Statute of the International Criminal Court (ICC)

The second accused, Eyad A., was charged with aiding the above crimes against humanity. According to Section 27(1) of the German Criminal Code “any person who intentionally assists another in the intentional commission of an unlawful act shall be sentenced and convicted as an aider.”

In a press release the Federal Public Prosecutor summarized the facts giving rise to the indictment as follows:

“Since at least the end of April 2011, the Syrian regime has begun to suppress all activities by the opposition critical of the government across the whole country with brutal force. The Syrian intelligence services played an essential role in this. The goal was to use the intelligence services to stop the protest movement as early as possible and to intimidate the population. The two accused were members of the Syrian General Intelligence Directorate, more precisely its Branch 251 responsible for security in the Damascus area.

Anwar R. led the Branch’s so-called Investigation Unit which also operated a prison. In the period between the end of April 2011 and the beginning of September 2012 at least 4,000 prisoners were subjected to brutal and massive torture by subordinates of the accused during their interrogations there. At least 58 people died as a result of the abuse. [… ] In addition, there was at least one case in which persons were raped and sexually assaulted. […] The systematic brutal physical and psychological abuse served, on the one hand, to extract confessions and, on the other hand, to gain further information on the opposition movement. […] Furthermore, the conditions of detention in the prison were inhuman and degrading. […] As head of the investigation unit Anwar R. determined and oversaw working procedures in the prison and thereby also the use of systematic and brutal torture. He was also aware that prisoners died as a result of the massive acts of violence.

The accused Eyad A. was a member of a subdivision supporting the Investigation Unit of Anwar R. In the fall of 2011, he contributed to the torture and deprivation of liberty of at least 30 people. At that time, a demonstration was held in the city of Douma which was dissolved by force of arms by the security agencies. Subsequently, Eyad A. and other intelligence officers pursued the fleeing demonstrators. Those who could not escape were arrested and transported to, among others, the prison headed by Anwar R. Eyad A. accompanied the transport in one of the buses. At least 30 civilians who had been brought to the prison were severely abused during their detention. Eyad A. had knowledge of the systematic and brutal methods of torture practised in the prison prior to the arrest of the demonstrators.”

The two accused left Syria in late 2012 and early 2013 respectively. Both men later came to Germany, where they were arrested in February 2019.

The principle of universal jurisdiction, enshrined in Section 1 of the CCAIL, allows the Federal Public Prosecutor to pursue individuals for criminal offences against international law such as crimes against humanity and war crimes even if the offence was committed abroad and bears no relation to Germany. The acts committed by the accused could also have fulfilled elements of a war crime. Under Section 8(1) nos. 1 and 3 of the CCAIL the killing and torturing of a person protected under international humanitarian law constitutes a war crime. However, the requirement of “a person protected under international humanitarian law” already indicates that the acts in question must have been committed “in the context of an international or non-international armed conflict.” This may explain why the Federal Public Prosecutor charged the accused with crimes against humanity and not with war crimes. The former requires only that the acts in question were committed “as part of a widespread or systematic attack directed against any civilian population”. This requirement has been fulfilled since at least the end of April 2011 when the Government under President Bashar al-Assad began to systematically suppress the opposition in Syria.

The crimes the two accused were charged with took place between the end of April 2011 and the beginning of September 2012 and between July 2011 and mid-January 2012, respectively. A prosecution for war crimes would thus have required that there existed a non-international armed conflict in Syria at that time. There are three criteria which are usually applied to assess whether a conflict qualifies as a non-international armed conflict: the intensity of the violence, the duration of the fighting and the degree of organization of the armed groups. The additional requirement of territorial control of the organized armed groups fighting the government is relevant only for the application of 1977 Additional Protocol II to the Geneva Conventions. While major demonstrations against the Assad Government started in March 2011 and while protests were violently suppressed, the uprising against the government reached the level of a non-international armed conflict throughout the whole of Syria only in July 2012.

In February 2012, the International Committee of the Red Cross (ICRC), applying the above three criteria, classified the fighting in Baba Amro in Homs as a non-international armed conflict. With the conflict intensifying and spreading to other areas of Syria, the ICRC in April 2012 assessed that a state of non-international armed conflict existed in certain parts of Syria such as Homs, Idlib and Hama, but not across the entire country. The opposition forces, while well organized in certain areas, were not yet able to challenge the government forces nationwide. The situation in Syria at the time thus amounted to “localised civil wars”. Consequently, international humanitarian law applied only to those parts of Syria where, and at the times when, the fighting actually amounted to an armed conflict. The situation changed at the end of summer 2012 when the fighting around the Syrian capital of Damascus intensified. On 17 July 2012, the ICRC issued the following statement:

“As the situation has evolved, the ICRC has continued to monitor the conflict in the country. The ICRC concludes that there is currently a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country (including, but not limited to, Homs, Idlib and Hama). Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of international humanitarian law. These rules impose limits on how the fighting can be conducted, with the aim of protecting the civilian population and persons not, or no longer, directly participating in the hostilities.”

According to the ICRC, international humanitarian law now applied to all areas in Syria where hostilities were taking place. From about mid-July 2012, these areas also extended to the wider Damascus area, including the suburb of Douma which was seized by rebels after heavy fighting in October 2012.

The existence of a non-international armed conflict triggered the application of international humanitarian law, in particular the protections in common Article 3 of the four Geneva Conventions, and opened the prospect of prosecutions for war crimes, where previously only prosecutions for crimes against humanity were possible. However, most, if not all of the crimes the accused were charged with occurred in the Damascus area prior to the ICRC determining the existence of an armed conflict there. While the classification of a conflict by the ICRC is not conclusive and, in particular, is not binding on the German Federal Public Prosecutor and the German courts, it will usually carry great weight and will establish at least a presumption that there was no armed conflict in the relevant area prior to mid-July 2012.

The indictment of the accused for crimes against humanity rather than war crimes will make little difference in terms of sentencing. The punishment under the CCAIL for killing a person is the same for crimes against humanity as it is for war crimes. In the case of torture, the minimum punishment is more severe if the crime is committed as part of a widespread or systematic attack directed against any civilian population, than if it is committed in the context of a non-international armed conflict. The former is to be punished under the CCAL with imprisonment for not less than five years, while the latter carries a minimum sentence of imprisonment of not less than three years.