Published: 25 March 2020 Author: Stefan Talmon and Tobias Weiss
On 13 January 2020, the Higher Regional Court in Stuttgart sentenced Syrian national Abdul Jawad al-Khalaf to life imprisonment for several crimes committed in Syria in 2012 and 2013, including membership of a foreign terrorist organization and war crimes against persons. The Court found that in November 2012 the accused had founded the terrorist organization “Mohamed Ibn Abd Allah” which sought to overthrow the Syrian Government under President Assad and reorganize the Syrian State under Sharia law. In March 2013, the accused and his fighters had participated in the conquest of the provincial capital Raqqa. On 4 March 2013, the accused took part in the storming of the governor’s palace in Raqqa and the capture of at least 40 supporters of the Assad Government, including the provincial governor and party leader, as well as policemen and civil servants. Of those captured, at least 19 were subsequently sentenced to death by a Sharia court and executed at a garbage dump near the city of Tabqa in the presence of the accused. The Court found that the accused had killed at least two prisoners himself.
The accused was sentenced for war crimes against persons on the basis of Section 8(1)(1) and (7) of the German Code of Crimes Against International Law (CCAIL) which provide that anyone who, in the context of an international or non-international armed conflict, kills a person protected under international humanitarian law, or executes the death penalty in respect of a person who is to be protected under international humanitarian law, without the person having been sentenced in a fair and regular trial affording the legal guarantees required by international law, shall be liable to imprisonment for life. Persons who are to be protected under international humanitarian law – both in an international armed conflict and in a conflict not of an international character – are defined in Section 8(6)(3) CCAIL as “members of armed forces and combatants of the adverse party, both of whom have laid down their arms or have no other means of defence.”
The case itself was not a particularly noteworthy one. Since 2015, the Higher Regional Court in Stuttgart has delivered some 17 sentences in proceedings concerning the civil wars in Syria and Iraq. However, there were two aspects of the case worth noting. First, the sentencing was made possible because the accused had admitted to participating in the executions in an exchange with an unidentified witness over Facebook in the autumn of 2014. The German authorities made a request to the U.S. authorities for legal assistance under the German-U.S. Treaties for Mutual Assistance in Criminal Matters in order to be provided with information associated with the witness’ Facebook account which was stored at premises owned, maintained, controlled and operated by Facebook Inc., a social networking company headquartered in California. The U.S. District Court for the District of Columbia issued a warrant which required Facebook Inc. to compile the requested records and information which was then turned over to the German authorities for use in the judicial proceedings.
Second, and more remarkable, was a comment made by the presiding judge when reading out the judgment. The Court’s official press release noted:
“At the beginning of reading out the reasons for the judgment, the Higher Regional Court pointed out that the subject of the present proceedings was not the struggle of the Syrian population against the regime of Bashar al-Assad, but violations of German law and violations of international criminal law applicable in Germany. Germany was prosecuting and sanctioning the criminal behaviour in Syria, not in order to support the Assad system, but to help leverage the law, including international criminal law.”
For international lawyers this may sound like an obvious statement. Of course German criminal courts are not passing sentence in order to support a brutal dictatorship. However, the statement was not aimed at international lawyers but at the general public and the media observing the trial. There is a widespread perception in Germany about “good” and “bad” in the Syrian civil war. While the Government of President Assad is seen as a brutal dictator and a ruthless oppressor of his people, the fight of the opposition has been widely portrayed in the media as just and legitimate. Against this background, the Court probably felt it necessary to highlight the universality and impartiality of international criminal law. In this sense, the statement was more educational than legal.
Category: International criminal law