Published: 06 April 2020 Authors: Stefan Talmon and Philip Wimmer
On 26 July 2019, the Higher Regional Court in Munich sentenced Ahmad Zaheer D. to two years’ probation for, inter alia, the war crime of outrages upon human dignity. At the same time, the Court found that the beating of three enemy prisoners during interrogation did not amount to the war crime of inhuman treatment of protected persons under international humanitarian law. Handing down the relatively lenient sentence, the Court considered in favour of the accused that he had made a full confession, had cooperated with the police authorities, had no other criminal record, and had made every effort to integrate in Germany. It also took into account that the crimes occurred long ago and that the accused was just 21 years old at the time of the crimes.
On 29 March 2019, the Federal Public Prosecutor had filed an indictment under section 8(1) nos. 3 and 9 of the German Code of Crimes against International Law (CCAIL) for cruel and inhuman treatment of three persons protected under international humanitarian law and the gravely humiliating and degrading treatment of another person protected under international law. In the indictment, the Federal Public Prosecutor called for a sentence of five years imprisonment. Section 8(1) of the CCAIL provides in the relevant parts:
“Whoever in connection with an international armed conflict or with an armed conflict not of an international character […]
3. treats a person who is to be protected under international humanitarian law cruelly or inhumanly by causing him or her substantial physical or mental harm or suffering, especially by torturing or mutilating that person, […]
4. treats a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner […]
shall be punished, […] in the cases referred to under numbers 3 to 5, with imprisonment for not less than three years, […] and, in the cases referred to under number 9, with imprisonment for not less than one year.”
The Court found that Ahmad Zaheer D. was an officer of the Afghan National Army. In late 2013 or early 2014, he was involved in the interrogation of three Taliban fighters on the premises of a military barracks in south eastern Afghanistan. Together with four other soldiers, he deliberately mistreated the blindfolded and handcuffed prisoners during the interrogation. The accused himself pulled two of the prisoners by the hair, shook them, and also beat one of these prisoners. He also threatened to use an electric shock device. A second interrogator inflicted massive blows on one of these prisoners and hit the third prisoner several times. While the maltreatment of the prisoners amounted to grievous bodily harm, coercion and attempted coercion, according to the Court, it did not meet the requirements of cruel or inhuman treatment causing substantial physical or mental harm or suffering.
The Court found Ahmad Zaheer D. guilty of the war crime of treating a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner. In March 2014, the accused and soldiers under his commanded had taken the remains of a high-ranking Taliban commander to a village in the province of Paktia. During the journey, they mocked and insulted the dead body and beat and kicked it. This could be seen by the civilian population who were watching the action. On arrival, the accused demonstrated to the villagers how a meat hook could be attached to the head of the body. He then put a rope around the corpse’s neck and helped pull the body up with a rope on a kind of protective wall. In a short speech, the accused claimed to have “killed the commander like a donkey”. He also explained that the commander had to be “hung up like a donkey”.
The case of Ahmad Zaheer D. is noteworthy because of how the crimes were discovered. The accused came to Germany in 2015 seeking asylum. During the application process, he submitted to the Federal Office for Migration and Refugees three videos taken on a mobile phone, showing the ill-treatment of the three Taliban prisoners and the desecration of the corpse of the Taliban commander. The accused tried to interpret the scenes in his favour in order to gain asylum. However, the Federal Office for Migration and Refugees informed the Federal Public Prosecutor’s office, which had the accused arrested on 25 October 2018 and put in pre-trial detention.
Category: International criminal law