Published: 10 November 2020 Authors: Patrick Wittum and Stefan Talmon
In November 2017, nine Syrian refugees living in Germany filed a criminal complaint with the Federal Prosecutor General’s Office concerning crimes against humanity and war crimes in Syria. The complaint was directed against ten high-ranking officials of the Syrian Air Force Intelligence Directorate, including its head, Major General Jamil Al-Hassan. The Federal Prosecutor General commenced investigative proceedings for crimes against humanity in the case of General Hassan in May 2018. He was suspected of several deeds committed individually, jointly with another or through another person, and as a military commander between 29 April and August 2013 as part of a systematic and widespread attack directed against a civilian population in Syria. These deeds included killing at least 352 people, torturing a yet to be determined number of people, causing other physical or mental harm to a yet to be determined number of people, and severely depriving, in contravention of a general rule of international law, a yet to be determined number of people of their physical liberty. In June 2018, the Federal Court of Justice issued an international arrest warrant for General Hassan at the request of the Federal Prosecutor General. This was the first time since the beginning of the Syrian civil war in 2011 that a country was prosecuting a high-ranking Syrian Government official for crimes against humanity. In November 2018, France followed suit, issuing international arrest warrants for senior Syrian intelligence and government officials, including for General Hassan.
At the time of issuing the arrest warrant, there was very little chance of German prosecutors getting hold of General Hassan, but a high-ranking official familiar with the investigation told the press: “We will not forget about this. We want to get this man.” An opportunity to apprehend General Hassan seemed to arise when in February 2019 it was reported that he was in Lebanon to receive medical treatment. On 17 February 2019, German weekly DER SPIEGEL broke the news that Germany had submitted a formal request to Lebanon for the extradition of General Hassan – another first. Initially, the German authorities did not confirm this, simply stating, “The Federal Prosecutor’s office – with the exception of specific cases – does not state whether it is investigating on an individual, has issued an arrest warrant, or requested extradition.” The Lebanese Interior Minister denied receiving a notification from Interpol to arrest General Hassan. The extradition request was confirmed only some two weeks later by a third party. On 5 March 2019, the U.S. Department of State issued a statement in support of Germany’s request for Lebanon to extradite the Syrian General, saying:
“The United States continuously seeks to shed light on abuses committed by the Assad regime, including its use of torture, and calls for the regime to allow for unhindered access of independent monitoring organizations to detention centers. Moreover, the United States supports effective mechanisms for holding those responsible for atrocities in Syria accountable. To that end, the United States would welcome any decision by the Government of Lebanon that would facilitate the lawful extradition of Syrian General Jamil Hassan to Germany, in compliance with the Government of Germany’s extradition request and consistent with applicable law.
General Hassan serves as the chief of Syria’s Air Force Intelligence Directorate and is notorious for his alleged involvement in the extensive use of torture in Syrian detention centers. The German federal prosecutor issued an arrest warrant against the General in June 2018 for committing crimes against humanity based on a complaint filed by Syrian refugees residing in Germany. The Government of Germany requested the Government of Lebanon to extradite General Hassan, who is reportedly visiting Lebanon to receive medical care. Moreover, the European Union and the United States have previously sanctioned General Hassan due to his support to the Assad regime per Executive Order 13573.”
Despite the U.S. intervention, the Lebanese Government was in no hurry to respond to the request. In March 2019, the Ministry of Justice apparently made an inquiry with the General Directorate of State Security, which responded that nobody by the name of Jamil Hassan had entered Lebanon since early 2018. The Ministry of Justice transferred the answer to the Foreign Ministry, which finally passed it along to the German authorities in April. General Hassan was able to return to Syria without interference. In July 2019, he was dismissed from his post by President Bashar al-Assad.
Syria is not a party to the Rome Statute of the International Criminal Court (ICC) and the referral of the situation in Syria to the ICC by the Security Council was vetoed by Russia and China. Criminal prosecution in Syria is also highly unlikely as long as the government of President Assad is in power. The perpetrators of crimes against humanity and war crimes in Syria can thus be brought to justice only before foreign domestic courts. Under section 1 of the German Code of Crimes against International Law (CCAIL), German courts may exercise unlimited universal jurisdiction over genocide, crimes against humanity and war crimes; that is, they may exercise criminal jurisdiction regardless of where the crime was committed, the nationality of the offender, or whether the crime bears any relation to Germany. There are no legal restrictions on criminal prosecutions resulting from the absence of the accused from German territory. However, there are no trials in absentia in Germany, which explains the request for extradition.
Universal jurisdiction of the German courts for international crimes does not automatically mean universal prosecution, especially when the suspect is not a German national and the crime was not committed against a German. Section 153f of the Code of Criminal Procedure assumes that bringing a prosecution is primarily the responsibility of the State in which a crime was committed, or of the home States of the perpetrator and victim, or of any competent international court. This view is justified by the special interest the home States of the perpetrator and victim have in the prosecution, as well as by the fact that the jurisdictions with primary responsibility are, as a rule, better positioned to gather evidence. As in the present case neither the home State of the perpetrator and the victims, nor the ICC were able or likely to prosecute, the Federal Prosecutor General was fully justified to step in and initiate criminal proceedings against General Hassan. While investigations by the Federal Prosecutor General usually serve only to secure evidence for national or international criminal proceedings at a later stage, the application for an international arrest warrant and, more importantly, the request for extradition show that the German authorities were determined to chase and catch General Hassan. By really going after him, they wanted to restrict the General’s movement and send a message that there is really no place for him to hide other than the Syria of President Assad.
In 2017, Germany was highly critical of the work of the International Law Commission (ILC) on the “Immunity of State officials from foreign criminal jurisdiction”. In particular, it took issue with draft Article 7, which had been provisionally adopted by the Commission on 20 July 2017 and which provided for extensive exceptions to immunity ratione materiae of State officials from foreign criminal jurisdiction. There was to be no immunity for genocide, crimes against humanity, war crimes, the crime of apartheid, torture and enforced disappearance. On 24 October 2017, the German representative stated in the General Assembly’s Sixth Committee that in Germany’s view, “draft article 7 […] fails to reflect the state of customary international law as it stands today. […] the ILC should not portray its work as a codification of existing customary international law when there is no sufficient State practice to support this thesis. […] The remaining list of crimes in respect of which immunity ratione materiae shall not apply in the present draft article seems arbitrary.” Germany criticised the inclusion of some crimes and the omission of others. The present case, however, shows that Germany’s criticism was not directed at the inclusion of crimes against humanity in the list of exceptions to immunity – otherwise the Federal Prosecutor General and the Federal Court of Justice could not have conducted criminal proceedings against General Hassan.
Category: International criminal law