Published: 14 January 2021 Authors: Stefan Talmon and Roman Kenny-Manning
On 19 November 2020, the Higher Regional Court in Stuttgart sentenced the 32-year-old Syrian national Fares A. B. to 12 years’ imprisonment for, inter alia, an attempted war crime against persons by killing and a war crime against persons by torture, as well as membership of the foreign terrorist organisation “Islamic State” (IS).
Fares A. B. came to Germany in autumn 2015 and was taken into pre-trial detention on other charges on 25 April 2017. On 7 August 2017, he was formally arrested on suspicion of war crimes while in detention. On 12 June 2019, the Federal Public Prosecutor filed an indictment under section 8(1) nos. 1 and 3 of the German Code of Crimes against International Law (CCAIL) for war crimes in three cases. 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 […]
1. kills a person protected under international humanitarian law,
3. subjects a person protected under international humanitarian law to cruel or inhuman treatment by inflicting severe physical or mental pain or suffering upon that person, in particular by torturing or mutilating that person,
shall be punished, in the case referred to under number 1, with imprisonment for life, in the cases referred to under numbers 3 to 5, with imprisonment for not less than three years, […].”
The Court found that in 2011 or 2012 the accused joined a local group affiliated with the “Free Syrian Army” which was involved in the armed resistance against the Syrian Government of President Bashar al-Assad. On 12 December 2012 this group, together with other units, led an attack on Deir ez-Zor military airport, which was controlled by Syrian Government forces at the time. Several members of the accused’s group died in the attack. In order to avenge the death of his friends and comrades, the accused fired several shots with the intent to kill at a prisoner whom his group had captured that day. The victim had to kneel in front of the accused with hands tied behind his back. The prisoner died immediately. However, as the Court could not rule out that other members of the group had also shot at the prisoner, without a joint plan to do so, and as it could not be determined whether the shots fired by the accused caused the death, he could only be sentenced for the attempted war crime against persons by killing.
The Court also found that the accused joined the IS in June 2014 after the group had taken power in the area. He worked in a school that had been converted into an IS prison. In the prison, he was involved in the torture of two brothers aged between 16 and 17 who had been arrested by IS members for sexual content on their mobile phones.
The case against Fares A.B. was one of a growing number of trials against both IS members and members of the Assad forces for war crimes and crimes against humanity during the civil war in Syria. Such trials can be conducted in Germany based on the principle of universal jurisdiction. The CCAIL applies to “all criminal offences against international law […] even if the offence was committed abroad and bears no relation to Germany.” However, the case also shows the difficulties and complexity of such trials, thousands of kilometres away from the sites of crime. The trial began on 24 October 2019 and took more than a year. The Court held hearings on 58 days and nearly 50 witnesses and several experts were heard during the taking of evidence.
Category: International criminal law