Published: 13 April 2021 Authors: Stefan Talmon and Mareike Höcker
On 23 January 2019, the Higher Regional Court of Stuttgart sentenced Syrian national Suliman al-S., in the final instance, to four years and nine months in prison for, inter alia, war crimes against humanitarian operations by participating in the kidnapping of a UN peacekeeper. The victim, Carl Campeau, was a Canadian national who served as legal adviser with the United Nations Disengagement Observer Force (UNDOF) which had been established by the UN Security Council in May 1974 to supervise the ceasefire between Israel and Syria on the Syrian Golan Heights. UNDOF continued to be stationed in Syria despite the uprising by local groups against the Government of President Bashar al-Assad in 2011 which, according to the Court, by 2012 had developed into a full-blown civil war. On 17 February 2013, Mr. Campeau left the UNDOF headquarters at Camp Faouar, some 56 km south west of the Syrian capital Damascus, to drive on his own to Damascus on private business. After driving for some 45 minutes, he was stopped at a roadblock manned by fighters of an Islamist group linked to the terrorist organisation Jabhat Al-Nusra. Some members of the group actively participated in the armed struggle against the Government of President Assad. The members of the group also took advantage of the turmoil created by the uprising and set up the roadblock in order to search persons and vehicles for valuables and seize them; in doing so they also wanted to demonstrate their claim to power over the area. The fighters realised that Mr. Campeau belonged to the United Nations. His bulletproof vest bore a label with the letters “UN”. In addition, he carried a UN identity card and drove a white Toyota which displayed the big black letters “UN” on both sides of the vehicle and carried corresponding number plates. Mr. Campeau was abducted and held for some eight months in a villa south west of Damascus. His captors demanded – without success – a US$ 7 million ransom from the United Nations, the Canadian Government, and the hostage’s family. Campeau said he was abused and forced to convert to Islam by his captors before he managed to escape on 16 October 2013.
Between March and May 2013, the accused participated in the guarding of Mr. Campeau on at least seven days over a period of one month. He was aware that the captive was a western staff member of the United Nations who did not participate in the civil war in Syria and that the group was trying to extort a ransom for his release. The accused, who sympathised with the Islamist ideas of the group, was in support of both the abduction and the capture. Why the accused no longer participated in the abduction after May 2013 remained unclear.
The accused left Syria on 5 August 2013 and fled via Lebanon, Turkey, and Algeria to Germany where he claimed asylum in October 2014. On 21 January 2016, he was arrested on suspicion of having committed a war crime and put in pre-trial detention. On 27 June 2016, the Federal Prosecutor General filed an indictment with the State Security Senate of the Higher Regional Court of Stuttgart accusing Suliman al-S. of, inter alia, a war crime against humanitarian operations. The indictment was based on section 10(1)(1) of the German Code of Crimes against International Law (“CCAIL”) which reads as follows:
“Anyone who, in the context of an international or non-international armed conflict directs an attack against personnel, installations, material, units or vehicles of a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law […] incurs a penalty of imprisonment for a term of at least three years.”
This provision is to give effect to Article 8(2)(b)(iii) of the Rome Statute of the International Criminal Court.
On 20 September 2017, the Higher Regional Court of Stuttgart sentenced Suliman al-S. to three and a half years imprisonment for aiding and abetting a war crime against humanitarian operations pursuant to section 10(1)(1) of the CCAIL. The Court held:
“Section 10(1)(1) CCAIL protects personnel, installations, material, units and vehicles who are involved in a peacekeeping mission in accordance with the UN Charter. It is characteristic of such missions that they take place with the consent of the conflicting parties, are committed to impartiality, and may use force only for purposes of self-defence. They often serve to secure a peace treaty or ceasefire agreement. The UNDOF mission shows these characteristics. It was established on 31 May 1974 on the basis of UN Security Council resolution 350 (1974) following the conclusion of an Agreement of Disengagement between Israel and Syria. The mission is tasked with maintaining the ceasefire and monitoring the implementation of the agreement concluded between Israel and Syria. The witness Campeau, who worked for the mission as a full-time legal adviser, belonged to the group of persons protected by section 10(1)(1) CCAIL which includes the members of the armed forces of the States participating in the peacekeeping missions as well as the civilian auxiliary personnel of the mission. At the time of his abduction and afterwards, Campeau was neither involved in hostilities nor did he act outside the mandate of UNDOF, so that he was entitled to the protection given to civilians under international humanitarian law.
An attack was directed against Campeau because he was subjected to a continuing use of force. Campeau was forced to get out of the vehicle under the threat of firearms, was abducted and held in buildings under guard for several months.
Finally, the kidnapping of witness Campeau was also functionally connected to the non-international armed conflict taking place on the territory of the Syrian Arab Republic at the time of the crime. Such a connection exists if the existence of an armed conflict is essential for the perpetrator’s ability to commit the crime, for his decision to commit the crime, for the manner in which the crime is committed, or for the purpose of the crime. In this respect, it must be examined whether the act could also have been committed in peacetime or whether the situation of armed conflict made the commission of the crime easier and the situation of the victim worse. The crime must not be committed solely on the occasion of the armed conflict. Against the background of these principles, a functional connection between the crime and the armed conflict can be affirmed. The commission of the crime was largely made possible by the fact that some armed members of the group committing the crime succeeded in establishing a roadblock […] on the road number 7 to Damascus without any legal basis. The territorial claim thereby manifested by the men, in connection with the position of power to deal at will with passing vehicles, valuables on board and their occupants was made possible by the fact that the region […] was fought over at the time of the abduction and the State’s power could no longer be effectively exercised. It is also due to the turmoil of the civil war that the kidnappers were able to occupy the first villa […] and that they had the opportunity there to detain Campeau unhindered for months, which made it much easier for them to carry out the crime.
The accused also knew that by guarding witness Campeau he took part in the continuing deprivation of liberty based on the use of force. He knew that the abductee was a member of the UNDOF mission.”
The Federal Prosecutor General, who had sought a seven-year sentence for Suliman al-S., appealed the decision. On 23 August 2018, the Federal Court of Justice changed the conviction from aiding and abetting a war crime to commission of a war crime as an offender, revoked the sentence, and referred the case back to a different criminal division of the Higher Regional Court of Stuttgart for sentencing in light of its findings. The Federal Court of Justice, however, upheld the above findings. In terms of substance the Court only added:
“Following Article 9 of the Convention on the Safety of United Nations and Associated Personnel, the concept of attack in terms of section 10(1)(1) CCAIL must be interpreted broadly and encompasses any type of use of force regardless of the type of weapons used; typical forms of attack include coercion, intimidation, armed robbery, kidnapping, hostage-taking, harassment, illegal arrest and detention, and acts of destruction and looting of the property of humanitarian missions. Thus, the serious unlawful imprisonment committed by the accused constitutes an attack on a person protected by section 10(1)(1) CCAIL.”
In light of the decision of the Federal Court of Justice, the Higher Regional Court of Stuttgart then sentenced the accused to four years and nine months imprisonment.
This case was one of several Syrian war crimes cases before German courts. As Syria is not a party to the Rome Statute of the International Criminal Court and a referral of the situation to the Court by the UN Security Council has been vetoed by Russia and China, German courts – acting on the basis of the principle of universal jurisdiction – stepped up to fill the vacuum of impunity. The case is noteworthy as it is the first time that a court had to rule on a charge of war crimes against humanitarian operations. By convicting Suliman al-S., Germany also lived up to its obligation under UN Security Council resolution 1502 (2003). In that resolution, the Council had emphasised that in situations of armed conflicts, attacks directed against personnel involved in a humanitarian assistance or peacekeeping mission undertaken in accordance with the Charter of the United Nations constituted war crimes and had urged “States to ensure that crimes against such personnel do not remain unpunished”.
Category: International criminal law
DOI: 10.17176/20220627-172917-0
