Published: 5 May 2022 Author: Rohan Sinha
On 24 February 2021, the Higher Regional Court in Koblenz sentenced Eyad Al-Gharib to four years and six months in prison for his role as an officer of the Syrian General Intelligence Directorate. The Court found Al-Gharib guilty of aiding and abetting a crime against humanity by torture and grave deprivation of liberty under the German Code of Crimes against International Law (CCAIL). Section 7 of the CCAIL provides in the relevant parts:
Whoever, as part of a widespread or systematic attack directed against any civilian population,
5. tortures a person in his or her custody or otherwise under his or her control by causing that person substantial physical or mental harm or suffering where such harm or suffering does not arise only from sanctions that are compatible with international law,
9. severely deprives, in contravention of a general rule of international law, a person of his or her physical liberty(…)
shall be punished(…).
The Court found that the accused had participated in the violent dispersal of a peaceful demonstration against the Syrian government in September or October of 2011. His unit had received orders to shoot and arrest the protestors. Although he did not participate in the shooting of the protestors as ordered, he chased the fleeing protestors and arrested several of them, who were then brought to the detention facilities of his unit. The arrested protestors not only faced heavy beating during transportation and upon arrival at the facility but were also systematically tortured during their stay of several days.
It could not be clearly determined whether Al-Gharib mistreated and tortured the arrested persons himself. Instead, the Court found that, as a long-standing member of the unit assigned with the task of suppressing the opposition movement, he was fully aware of the treatment the persons would be subjected to after arrest. Despite this, he continued his duties for the Syrian intelligence. As Al-Gharib was charged with aiding and abetting a crime, the Court was required to establish the main crime to which he allegedly had contributed. This allowed it to examine at length the practices of the Syrian state security apparatus and determine whether they fulfil the conditions of crimes under the CCAIL.
The Court began its legal assessment by determining that the acts of the Syrian government constituted a ‘widespread and systematic attack directed against the civilian population’, as required by section 7 paragraph 1 of the CCAIL. It started out with the definition of the term:
Following the legal definition in Article 7(2)(a) of the ICC Statute, an attack against a civilian population is to be understood as a course of conduct involving the multiple commission of acts referred to in section 7, paragraph 1, nos. 1 to 10 of the CCAIL. A collective group, not necessarily a State, must be behind the attack. A civilian population is a large group of people that are attacked based on shared distinguishing characteristics such as a geographical area or a common political will. For a State, its own civilian population can also be a possible object of crime. Typically, the measures are not directed at the victims individually but as members of a group. The attack need not necessarily be directed against the entire population residing in an area. Rather, it is sufficient that action is taken against a significant number of individuals.
A widespread attack is understood to be an action carried out on a large scale with a high number of victims. The attack is considered systematic if the use of violence is organised and carried out in a consistently planned manner.
Applying this definition to the case at hand, the Court found that the actions of the Syrian government since 2011 qualified as a widespread and systematic attack against the civilian population:
(…) According to the findings made, as early as March 2011, security forces used violence against peaceful demonstrators and other – including suspected – members of the opposition. Initially this affected only a few demonstrations that arose in the wake of the sporadic spill-over from the Arab Spring and in response to the measures of the Syrian regime. As the peaceful civil movement grew, the violent reactions by the Syrian authorities, in particular the army and the intelligence services, grew and started to include widespread and organised arrests, detentions, torture and even killings of actual or alleged opponents of the regime.
The Syrian government and its subordinate authorities used massive violence against participants of the protest movement, suspected or actual opposition members and civil society activists, as well as against completely uninvolved civilians. This was politically motivated and served to suppress the protests by directly crushing them and intimidating the population, and thus at the same time preserving the power of the existing government under the leadership of Bashar al-Assad. Accordingly, the Senate considers the Syrian State leadership as well as the leadership and the officials of the security organs, particularly the intelligence services, as an acting collective group implementing the attack. The target of the attack was a broad majority of civilians who had actually or only presumably joined the protest movement or were critical of the Syrian government. As early as March 2011, they were increasingly subjected to systematic and regular arbitrary violence by the State which can be considered as fulfilling at least the requirements of section 7, para. 1, nos. 1, 5, 6 and 9 of the CCAIL.
From the end of April 2011, the attack was to be considered as widespread and systematic. The systematic character of the attack is evident from the fact that from this point onwards the violent actions of the security forces had been centrally coordinated by the highest political and military leaders around the State president in a steering committee set up for this purpose. The Senate further recognizes that the violent acts brought about a high number of civilian casualties, running into the thousands every month. Killings by the security forces at demonstrations, at checkpoints and other places, mistreatment at detention facilities, the prolonged and increasing use of force and the nationwide action, especially in the larger cities such as the greater Damascus area, Douma, Dara’a and Homs, demonstrate a multitude of violent acts that constitute a widespread attack.
After finding that this preliminary requirement laid out in the chapeau of section 7, paragraph 1 of the CCAIL had been met, the Court could turn to the question of whether the conditions of the substantive crimes listed in the paragraph were fulfilled.
The Court found that the detention of persons and their treatment by the unit of the accused constituted torture as per section 7, paragraph 1, no. 5. Starting out with the definition, the Court found that
[Torture] is committed by anyone who tortures a person who is in his custody or otherwise under his control by causing him substantial physical or mental harm or suffering and which is not merely the consequence of sanctions that are permissible under international law. The seriousness of the harm or suffering requires a sufficiently great degree of the impairment caused by the offence and must be assessed taking into account all the circumstances of the case, in particular the nature of the act and its context. Permanent damage to health or pain of extreme severity are not required (…). Massive psychological impairments can also lead to the assessment as torture.
Although individual cases were not known to the Court, it found that torture at the detention facility took place:
The Senate was not able to determine in which way the participants of the demonstration, who are not known individually, were specifically treated in unit 251. However, it was established that all the participants were massively beaten upon their arrival and were subsequently subjected to further physical abuse, at least in the form of beatings. The Senate considers the suffering of each victim to clearly exceed the threshold of seriousness by taking into account the inhumane conditions of detention, the continuous perception of loud cries of pain from fellow prisoners and the frightening and gruelling uncertainty about their own impending treatment.
The Court further found that a severe deprivation of liberty in contravention of a general rule of international law took place as per paragraph 7, section 1, no. 7 of the CCAIL. It held that the crime is to be assumed
(…) in accordance with Article 7(1)(e) of the ICC Statute, if the victim is prevented from leaving his current location without a basis that can be recognised under international law. ‘Severe’ requires an overall consideration of the circumstances of the case, which includes in particular the duration and circumstances of the deprivation of liberty.
As the deprivation of liberty was evident to the Court, it reasoned that the condition of severity was also fulfilled.
The Senate considers the deprivation of liberty, which undoubtedly existed for every person arrested in unit 251, to be severe. In each case, it was carried out without legal grounds; there was no order related to the individual case that even came close to meeting the requirements of the rule of law. The detained persons were not given any reasons for their detention; they were not given any information on legal remedies or legal assistance. Relatives were not informed, and the persons concerned were not informed of the duration of the detention, which was thus unforeseeable for them. The detention was characterised by excessive violence and generally inhumane conditions. The detention was also not of a very short duration. Even if some of the 30 persons arrested were only detained for a comparatively short period of a few days in unit 251, the deprivation of liberty weighed heavily in view of the serious other circumstances, which made even a short stay in the department unbearable.
This judgment is another one of numerous cases in which German courts exercised universal jurisdiction for crimes committed by a foreign national on foreign territory without a link to Germany. However, the sentencing of Eyad Al-Gharib stands out as for the very first time a Syrian government official was held criminally liable for crimes committed during the Syrian civil war. This in turn permitted the Court to shed light on the repressive practices of the Syrian State apparatus, of which the accused was a member, even if only a small cog in the wheel. Based on vast amounts of evidence and testimony introduced during the trial, the judgment describes arbitrary detentions, torture and killings systematically committed by agents of the Syrian State and holds these to constitute crimes against humanity. More than previous trials of non-State actors committing crimes abroad, the present judgment vividly displays the peculiarity of universal jurisdiction in the system of international law by subjecting acts of a foreign government carried out on its own territory to the legal review of a domestic court, thereby departing from the traditional jurisdictional bases of territoriality and nationality.
The judgment has been widely celebrated as a ‘historic victory for justice’. Apart from its symbolic value in underlining that Germany is not a safe haven for perpetrators of international crimes committed in Syria, it was also the first time that Syrian victims of torture could tell their story before a Court. The evidence obtained for this trial, most notably the ‘Caesar Files’ which show the victims of torture in photographs smuggled out of the country by a Syrian military defector, will likely pave the way for future trials of Syrian officials. This is significant because universal jurisdiction exercised by domestic courts currently appears to be the only way for ensuring justice and accountability for atrocities committed during the Syrian civil war. The International Criminal Court (ICC) lacks jurisdiction as Syria is not a State party and attempts by the United Nations Security Council to refer the matter to the ICC have been vetoed by the permanent council members Russia and China.
Domestic courts thus carry a special responsibility for the enforcement of international criminal law. At the same time, this system of decentralised prosecutions of war crimes by national courts bears inherent challenges to the fair and equal application of the law throughout the world. While the principle of universal jurisdiction is undisputed, its exact scope and application remain unclear. As the content of certain norms of international criminal law is not clearly established, national courts exercising universal jurisdiction may interpret and apply the law in ways that affected groups might view as ‘unconvincing, self-serving, and discriminatory’, while at the same time risking violations of the principle of legality. In this vein it is questionable whether the Higher Regional Court of Koblenz’s judgment was entirely in accordance with international law. After all, there is disagreement on whether the CCAIL does indeed reflect customary international law. It is of particular relevance to this case that criminal liability for aiding and abetting international crimes under the CCAIL is established merely by reference to the norms of the German Criminal Code, thus leaving aside the rules of international law applicable for establishing responsibility for participation in a crime. As the standards of customary international law are higher, the Court’s application of German law was to the detriment of Al-Gharib.
A further objection to universal jurisdiction is that its exercise is often influenced by political considerations. In some cases, its use may be viewed as a foreign policy tool and is even labelled as ‘legal colonialism’. For example, the Assembly of the African Union has reproached the political abuse of universal jurisdiction ‘by judges from some non-African States against African leaders’ as a violation of their States’ sovereignty and territorial integrity. Indictments are viewed as undermining the stability of African States and negatively affecting their economic, political and social development and their ability to conduct international relations.
Therefore, in order to safeguard the legitimacy of their decisions, the relevant authorities of a State assuming universal jurisdiction should be aware of its ‘pitfalls’. The judicial process must, above all, be apolitical. When high-level diplomats and even the Federal Minister of Justice issue statements praising the outcome of a sentence of a universal jurisdiction trial, this may put unnecessary pressure on judicial authorities and set expectations that may not always be met, for example when rules of due process prevent the conviction of a suspected war criminal. It also seems unwarranted that the Higher Regional Court of Koblenz repeatedly labelled the Syrian government as a ‘regime’, a term that is normally used to express disdain, rejection and hostility towards another government. The evidence-based legal evaluation of Syrian government practices by an independent Court as crimes against humanity could have well done without this judgmental connotation that unnecessarily tarnishes its objectivity.
Germany’s exercise of universal jurisdiction is still in its infancy and has not been presented with grand dilemmas by the Syrian civil war. However, if future conflicts arise and require the exercise of universal jurisdiction, prosecution and sentencing may become less comfortable when cases no longer concern low-ranking individuals. Universal jurisdiction may fail to emerge as a ‘one-size-fits-all’ solution to bring about peace and justice in certain situations, for example when the prosecution of a high-ranking or otherwise influential individual interferes in political solutions to conflicts abroad. German legislation has no definite means to constrain the exercise of universal jurisdiction for such reasons. In limited cases it is merely left to prosecutorial discretion to decide whether to investigate and prosecute international crimes, which leaves a wide scope for arbitrariness. When assuming universal jurisdiction the relevant authorities should bear in mind that their self-appointed role to pursue serious international crimes committed abroad must be balanced against the accompanying abrogation of another State’s sovereignty to avoid serious disruptions in the global order. If international consensus on universal jurisdiction falters and leads to its discreditation and disuse, it would greatly undermine the efforts of the international community to prevent impunity and to bring justice to the victims of international crimes. Lawmakers and practitioners in Germany have yet to take up an opportunity to reflect on these challenges and limitations of universal jurisdiction.
Category: International Criminal Law