The Higher Regional Court in Koblenz, Germany (photo by Holger Weinandt, Wikimedia Commons)

Explainer: First Case Worldwide Involving Syrian State Torture

03/13/2020 . By Mai El-Sadany

On March 10, 2020, the Higher Regional Court in Koblenz, Germany announced that a criminal trial prosecuting members of the Syrian security apparatus for torture would begin on April 23, 2020. The case, which is set to become the first criminal trial in the world involving state torture in Syria, is a landmark one and constitutes an unprecedented step toward state accountability.

Following coordination between German and French authorities, two former Syrian General Intelligence Directorate (GID) officials, 57-year-old Anwar Raslan and 43-year-old Eyad al-Gharib, were arrested in Germany in February 2019. Both Raslan and al-Gharib were subsequently indicted in October 2019.

Raslan, who is the primary defendant in the German case, has been charged with crimes against humanity over his alleged role in overseeing the torture of at least 4,000 people between 2011 and 2012 at “Branch 251,” the GID al-Khatib Branch in Damascus. He faces 58 related counts of murder, as well as rape and aggravated sexual assault. al-Gharib, who reported to Raslan, was involved in the abduction and torture of at least 30 people in 2011; he has been charged with aiding and abetting crimes against humanity.

Over the course of the investigations ahead of this trial, the German Federal Criminal Police Office heard testimony from 16 Syrian witnesses, nine of whom will be joint plaintiffs in the case; the Berlin-based European Center for Constitutional and Human Rights (ECCHR) has provided support for them throughout this process.

Torture in Syria and the GID

The Syrian state has long employed a state-wide policy of torture and ill-treatment of detainees. Particularly since 2011 and in response to peaceful protests that began in March of that year, Syrian authorities have subjected thousands to “arbitrary arrests, unlawful detentions, enforced disappearances, ill-treatment, and torture using an extensive network of detention facilities.” Human Rights Watch notes that the worst cases of torture have taken place in detention facilities run by the country’s four main intelligence agencies, among them the GID, which has also played a central role in suppressing protests.

The jurisdiction of Branch 251 of the GID includes Damascus and surrounding rural areas. According to the Open Society Justice Initiative, the regime would often transfer high-level detainees to Branch 251 as well.

Universal Jurisdiction and German Law

The case against Raslan and al-Gharib was brought under the legal principle of universal jurisdiction, which allows the national courts of any state to investigate and prosecute certain crimes committed in other countries, even if such crimes were not committed by a national or against a national of the state. The principle stems from the understanding that certain serious international crimes implicate the interests of the international community as a whole and accordingly, it may be in the interest of any single state to investigate and prosecute said-crimes.

Germany is often lauded for being one of the few countries in the world to adopt “pure” universal jurisdiction, which has allowed it to investigate and prosecute cases that have no territorial or national links to the country. In Germany, the Code of Crimes against International Law (CCAIL) establishes universal jurisdiction over crimes against humanity, war crimes, and genocide. In cases brought per the CCAIL, the Chief Federal Prosecutor’s office leads the investigation, and the higher regional court hears the case. Appeals are handled by the Attorney General’s office. The Syrian Justice and Accountability Centre (SJAC) has produced a practical guide to assist victims and potential victims seeking to navigate the German legal system.

In addition to investigating a number of other cases involving specific perpetrators, Germany has also initiated two structural investigations, broad preliminary investigations designed to gather and assess evidence to help put future cases together. One of these investigations focuses on war crimes and crimes against humanity committed by the Syrian regime, while the other covers serious crimes committed against the Yazidi minority in Syria and Iraq.

Prosecutions Worldwide

Syria is not a party to the Rome Statute, and a United Nations Security Council resolution referring Syria to the International Criminal Court (ICC) remains a near-impossibility due to Russia and China’s exercise of the veto on issues affecting Syria. Attempts to create a hybrid tribunal have stalled as well.

In response, accountability advocates have become increasingly creative, instead pursuing cases in national courts outside of Syria, using universal jurisdiction and other forms of extraterritorial jurisdiction when a suspect or victim may have ties to another country. A number of European countries have been receptive to these efforts, establishing specialized war crimes units and opening structural investigations. Both the Center for Justice and Accountability and SJAC maintain lists of the criminal and civil cases that are being investigated or have been brought around the world involving Syria. SJAC has reflected that “case selection has skewed towards lower-level perpetrators and members of extremist organizations rather than those most responsible or members of the Syrian government.”

Civil society, legal advocates, and victims have been instrumental in documenting violations, collecting case evidence, and working to file cases; the Syrian Center for Legal Studies & Researches and the Syrian Center for Media and Freedom of Expression are two of the Syrian-led organizations at the helm of this work. In December 2016, the International, Impartial, and Independent Mechanism (IIIM) was established to “collect, consolidate, preserve, and analyze evidence of violations…and to prepare files in order to facilitate and expedite fair and independent criminal proceedings” involving serious crimes committed in Syria since March 2011. In December 2019, annual funding of about $18 million was secured for the IIIM, which will allow it to continue working closely with accountability advocates and victims.