The Federal Public Prosecutor's Office in Karlsruhe, southwestern Germany (Photo by ULI DECK/dpa/AFP via Getty Images)

The First Prosecution of SGBV in Syrian Detention Centers

11/12/2020 . By Sarah Morsheimer

On 17 June 2020, the European Centre for Constitutional and Human Rights (ECCHR), along with the Syrian Women’s Network and Urnammu, filed the first-ever criminal complaint on sexual and gender-based violence (SGBV) in Syrian detention centers. The complaint was filed with the Office of the German Federal Public Prosecutor on behalf of seven survivors and directed at nine high-ranking officials of the Syrian Air Force Intelligence Directorate and the National Security Bureau.

A previous complaint filed by ECCHR on behalf of eleven Syrians resulted in an arrest warrant for one of the suspects for killing, torture, severe physical and mental harm, as well as deprivation of liberty, as crimes against humanity. This current complaint now demands for the existing charges to be amended to include SGBV as a crime against humanity under Section 7 (1) No. 6 of the German Code of Crimes Against International Law (CCAIL). While the complaint aims to start individual investigations by the German Federal Public Prosecutor in the hopes of issuing international arrest warrants, the overall goal is to raise public awareness about the systematic and ongoing use of SGBV in Syrian detention facilities and to emphasize the importance of prosecuting SGBV crimes more broadly.

SGBV in Syria

According to a UN Security Council report on conflict-related sexual violence, SGBV has been a defining feature of the Syrian conflict from its beginning, frequently reported in the context of house searches, hostage taking, detention, and at checkpoints. The UN has received multiple reports of SGBV committed by armed forces of the Syrian government as well as from pro-government militias. A report by the Independent International Commission of Inquiry on the Syrian Arab Republic (Syria CoI) indicates that women, men, and children have been subjected to rape and sexual humiliation by members of the Syrian armed forces and security personnel during arrest and detention. In fact, fear of sexual violence has been one of the factors pushing Syrians to flee.

SGBV in Syrian detention facilities takes many forms including rape, verbal threat of rape, sexual harassment, genital mutilation, electric shocks directed at detainees’ genital areas, intimate searches, forced abortions, and forced nudity. Sexual violence can have different characteristics depending on the gender and sex of the victim. Violence against females generally involves rape and threats of rape, invasive searches, inappropriate touching, and interrogations about their sexual history. Males are typically targeted with abuse including rape with objects, forced intercourse with other detainees, invasive searches, and genital mutilation. SGBV in detention is often committed in conjunction with other crimes such as torture and deprivation of liberty.

SGBV bears significant psychological, social, and physical impacts on victims, in addition to larger effects on Syrian society. For women and girls, SGBV can result in reputational harm and social isolation, loss of family and societal support, honor killings, and even suicide. Men and boys often experience de-masculinization and humiliation, as well as the loss of respect among senior male family members. Survivors across the board generally experience negative impacts on their physical health and reproductive capacities.

Throughout the Syrian conflict, SGBV has been utilized as a weapon of war by the Syrian government to tear families apart, resulting in the unraveling of the social fabric of the country. By destroying families, SGBV has been used as an effective tool by the Syrian government to weaken perceived political opposition and destabilize civil society. Fear of SGBV has led entire families to flee and prevented people from resuming political activities upon their release from detention. Women and girls are typically targeted not only for their own political activism, but also to pressure male family members that either support the opposition or live in pro-opposition areas.

Until now, crimes like these have been committed with impunity in Syria. There are hopes that this complaint will highlight SGBV on the international stage so that perpetrators of such crimes will finally be held to account and so that survivors will have effective avenues to justice.

The Case

The complaint was filed on behalf of four women and three men, all either survivors or witnesses to SGBV and torture in four detention facilities run by the Air Force Intelligence Directorate in Damascus and Hama between April 2011 and October 2013. The witnesses reported intimate searches, touching of genital areas, forced nudity upon arrival in detention, rape, threat of rape, sexual harassment, electrical shocks to the genital area, and intrusive questioning about their sexual histories. All of the testimonies are corroborated by various reports from international and Syrian human rights organizations as well as the Syria CoI. All but two witnesses currently reside in Germany and are willing to testify before German prosecutorial authorities.

The defendants include nine high-level officials of the Syrian Air Force Intelligence Directorate and other Syrian government officials, some of whom are linked to President Bashar al-Assad’s closest advisors or were tasked by Assad with the surveillance, arrest, and killing of regime critics. While these suspects are not accused of directly committing the crimes, there are multiple modes of liability under international and domestic German legal frameworks that allow for indirect perpetrators to be held accountable. In this case, the multilevel hierarchy of the chain of command and the systematic pattern of crimes documented show that the suspects orchestrated and directed the crimes committed by their subordinates. Under the German law doctrine of accomplice liability, direct involvement of superiors is not contingent upon physical presence at the crime nor on their direct participation in the act. Rather, superiors qualify as accomplices because the crimes were committed by subordinates upon the instruction of their superiors. The final mode of liability, superior responsibility, elaborated in Section 4 of the CCAIL, assigns liability to the suspects as military superiors to direct perpetrators because they had constant control over their subordinates and their activities.

The complaint was filed with the German Federal Public Prosecutor under the principle of universal jurisdiction, which allows a country to prosecute international crimes in light of their severity, even if the victim and the perpetrator of crimes are not present in that country. Section 1 of the CCAIL addresses universal jurisdiction and constitutes the legal basis for the prosecution of international crimes in Germany. As previously mentioned, the German Federal Public Prosecutor has already used universal jurisdiction to bring charges for crimes against humanity against two former officials of the Syrian Military Intelligence Directorate and in April 2020, the first trial on Syrian state torture started in Koblenz, Germany.

The complaint argues that SGBV in this case amounts to crimes against humanity under Section 7(1) No. 6 of the CCAIL. Under Section 7(1), crimes against humanity include any act that is part of a “widespread or systematic attack directed against any civilian population” in which a perpetrator “sexually coerces, rapes, forces into prostitution or deprives a person of his or her reproductive capacity, or confines a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population.” This section is interpreted in accordance with international law, as well as the jurisprudence of the International Criminal Court (ICC) and other international courts and can therefore refer to international criminal law jurisprudence rather than exclusively German law jurisprudence.

The complaint uses Article 7(1)(g) of the Rome Statute, as well as precedent from the ICC, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and other international jurisprudence to argue that the SGBV committed in Syrian detention centers constitutes “sexual coercion” or “any other form of sexual violence of comparable gravity” in light of the degrading and humiliating nature of the acts and their long-lasting physical, psychological and societal impacts. In regard to rape and sexual violence, the petitioners also had to prove that the perpetrators committed the act “by force or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power…or by taking advantage of a coercive environment or the victim’s incapacity to give genuine consent.” In this case, all witnesses were unlawfully detained by force and were kept in a coercive environment where they faced constant threat of sexual violence, torture, and killing.

While acts of sexual violence do not need to form part of the attack itself, there needs to be a nexus between sexual violence and the widespread or systematic attack in order to be considered a crime against humanity. The complaint submits that the combination of killing, torture, deprivation of liberty and SGBV constitutes a widespread and systematic attack against the civilian population by the Syrian government through its intelligence agencies. The Syrian CoI was able to document that significant state resources were used to enable sexual coercion and rape in detention facilities on a large scale. Further, widespread reports by multiple Syrian and international NGOs have highlighted the SGBV crimes committed in detention as part of a wider pattern violence throughout the country.

International Legal Framework for SGBV

There are a number of conventions, declarations, recommendations, and resolutions at the international level that provide guidelines on SGBV and how to prosecute such crimes. General Recommendation No. 19, and now, more recently, General Recommendation No. 35 under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) state that gender-based violence is a form of discrimination that may breach specific provisions of the convention regardless of whether those provisions explicitly mention violence. International mechanisms such as the ICC, ICTY, and ICTR as well as treaties like the Rome Statute provide guidelines and jurisprudence in the prosecution of sexual violence. The UN Security Council and other UN bodies have issued documents such as the Declaration of the Elimination of Violence Against Women, Resolution 1820 on sexual violence in conflict situations, and other reports aiming to address and find solutions to SGBV.

In Syria, the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIM) has included SGBV and a gender-based approach in their work investigating crimes committed in the country. The IIM uses this gender-based approach with the aim of addressing SGBV survivor’s needs by identifying effective humanitarian referral pathways, taking measures to prevent retraumatization, and raising awareness of SGBV crimes.

Challenges to Bringing a SGBV Case

In addition to the lack of binding international law for SGBV crimes and minimal precedent for SGBV cases, there are numerous challenges that survivors face in prosecuting their cases and achieving justice for the crimes committed against them. At the foundation of these challenges is a lack of acknowledgement of SGBV as a human rights violation by certain actors in the international community, as well as stigma and cultural and gender norms that prevent survivors from reporting. When it comes to formally lodging complaints, a lack of trust in institutions and lack of resources further deter survivors. Once a complaint has been filed either domestically or internationally, there are issues with gaps in legislation, implementation of laws, and procedural frameworks. Difficulties with investigations and presenting sufficient evidence further undermine prosecutions. Even if a survivor wins their case, reparations are rarely issued and if they are issued, they almost always fail to meet survivor’s demands. Moreover, bringing a case could further harm victims through re-traumatization as well as threats, intimidation, or harassment that may arise.

In the context of conflict in Syria, these challenges are exacerbated significantly by instability, lack of oversight, and a dearth of resources in a country where police are not only poorly equipped to deal with such cases but, in many instances, are the ones perpetrating the crimes. No effective mechanism or procedure to deal with SGBV currently exists within Syria. A number of Syrian NGOs work to address SGBV issues in their communities by providing programs for survivors and psychosocial support, increasing the capacity of service providers to respond to SGBV, and raising awareness. Despite significant efforts, these organizations often face issues providing assistance and documenting cases due to the lack of proper infrastructure, lack of adequate funding and training, and general societal pressures that stigmatize their work.

Conclusion and Recommendations

SGBV is all too often underreported and underprosecuted around the world. Current stigma and gender power imbalances, in combination with a lack of efficient international mechanisms and binding international law on SGBV, has led to widespread impunity for these crimes. However, as this recent complaint shows, important steps are being taken to recognize the seriousness of SGBV and to prosecute it as a crime against humanity. As the first ever filed complaint on SGBV in Syria, this case represents a significant victory for human rights.

Even with this progress, there are still many hurdles and steps that need to be taken to end impunity. All states, the UN and other international bodies, civil society, and human rights defenders need to work collaboratively to address SGBV in ways that ensure the protection of victims. In the absence of prospects for justice in Syria, there needs to be a push to investigate and prosecute acts of SGBV and strengthen legal mechanisms in the country to enable effective pathways to prosecution and justice for such crimes. The UN and other relevant international mechanisms, as well as civil society organizations, should continue to lobby governments to make SGBV a priority and to set aside adequate resources to effectively implement legislation on the issue. Human rights defenders and lawyers should aim to use strategic SGBV litigation, similar to this case brought by the ECCHR, with a victim-centered approach to further enhance access to justice for victims while contributing to the prevention of violence.

Looking forward, the landmark complaint, in addition to demanding the investigation and prosecution of SGBV crimes, acknowledges that further action and legal interventions need to be undertaken to ensure that SGBV is adequately addressed in Syria. With a focus on ending impunity, ECCHR, Urnammu, and the Syrian Women’s Network call on German authorities to ensure that SGBV is prioritized in their work on Syria and that a gender-sensitive approach is used in the investigation and prosecution of these crimes. Looking at long-term impacts on peace in Syria, the organizations ask the German government to provide resources to law enforcement agencies, training them on a gender-sensitive approach to their work. It is also vital that organizations working on the ground receive long-term adequate funding, as well as proper training and resources in order to fill the gaps that exist in aiding survivors, documenting cases and raising awareness. The complaint goes beyond the case at hand and offers the opportunity to bring about lasting societal and legal changes. This case marks the first step towards bringing about a world without impunity. It is up to the international community to ensure that this goal becomes a reality.