Al-Khatib Trial, the Nuremberg of the 21st century? Germany’s landmark step towards international criminal accountability
In February 2020, Syrian officials Anwar Raslan and Eyad Al-Gharib were arrested in Berlin and Koblenz, Germany. Raslan allegedly headed the Investigative Unit in the General Intelligence Service Detention Center in Damascus and Al-Gharib was alleged to be employed in a subdivision of this unit, Al-Khatib. Raslan reportedly perpetrated 4,000 cases of torture, 58 murders, and several individual cases of sexual assault and rape between 2011 and 2012. [1] Al-Gharib was charged with aiding and abetting acts of torture while he was employed at Al-Khatib. [2]
The defendants were charged in Germany for crimes against humanity in violation of Section 7 of the VStGB (Code of Crimes Against International Law) and for other crimes of torture, murder, and assault, in violation of multiple sections of the StGB (Criminal Code). These provisions allow Germany to align its domestic law with international law, establishing the basis for universal jurisdiction. It is this mechanism that permitted Germany to step in where international law could not do so, guaranteeing international criminal accountability.
This should be regarded as a milestone case as it is the first trial worldwide involving acts of torture and crimes against humanity committed under the Syrian regime. Its worldwide importance will help trace and prosecute the criminal offenses committed by Assad’s government and it is a first step towards justice for victims of torture and state oppression in Syria. Nevertheless, activating universal jurisdiction for trying state officials of a regime still in power carries international implications. Universal jurisdiction in Germany guarantees a consolidated enforcement mechanism and holds perpetrators of international crimes accountable, regardless of the possible political and diplomatic implications.
Thus, Al-Khatib is arguably the Nuremberg of the 21st century as it holds accountable perpetrators of international crimes who domestically are under the umbrella of regime protection, sets the groundwork for a potential transitional justice process in Syria, and attempts to tackle the problem of political dependency in international criminal law which hinders the prospects of justice and facilitates the impunity of state officials.
It is first necessary to comprehend the legal implications of universal jurisdiction in Germany and how this mechanism is a substitute for an ineffective enforcement of international criminal law. Universal jurisdiction is established in §6 of the StGB; it criminalizes “offences committed abroad against internationally protected legal interests” and lists the offences upon which “German criminal law applies, irrespective of the law of the locus delicti.” [3] [4] StGB §6(9) functions as an enabling clause, offering the basis for universal jurisdiction for breaches of the international agreements which are binding on Germany. Finally, StGB §7(2)(2) establishes the principle of aut dedere aut judicare, which determines the duty of prosecuting foreign nationals staying in Germany who committed an offence abroad when no extradition request was made or feasible.
In this case, extradition to Syria would mean that Rasland and Al-Gharib would benefit from the long-standing impunity that state officials committing international crimes enjoy, since no fair and effective trial would take place. Thus, as per the aforementioned sections of the StGB, Germany has an international responsibility to hold them accountable for their crimes as they violate the Rome Statute which is binding on Germany.
The VStGB ensures that the Rome Statute, which generally is concerned with international crimes, also deals with domestic criminal offences; it does so by expanding the applicability of German law to all serious criminal offences against international law even when the offence “was committed abroad and bears no connection to Germany” (§1) and by extending the jurisdiction of German Courts to extraterritorial crimes (§135). [5] Irrespective of the principle of locus delicti and the nationality of Raslan and Al-Gharib, Germany has jurisdiction to prosecute these allegations in an international tribunal or a more linked national court, depending on the likelihood of prosecution. Returning the defendants to Syria would result in impunity as the current Syrian regime would not effectively try its own regime officials. Instead, Raslan and Al-Gharib could be tried in international tribunals before Germany, which would reject impunity for crimes against humanity and gain full procedural jurisdiction to prosecute.
For more context, prosecuting crimes against humanity is within the jurisdiction of the International Criminal Court, whose governing provisions are established in the ICC’s Rome Statute. Under current applicable rules, the ICC is responsible for adjudicating the criminal responsibility of individuals suspected of having violated “peremptory norms” of international law. It is the only permanent court worldwide with jurisdiction to prosecute “without any distinction based on official capacity” for the international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. [6] However, individuals under the jurisdiction of the court must be nationals of a state-party to the Rome Statute, which Syria has neither signed nor ratified. Thus, the ICC cannot immediately prosecute Syrian officials without a referral from the UN Security Council (UNSC), which has the power to issue a resolution requesting the initiation of trial proceedings. [7] However, in a campaign to support Al-Assad, Russia and China have vetoed all attempts in the UNSC to refer Syrian-related questions to the Court. [8] The joint Sino-Russian support for Bashar Al-Assad’s regime has resulted in a permanently deadlocked UNSC, even for attempts to provide humanitarian aid to Syrian civilians. [9] As long as this impasse on Syrian-related matters persists, no permanent or ad-hoc international tribunal may hold Syrian officials criminally liable for atrocities and human rights abuses they may have committed.
Given all this, the diplomatic and political weight of this trial is evident. While universal jurisdiction remains the only judicial tool available to prosecute the perpetrators of international crimes, the decision to activate this mechanism has led to a tradeoff between maintaining stable diplomatic relations with Syria and antagonizing the regime by prosecuting their public officials. By using the tool of universal jurisdiction, Germany seems to reject the possibility of international reconciliation with the current Syrian regime, finding it important to seek justice for the victims of these grave crimes. Triggering universal jurisdiction also sends a message to the international community: that Germany finds the severity of the crimes to hurt humanity itself and that it will not stand for the impunity of perpetrators. Implicitly, this action is a condemnation of sorts to other state actors which have shown support for Assad’s regime. Finally, the use of this legal tool also arguably shows a method to, one day, prosecute Al-Assad as the ultimate condemnation of state-actions violating international norms.
With the significance of this trial and its implications for international law being established, a closer look at the trial itself as well as its proceedings is warranted.
The beginning of the trial focused on the disclosure of investigations, the defendants’ pleas, and witnesses’ and survivors’ testimonies. [10] The validity of this case is bolstered by the strength of these testimonies and the ability to have them all corroborated by the existing documentation; the case originated from a series of joint complaints filed in 2016 in Germany, Austria, Sweden, and Norway by survivors and their relatives, activists, and lawyers to seek justice both for the direct victims of the crimes and for humanity. [11]
One key witness in the trial, labeled Witness Z, was a Syrian undertaker whose team buried numerous tortured corpses and who made a detailed account of mass graves being dug at least until 2017. Witness Z helped formalize a detailed record of routinely committed crimes against humanity by providing a first-hand report on the bodily harm caused to victims, on specific locations of graves and on actors. His testimony was also key to conclude that these crimes are still presently occurring. The testimony of Witness Z, alongside reports from the European Center for Constitutional and Human Rights (ECCHR), offer no definitive proof that the crimes of torture in the Damascus Detention Center have stopped, but, instead, highlight how the defendants are just two of the many perpetrators of human rights abuses sponsored by the Syrian regime. [12]
Nevertheless, lawyer Patrick Kroker from the ECCHR insists on the importance of Witness Z’s testimony:
“The individual acts of torture only constitute a crime against humanity if they are being committed within a specific context, that being a widespread and systematic attack against a civilian population. Z’s testimony establishes the crimes were systematic.” [13]
Kroker emphasizes the relevance of this case as a means to understand what is happening in Syria and how the international community must react. Because these criminal acts are systemic under the current Syrian regime, Kroker also stands by Germany in its utter rejection of reconciliation with Syria by claiming that “this is the kind of government, the kind of regime, that you don’t establish relations with.” [14]
Recently, the Court hearings have been focused on the “Caesar Files”, which are over 50,000 smuggled photographs taken by a former Syrian military photographer which depict victims tortured by the Assad regime. This important piece of physical documentation can corroborate witness statements, is fundamental to the identification of missing detainees by relatives, and is essential to substantiate the case and prove that crimes are currently occuring in Syria. The substantial evidence provided by the Caesar Files is complementary to the numerous testimonies heard in Court which establish as full a picture as possible of the events. [15]
Nevertheless, one might not expect that the Al-Khatib trial would unfold without criticism and turbulent periods. The trial raises transparency and documentation concerns as the Court is not keeping a full transcript of the proceedings or of the witnesses’ testimonies. [16] This lack of transparency may threaten the accuracy of the proceedings, rendering the future possibility of appeals more difficult. How can the Federal Court of Justice verify testimonies and the exact words spoken in the lower court if it does not have an exhaustive transcript of the hearings?
Indeed, not keeping a transcript undermines the impact of the case for the future, as this type of transcript could eventually be used by local Syrian courts or international courts as the basis for transitional justice. In the possibility of Al-Assad’s defeat, the transcripts could serve to hold Syrian officials accountable and help aid in moving Syria towards democracy and an equitable justice system; the first-hand reports offered by witnesses would allow relatives to learn about the whereabouts of the victims’ bodies. Not only could records and written verdict-precedents provide a legal basis for similar cases in the future, but Al-Khatib’s status as a landmark case in international law would constitute a unique source of information for legal scholars and the media to bring similar matters to the public as is needed.
Even though Al-Khatib is such a milestone case in holding perpetrators of atrocities committed in the Syrian Civil War accountable, Germany is certainly not alone in its opposition to the Assad regime. Broader European support for Germany’s choice to trigger universal jurisdiction as a way to circumvent the barrier built by the UNSC is evident through the active support and involvement of the ECCHR in the trial. Indeed, Germany is painted as an example to follow and other courts are paying close attention to the unfolding of Al-Khatib. [17] Collaboration with other European nations such as France, the Netherlands, Norway, Spain, Sweden, and Switzerland can leverage universal jurisdiction as a way to prosecute most serious offenses in Syria. Al-Khatib is an example of this kind of collaboration and proves that this mechanism could be activated more often to reject impunity.
This decision by Germany in this case will help create accountability for international crimes in Syria. As the first trial of high-level Syrian officials responsible for crimes against humanity as well as murder and sexual abuse, Al-Khatib carries significant implications at an international level. Above all, it emphasizes how the mechanism of universal jurisdiction “offers an avenue to fill the gaps in (the incomplete and imperfect) system of international criminal law.” [18] Indeed, international criminal law is dependent on international political dynamics, which hinders its ability to guarantee accountability for international crimes.
Al-Khatib is a significant step against impunity that sets the stage for other European countries to investigate and prosecute high-level Syrian perpetrators. This trial, along with past European trials against low-level Syrian perpetrators, such as the Austrian prosecution of a 27-year-old Syrian sentenced to life imprisonment for murdering multiple soldiers as well as the recent Spanish complaint against nine intelligence officials for alleged enforced disappearance, torture and killing in an illegal prison in Damascus, reiterate the shared belief in a “no-safe haven” approach and an eagerness to prosecute crimes against humanity which harm the international community. [19]
[1] Al-Khatib Trial. “Trial Updates”. European Center for Constitutional and Human Rights, October 2020. https://www.ecchr.eu/en/case/trial-updates-first-trial-worldwide-on-torture-in-syria/.
[2] Ibid.
[3] German Criminal Code, Federal Law Gazette I, November 1998 as last amended by Art. 2 of the Act of June 2019. https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0067.
[4] Reydams, Luc. Universal Jurisdiction: International and Municipal Legal Perspectives. United Kingdom, Oxford University Press, 2004, pp. 141-157.
[5] German Code of Crimes Against International Law, BGBI. I, June 2002 as last amended by Art. 1 of the Act of December 2016. https://www.gesetze-im-internet.de/vstgb/BJNR225410002.html.
[6] UN General Assembly. Art. 27. Rome Statute of the International Criminal Court (last amended 2010), July 1998. https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf.
[7] “Start of Jurisdiction”. How the ICC Works - American Bar Association ICC Project. https://how-the-icc-works.aba-icc.org.
[8] “Russia, China block Security Council referral of Syria to International Criminal Court”. UN News, May 2014. https://news.un.org/en/story/2014/05/468962-russia-china-block-security-council-referral-syria-international-criminal-court.
[9] “Syria: Russia and China veto last-ditch aid extension deal”. BBC News, July 2020. https://www.bbc.com/news/world-middle-east-53370890.
[10] “Trial Monitoring Report”. Syria Justice and Accountability Centre, Higher Regional Court, Koblenz, May 2020. https://syriaaccountability.org/updates/2020/05/07/inside-the-al-khatib-trial-the-first-four-days/.
[11] “The Al-Khatib Trial on State Torture in Koblenz Germany”. European Center for Constitutional and Human Rights, August 2020. https://www.ecchr.eu/fileadmin/Q_As/QA_Koblenz_Syria_2020August.pdf.
[12] Omari, Mansour. “German Court hears harrowing testimony of Syria torture”. EU Observer, Koblenz, September 2020. https://euobserver.com/justice/149466.
[13] Vohra, Anchal. “Assad’s Horrible War Crimes Are Finally Coming to Light Under Oath”. Foreign Policy, October 2020.https://foreignpolicy.com/2020/10/16/assads-horrible-war-crimes-are-finally-coming-to-light/.
[14] Ibid.
[15] Al-Khatib Trial. “Trial Updates”. European Center for Constitutional and Human Rights, October 2020. https://www.ecchr.eu/en/case/trial-updates-first-trial-worldwide-on-torture-in-syria/.
[16] Omari, Mansour. “German Court hears harrowing testimony of Syria torture”. EU Observer, Koblenz, September 2020. https://euobserver.com/justice/149466.
[17] Kaleck, Wolfgang and Kroker, Patrick. “Syrian Torture Investigations in Germany and Beyond”. Journal of International Criminal Justice, vol.16, 2018, pp. 165-191.
[18] Ibid.
[19] Ibid.