In October this year, a court in Karlsruhe, Germany, saw two men stand trial, jointly accused of 58 murders, multiple rapes and a host of aggravated sexual assaults.
Ordinarily, the magnitude of such alleged crimes would likely make global headlines, yet this time, there was little international coverage. What was also unusual about the case — from a legal standpoint — is that neither of the accused were German citizens or residents, and none of the crimes they allegedly committed were carried out on German soil.
Instead, they allegedly occurred over 2,000 miles away, in a hellish government prison in Damascus, Syria.
The two men, Syrian nationals who are thought to be intelligence officers and known only as Anwar R. and Eyad A-G., were arrested by German police last February under universal jurisdiction, a condition in German law that allows the prosecution of certain cases regardless of jurisdiction or nationality because the crimes are so severe.
Globally, such laws — and such prosecutions — are rare, yet they are currently one of the few remaining hopes for victims of human rights abuses in Syria that they will ever see justice.
Justice, however, is not the priority at the moment. The immediate goal in Syria is still to end the fighting, which has killed hundreds of thousands, displaced millions, destroyed the country and upended the entire region. But after nearly nine years of brutal warfare, the contours of a resolution are coming into focus — as are the victors.
With airpower from Russia and manpower from Iran, Syrian President Bashar al-Assad managed to beat back a constellation of rebel groups trying to oust him. Meanwhile, the Islamic State was largely stamped out thanks to Kurdish-led forces with support from the U.S., although President Trump’s recent decision to pull U.S. troops out and abandon the Kurds has empowered Assad, Russia and Turkey — and left the U.S. as a marginal player in Syria’s outcome.
Despite the country’s long-running conflict entering a new and perhaps final phase, with Assad, Iran, Russia and Turkey emerging as the main powerbrokers, a political settlement among Syria’s warring factions is far from guaranteed. And even assuming a settlement can be reached and elections eventually held, that does not even begin to address the unimaginable scale of reconstruction that the devastated country will need in the decades ahead to rebuild and recover — let alone the immediate needs of the millions of refugees who could potentially be forced to return to the country.
That leaves the issue of accountability for crimes against humanity — torture, rape and murder on a mass scale — on the backburner, with a growing fear that it may get lost altogether in the desire to produce a settlement.
The consequences of not addressing this horror, however, may have long-term consequences for the deeply scarred country.
“There can be no such thing as a stable, post-conflict Syria,” Sara Kayyali, Syria researcher for Human Rights Watch, told The Washington Diplomat, “if the underlying causes of the conflict — including the abuse of citizens, denial of rights and suppression of dissent — are not addressed. If they aren’t, we’re just as likely to see further uprisings in the future and further abuses.”
Documenting the Horror
Since the Syrian conflict began in 2011, there have been a colossal number of recorded human rights abuses, committed by both regime and opposition forces, as well as by international actors.
The Syrian Network for Human Rights documents a civilian death toll of 224,948 between March 2011 and this year, with 14,298 tortured to death, 98,279 enforced disappearances and 144,889 people arbitrarily arrested.
The U.N. Commission of Inquiry on Syria says Syrian forces backed by Russian warplanes carried out airstrikes on civilian targets, allegedly used chemical weapons and bombed hospitals, schools and markets. In particular, evidence has mounted of numerous aerial bombings on hospitals, but Russia has reportedly pressed U.N. Secretary-General António Guterres to keep the conclusions of the inquiry confidential.
Meanwhile, the Islamic State (ISIS) and the previous al-Qaeda affiliate Jabhat al-Nusra — now Hay’at Tahrir al-Sham — also stand accused of numerous violations, including attacks on civilians, arbitrary detentions, kidnappings and executions.
Women and girls have been disproportionately targeted by all these groups, which have used them as human shields and sex slaves, while their children have often been forced to become child soldiers.
Some of the most disturbing reports to emerge from the war come from Syrian detention facilities that imprisoned tens of thousands.
“Authorities held detainees in inhumane conditions, keeping them in filthy, overcrowded cells for months or even years. Detainees said they were provided with such insufficient food that they slowly starved,” wrote Human Rights Watch in the Dec. 16, 2015, report “If the Dead Could Speak.”
“Former detainees also described various types of torture in security branches including shabeh (suspending detainees by their wrists for hours or days); beating detainees on their heads or chests with PVC pipes, whipping with steel cables, electrocution, and burning,” according to the report, which noted that interrogators or guards “beat detainees to death, hung them, or left them to die after severe bouts of torture.”
But all sides in Syria’s war have been accused of crimes.
The U.S. and its anti-ISIS coalition partners have hit civilian targets, while supporting the Syrian Democratic Forces (SDF) and People’s Protection Units (YPG) — both primarily made up of Kurds — which have also been accused of human rights violations.
On the flip side, the Kurdish population has suffered abuse at the hands of the Turkish-backed Free Syrian Army (FSA) during Turkey’s successive invasions and occupations of Kurdish-held territory in northern Syria, including most recently after the withdrawal of U.S. troops.
Even companies and corporations may have had connections to the conflict that violate human rights or other legal sanctions.
“We are currently looking into what companies may have been involved, for example, in sending chemicals to Syria that might have been used to produce sarin gas,” Valérie Paulet, editor of the Universal Jurisdiction Annual Review and a legal consultant with a Geneva-based NGO called TRIAL International, told The Washington Diplomat.
The scale of the abuses and the range of alleged culprits is vast. And as far as the Syrian regime is concerned, its human rights abuses go back long before the current conflict, with Assad — and his father Hafez — notorious for their brutal Military Intelligence Directorate known as the Mukhabarat.
Uprisings against the regime have been repeatedly and violently supressed, from 1973 riots; to the 1982 Muslim Brotherhood-led revolt in Hama that killed thousands; to the 2001 roundup of reformist activists; to the current civil war.
“While before 2011, there were many arbitrary arrests, disappearances and torture, after 2011, these practices reached unprecedented levels,” said Kayyali.
At the same time, the perpetrators of many of these crimes will likely end up — or continue to be — in the Syrian government and military after the war, making their prosecution by domestic courts highly unlikely.
In such circumstances, the body that can prosecute such individual perpetrators is the International Criminal Court (ICC). The Hague-based court, however, only has jurisdiction in cases involving the citizens of the 122 countries that are parties to the Rome Statute that set it up — and Syria is not among these. The other option is if the U.N. Security Council votes to refer a case to it. But Security Council members Russia and China both vetoed any such referral back in 2014.
Regardless, the ICC is a court of last resort — set up after the ad hoc tribunals that emerged in the 1990s to deal with atrocities committed in the former Yugoslavia and Rwanda — and is itself a sign of how difficult it can be to bring perpetrators of war crimes to justice. Since its formation in 2002, the ICC has spent hundreds of millions of dollars but only issued nine convictions and four acquittals.
“So, what’s left?” asks Paulet. The answer appears to be the exercise of universal jurisdiction. “It’s not a perfect solution,” she readily concedes, “but it’s the only one we have for now.”
The principle of universal jurisdiction allows national courts to investigate and prosecute grave crimes regardless of where the crime was committed or the nationality of the perpetrator. Under universal jurisdiction, certain crimes such as genocide and torture pose such a serious threat to the international community that states have a logical and moral duty to prosecute responsible individuals.
Countries such as Australia, Canada, Britain, Spain, Israel and Malaysia have variously used the concept to recognize certain crimes and authorize their prosecution. Most recently, a U.S. court found Assad’s regime liable for the extrajudicial killing of war correspondent Marie Colvin.
In fact, the German trial of Anwar R. — widely reported as Anwar Raslan, a colonel in Syria’s military intelligence prisons accused of directing the systemic and brutal torture of thousands of detainees — will mark the first time a high-ranking Syrian official will appear in open court on war crimes charges.
“With other avenues for justice currently blocked, criminal investigations in Europe are a beacon of hope for victims of crimes in Syria who have nowhere else to turn,” said Maria Elena Vignoli of Human Rights Watch in an Oct. 3, 2017, report for the group.
That report highlighted the need for victims to obtain justice to find peace. “My brother was killed with 14 bullets by the regime,” said Samira, who lives in Sweden and lost several family members in the war. “All my family died. I saw five children being executed, I saw their heads being cut off. I couldn’t sleep for a week…. It’s very important to have justice, which will let me feel that I’m human.”
Prosecutions under the concept of universal jurisdiction can also take advantage of the so-called “Triple IM” U.N. General Assembly resolution, which was passed in December 2016 in response to the Russian and Chinese vetoes of referring Syrian cases to the ICC. This resulted in the International, Impartial and Independent Mechanism (IIIM), a body designed to assist in the investigation and prosecution of individuals responsible for the most serious crimes under international law committed in Syria.
But universal jurisdiction is limited in its reach. Such cases are extremely rare and difficult to prosecute because of the inherent lack of access to crime scenes, witnesses and other evidence inside chaotic war zones.
Still, the mere prospect of finding justice for the crimes they and their loved ones endured has galvanized thousands of Syrian refugees who fled to Europe — particularly Germany — “to wage an unprecedented legal battle for justice in European courts,” wrote Deborah Amos in the Sept. 24, 2019, NPR article “Mounting Syrian War Crime Cases Raise Hopes for Justice Against a Brutal Regime.”
The article notes that since 2012, the Commission for International Justice and Accountability (CIJA), an independent nonprofit group funded by Western governments, has worked with Syrians on the ground to smuggle documents out of the country and ensure that evidence is collected for future trials.
“Last year, acting on evidence compiled by CIJA and witness testimony, French and German prosecutors issued the first international arrest warrants for senior Syrian officials: then-national security chief Ali Mamlouk and the then-head of the Air Force Intelligence Directorate, Jamil Hassan. Yet Assad and his lieutenants remain beyond prosecutors’ reach as long as they stay in Syria, protected by military allies Iran and Russia,” Amos wrote.
Nevertheless, activists and organizations have been working assiduously for years to gather evidence — CIJA alone has stored over 800,000 Syrian documents — to try future cases, whether in European courts, the ICC or some hybrid tribunal combining domestic and international law.
Another body collecting information is the Independent International Commission of Inquiry on the Syrian Arab Republic, which falls under the U.N. Human Rights Council and was set up in 2011 to investigate alleged violations. Another channel is the Organisation for the Prohibition of Chemical Weapons (OPCW), which seeks to fulfil the mandate of the Chemical Weapons Convention, a multilateral disarmament agreement to which Syria is a signatory, along with Russia. OPCW concluded that the Syrian regime had carried out a sarin gas attack in April 2017 against the town of Khan Sheikhun.
Other organizations such as Amnesty International, Human Rights Watch and the European Center for Constitutional and Human Rights have also collected much of the information necessary to build cases.
Eyewitnesses have also come forward.
“With the wave of refugees that came into Europe from Syria,” says Paulet, “we had both victims and suspects coming in. The refugees often live together in the same areas, so they see each other. Some cases have started with a victim identifying a perpetrator in the street.”
Perhaps the most consequential eyewitness thus far has been the Syrian forensic photographer known by the code name Caesar, who took over 55,000 images of detainees killed in regime prisons before fleeing Syria in 2013. The gruesome images show nearly 11,000 bodies with bruises, protruding bones and signs of torture.
“History will not be written by the victors in the case of Syria,” said Kayyali. “The sheer volume of documentation and witness statements is incredible — and a testimony to the work of all these people and organizations.”
Caesar has also given his pseudonym to the Caesar Syria Civil Protection Act of 2019, a bill currently working its way through the U.S. Congress that seeks to deploy additional sanctions against individuals and institutions implicated in trade, financial and property transactions with the Syrian government or military.
“This legislation provides the administration much-needed leverage to impose sanctions against Assad and his backers, punish war criminals and cut off funding that fuels the regime’s war tactics,” said Rep. Michael McCaul of Texas, the ranking Republican on the House Foreign Affairs Committee. “We must act immediately to hold Assad and his supporters accountable to deter this perpetual cycle of brutality against the innocent people of Syria.”
Yet such sanctions are not the same as criminal prosecutions, and for now, accountability will rely on the vigilance of mainly European NGOs and police forces, picking out perpetrators at airports in Switzerland, France, Germany or Sweden — all of which have recently begun detaining suspects and launching criminal cases.
“One of the challenges,” says Kayyali, “is that the people who travel to these jurisdictions often turn out to be the small fry. To get to their commanders, the masterminds, that is a lot more difficult.”
The hope is there, though, that one day, such prosecutions may happen because justice will be key to any post-war settlement.
Kayyali said that “while people are exhausted by the war and want a settlement, they also want their sons and daughters back, their grievances addressed and those that abused them brought to account. This fact must also not be forgotten if Syria isn’t to end up in the same situation all over again.”
About the Author
Jonathan Gorvett (jpgorvett.com) is a contributing writer for The Washington Diplomat and a freelance journalist specializing in Near and Middle Eastern affairs.