Syrian Torture Trial: German Court Upholds The Principle of Universal Jurisdiction

Background of the case

On 24 February, 2021, a German court in Koblenz sentenced Eyad al Gharib, a low-ranking former officer of the Syrian secret service to four-and-half years of imprisonment for complicity in crimes against humanity. The prosecutors have described the role of Eyad along with Anwar Raslan, the principal defender who is still facing trial, as the “cogs in the wheel” in perpetuating state-sponsored systematic torture at the behest of President Bashar al-Assad to silence pro-democratic protestors during the Arab Spring uprising in 2011.

Interestingly, the judgement coincides with the 10^th anniversary of the Arab spring. The uprising was a series of anti-government protests that started in Tunisia when a fruit-seller set himself ablaze outside the administrative office over rampant corruption. The uprising quickly gained momentum through Facebook in the Arab world. These protests were a cry for democratic freedoms in the otherwise domestic authoritarian regimes. However, the idea of democracy ended up in civil wars, bloodshed, and a refugee crisis the collateral damage of which is still visible in Greece’s Moria refugee camp.

Court’s observations in the case

The court has convicted Eyad for aiding and abetting torture on at least 30 pro-democratic protestors after arresting and detaining them from a rally in Duma to a secret prison of al-Khatib, notoriously known as ‘Branch 251’, in Damascus during the unrest. His superior, Raslan, has allegedly committed rapes, sexual assault, and even delivering electric shocks to at least 4,000 prisoners while he headed the investigation unit of Branch 251. These abuses caused severe mental and physical suffering resulting in the deaths of at least 58 people.

The court gave its verdict by reasserting the observations of the Federal Court of Justice, Germany, that the principle of universal jurisdiction enshrined under Code of Crimes Against International Law 2002 is to prosecute individuals with criminal responsibility that transcends beyond a national jurisdiction before its national courts. It effectively allows prosecution of those who are not Germans for the alleged offences that have not taken place in Germany by the alleged victims who are not Germans.

Analysis

The principle of universal jurisdiction finds its roots in Article 1 of the London Charter that established the historic Nuremberg Tribunal in 1945 to try war criminals of World War II. In Prosecutor v. Dusko Tadic, this principle led to a paradigm shift from the traditional notions of sovereignty to establishing accountability for grave human rights violations that are not limited to a particular geographical location. Thus, the Code based on the Rome Statute does not grant impunity to military commanders and their subordinates for executing unlawful orders. Moreover, as held in Prosecutor v. Kunarac, the role of the state officials during the war, particularly in the context of individual criminal responsibility, is peripheral and does not relieve the state official of its criminal responsibility.

Further, even though the court recognised the appalling abuses sponsored by the Assad government, the term of imprisonment does not seem to suffice to the scale of atrocities committed by the Assad’s regime. But it is understandable considering that the prosecutors lacked concrete evidence against Eyad apart from his own statement as he was initially treated as a victim/refugee who defected and fled the persecution of the Assad’s regime.

Yet, the trial sets a landmark precedent in terms of the horrifying testimonies received by the prosecutors from the torture victims along with the photographs of “widespread and systematic torture and killing” leaked by a military defector with the pseudonym ‘Ceaser’. Caesar worked as an official forensic photographer for the military police and was engaged by the regime in capturing abuses inflicted on civilians during the civil war. The veracity of these photographs has been proved authentic. This confirms that there is a growing body of evidence against President Assad for war crimes and crimes against humanity.

At present, the national courts have issued arrest warrants against a Syrian doctor and Jamil Hassan, the head of the Syrian Air Force Intelligence Service for allegedly inflicting torture, degrading treatment, and committing extrajudicial killings during the civil war. While Russia has vetoed every attempt of the security council to investigate these atrocities before the international criminal court, Germany is reminding the world that crimes are committed by men and not abstract entities and they must be held accountable for the same.

What does it mean for Syrian refugees?

This case is fundamentally important in terms of recognising the gravity of international crimes committed against the Syrians who were forced to flee to save their lives against persecution by the government. It’s been devastating to see that many of the Syrian refugees are still trying to find a safe place to survive since the perilous journey they took to reach the European Union (EU) in 2015. It is not unknown that the EU’s response to the unprecedented refugee crisis has been far from satisfactory. Many initially debated whether it was a refugee crisis or a migrant crisis; because in the latter case they can refuse to give protection under the 1951 Refugee Convention.

Further, many member-states like Hungary, Poland, and the Czech Republic aggressively closed their borders risking the lives of thousands of people (they were later prosecuted for breaching EU Law for not accepting their share of asylum applications). Those who began the process of claiming protection were kept in detention centres while their status was determined (Greece and Italy have hotspots for detaining asylum seekers), leaving people in distressing conditions. The future of many unaccompanied migrant children who entered the EU during the crisis still remains futures.

This judgment for sure is a relief to many of them who were lucky enough to make their way safely to member-states like Germany, which was only one of the few to open their borders and voluntarily accepted refugees. Germany has paved a way for other countries and EU member states to come forward and realise that what has happened to Syrian refugees is not to be repeated in future. For the sake of humanity, justice must be done.