A German Court Punishes an International Crime Committed in Syria

TRANSCEND MEMBERS, 1 Mar 2021

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

26 Feb 2021 – The post below is a much modified text of my responses to questions given to a Turkish journalist, Murat Sofuoglu, associated with TRT. The questions related to a German court decision that held a Syrian intelligence official guilty of aiding and abetting a crime against humanity. The case is significant because it asserts the legal authority of a national court to impose accountability when the territorial sovereign is itself the culprit and international tribunals lack the means to pursue those most responsible for the commission of the most serious international crimes. In this instance, Russia and China vetoed an attempt in the UN Security Council to authorize allegations against Syria.

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1 -What is your legal assessment of the case against the Syrian intelligence member in Germany?

This is a notable case because it invokes international criminal law to punish a Syrian accused of aiding and abetting crimes against humanity in Syria while working as an intelligence officer for the Damascus government. The German court in the city of Koblenz found Eyad al-Ghraib guilty as charged, imposing a prison sentence of 4.5 years. His alleged crime was to continue detaining opponents of the Damascus government in 2011 after he had knowledge that once delivered them to the al-Khatib Prison (also known as Branch 201) they would face torture. The exercise of such legal authority by a national court in Germany, punishing a Syrian acting in Syria under governmental authority has been hailed a landmark decision in the struggle to extend accountability for international crimes beyond what can be done by way of international tribunals such as the International Criminal Court in The Hague. Such a decision is particularly welcomed in the Syrian context where there have long been extensive proof of widespread torture and other abusive behavior, millions of Syrians had fled abroad after being victimized, and international judicial redress was unavailable. For many human rights activists the German decision came as a kind of deliverance from a long dark night, and the use of Universal Jurisdiction was applauded as filling, at least symbolically, the accountability gap.

Less noticed so far, however, was a certain moral complexity in the case. The accused individual did not contest the use of torture in the prison or deny his knowledge of what was occurring, but claimed that he was acting on orders from his superior in the Syrian intelligence service and was threatened with death to himself and his family if he refused to deliver 30 detainees to the prison. Beyond this al-Ghraib failed to carry out order to shoot the demonstrators, and later defected, becoming himself so endangered in Syria that he became a refugee. Aside from the testimony of Syrian refugees, the most persuasive evidence against al-Ghraib apparently came from information he gave German immigration authorities at the time he applied for asylum in Germany. Did not the court act over-zealously under these circumstances? The lawyer for the defense has indicated an appeal, but apparently not to the verdict, but to the harshness of the sentence. The judge, Anna Kerber, was reported to have condemned the specific acts associated with the prosecution with a broader reliance on torture as itself part of ‘a system of torture. This sense of the wider and deeper setting of al-Ghraib’s actions led human rights experts and the Syrian refugee community to welcome the decision, but insist that the punishment was too lenient. There are difficult moral judgments to be made. This defendant was faced with a tragic dilemma, and he was a person who was not a policymaker but a cog in the wheel. When those that put these policies into operation are beyond reach does it make sense to punish those near the bottom of the bureaucratic hierarchy?’

There is a parallel case in the same court against another more senior Syrian intelligence official, Anwar Raslan, who is accused of committing a Crime Against Humanity consisting of supervising the torture of 4,000 Syrian detainees, leading to the death of 58 persons. The case is more serious and complex, and no decision is expected until October. Raslan more than al-Ghraib was in a responsible position carrying out official policies, and seeming less deserving of a certain degree of empathy. It is not known why Raslan left Syria or arranged entry to Germany.

This far reaching legal authority, known as Universal Jurisdiction, means that anyone who enters a foreign country could be accused of committing an international crime in another country, provided sufficient evidence was presented to justify prosecution and conviction. It was also necessary to be able to bring the accused perpetrator physically before the court , requiring that he was either present in the prosecuting country or could be extradited from a third country. Al Ghraib defected from Syria in 2012. He initially entered Turkey and then Greece as a refugee, eventually entering Germany in 2018 as an asylum seeker. A year later he was recognized by other Syrian refugees who were victims of the 2011 torture experience in the Damascus prison, and the prosecution was launched.

Such an assertion of legal authority generally presupposes that a country’s legislation criminalizes certain specified forms of behavior such as genocide, war crimes and crimes against humanity. The judicial exercise of Universal Jurisdiction rests on the international behavior being prosecuted having been incorporated as a crime in the national legal system of the country. This German decision deserves our attention because it is the first time that such a claim has been internationally prosecuted in relation to the widespread pattern of criminality attributed to the Syrian Government in responding to the popular uprising that began in 2011 in the context of the Arab Spring. Some 30 years earlier Spanish courts claimed a limited authority to prosecute individuals accuses of international crimes committed in Chile.

There was a prominent American case, Filitaria v. Pena-Irala, in 1980 which awarded large damages for acts of torture carried out in Chile against a non-American victim. Unlike this Al Gharib case, Filitaria, was a tort claim, not a criminal prosecution, but it posited the same kind of extra-territorial claim of authority to apply the law of one country to wrongful acts performed in a foreign country so as to uphold a grievance of the harmed individual even if a non-national.

2 – How could the case affect other potential prosecutions across the world against Syrian government officials?

The decision of this German court provides a legal precedent for similar prosecutions, provided evidence is available, the defendant can be brought before the court, and the nation legal system endorses the practice of Universal Jurisdiction. Democratic countries generally vest such legal authority in their national courts. It is easy to understand that the widespread application of such claims resting on Universal Jurisdiction, while a victory for criminal accountability, could seriously hamper travel, tourism, commercial relations, and even diplomatic relations, and hence is both controversial and subject to abuse. It was reported at various times that such public figures as Henry Kissinger and the former Israeli Foreign Minister, Tzipi Livni, were warned by their governments or lawyers not to travel to certain West European countries because they might be subject to arrest on the basis of accusations of war crimes, and subject to detention or extradition. A much publicized case in 1998-99 involved a Spanish request of extradition of the former Chilean dictator, Augusto Pinochet, present in the UK for medical treatment. If extradited, Pinochet faced charged in Spain for his role in presiding over the torture of numerous political prisoners in Chile during his time as president of the country.

It is possible that in light of this German precedent that future legal arguments will be made that Universal Jurisdiction is globally applicable even without criminalization by law at the national level. If this happens, more cases could be launched as there exist many grievances against international crimes throughout the world. Of course, more is needed than an allegation. There must be a legally valid way of bringing the accused individual before the national court, and the prosecuting entity must possess sufficient evidence to produce a guilty verdict. Such legal events would give rise to frictions in the diplomatic relations between states, and could intensify tensions and conflict, but they also hold out hope that new limits on territorial impunity could be achieved, accountability for international crimes extended, and to some extent recourse to criminal forms of governance could be to some extent deterred.

3 – Do you find the verdict as a historic decision in a legal sense?

The decision does provide a potential path to greater accountability for international criminal activity in situations where the government of the country where the actions took place is unwilling or unable to prosecute and no international tribunal or punitive remedy is available. It remains to be seen whether the follow up to the German decision creates a trend or is but an

Isolated instance. The lawyer of the loser in the Ghraib case has indicated that the decision will be appealed. Should the decision be reversed the outcome will be quickly forgotten. If not, then a lot depends on whether other law suits of a similar kind go forward, and are successful.

There is a second case being litigated in German courts, but apparently several months from reaching the decision stage. It involves allegations against Anwar Raslan, a more senior prison official in Syria, who is charged with Crimes Against Humanity, which included involvement in the murder of 58 prisoners and the torture of another 4,000. If the Raslan case reaches a similar conclusion to the Ghraib case it will definitely create an international stir, but it could be a backlash involving the repudiation of Universal Jurisdiction. It could with the help of extradition greatly strengthen procedures of accountability in relation to serious international crimes.

It should be remembered that it is somewhat unusual for the perpetrator, as was the story with Ghraib and Aslan, to have sought asylum in a country whose government had opposed the Syrian response to the post-2011 challenge to its leadership of the country. With more than four million Syrian refugees in Turkey it seems likely that if UJ is available cases would be forthcoming.

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Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB, author, co-author or editor of 60 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to two three-year terms as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and associated with the local campus of the University of California, and for several years chaired the Board of the Nuclear Age Peace Foundation. His most recent book is On Nuclear Weapons, Denuclearization, Demilitarization, and Disarmament (2019).

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