Commentary 05 April 2017

Here is How German Courts Are Planning to Prosecute Syrian War Crimes

by Pauline Brosch                 The Washington Post

Today’s news from Syria, where an apparent chemical weapons attack has taken the lives of dozens of civilians (including children), reminds us once again of the desperate need for justice for those who have suffered atrocities in that country’s civil war. Yet there are grounds for hope.

Last month, nine Syrian torture survivors filed a complaint with the German federal public prosecutor against a group of high-ranking Syrian officials. The charges: war crimes and crimes against humanity. For the victims, German courts are their last hope for justice.

The international criminal justice system has failed to end impunity for Syrian war criminals. The International Criminal Court at The Hague has no authority to judge crimes committed in the war, since the government of President Bashar al-Assad has never acknowledged the court’s jurisdiction. The U.N. Security Council could submit the case to the court, but China and Russia have blocked similar initiatives in the past.

With the international criminal law system deadlocked, and independent trials in Syria even more improbable, the responsibility shifts to prosecutors and courts in third states. They are the only ones who can help narrow the accountability gap in Syria and restore faith in international criminal justice. Germany is particularly well positioned to take action. Many of the Syrian refugees who have sought asylum in the country in recent years are victims of war crimes and crimes against humanity. Germany has at its disposal both the evidence and the legal tools to carry out investigations.

Crucially, Germany is one of the few countries in the world that has implemented the principle of pure universal jurisdiction, meaning that its prosecutors and courts are able to investigate, prosecute and pass verdicts on international crimes even in the absence of links to Germany. The presence of many Syrian victims and witnesses in Germany makes investigations far easier and less costly than in cases where the only evidence is located outside the country’s borders.

We hope that an investigation rising from this latest complaint will illuminate the systematic and official character of the crimes committed by the Syrian regime. Supported by the Berlin-based European Center for Constitutional and Human Rights, the complaint targets six high-ranking officials in the Syrian military intelligence service, accusing them of systematic torture in secret prisons. One of the complainants is Syrian lawyer and activist Mazen Darwish, who has documented the arrest, disappearance and killing of activists. Darwish himself was arrested in 2012, and spent more than three years in different secret military prisons, where he was subjected to severe torture methods, including electric shocks and being hung by the hands for long periods.

Arrest warrants issued by German judges against these officials would already be a great success, signaling to perpetrators that their impunity in Syria is over and that they might be held accountable should they leave the country. Arrest warrants have a direct effect by limiting the freedom of movement. They also act as a deterrent against future perpetrators, thus helping to stop the violence.

The German federal public prosecutor opened investigations of international crimes in Syria soon after the outbreak of the conflict. Pending currently are two so-called structural investigations that focus not on specific suspects but on the entire situation of the civil war and all parties to the conflict. In one of these investigations, prosecutors are currently analyzing 28,000 photos of people tortured to death in Syrian prisons. The photos were smuggled out of Syria by the former Syrian military photographer “Caesar” and are now at the disposal of prosecutors in Europe.

The Syria investigations by the federal public prosecutor have already led to a number of arrests and trials in Germany. Two German nationals, for instance, have already been sentenced to prison for war crimes they committed in the civil war. These trials should be seen as the first cracks in the wall of impunity in Syria.

Yet these particular verdicts bring little solace to the victims and have done little to restore justice in Syria. The majority of cases concerning Syria are prosecuted under terrorism charges, not framed as international crimes, and the few war crimes cases tend to involve unusual and specific incidents. What is more, the few war crime trials launched so far are all directed against members of terrorist groups, focusing on relatively low-ranking individuals. Until now, there has not been an individual case against actual members of the Assad regime.

The recent case brought before German prosecutors is only one piece in the puzzle leading to justice in Syria. On March 27, a Spanish judge agreed to initiate proceedings against high-ranking security and intelligence officials of the Assad regime. Other investigations are pending in France. We hope that other European countries will follow. Only by living up to our commitment to human rights and the rule of law can we hope to bring justice to the victims of the Syrian civil war.

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This commentary, also available in German via Süddeutsche Zeitung, was originally published by The Washington Post on April 4, 2017.

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