An Accountability Update for Crimes Committed in Syria

On Dec. 28, 2019, the Washington Post reported that “Idlib could become the worst humanitarian crisis in Syria’s civil war.” Idlib and its environs have been under intense assault since April, when the Syrian government began a major offensive to retake the last opposition-held enclave in Syria, displacing more than 500,000 civilians and damaging dozens of hospitals and schools. By August, the attacks had become so frequent that U.N. Secretary-General Antonio Guterres established an inquiry to document the incidents.

Despite this persisting violence, European countries, often working in coordination with human rights groups, have made progress in their efforts to hold Syrian regime and nonstate actors accountable for war crimes. Though some cases against Islamic State fighters are taking place elsewhere (including the United States and Iraq), most of the current accountability efforts are being pursued in Europe, including Germany, France, the Netherlands and Hungary. As reported previously on Lawfare, Europeans have been able to prosecute primarily low-ranking members of armed rebel groups or the Islamic State, but they have also had some success holding high-level Syrian government officials accountable. This post provides an overview of the most recent attempts to hold individuals and corporations accountable for their crimes in the Syrian conflict and the strategies that prosecutors have employed to do so.

Accountability for the Syrian Regime

Accountability efforts for regime actors have been slow and fragmented over the past few years, but progress may soon accelerate with the upcoming trial of two former Syrian government officials in Koblenz, Germany, which will be the first trial to address the government’s use of torture. As discussed previously on Lawfare, France and Germany issued the first international arrest warrants for senior Syrian officials in 2018, and in February 2019 three high-ranking members of the Syrian General Intelligence Directorate were arrested. In mid-October, the German federal public prosecutor filed charges against the two former officials—Anwar Raslan and Eyad al-Gharib—who were arrested in Germany. Raslan was indicted for more than 4,000 counts of torture as a crime against humanity, as well as rape and aggravated sexual assault. Gharib, who allegedly reported directly to Raslan, was charged with at least 30 counts of torture. In addition to being the first international case about state torture in Syria to go to trial, it will also be unique in the field of international criminal justice for holding a high-level officer accountable while the conflict is ongoing.

Syrians and civil society organizations have also continued to push European prosecutors to open new investigations against high-level government officials. In November 2019, five torture survivors from Syria working closely with several human rights organizations filed a criminal complaint in Norway against 17 high-ranking officials of the Assad regime. The complaint requests that the Norwegian prosecutors investigate allegations of torture and crimes against humanity committed during the officials’ involvement with 14 different detention facilities across Syria. This criminal complaint is part of a series of similar complaints that have been filed by Syrians in Sweden, Germany and Austria. If the Norwegian prosecutors move forward with the case, it would be the first war crimes investigation in Norway to focus on perpetrators who are not currently present in the country. However, like Germany and Sweden, under Norway’s rules of universal jurisdiction, prosecutors can investigate suspects even if they are not present in Norwegian territory.

Accountability for Other Syrian Fighters

Other recent legal action has targeted Syrians who committed war crimes while fighting for the Islamic State or other armed opposition groups. Since April 2019, five cases against Syrians moved forward in Germany, the Netherlands and Hungary. In most of the cases, prosecutors have been able to bring international criminal law charges through the innovative use of photographic and video evidence from social media and YouTube and tips from refugees. These European war crimes units have also benefited from evidence collected by civil society organizations and joint investigations with other countries.

In April, the High Regional Court in Stuttgart, Germany, found Mohamad K., a 29-year-old Syrian citizen and former member of the Free Syrian Army (FSA), guilty of war crimes and sentenced him to four and a half years in prison. Mohamad had been living in Germany since fleeing Syria in 2015. He was arrested in June 2018 and accused of capturing, detaining and torturing two members of an armed group fighting in support of the Syrian government. The torture was filmed by another FSA member and published on YouTube.

On Aug. 23, in Koblenz, Germany, a 33-year-old Syrian citizen who fought with the Islamic State for two years was charged with war crimes. Investigators believe that the accused posed for a picture with a severed head of an opposing fighter some time between 2012 and 2014 in Syria. Other Syrian refugees who knew this individual reported the alleged actions to German authorities, and after receiving a warrant to search his electronic devices, German police found the image on the suspect’s phone. The suspect is already in prison for lesser offenses, but if convicted, he will face 1–10 years in prison. This case follows a trend in European countries of using social media material as evidence to convict individuals for the war crime of committing outrages upon personal dignity for posing with a corpse.

On Sept. 3, Hungarian prosecutors charged a Syrian man, identified as F. Hassan, of terrorism and crimes against humanity for his role in the beheading of an imam and three other murders in Syria in May 2015. Authorities believe Hassan commanded a small unit of the Islamic State in a town in Homs province that was ordered to terrorize and execute civilians and religious leaders who refused to side with the Islamic State. The charges are the result of a joint investigation with authorities in Malta, Greece and Belgium coordinated by Eurojust, the European judicial cooperation agency. When the trial against Hassan started on Nov. 13, the defendant immediately denied all the charges against him.

The Netherlands also made progress toward holding two different Syrians accountable this past fall. Like the cases in Germany and Hungary, these cases have benefited from close cooperation between different national war crimes units and evidence from online sources. First, on Sept. 5, the Dutch federal prosecutor filed charges against Ahmad al Khedr, also known as Abu Khudar, a 47-year-old Syrian who is believed to have been the commander of a battalion aligned with Jabhat al-Nusra known as Ghuraba’a Mohassan (Strangers of Mohassan). He was charged with both the war crime of murder and the crime of membership in a terrorist organization for allegedly participating in the summary execution of a captured Syrian solider in 2012. The crime was recorded in a video that circulated online. Abu Khudar was granted temporary asylum in the Netherlands in 2014 but was arrested in May 2019 after German police provided Dutch authorities with witness testimony against the suspect. Abu Khudar will face a maximum sentence of life in prison if found guilty.

Second, on Oct. 22, Dutch police arrested a 29-year-old Syrian and alleged former commander of Ahrar al-Sham, a Syrian Islamist group, in a center for asylum seekers in the north of the country. The individual, whose name has not been released, is accused of the war crime of violating the personal dignity of victims for posing with the body of an enemy fighter and kicking a corpse during fighting in Hama in 2015. He also appears in YouTube videos in which he is singing to celebrate the deaths of other fighters. German authorities initially flagged the suspect after he registered as an asylum seeker there in 2015. Both of these cases are particularly significant because, according to JusticeInfo, even though the Dutch war crimes unit has been trying to get Syria war crimes cases into court, the Dutch have lagged behind some other European nations because they have fewer refugees to gather testimony from and have more restrictive universal jurisdiction laws. (Under the Dutch universal jurisdiction law, if neither the suspect nor the victims are Dutch nationals, then the suspect must be present on Dutch territory before the case can move forward.)

Islamic State Foreign Fighters

In addition to prosecuting Syrian nationals, Europeans have also had to build cases against their own citizens who traveled to Syria to fight with the Islamic State. Since the U.S. withdrawal from northeastern Syria in October 2019, the future of suspected Islamic State fighters and their families held in detention facilities now controlled by Turkish-backed forces has become increasingly untenable. However, on the whole, little progress has been made in figuring out how best to detain the members and hold them accountable for joining the Islamic State and any crimes they may have committed as members of the group. Although President Trump has continued to put pressure on European governments to repatriate their fighters, most European leaders still oppose this approach even though experts emphasize that it is the safest option.

In the meantime, Turkey has forced European nations to face the consequences of their indecision by deporting alleged fighters who were captured in Syria or being held in Turkey. Throughout mid-November, Turkey sent more than a dozen former Islamic State members and their relatives to Britain, Denmark, Germany, the Netherlands and the United States. Most of these fighters were arrested upon arrival, but some have been released and will be tracked moving forward. Like most of those individuals deported by Turkey, a German citizen identified as Nasim A., who left Germany for Syria in 2014 and married an Islamic State fighter there, was detained upon arrival at the Frankfurt airport and accused of being a member of a terrorist organization in a foreign country. However, German authorities allowed a family of seven German citizens who arrived from Turkey the same week to return to their homes under police supervision because the authorities did not believe the family ever actually arrived in Syria or joined the Islamic State. The Turkish leadership has threatened to deport the remaining detainees alleged to be members of the Islamic State—estimated to include more than 1,000 individuals from 30 countries—but it is unclear whether they intend to follow through on that threat.

Corporate Accountability

As discussed previously, European prosecutors and civil society organizations have also looked to economic actors that facilitate crimes committed by the regime, the Islamic State or other armed groups. In November 2019, the Paris Court of Appeal issued its decision on the case against Lafarge. The multinational cement firm was accused of complicity in serious crimes for paying the Islamic State and other nonstate armed groups millions of dollars to keep a factory open in northern Syria during the conflict. Although the court overturned the decision to prosecute the company for crimes against humanity, it upheld the three remaining criminal charges: financing a terrorist enterprise, deliberately endangering the lives of its subsidiary Syrian workers and violating a trade embargo. Despite the crimes against humanity charge being dropped, the case remains significant as the first case in France to prompt a criminal investigation of a company’s liability for its foreign operations. This ruling may set the stage for a future trial over the remaining three charges.