Can German Courts Bring Accountability for Torture in Syria?

On Feb. 12, Germany’s investigative police force arrested two former high-ranking members of the Syrian General Intelligence Directorate (GID) allegedly involved in crimes against humanity. The German Federal Court of Justice (Bundesgerichtshof, BGH) had issued arrest warrants for 56-year-old Anwar R. and 42-year-old Eyad A. on Feb. 7, charging the Syrian citizens with crimes against humanity, torture and murder between 2011 and 2012. Federal police arrested the two men in Berlin and the state of Rhineland-Palatinate. A third man was arrested by French authorities in Paris.

The German police allege that Anwar R., former head of the GID’s investigation department, was involved in the torture and physical abuse of detainees between April 2011 and September 2012 in Damascus. Specifically, Anwar R. headed the investigations section of “Branch 251” and later “Branch 285.” According to the Commission for International Justice and Accountability’s deputy director, Nerma Jelacic:

These two branches are the most notorious ones. One of our witnesses has described Branch 251 as the most effective, dangerous and secretive branch, and responsible for 98 percent of the violence committed. That branch was not only receiving people into detention but also carrying out raids and searches for individuals wanted for organizing the protests [against Syrian President Bashar al-Assad’s rule].

Meanwhile Eyad A., a member of the Syrian intelligence service, is alleged to have assisted in the killing of two people and the torture and physical abuse of at least 2,000 people between July 2011 and January 2012. Both men left Syria in 2012 and applied for asylum in Germany.

According to the German court, the Paris prosecutor, as part of a joint investigation team, also arrested a former employee of Anwar R.’s intelligence department near Paris. French prosecutors have not yet released any information on that arrest.

As Emma Broches highlighted on Lawfare, this is not the first time European prosecutors have arrested or prosecuted individuals for crimes committed in Syria. In June 2018, the German Federal Court of Justice issued an arrest warrant for Jamil Hassan, head of the Syrian Air Force Intelligence Directorate, for his alleged involvement in torture, crimes against humanity and war crimes. Germany recently asked Lebanon for help extraditing Hassan, who reportedly entered Lebanon for medical treatment. Similarly, in November 2018, a French judge issued arrest warrants for Hassan and two other senior Syrian officials, Ali Mamlouk, director of Syria’s National Security Bureau, and Abdel Salam Mahmoud, the official in charge of the Air Force Intelligence Investigative Branch at Mezzeh military airport, for alleged involvement in torture, enforced disappearances, crimes against humanity and war crimes. For a collation of some of the national criminal proceedings stemming from war crimes committed in Syria, see here.

Torture in Syria and the General Intelligence Directorate

According to the U.N.-mandated Independent International Commission of Inquiry on the Syrian Arab Republic, eyewitness accounts and documentary evidence “strongly suggest” that the Syrian government detains tens of thousands of people at any one time, and that thousands more have disappeared “after initial arrest by State forces or while moving through Government-held territory, or have gone missing after abduction by armed groups.” Forms of torture include dulab (placing detainees inside a wheel before beating them), shabeh (hanging detainees from the ceiling by their wrists), beatings with objects and electrocution. The Syrian Network for Human Rights said that it had documented the names of 13,608 people who died between March 2011 and August 2018 from torture inside Syrian regime detention centers.

Most deaths in detention have been documented as occurring in locations that the Syrian intelligence services control. The GID, of which Anwar R. was a high-ranking employee, is one of four intelligence agencies that are part of the Syrian security apparatus. The other agencies are the Military Intelligence Directorate, the Air Force Intelligence Directorate, and the Political Security Directorate. Main detention facilities that the GID controls include Interior Security Branch 251 and Investigations Branch 285, located west of central Damascus.

Based on more than 621 interviews and documentary material, and given the reporting procedures in place at the branches, the Independent International Commission of Inquiry says that those people who exercised effective control over the detention facilities must have known about the high number of deaths from poor prison conditions, torture or medical neglect. Thus, the commission says that there are reasonable grounds to believe that high-ranking officers and their civilian superiors—who knew of the vast number of deaths occurring at detention facilities under their effective control, and who failed to take actions to prevent the abuse, investigate allegations or prosecute those responsible—are individually criminally responsible under international law for the crimes committed in those detention centers.

Extraterritorial Jurisdiction for Germany and France

Germany’s 2002 Code of Crimes Against International Law (CCAIL) (see here for unofficial English translation) incorporates the Rome Statute of the International Criminal Court into German domestic law. CCAIL Section 1 provides German courts “pure” universal jurisdiction over the crimes enumerated in the code, which include genocide, crimes against humanity and war crimes. Germany, Sweden and Norway are the only European countries that recognize “pure” universal jurisdiction, meaning universal jurisdiction that requires no specific link to those countries in order for them to prosecute certain crimes, even if the crimes were committed outside those countries’ territories and neither the alleged perpetrator nor the victims are nationals of those countries nor present in those countries’ territories. This allows countries with “pure” universal jurisdiction to exercise jurisdiction over war crimes, crimes against humanity and genocide even when there is no link between those countries and the crime. Investigations into these cases can even take place when the suspect is neither present in their territory nor a resident. Notably, Belgium and Spain once had statutes recognizing “pure” universal jurisdiction that their governments have since narrowed.

While France does not have the same sort of legislation as Germany, its ability to prosecute is drawn from its own universal jurisdiction law. Article 689 of the French Code of Criminal Procedure incorporates the Rome Statute and extends French court jurisdiction to include genocide, war crimes and crimes against humanity. For more information on the legal framework for universal jurisdiction in France, see the Human Rights Watch report on the subject, here.

What’s Next?

While it’s likely that trials stemming from these arrests will take place in both France and Germany, it remains to be seen what arguments the defense will raise and how the domestic courts will interpret or shape the international law surrounding foreign official immunity and prosecution for jus cogens crimes. As a matter of customary international law, foreign heads of state and certain other senior officials have traditionally been accorded immunity as a way to preserve interstate comity and the stability of international relations. This immunity, however, has proven controversial where it limits domestic claims concerning egregious violations of international human rights law.

For its part, the International Court of Justice (ICJ) upheld the immunity of certain high-ranking foreign officials as a “firmly established” rule of customary international law in its 2002 judgment in the Arrest Warrant case, though it acknowledged that this immunity did not continue after the official left office or thereafter apply to private acts even while he or she was in office.

Of the three former Syrian officials who have been arrested, Anwar R. is the most senior and thus the most likely to try to claim some form of jurisdictional immunity. Prior national court decisions provide some guidance on how German courts may seek to navigate Arrest Warrant in order to defeat this claim.

In Khurts Bat, the U.K. High Court of Justice distinguished Arrest Warrant by virtue of the seniority of the defendant’s position, noting that “[the defendant’s] status as an administrator is far removed from the narrow circle of those who hold the high-ranking office to be equated with the State they personify and with those identified by the [ICJ in Arrest Warrant].” Alternatively, in A v. Ministère Public, the Swiss Federal Criminal Court cited Arrest Warrant’s acknowledgement that foreign official immunity cannot protect a former official from criminal prosecution for offenses committed while in office that are not connected to the official’s public functions and held that this prevented immunity from extending to jus cogens violations such as torture and unlawful killings, as the international system fundamentally prohibits such actions.

With Syria not a party to the Rome Statute, and with Russia and China having vetoed attempts at referring the situation to the ICC, European courts like those in Germany and France seem to offer the best hope of accountability for torture and other international crimes in Syria. The arrests of Anwar R., Eyad A., and the third unnamed official may be a step in that direction.