How Germany is Leading the Way for Accountability for Crimes in Syria

“The trials are going to be the first time that torturers and victims are going to come face to face in a court of law.” That was Mazen Darwish’s reaction last February when German police arrested two former members of Syria’s intelligence services, one of whom was a senior officer of the Syrian General Intelligence Directorate. (There was a related arrest in France that same day.) Darwish leads the Syrian Center for Media and Freedom of Expression (SCM), one of the most prominent of the Syrian and international organizations pursuing criminal accountability for atrocities in Syria.

Prosecutors in Germany have charged the suspects with torture and other crimes against humanity.  The former senior intelligence service official, known as Anwar R., allegedly operated a prison in Damascus that systematically tortured detainees. The other former intelligence official allegedly operated a checkpoint outside Damascus, which would arrest people and send them to a prison where they would be subject to torture.

The Syrian conflict has been characterized by mass torture and extrajudicial killings in regime detention centers, use of chemical weapons, sexual violence, and other horrific crimes. With UN Security Council dysfunction blocking accountability through the creation of an international tribunal or referral to the International Criminal Court, Darwish and others are taking advantage of universal jurisdiction laws in several European countries. Currently, no European country has laws that are more expansive on universal jurisdiction than Germany.

Since 2011, German prosecutors have pursued a structural investigation into regime-perpetrated war crimes and crimes against humanity in Syria. In 2014, they opened a similar general investigation into crimes against the Yazidi minority in Syria and Iraq. These structural investigations have increased prosecutors’ ability to identify individual suspects and determine patterns of criminality. In all, Germany has pursued cases against at least three dozen [pdf] state and non-state actors for atrocities in Syria. A few of these have been against German nationals alleged to have committed atrocities as members of jihadist groups, but most of the cases have been based on universal jurisdiction laws.

So what are the requirements for using universal jurisdiction in Germany?

Germany allows for the investigation and prosecution of crimes against humanity, genocide, and war crimes even if the crimes are committed abroad by foreigners. The definition of these crimes are in most parts the same as in the Rome Statute of the International Criminal Court (ICC).

There is no need for the suspect to be present in the country before investigations can be opened, which makes Germany’s rules on universal jurisdiction broader than in some other countries. However, if the suspect cannot be found in Germany, the prosecutors have the discretion to refrain from or to close investigations. The prosecutors can also decide to keep investigating, for example, if they think that evidence can be secured. Similarly, if an international court, such as the ICC, or the national courts in Syria someday in the future are able to take up genuine investigations and prosecutions, the prosecutors could also choose to close the investigations.

Anyone can send a complaint to the police or prosecutors, including victims and civil society organizations. Based on such complaints or any other information obtained, prosecutors can open an investigation if they find enough factual indications of a crime.

What sets Germany apart from other countries with universal jurisdiction laws is the range of roles that victims can play in criminal proceedings. They can ask the criminal court to award monetary compensation, if the perpetrator is convicted, and victims can become joint plaintiffs, which entitles them to participate in the trial, including by making submissions, examining witnesses, or appealing the judgment.

Victims can also decide to remain general victims, without applying for compensation or for joint plaintiff status. Even in this case, victims have a number of rights, including access to the case file, legal representation, and interpretation. Victims can choose between any of these different roles, even if they do not live in Germany.

For further information on universal jurisdiction rules in Germany, see the Open Society Justice Initiative’s new guide, one in a series in partnership with TRIAL International, which seeks to contribute to a better understanding of domestic systems among legal practitioners to support the development of litigation strategies.

This article was written with contributions from Eric Witte, senior project manager on national trials of grave crimes for the Open Society Justice Initiative.

The Justice Initiative has contributed to building cases in relation to Syria, including the case of Anwar R., the former senior officer of the Syrian General Intelligence Directorate arrested in Germany this February.

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