The End of the Al-Khatib Trial

A German version of this article was previously published here on 14 January.

January 13, 2022 marked the end of the world’s first trial on state torture in Syria. The Koblenz Higher Regional Court sentenced Anwar R. to life imprisonment for killing, torture, serious deprivation of liberty, rape, and sexual assault as crimes against humanity under Section 7 I No. 1, 5, 6, 9 of the German Code of Crimes Against International Law (CCAIL). It had already handed down the verdict against his original co-defendant Eyad A. in February 2021. Not least because of this trial, Germany sees itself as a pioneer in the prosecution of international crimes. But is this assumption well-founded?

Why Germany?

The proceedings were based on the principle of universal jurisdiction enshrined in Section 1 CCAIL. According to this principle, German courts can prosecute crimes under international law even if, as in the present case, the crime was committed abroad and neither the victim nor the perpetrator are German citizens. Based on this principle, the Office of the Federal Public Prosecutor General (Generalbundesanwalt, GBA) is conducting numerous structural investigations on various conflict regions worldwide, with a particular focus on the Syrian civil war. They form the basis for subsequent personal investigations, which may ultimately lead to criminal proceedings.

The Proceedings

At its core, the Al-Khatib trial revolved around the conditions in the Damascus prison of the same name run by Branch 251 of the Syrian General Intelligence Service. According to the findings in the verdicts, Anwar R. headed the associated interrogation department. Eyad A. worked for subdivision 40, which was responsible, among other things, for arrests and subsequent transfers to the prison.

The investigation benefited from close cooperation with foreign authorities, as well as Syrian and German civil society. Civil society organizations identified and arranged interviews with witnesses, primarily from the Syrian diaspora in various European countries. Such interviews were facilitated by the law enforcement authorities of the respective countries. The UN Commission of Inquiry for Syria and the mechanism for the investigation of international crimes committed there (IIIM), as well as the private investigative organization CIJA provided important background information (see trial reports, day 28).

On April 23, 2020, the Koblenz Higher Regional Court opened the proceedings against the two defendants. Over the course of 108 trial days, the court heard mainly survivors, former intelligence officers, and investigators. The chairman of CIJA also testified. A forensic expert from the University of Cologne analyzed the notorious Caesar photos.

On this basis, the Koblenz Higher Regional Court sentenced Eyad A. to four and a half years’ imprisonment for aiding and abetting torture and serious deprivation of liberty as a crime against humanity pursuant to Section 7 I No. 5, 9, II CCAIL after separating his trial on February 24, 2021.

Significance

Both verdicts contain significant findings also for future proceedings. The court ruled that the Syrian regime carried out a systematic attack against the civilian population from the end of April 2011 at the latest. With that, it established the so-called context that is a prerequisite for crimes against humanity and thus central to any future proceedings on the Syrian conflict. The judges attributed individual attacks via an unbroken chain of command to the high-ranking Central Crisis Management Cell, which reports directly to Bashar al-Assad. In addition, both judgments contain detailed findings on the conditions in the Al-Khatib prison, documenting in particular torture, sexual violence, killings, and inhumane treatment.

On a legal level, the court denied the defendants functional immunity as state employees. The judges thus followed the case law of the Federal Court of Justice from January 2021 and set another precedent for upholding the controversial current legal situation. The court also rejected the defendants’ argument that they would have faced serious consequences had they disobeyed orders to commit the crimes. This superior orders defense finds its equivalent in the necessity defense in Section 35 of the German Criminal Code. The court held that in view of the seriousness of the criminal acts committed, it could have reasonably been expected from both defendants to attempt to evade the commission of the acts, even at great personal risk. Yet, according to the verdict, Eyad A. did not make any strategic attempts to that effect. Anwar R. could have left Syria at a much earlier point in time. Only in the case of Eyad A. did the judges consider his involvement in the Syrian command structure and the resulting pressure to be a less serious case pursuant to Section 7 II CCAIL.

While the verdict thus contains significant findings, the trial suffered from serious deficiencies, not all of which can be recounted here (for a more extensive analysis, see Aboueldahab/Langmack, Minnesota Journal of International Law, Vol. 31, Issue 2, forthcoming (open access)).

Poor Protection of Witnesses

Threats to witnesses and their families in Syria and other countries posed significant problems to the court. Due to its lack of jurisdiction, the court had few means at its disposal to counter these threats. It did allow some witnesses to testify anonymously. But in consideration of the rights of the defendants, only few witnesses enjoyed that privilege. Other possible witness protection measures would have suffered from the same defect. It is thus understandable that the court only used such measures sparingly. Still, as one commentator noted, the overall approach to witness protection was clumsy (for details see here). This also results from the fact that witness protection is left entirely to the ad hoc discretion of the judges. These are neither trained nor do they have the resources to conduct comprehensive risk assessments. The important and comprehensive testimonies of Syrian witnesses thus also demonstrate their great courage. In order to avoid burdening witnesses in future cases with the necessity to muster that courage, Germany would be well advised to engage in more systematic witness protection effort, specifically against threats that materialize beyond German jurisdiction. German authorities could learn from the protection program of the International Criminal Court in that regard. While this has failed dramatically in some cases, it has provided protection under difficult circumstances in others.

Whereas the lack of physical protection was, to a degree, inevitable, witnesses have been unnecessarily exposed to other risks. For many, testifying was psychologically stressful (see trial reports, e.g., day 20, 22/23, 30/31). Although this was foreseeable given the seriousness of the crimes being tried, they received no psychological support. The court could have involved volunteers or assigned psychosocial trial support pursuant to Section 406g of the German Code of Criminal Procedure. In essence, however, the lack of support was owed to deficient legislation: Section 406g of the Code of Criminal Procedure does not foresee support for crimes under the CCAIL. Although international crimes regularly also fulfill crimes included in Section 406g, the survivors of the two categories of crimes are not necessarily congruent. This legal gap is incomprehensible and, as the Koblenz trial has shown, can have serious consequences for survivors and the establishment of the truth.

The Ignored Dimension

Despite these shortcomings, the court managed to conduct a complex criminal trial to the highest standards of the rule of law. It handed down two important verdicts that bolster universal jurisdiction and can attain great importance in future cases. The court and other actors involved must be commended for these efforts.

However, the court and other actors failed gravely at another level. As the world’s first trial for state-sponsored torture in Syria, the Al-Khatib trial also had a political and historical component. Those involved in the trial (see the statements by the joint plaintiffs Alghamian and Hawash as well as the GBA’s prosecutors Frank and Schneider-Glockzin), Syrian civil society, and the then Ministers of Justice and Foreign Affairs Lambrecht and Maas legitimately expected that it would contribute to establishing the historical truth and be a first step in coming to terms with the conflict. That criminal trials can have this dimension is well recognized, for example at the International Criminal Court or in Transitional Justice processes. It must be said at the outset that the rigid framework of criminal proceedings is only partially suited to fulfill such demanding expectations. However, as the only means currently available in the context of the Syrian conflict, those involved in the trial should at least have tried, as far as possible, to do justice to its historical and political dimension. Not only did the GBA and the court fail to do so. They actively blocked efforts in this direction.

The selective choice of charges already hampered a comprehensive investigation of the crimes. The indictment initially did not prosecute sexual assault and rape as crimes against humanity pursuant to Section 7 I No. 6 CCAIL, but as domestic crimes pursuant to Section 177 of the German Criminal Code. The GBA thus classified these acts as detached and isolated from the systematic attack on civil society – contrary to international findings. Only at the request of joint plaintiffs did the court allow sexual violence to be dealt with as a crime under international law. While the court remedied the selective charging in that instance, it rejected the joint plaintiff’s identical motion regarding enforced disappearances pursuant to Section 7 I No. 7 a) CCAIL. Based on the prosecutor’s determination that there was no official inquiry into the whereabouts of the detainees that Anwar R. knew about (see trial reports, day 84), the judges concluded that the evidence did not suffice to prove enforced disappearances. While there can be reasonable disagreement about this assessment of the evidence, this reasoning primarily let existing fears about the inadequacy of Germany’s domestic implementation of the crime of enforced disappearance materialize. As somewhat of a remedy for the resulting gap, joint plaintiff Hussein Ghrer put enforced disappearances at the core of his closing statement. As impressive as his remarks were, they could of course not replace a comprehensive review of this gruesome crime in court.

Even to the extent that the incomplete indictment could have aided to come to terms with the crimes, it was difficult for those affected to benefit from it. The documentation of German criminal trials is already insufficient by law. Hearings before the Higher Regional Courts are neither recorded nor does the court protocol note the content of those proceedings. The Koblenz Higher Regional Court has exacerbated this situation by persistently refusing to make the existing translation of the proceedings available to Arabic-speaking journalists and to record the proceedings on tape.

Interpreters translated the entire proceedings into Arabic for the defendants. It would have meant little effort to extend access to this translation to the public gallery. On several occasions, journalists even offered to bear the costs of such an extension. The joint plaintiffs offered that during their frequent absence journalists could use the headphones that the court had provided for them. The court refused, so that often several unused headphones transmitted the translation for no one to hear, although they were needed a few meters away. Even an injunction by the Federal Constitutional Court granting journalists access to the translation was interpreted so narrowly by the Koblenz Higher Regional Court that it had no effect. As the only exception, the court had the reading of the verdicts against Eyad A. and Anwar R. translated into Arabic over loudspeakers. A Syrian activist confirmed that this made an enormous difference. The court’s previous persistent refusal, however, gives this exception the bitter taste of a supposedly merciful gesture.

The court also failed to recognize the historical-political dimension of the proceedings in its refusal to apply Section 169 II 1 of the German Courts Constitution Act. It allows proceedings of historical significance for Germany to be recorded on tape for scientific and historical purposes. The court rejected several suggestions to this effect, relying on possible negative influence recordings might have had on witnesses and the lack of historical significance of the proceedings. The latter is symptomatic of the court’s lack of awareness of the special dimension of the trial. The first argument also seems questionable. International practice does not provide any evidence for the influence of tape recordings on witness testimony. Possible malicious actors could already follow the testimonies in the public gallery. Also, the recordings would have enjoyed strong legal protection. According to Section 169 II 3 Courts Constitution Act, they could not have been used in court, neither in the Al-Khatib nor in any other trial. Instead, federal or state archives would have kept them under seal for 30 years or at least ten years after the death of the persons recorded (see Sections 11, 12 of the Federal Archives Act). If, despite these precautions, the Koblenz court had seen indications that recordings influenced individual witnesses, it could have stopped the recordings at any time pursuant to Section 169 I 2 Courts Constitution Act.

With these decisions, the court unnecessarily made it more difficult to disseminate, process and research the contents of the proceedings. In doing so, it diminished the influence of a trial whose international impact is of the utmost importance and whose influence was already limited by geographical, linguistic, and cultural boundaries. The reluctance to take measures deviating from normal trials may be understandable in the logic of criminal procedure; with regard to the historical-political dimension of the trial, the court has caused irreparable damage.

Conclusion

The Al-Khatib trial has shown that German law enforcement agencies can establish complex evidence of international crimes, thanks in large part to international cooperation and support from civil society. All parties to the proceedings must be commended for this accomplishment and for conducting a complicated criminal trial to the highest standards. It should not be concealed, however, that the self-incrimination of the defendants was also essential to the success of the trial. Eyad A. mentioned his intelligence activities during his asylum hearing, Anwar R. during a witness examination.

Most of all, the Al-Khatib trial revealed that for universal jurisdiction trials to be successful, they need to rely on comprehensive legislation taking into account their criminal and transitional justice dimension. The German legislator should take comprehensive action to protect the mental and physical health of witnesses. The International Criminal Court could provide best practices (as well as negative examples) to that regard. With a view to the core problem of the trial, the legislator of course cannot impose the awareness of the importance of documentation and access to such proceedings on the court and the GBA. It could, however, grant journalists a right of access to translation in such proceedings. It could limit judicial discretion concerning tape recordings or assign them to a neutral body and make such decisions subject to review. All of that, of course, while taking into account the limitations that the rigid framework of a criminal trial imposes on such issues.

Given that multiple universal jurisdiction trials revolving around the Syrian conflict are underway across Europe, legislators and courts outside Germany should pay close attention to the successes and failures of the Al-Khatib trial. While many of its problems originated from insufficient domestic legislation, the underlying tension between the demands of “ordinary” criminal proceedings and the historical and political dimension of universal jurisdiction trials will also become relevant there. In Germany, history is already repeating itself: The Higher Regional Court Frankfurt am Main recently opened the trial against a Syrian doctor for crimes against humanity. As one of its first decisions, it prohibited spectators from taking notes.

Both authors have previously worked at the ECCHR (from 2016-2017 and 2020, respectively) and were involved in treating state torture in Syria as well as being partially involved with the Al-Khatib trial. The statements made in this article are made in a private capacity.