Creating a framework for the prosecution of international crimes under universal jurisdiction is clearly worthwhile. But as the intervention by the German Constitutional Court (BVerfG) in the Syrian war crimes trial in Koblenz in favour of Arabic-language journalists shows, transparency and accountability might need to be taken more seriously. For universal jurisdiction to retain its legitimacy, domestic courts adjudicating international crimes need to become more sophisticated in applying procedural law and be better equipped to consider the interests of affected populations and of the wider international community.<\/p>\n
The ongoing criminal trial<\/a> of two former Syrian secret service members for crimes against humanity before the Higher Regional Court of Koblenz \u2013 referred to as \u201cAl Khatib\u201d after the Damascus neighbourhood of the detention facility where the alleged crimes took place \u2013 may be the first legal reckoning against Syrian government officials, but universal jurisdiction under the German Code of Crimes against International Law (VStGB) has previously been wielded by German courts, notably in response to the Yugoslavian conflict and in the FDLR<\/em> case<\/a> against members of a Rwandan militia in 2015 (a sentence later overturned by the German Federal Court of Justice (BGH)).<\/p>\n Establishing such mechanisms for international accountability is all very well; but to achieve more than just the punishment of individual acts, such mechanisms also need to be transparent vis-\u00e0-vis the individuals and the communities directly affected as well as providing means of participation and accountability with regards to the international community. Given the importance of the subject matter, the experience in Al Khatib<\/em> so far, indicates that it may be necessary to go further than the VStGB and create a more tailored framework of procedural rules for universal jurisdiction trials in Germany.<\/p>\n The Al Khatib<\/em> trial \u2013 a missed opportunity?<\/strong><\/p>\n Internationally, Germany is breaking new ground by prosecuting Syrian officials accused of crimes against humanity, murder, sexual assault, and rape. It is therefore regrettable that the Court \u2013 citing the protection of witnesses and fear of improper influence on statements \u2013 rejected the option to record the trial, which is theoretically possible under \u00a7 169(2) of the German Courts Constitution Act (GVG) “for academic or historical purposes if the relevant proceedings are of paramount significance for the contemporary history of the Federal Republic of Germany”. However, considering the Al Khatib<\/em> trial’s historical significance for Syria, Germany, and the international community as a milestone of international criminal law, it begs the question as to why the Court could not opt for a compromise, and merely omit the testimony of the at-risk witnesses from the public record.<\/p>\n For obvious reasons, the trial has attracted a great deal of interest from the large community of Syrians in Europe. Throughout its course, and despite pandemic-related social distancing measures having reduced the number of available seats in the public gallery, Syrian journalists, bloggers, filmmakers<\/a>, podcasters<\/a>, human rights lawyers<\/a>, and activists, have consistently attended the trial. Furthermore, the immediate vicinity of the Koblenz Court \u2013 the plaza in front of the courthouse as well as the adjacent park overlooked by the courtroom \u2013 has emerged as a platform for Syrian activists. In the early mornings, you might find a gallery of portraits of individuals having disappeared in the secret prisons of the Syrian intelligence agencies placed on the steps of the Court plaza and adorned with white roses. Interviews are conducted in front of this backdrop, and activists use them as a focal point to gain visibility towards the media and engage passers-by. In the park beneath the courtroom windows, Syrian artists at one point erected a crowd of scarecrow-like figures clad in the clothing of Syrian refugees, appearing to march towards the courtroom and facing the defendants in a further showcase of the trial’s resonance with those affected by the Syrian government.<\/p>\n However, German procedural law and court practice has frustrated attempts by trial observers in Koblenz to communicate the proceedings to a Syrian and Arabic-speaking audience, both in the Syrian diaspora as well as in Syria itself. The brief updates from the Higher Regional Court’s press office are published only in German and solely address organisational aspects, such as seating restrictions and scheduling. Instead, this gap is filled through trial monitoring by different groups such as SJAC<\/a> or ECCHR<\/a>, who publish summary reports about the proceedings.<\/p>\n This is due to the fact that the court follows the same procedure for international criminal cases as it does for domestic cases; and, indeed, Section 184 of the German Court Constitution Act (GVG) provides that \u201cthe language of the court shall be German\u201d. This means that except for witnesses testifying in Arabic through an interpreter, the great majority of the trial is held exclusively in German. At the end, the Court\u2019s verdict will be written exclusively in German; the Court is under no obligation to provide a translation of it. No transcript will emerge from the proceedings.<\/p>\n However, the German-language proceedings are translated live into Arabic by the two Court-appointed interpreters, which the defendants and private accessory prosecutors with access can listen to via headphones. They also translate Arabic-language witness statements into German for the Court to hear. However, up until the BVerfG’s order, only the formal parties to the trial could access the Arabic-language translation via headphones; the wider Syrian public in the gallery \u2013 the journalists, bloggers, activists, and spectators \u2013 could not. An absurd situation in light of the importance of the trial for Syrians and others in the region.<\/p>\n