Missing Perspectives

Today marks the International Day of the Victims of Enforced Disappearances. For many Syrians, survivor-led initiatives and family associations, this is a day of mourning. At least 100.000 Syrians have been subjected to enforced disappearance since the start of the uprising in 2011 (the true number is probably much higher). Many individuals are still missing today. Some families have received official death notifications. None of the perpetrators has been brought to justice for the crime of enforced disappearance, although European courts have convicted several individuals for war crimes and crimes against humanity committed in Syria.

In an earlier post on this blog, I have argued that the crime of enforced disappearance could and should be addressed in the Al-Khatib trial before the Higher Regional Court of Koblenz (‘the court’), the world-wide first trial on international crimes committed in Syrian detention facilities. One year after the start of the trial – and a decade after the first waves of arrests in Syria – there are new developments on this front. On 22 July 2021, the representatives of 13 survivors filed a motion to request the court to include enforced disappearance as a distinct crime against humanity into the charges against the defendant Anwar R. In its statement of 18 August 2021, the Federal Public Prosecutor opposed the motion – on incomprehensible grounds. The court, that has recently reconvened after a three-weeks summer break, has yet to respond.

This contribution explores the reasons for the difficulties to prosecute the crime of enforced disappearance in the Al-Khatib trial. As will be shown, the difficulties stem to some extent from (1) the legal definition of enforced disappearance in German law which requires additional elements compared to the Rome Statute and the International Convention for the Protection of All Persons from Enforced Disappearance (‘ICPPED’). Furthermore, in the specific case of the Al-Khatib trial, (2) crucial evidence has been left out because prosecutors and judges missed the opportunity to obtain corroborative evidence especially from female (expert) witnesses.

A Too Restrictive Interpretation of an Already Narrow Legal Definition of Enforced Disappearance

Under international law, the crime of enforced disappearance is defined by three elements: a deprivation of liberty with some form of state involvement followed by the refusal to acknowledge the deprivation of liberty of an individual or the concealment of his/her fate and whereabouts (Article 2 ICPPED, Article 7 para. 2 lit. i of the Rome Statute). In contrast, the German Code of Crimes against International Law (‘CCAIL’) requires additionally that the state-sponsored deprivation of liberty must be followed by a failure to give immediately truthful information on that person’s fate and whereabouts, upon inquiry (Section 7 para. 1 No. 7 CCAIL). The latter two words are important: For the abduction to be qualified as enforced disappearance under German law, family members, partners, friends or colleagues must have actively searched for the disappeared individual and requested information from the state.

In Syria, however, searching for disappeared persons is very delicate. Because of the high risk of reprisals by the regime, families often pay bribes to informally obtain information from state officials. Yet, according to the statement of the Federal Public Prosecutor of 18 August 2021, only “official requests for information” to state authorities shall qualify as an inquiry in terms of the CCAIL. This interpretation stands in stark contrast with the wording of the Convention, which requires state authorities to undertake an investigation “even if there has been no formal complaint” (Article 12 para. 2 ICPPED). It also opposes the approach taken by the ICC in its Article 15 Burundi decision: According to Pre-Trial Chamber III, state authorities must investigate the fate and whereabouts of a disappeared individual, “[w]hether or not the victim’s family lodges a formal complaint” (at para. 118). In the Al-Khatib trial, the court should stick to this interpretation. Otherwise, German law will remain without effect when enforced disappearances are committed in the context of oppression, where official requests are potentially life-threatening.

It is worth nothing that – contrary to what the German Federal Prosecutor claims – the situation in Syria fulfills even this restrictive definition provided by German law. Despite the risk of reprisals, many Syrians went to each and every detention centre in their home town to ask for information about their missing relatives. Yet, so far, this detail has been neglected in the Al-Khatib trial, at least until the survivors’ legal teams pointed to it.

Missing Perspectives

An analysis of the data on the summoned witnesses shows that crucial evidence has been left out because prosecutors and judges focused on questioning male survivors of detention in the Al-Khatib Branch and missed the opportunity to obtain corroborative evidence about enforced disappearance and its impact on victims and affected communities by female relatives and expert witnesses.

According to trial reports by the European Center for Constitutional and Human Rights and the Syria Justice and Accountability Centre, the court heard 70 witnesses since the start of the trial in April 2020 until its summer break in mid-July 2021. These witnesses included Syrian survivors and human rights activists, German police officers tasked with the investigation, as well as German and international expert witnesses and others. Half of the Syrian witnesses (22) were male survivors of detention in the Al Khatib Branch. In addition, three male Syrian human rights lawyers and/ or regime critics have been called to testify as expert witnesses about the political context und human rights situation in Syria. The court also heard 12 male Syrian (eye) witnesses, including former prison guards and other insider witnesses from the Syrian Intelligence Services, as well as relatives of the defendants. In comparison, the court only heard 7 female Syrian witnesses all of whom survived detention in the Al-Khatib Branch, and not a single female expert or eye-witness. However, to gain evidence about the search for the disappeared and the impact of enforced disappearance on victims and affected communities, female relatives and expert witnesses must be heard. Since most of the detainees in Syria are male, it is often the female family members left behind who bear the burden of searching for the disappeared. In fact, many Syrian organizations and international initiatives advocating on behalf of those disappeared by the Syrian regime or ISIS are female-lead or to a large extent composed by women. The complete lack of any summoned female Syrian expert or eye-witness in the Al-Khatib trial indicates that lived experience of females who have not been detained, but hold knowledge of crimes, most notably enforced disappearance of family members and friends, was not recognised as a valuable contribution to the proceedings. Most of the time, those female witnesses who were called to testify were assigned a very specific and gendered role, namely to testify about the crimes they were subjected to as former detainees and (presumed) survivors of (sexualized) violence against women in detention. Only one female witness had the opportunity to report about the search for her daughters when she was called to testify about her own detention and that of her daughters. She explicitly said that for her husband and son, it would have been too dangerous to request information about their daughters/ sisters from the state authorities because they would have likely been themselves arrested.

The evidence gap is exacerbated by the fact that prosecutors and judges did not adequately frame their questions to the testifying survivors. As the above-mentioned trial reports show, the court frequently asked the survivors whether their relatives had been informed about their detention (no surprise, the answer was always, no). However, because of the requirement of an inquiry, the court should have asked the witnesses whether their family members or friends dared to approach state officials to request information or have otherwise searched for them to prove the crime of enforced disappearance under German law. The many reports about the frequent disappearance of detainees in Syria – and their relatives’ desperate search for them – should have prompted the judges and prosecutors to at least ask follow-up questions about the inquiry. The complete lack of such follow-up questions indicates that the crime of enforced disappearance has not been on the court’s radar. Indeed, the crime of enforced disappearance is currently not included in the indictment. Still, prosecutors and judges have a responsibility to investigate all (potential) crimes committed in the Al-Khatib Branch to their full extent.

The focus on survivors of detention as such disregards the gendered economic, social and psychological impact of detention of (male) family members on women and girls who are not themselves detained, but are nevertheless directly affected by enforced disappearance as mothers, sisters, daughters, wives, partners and friends. As distinguished legal practitioners and scholars have argued before, prosecution authorities and courts – in general – need to diversify the sources of evidence and contextualize the violence to grasp the crimes committed in Syria (and beyond) to their full extent. Such calls for contextualization – and specialized training for investigators, prosecutors and judges – are most commonly made in the context of sexualized and gender-based violence. The same goes for the prosecution of enforced disappearance and other international crimes, such as persecution on political grounds and crimes committed against marginalized groups, including ethnic or religious minorities, persons with disabilities and LGBTIQ+ persons. The here-described example of the (lacking) prosecution of enforced disappearances in the Al-Khatib trial shows that one-sided prosecution efforts fail to adequately recognize the suffering of victims and affected communities, and ultimately, to bring justice to survivors.

The views shared in this contribution are inspired by the pioneering work of Alexandra Lily Kather and build on ongoing conversations with distinguished colleagues and dear friends, including M. Rodwan Abouharb, Samar Al Bradan, Veronica Bellintani, Justine Batura, Antonia Klein, Patrick Kroker, Eva Nudd, Joumana Seif, Andreas Schüller, and my partner Sami Mahmoud. Thank you.