Guernica 37 Head of Chambers, Toby Cadman speaks to Lucy Trevelyan at the International Bar Association on the significance of the landmark case in Germany against two members of the Syrian Military Intelligence
By Lucy Trevelyan for the International Bar Association. Published here on Monday 23 December 2019
German prosecutors have charged two alleged Syrian secret service officers with crimes against humanity. The trial of Anwar Raslan and Eyad al-Gharib in Koblenz, Germany, will be the first ever for state-sponsored torture in Syria.
Raslan allegedly led the infamous Branch 251 jail, where thousands of people were tortured during interrogations, many of whom died. He is charged with murder, rape and aggravated sexual assault. Raslan’s alleged subordinate, Gharib, faces charges of abduction and torture.
"This case can bring some form of recognition and hope for survivors, and even foster truth-seeking and create a historic record for some of the atrocities they endured" Danya Chaikel, IBA War Crimes Committee
IBA War Crimes Committee Officer and international criminal lawyer, Danya Chaikel, says it will be ‘monumental’ to see alleged former Bashar al-Assad officials in the dock, where they will come face-to-face with survivors.
‘The optics of this alone begins to erode the regime’s relentless ability to escape justice,’ she says. ‘Besides the potential for accountability for leadership crimes committed during Syria’s ongoing civil war, this case can bring some form of recognition and hope for survivors, and even foster truth-seeking and create a historic record for some of the atrocities they endured.’
Toby Cadman is Head of Guernica 37, a specialist International Justice Chambers in London. He says the prosecutions are important, as the absence of international jurisdiction has created a vacuum of accountability: ‘The narrowly construed jurisdiction of the International Criminal Court (ICC) means the majority of the crimes committed will never fall within its jurisdiction and therefore lawyers have to be more imaginative.’
Cadman, who is also the European Regional Forum Liaison Officer on the IBA War Crimes Committee, says Germany has one of the most open and forward-thinking forms of universal jurisdiction:
"It is to be expected that challenges will be brought, but as there is no requirement for the victim or the perpetrator to be a German national or within the jurisdiction, it’s unlikely to be successful."
Chaikel points to an emerging international justice system, which she believes made these arrests possible. ‘We’re seeing unprecedented levels of cooperation and coordination among diverse actors, including states, war crimes units, civil society, survivors, defectors, privately funded investigations, NGOs, the EU and UN accountability mechanisms,’ she says. ‘For the German arrests, these actors helped one another piece together elements of an international investigation, which is made even more complex because they arise from an ongoing conflict, so investigations in situ are extremely risky if not impossible.’
There are still enormous challenges in successfully bringing such cases, not least ensuring the presence of defendants. Raslan and Gharib both left Syria and came to Germany as asylum seekers, but many other alleged war criminals are still in Syria. ‘It is clear the regime will not cooperate and due to the severing of diplomatic ties between Germany and Syria it is unlikely that there will be an extradition process,’ Cadman says. ‘However, the issuance of international warrants means their travel outside of Syria will be limited.’
Once the conflict ends, there will hopefully be a resumption of diplomatic relations, making prosecutions easier. ‘One must also be hopeful of a democratic transition of power in the future and Assad and his cronies will be held accountable either in Syrian courts, in European courts under universal jurisdiction, or in the ICC,’ Cadman adds.
Stephen Rapp, former US Ambassador-at-Large for Global Criminal Justice and Member of the IBA War Crimes Committee Advisory Board, says it is difficult to develop evidence when the investigators and prosecutors do not have access to the country where the crimes were committed.
Rapp explains that in this case, the problem has been overcome because of the evidence provided by ‘Caesar’, the defecting military police officer who brought out 55,000 photos of persons murdered through torture in the Syrian regimes' dungeons. The NGO known as ‘CIJA’ also recovered 800,000 original documents that regime units abandoned during the course of the conflict.
However, despite metadata analysis conducted by German forensic institutes having authenticated the Caesar photos, the defence will likely challenge them. The same applies to the regime documents. Indeed, the judges will be confronted by admissibility issues not faced before.
Similar prosecutions are in the pipeline, according to Rapp. France has issued arrest warrants for three high-level Syrian regime officials. Official investigations of similar cases are at an advanced stage in Sweden and victims have commenced processes in Austria, Norway and Spain.
The new UN Syria Mechanism is consolidating and verifying material from CIJA, the Caesar group and other NGOs to build cases. To ensure more prosecutions are brought, Cadman says the Mechanism ‘should engage in the tracking of alleged perpetrators and encourage a strategic approach to these prosecutions, with different countries pursuing the cases that best fit within their systems’.
Cadman points to the need to coordinate efforts, with groups working together to avoid duplication, raising unrealistic expectations and causing victim/witness fatigue. There also needs to be concentrated efforts to eradicate disinformation campaigns and dangerously corrosive propaganda from the likes of Iran and Russia.
In addition, he says, countries that have universal jurisdiction should use it:
"There is no excuse for not bringing cases where there is an abundance of evidence, witnesses and expertise. The UK for example has done nothing to contribute to the justice and accountability efforts despite the fact that crimes have been committed by British nationals, in the case of members of Da’esh and at least one British victim of the regime, in the case of Dr Abbas Khan."
Moreover, there must be recognition that the reconstruction efforts currently being discussed for Syria are about more than bricks and mortar. Cadman says Assad and his inner circle can have no part in establishing a trusted government.
"There can be no democratic transition, no institutional framework based on the rule of law, no peace, justice or lasting reconciliation, while Assad is in power."