Many legal experts find the German court’s conviction sets crucial precedent to prosecute other members of the Assad regime.
The Syrian regime led by Bashar al Assad is said to be responsible for the deaths of hundreds of thousands, as well as the displacement of half of its population since the beginning of the civil war.
A recent German court’s conviction against a low level member of the regime, Eyad al Gharib, gave hope to many who want to prosecute the Assad regime for war crimes and other criminal offences. Gharip received a four and half year sentence for his crimes against humanity.
Gharib worked for Syrian intelligence before seeking asylum in Germany in 2012 and confessed to some of his criminal involvement on behalf of the regime to gain asylum status.
“His alleged crime was to aid and abet Crimes Against Humanity by continuing to detain opponents of the Damascus government knowing that they would face torture. Such legal authority by a national court in Germany to impose a punishment on a Syrian acting under governmental authority in Syria contributes to the struggle to uphold accountability for international crimes,” says Richard Falk, a prominent international law professor.
Human rights groups applauded the German court decision as a result of a sophisticated alliance of different forces.
“Syrian survivors, lawyers, activists, and others have made intensive efforts to document war crimes and other abuses over the course of the decade-long conflict,” says Balkees Jarrah, Human Rights Watch’s associate director for international justice.
“A huge amount of information and possible evidence has been gathered that will no doubt provide powerful assistance to any criminal prosecution and this German case shows that those efforts are starting to bear fruit,” Jarrah tells TRT World.
Like most other countries, the Assad regime defends itself using the argument of ‘national sovereignty’.
The German court, however, which used the argument of universal jurisdiction to convict Gharib, is a reminder that the Assad regime can be held responsible for the crimes of which it is accused.
“This authority, known as Universal Jurisdiction, would mean that anyone who enters a country could be accused of committing a crime elsewhere provided sufficient evidence was presented to justify prosecution and that the defendant perpetrator was present or could be extradited,” Falk tells TRT World.
According to ‘universal jurisdiction’ another national court, other than that of Syria, could prosecute individuals like Assad and his collaborators for serious violations of human rights such as crimes against humanity, war crimes, genocide, and torture.
Germany accepts the principle of universal jurisdiction, whose legal logic is based on the idea that war crimes and torture might harm the international community and international order, which is supposed to be protected by every individual state, including Germany.
“This German decision deserves attention because it is the first time that such a claim has been successfully prosecuted in relation to the widespread pattern of criminality attributed to the Syrian Government in responding to the popular uprising that began in 2011 in the context of the Arab Spring,” Falk says.
While Jarrah thinks similarly to Falk, seeing cases like the recent German case as “an important first step in puncturing the wall of impunity in Syria”, she also hazards that those cases might not be good enough on their own, requiring a more comprehensive process for global justice.
“At the end of the day, universal jurisdiction efforts in Germany and elsewhere can help to fill gaps but cannot carry the full weight of the expectations of affected communities,” she views.
Like Falk and Jarrah, some prominent diplomats also find the decision historic, hoping that the verdict will pave the way for potential trials and punishments of other senior members of the Syrian regime.
“This is a very important signal to the tens of thousands of Syrians who have been victims of torture. It sends a very clear message to those in the Syrian regime and other actors who commit serious human rights violations: There is accountability,” said Christoph Hausgen, the German ambassador to the United Nations, in a statement.
An important precedent
With the German court decision, the Syrian regime and similar autocratic states will potentially face greater problems regarding their oppressive measures, according to Falk.
“It is possible that in light of this German precedent that future legal arguments will be made that Universal Jurisdiction is globally applicable even without authorization at the national level,” Falk says.
“Today’s verdict is the first time a court has confirmed that the acts of the Syrian government and its collaborators are crimes against humanity,” said Patrick Kroker, who represents several plaintiffs in another case against Anwar Raslan, the former alleged head of the investigations at a branch of Syria’s General Intelligence Directorate.
Raslan was Eyad’s supervisor, according to the testimonies of witnesses and Eyad himself. Raslan’s trial in Germany still continues. He has been accused of 4,000 counts of torture, rape and assault, as well as other counts of murder.
“It should be remembered that it is somewhat unusual for the perpetrator, as was the story with Ghraib and Aslan, to have sought asylum in a country whose government had opposed the Syrian response to the post-2011 challenge to its leadership of the country. With more than four million Syrian refugees in Turkey it seems likely that if UJ is available cases would be forthcoming,” Falk notes.
Jarrah also thinks that the German trial experience could be used in further prosecutions against the Syrian regime across Europe.
“In that way, this trial can create conditions to push the door open to wider accountability for the conflict in Syria. The more judicial activity there is in response to demands from survivors, the harder we hope it will be to sweep the accountability issue under the rug,” Jarrah says.
The biggest fish
While both Eyad and Raslan are considered small fishes compared to the powerful figures around the Assad regime, it’s still something to celebrate for many Syrians, who lost their loved ones in the torture chambers of Damascus.
“This is a historic moment for every Syrian and for the families of more than 130,000 people detained and disappeared. We should be witnessing Assad on trial at the International Criminal Court but this is the first step towards true accountability and justice,” said Wafa Mustafa, a Berlin-based Syrian activist and journalist. In 2013, Mustafa’s father was arrested by the regime and he has not been heard from since.
“The verdict issued today in the Court of Koblenz is not only an indictment of accused Iyad (Eyad). It is a judicial indictment of all the security services in Syria and of all the violations that they committed. And it’s just the beginning,” said Mazen Darwish, a Syrian human rights lawyer.
Like Darwish, other experts believe that the German court’s decision has powerful implications, which might not only find a low-level intelligence operator like Eyad guilty, but also sends a strong message to the regime sitting in Damascus that its actions are indeed punishable.
In the UN, Russia and China, the two allies of the Syrian regime, have blocked previous attempts to form an international tribunal to try Bashar al Assad and his collaborators.
“This verdict is against a single individual and he’s been, I think correctly, referred to as a relatively small fish. But the evidence in the case in order to prove the crime against humanity involved demonstrating the role of the entire Syrian government intelligence agencies going up to the highest levels,” said Steve Kostas, an international law expert and human rights defender at the Open Society.
There are several reasons why the case has unfolded in Germany. Berlin hosts more than 800,000 Syrian refugees, more than any other EU country. Some of those refugees served as witnesses in the trial against both Eyad and Raslan.