Justice for Syria – Should Bashar al-Assad be tried in a German court?

“What is happening in Aleppo is a genocide in slow-motion“, says Berlin lawyer Mehmet Daimgagüler. Together with five colleagues he has submitted a criminal complaint against the Syrian president Bashar al-Assad for crimes against humanity and war crimes. The complaint was lodged with the German Federal Public Prosecutor’s office and is based on the German Code of Crimes against International Law (‚VStGB’). The Public Prosecutor has the discretion to decide wether or not to open criminal investigations against Assad. His decision is not subject to a specific time limit.

The VStGB was created in 2002 to implement the Rome Statute of the International Criminal Court into German law. In its paragraph 1 it provides for universal jurisdiction for the crimes of genocide, crimes against humanity and war crimes, meaning that a German court has jurisdiction to investigate and prosecute an international crime even in the absence of a direct link between the crime, the perpetrator, the victim and Germany. German law also recognizes that core crimes to the international community are first and foremost a matter for the home state of perpetrator and victim, the territorial state where the crime has happened or international courts and tribunals with jurisdiction over the matter: The German Code of Criminal Procedure provides that the Public Prosecutor may abstain from initiating proceedings based on the VStGB if no direct links to Germany exist.

The complaint against Assad concentrates on crimes committed by Assad’s troops on rebel-held areas in eastern Aleppo and the civilian population living there since April this year. According to the lawyers, they identified 41 “ruthless and disproportionate attacks against the civilian population”. Those crimes, says Daimagüler, were chosen as they are well-documented. The lawyers underlined that the fact that their complaint is directed against Assad is not to be interpreted to mean that they see Assad and his troops as the only guilty party in the conflict. But, they argue, about 90 % of the deaths in Syria can be attributed to Assad.

So far, two people have been tried on the basis of the VStGB in Germany. In September 2015 a German court convicted the Rwandans Ignace Murwanashyaka and Straton Musoni, president and vice president of the Democratic Forces for the Liberation of Rwanda (FDLR). Murwanashyaka was found guilty for aiding and abetting war crimes in relation to FDLR attacks in eastern Congo and for leading a terrorist organization. Musoni was acquitted of war crimes and crimes against humanity but found guilty of leading a terrorist organization. Additionally, Rwandan Onesphore Rwabukombe was tried and convicted of genocide on the basis of an old version of the German Criminal Code, applicable at the time of the commission of the crime. However, none of the people previously convicted was a sitting head of state. The lawyers who brought the complaint against Assad know that it is not likely that Assad will appear before a German court – ever. “We are not naive”, says Daimagüler. What the six lawyers pursue is a political signal by commencing an investigation.

If Germany opens proceedings against Assad is a political question. It would send a strong signal to Damaskus, especially if other states join the proceedings. Serkan Alkan, one of the lawyers who filed the complaint, adds that the question is also about credibility. He argues that already now individuals must fear severe consequences if they provide financial support to Islamist groups.

It is highly unlikely that Assad‘s crimes will be prosecuted by a Syrian court in the near future, if at all. In addition, Syria has not ratified the Rome Statute, which makes it impossible for the ICC prosecutor to initiate proceedings or for one of the Court’s member states to refer the situation in Syria to the Court. The only option for the ICC to have jurisdiction over a non-member state like Syria would be if the situation was referred to the Court by the UN Security Council. Previous attempts by the Council to do so, however, were repeatedly blocked by Russia and China.

With judicial proceedings in Syria and on the international level unlikely, Germany might just be the one of the few forums for proceedings like this. This is not only because German law gives German authorities jurisdiction over international crimes: Since 2011 Germany has taken in about half a million Syrian refugees, as many as no other European State has. In the course of German asylum proceedings, each of the arriving refugees is asked about any crimes they have witnessed in Syria in the course of the ongoing conflict. Thus, German officials have a complex record of testimonies which could be leaned onto in criminal proceedings additionally to the materials collected by various organizations.

To only charge Assad with a limited number of crimes as the lawyers who have filed the complaint request might be a good move for several reasons: Bringing together all the evidence gleaned so far, going through the evidence collectively and creating a complex record of the various crimes committed over the course of more than five years will take a very long time. A German court would most likely not be able come up with the resources necessary to process evidence of core crimes committed over the time of more than five years.

Investigating Assad in Germany would send a strong signal to politicians not only in Germany to decline from partnering with a head of state who is officially accused of and investigated for core crimes against the international community. Such a strong message may be even more necessary depending on how how the USA will position itself in the Syrian conflict under Donald Trump. The investigation could strongly urge the international community to set an end to the horrific crimes committed in Syria. It could also restore the faith of many Syrian refugees in the judicial system. A signal with such effect is long overdue and should be send sooner rather than later.

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One thought on “Justice for Syria – Should Bashar al-Assad be tried in a German court?

  1. Pingback: Introducing Mirka Fries | IntLawGrrls

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