By: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL
Prosecuting the Syrian conflict’s war criminals is a difficult affair. Syria is not a signatory of the Rome Statute, so the International Criminal Court has no mandate to investigate or prosecute war crimes committed on its territory and/or by its nationals. Members of the United Nations Security Council have previously sought to establish a mandate over these crimes, but were blocked by Russian and Chinese vetoes. However, a German court has taken this task into its own hands by exercising the principle of universal jurisdiction, which enables any court in the world to hear cases involving war crimes, genocide, and crimes against humanity (CAH) due to the gravity of these crimes. This January, the Higher Regional Court in Koblenz sentenced a former member of the Syrian secret service to life imprisonment for torture, sexual violence, and the death of political opponents in detention centers.
This case has been praised by advocates for refugee rights as an opportunity to set a strong judicial precedent regarding the atrocities committed by the Assad government. This could benefit Syrian refugees in Europe who are nowadays facing several measures that put them at risk of being returned to Syria. After a decade at war, how could this sentence impact the forcibly displaced population?
The Koblenz trial
On April 23, 2020, the First Criminal Division of the Koblenz Higher Regional Court in Germany indicted Anwar R. for complicity in 4,000 cases of torture, 58 murders, and cases of rape and sexual assault. The hearings saw the participation of dozens of experts, witnesses, and petitioners who described the acts committed by the accused. According to them, the Syrian armed forces detained hundreds of people identified as opponents of the Assad regime and sent them to the al-Khatib detention center. In this place, the Syrian secret service interrogated and tortured the detainees, and deprived them of their liberty for long periods of time under inhumane conditions. The Court found Anwar R. to be a high ranking official of the Syrian General Secret Service in charge of the al-Khatib unit.
The accused defected and fled to Germany in 2018, where he was identified a year later by Syrian refugees as their former persecutor. They informed the police, and their cycle of violence came to an end: the people that Anwar R. had forced to flee their homes brought him to justice. Anwar R. was sentenced to life in prison by the court.
Torture in Syria: refugees of today
While this ruling may further the cause of international criminal justice for Syrian victims, the case of Anwar R. is just the tip of the iceberg. He is only one individual among the vast network of authorities that are accused of being currently involved in CAH in Syria. To this day, the Syrian Network for Human Rights (SNHR) has reported that almost 1.2 million people have been deprived of their freedom in detention centers of the Assad government since March 2011, of which around 130,000 were believed to be still detained at the time of the report’s publication in June 2021. This situation, as well as the collapse of education, labor and social security systems, and attacks on civilian populations has forced more than six million Syrians to leave their homes and seek asylum around the world.
Why send Syrian refugees back?
Despite ongoing challenges in Syria, other states such as Germany, Denmark, Sweden, Turkey, and Lebanon have been taking measures that may result in the forcible return of Syrian refugees to their country of origin (COI). Based on a 2020 report by the European Asylum Support Office (EASO), which claims that the region of Damascus has not reported attacks against the civilian population since 2018, these states have alleged that this part of Syria is now safe. These states have claimed that this improvement means that refugees may no longer need international protection in their territories. Ironically, the same experts who contributed to the EASO report have condemned the decision to use their findings to claim that refugees should return to Syria, commenting that classifying Damascus as a safe zone does not mean that the country is in an overall safer condition for refugees to return.
Returning refugees to their COI is allowed under International Refugee Law, but host states are required to comply with a strict set of requirements to justify doing so. Legal scholars have summarized these requirements under three basic principles: safety, dignity, and voluntariness. In short, to be able to return refugees to their COI, states have to carry out a cessation of status procedure, which needs to be done on an individual basis. The alleged fundamental changes in the country of origin shall have a direct effect on the risk of persecution of the particular individual, not merely to society in general. Host and receiver countries have to ensure that the return is safe and with dignity. And, most importantly, refugees must voluntarily decide if they want to return, and host states shall prove that there are no external forces pressuring refugees to make this decision.
In the case of Syria, there may not be enough elements to consider that refugees are safe to return at this moment: Syrian armed forces are accused of committing CAH, such as those for which Anwar R. was sentenced in Koblenz, and people are continuously fleeing their homes to find refuge in other states. As was noted above, Syria’s social system may not have sufficient resources to resettle its millions of nationals living abroad. Furthermore, there are no reports of refugees voluntarily seeking to return; on the contrary, they are demanding that their host states uphold their right to stay. At the trial of Anwar R., refugee rights advocate groups protested on several occasions outside of the court with banners such as “Assad’s Syria = torture state #SyriaNotSafe!”, asking the German state to refrain from returning them to the place where their lives are at risk.
International justice for refugees
Judicial decisions can be a form of reparation by themselves, as they are a means to convey the truth about a conflict. The Koblenz Higher Regional Court has taken a step towards establishing the truth about CAH by Syrian state actors. Amidst a growing trend amongst host states of arguing that it is safe for refugees to return to Syria, the sentence handed down in Koblenz provides a reminder that this is not yet the case.