Scratching the Surface One Year Into the Koblenz Trial
Scratching the Surface One Year Into the Koblenz Trial April 2021
Syria Justice and Accountability Centre (SJAC)
The International Research and Documentation Centre for War Crimes Trials (ICWC)
1
About the Syria Justice and Accountability Centre
The Syria Justice and Accountability Centre (SJAC) strives to prevent impunity, promote redress, and facilitate principled reform. SJAC works to ensure that human rights violations in Syria are comprehensively documented and preserved for use in transitional justice and peace-building. SJAC collects documentation of violations from all available sources, stores it in a secure database, catalogues it according to human rights standards, and analyzes it using legal expertise and big data methodologies. SJAC also supports documenters inside Syria, providing them with resources and technical guidance, and coordinates with other actors working toward similar aims: a Syria defined by justice, respect for human rights, and rule of law. Learn more at syriaaccountability.org
About the International Research and Documentation Centre for War Crimes Trials (ICWC)
The International Research and Documentation Centre for War Crimes Trials (ICWC) was founded by Professor Dieter Simon, the former director of the Max-Plank-Institute for European Legal History, and Professor David Cohen, director of the War Crimes Studies Center at the University of California, Berkeley. ICWC was established as an interdisciplinary research center at the University of Marburg in November 2003. ICWC’s work focuses on collecting and documenting war crimes trials and researching and hosting regular conferences. Since 2011, ICWC has observed, documented, and evaluated proceedings of international crimes before the Higher Regional Court in Frankfurt. In this context, students of the University of Marburg receive annual training as trial observers, which is a unique project in Germany. ICWC is led by Professor Stefanie Bock and Professor Eckart Conze.
Cover photo: A Look into the Courtroom in Koblenz, February 2021 © AFP/Thomas Lohnes
Scratching the Surface: One Year Into the Koblenz Trial April 2021; Washington, D.C.
Material from this publication may be reproduced for teaching or other non-commercial purposes, with appropriate attribution. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders.
2 Table of Contents
Executive Summary ...... 4 Introduction ...... 6 1. Universal Jurisdiction - Background ...... 8 Yazidi Case ...... 9 Case against Dr. Alaa M...... 10 2. Two Distinct Cases – the Charges ...... 11 Defected Mid-level Perpetrators ...... 12 Suspects and Insider Witnesses ...... 12 Joint Trial ...... 13 Eyad Al-Gharib Judgement ...... 14 Limited Evidence ...... 14 Defecting as a Low-Level Warrant Officer ...... 15 Final Remarks on the Al-Gharib Verdict ...... 16 3. A Trial in the Time of COVID-19 ...... 17 4. A ‘Public' Trial ...... 19 Legal Framework ...... 19 Lack of freely accessible interpretation of the Koblenz trial ...... 20 Exclusion of Those Unable to Travel to Koblenz ...... 20 Special Public Interest in the Koblenz trial ...... 21 5. The Caesar Files and Digital Evidence ...... 23 6. Evidentiary Challenges ...... 25 Language Barriers ...... 25 Apprehensive Witnesses ...... 26 Evaluating Evidence under German Law ...... 27 7. Witness Protection ...... 28 Objectives of Witness Protection ...... 28 Witness Protection available in Germany ...... 29 Balancing Witness Protection and an Effective Defense ...... 30 Conclusion ...... 32 Annex I a: Important Places ...... 34 Annex I b: Important Branches ...... 35 Annex II: Witness Summaries ...... 36 Citations ...... 41
3 Regional Higher Court Koblenz, January 2021 © SJAC
Executive Summary “Scratching the Surface: One Year into the Koblenz Trial” is a report by the Syria Justice and Accountability Centre (SJAC) and the International Research and Documentation Centre for War Crimes Trials (ICWC) that examines the developments and backgrounds of the trial of Anwar Raslan and Eyad Al-Gharib based upon detailed trial reporting conducted by the two organizations. The trial, which started on April 23, 2020, is the first trial against former employees of the Syrian Intelligence Services. Throughout the past year, the trial yielded insights into state-organized torture and provided many survivors the opportunity to tell their stories in court. This report highlights the following aspects of the trial:
▪ The Koblenz trial is an important step towards justice and accountability as it involves former members of the Syrian government, which is responsible for the majority of violations. To date, Universal Jurisdiction (UJ) cases have been limited to affiliates of non-state armed groups with few exceptions.
▪ Both Accused were charged with crimes against humanity. However, there are considerable differences between the two cases regarding alleged crimes and the ranks of the Accused. The decision to hold a joint trial was therefore criticized and it was eventually severed.
4 ▪ Access for the public, especially the Syrian community, has been an issue from the outset of the trial. Hurdles included a lack of translation into Arabic and inadequate communication between the court and the public. The trial started in the middle of a global pandemic, leading to changes in the schedule which adversely impacted public participation.
▪ The Caesar Files – photos of thousands of corpses taken in Damascus hospitals– were an important body of evidence in the trial. Accompanied by detailed forensic and technical analyses, they shed light on the extent of state-coordinated torture and killings in Syria and indicated how digital evidence can be used in future trials of international crimes.
▪ Throughout this trial, it became clear that there was a difference in available evidence concerning the two accused. Other evidentiary hurdles included the willingness of witnesses to testify and confusion caused by the interpretation of witness testimony.
▪ Many witnesses expressed concerns for their safety and the safety of their families still living in Syria, but the court was reluctant to order witness protection measures.
▪ The court made some efforts to adapt to the unique challenges of this trial. While the proceedings were ongoing in another building, the OLG Koblenz set up a new courtroom in their former library to host this trial. Later in the year, the court started to actively engage with the audience to ensure transparency despite technical problems.
Recommendations:
▪ UJ states should consider the full range of perpetrators of atrocity crimes and pursue all those who have engaged in international crimes, including government officials.
▪ Prior to trial, courts seized of these types of allegations should carefully consider how to engage in public outreach to populations most affected by the alleged crimes, including through interpretation services and providing open access to court proceedings and reasoned decisions.
▪ Prosecutors and courts should work together to establish practical directives on the use of witness protection measures that balance the requirement of a public trial against the potential dangers faced by witnesses.
▪ Courts should receive additional support and capacity building to adequately address special circumstances surrounding UJ trials.
5 Defendants and their Counsels at the beginning of a trial day, February 2020 © Ruptly/Pool Provider
Introduction March 23, 2020 marked an important Syrian conflict to justice. Before the day in the fight against impunity for Koblenz trial, UJ prosecutions for crimes committed during the Syrian Syrian crimes were focused on conflict. On this day, the Higher extremist fighters present in Regional Court (OLG) in Koblenz, Germany and elsewhere. The Koblenz Germany, opened the main trial trial against two former government against Anwar Raslan and Eyad Al- employees, therefore, marks an Gharib. important precedent in international justice. The road leading up to this trial was winding. Justice for crimes committed Investigations against the two during the Syrian conflict is not defendants were triggered by the available at the International defendants themselves. Raslan, who Criminal Court (ICC) due to deadlock felt he was under surveillance by the in the Security Council. Other options Syrian Intelligence Services, to achieve accountability on an approached the German police international level, such as ad hoc regarding his concerns. In tribunals, are also not available to the investigating the seriousness of his victims of these crimes. Domestic allegations, the police discovered his prosecutions under universal role within the Syrian Intelligence jurisdiction (UJ) have filled this Services. Al-Gharib spoke even more vacuum by bringing perpetrators of openly with the German authorities atrocity crimes committed in the during his asylum procedures.
6 Both cases were transferred to the Intelligence Directorate (GID) in German Federal Prosecutor General, Damascus (also known as the Al- who had been conducting structural Khatib Branch due to its location). investigations into crimes arising from the Syrian conflict since 2011. He is charged with complicity in torture, forced imprisonment, and Raslan and Al-Gharib were arrested killing as crimes against humanity, as at their respective residences in well as killings and sexual violence Berlin and Rhineland-Palatine on under German criminal law. Eyad Al- February 12, 2019. Raslan’s case was Gharib worked at Branch 251 and therefore within the jurisdiction of the Division 40, one of the most brutal Superior Court of Justice in Berlin sub-divisions of the GID, and was and the case against Al-Gharib fell accused of aiding and abetting crimes within the jurisdiction of Higher against humanity. Regional Court in Koblenz. When the two cases were joined on October 22, One year into the trial, SJAC and the 2019, the German Federal Prosecutor ICWC have identified several legal General chose to file the complaint and policy issues as well as challenges with the OLG Koblenz. The court based upon a joint project to monitor confirmed the indictment and ordered the trial in detail. The following the opening of the main trial. report addresses these aspects and offers proposals to ensure the The indictment alleges that Anwar proceedings in Koblenz and those that Raslan worked as the head of the follow are transparent, inclusive, and interrogation division at the notorious in the interests of justice. Branch 251 of the General
Read the above QR code to see key trial locations on Google Maps, or view Annexes Ia and Ib of this report
7 Judiciary Sign on Court Officer’s Uniform, Koblenz, September 2020 © Ruptly/Pool Provider
1. Universal Jurisdiction - Background The Koblenz trial1 is possible because This is due to the fact that most states of so-called universal jurisdiction follow a “no-safe-haven” approach, (UJ). Whereas criminal jurisdiction is which aims to deny refuge to generally limited to domestic affairs, perpetrators of international crimes.6 this principle allows states to In contrast, based on the “global prosecute crimes committed abroad enforcer” approach, Germany issued by foreign perpetrators against an arrest warrant against Jamil foreign victims. 2 Since the early Hassan, director of the Air Force 2000s, states have incorporated this Intelligence Directorate,7 and France principle in their national legislation issued a warrant for Ali Mamlouk, and initiated prosecutions against director of the General Intelligence individual perpetrators of serious Directorate in Syria.8 Both remain in crimes.3 Syria and there are no prospects of bringing them to trial for the Although recent developments show foreseeable future. The warrants, that the number of pending UJ cases therefore, have a more symbolic value are increasing,4 they do not target all as senior officials of the Syrian alleged perpetrators. Most cases focus government will not be extradited by on those affiliated with armed non- their own government or by other state actors or extremist groups.5 states in which they still move freely.9
8 The Koblenz trial marks the first time As with the Koblenz trial, that alleged perpetrators affiliated international lawyers have criticized with the Syrian government were the exclusion of sexual and gender- brought to trial for committing based violence in the charges. 13 In international crimes. Despite both cases, sexual violence was either criticism regarding the defendants’ charged under German law or as low ranks (which will be discussed in gender-based violence. For example, the next section), this case could serve the human trafficking of Yazidi to bolster future UJ proceedings, females by ISIS was not included in particularly in the Syrian context. In the charges. addition to the Koblenz trial, several other UJ cases in Germany may help In Koblenz, plaintiff counsels filed a to build a legal framework for further motion requesting the legal Syrian cases. qualification of sexual violence as a crime against humanity.14 While the Yazidi Case prosecutor acknowledged that sexual and gender-based violence has been Only one day after the Koblenz trial used by the Syrian government as started, another UJ trial commenced part of a widespread and systematic in Frankfurt, Germany. On April 24, attack against the civil population, he 2020, the alleged former ISIS fighter, also indicated that in this particular Taha Al J., was brought to trial for the case, there has not been enough first time. He is accused of genocidal evidence to include these charges.15 killing of a five-year-old Yazidi girl, other genocidal acts, crimes against humanity, war crimes, membership in a foreign terrorist organization and terrorist killing, as well as human trafficking.10 While the case itself is not directly related to Syria, it has far-reaching implications on future cases relating to the Syrian conflict. The case against Taha Al J. is the first to include charges of genocide against the Yazidi minority - a crime that has also been committed in Syria.11 The judges’ decision on whether ISIS crimes committed against Yazidis constitute genocide will serve as a blueprint for future UJ cases dealing with crimes committed by ISIS against Yazidis in Syria.12
Sign of the Higher Regional Court in Koblenz © SJAC
9 Case against Dr. Alaa M. efforts to hold accountable In a third case currently under perpetrators from all sides of the investigation by German authorities, Syrian conflict.18 there may be enough evidence to charge sexual violence in the form of The Koblenz trial is the first step on a attempted forced sterilization as a long road to justice and accountability crime against humanity. The suspect, for victims of the Syrian conflict. Alaa M., a former doctor at the Germany and other states, especially hospital of the Military Intelligence in Europe, should take every Directorate in Homs, has been in investigation, prosecution, and trial investigative custody since June under UJ as a learning experience to 2020. 16 The investigation reportedly build on in future cases. involves sexual violence as a crime It is therefore important not only to against humanity committed by a commend this “unprecedented state suspect who worked on the side of the torture trial,”19 but also to critically Syrian government as a civilian assess legal as well as practical issues doctor.17 While the prosecutor has not to further improve these mechanisms yet filed the public complaint, the first in order to hold perpetrators and second arrest warrants against accountable and to ensure effective Alaa M. show that German victim and survivor participation. authorities are continuing their
Political Security Check Point, Hamish Road, Barzeh, Damascus © Damascus Voice
10 Prosecutors discussing before the Announcement of Eyad Al-Gharib’s Verdict, February 2021 © AFP/Thomas Lohnes
2. Two Distinct Cases – the Charges
On the first day of the Koblenz trial, The prosecutor charged Raslan with the indictment was read out in complicity in crimes against court. 20 For over an hour, the humanity in 4,000 cases,23 including prosecutor detailed the acts and the murder of 58 people.24 Raslan is crimes of which the two former Syrian further charged with rape and grave government officials stand accused. sexual assault under German law.25 While both Accused are charged with According to the indictment, these crimes against humanity, there are crimes were committed between April differences in the charges. This fact, 29, 2011 and September 7, 2012. Al- along with the quality of evidence Gharib, on the other hand, was adduced, led to the eventual allegedly working for Division 40, a severance of the trial on February 17, division that cooperated with Branch 2021 and a judgment in Al-Gharib’s 251 by arresting people and case on February 24, 2021.21 transferring them to the Branch. The prosecutor charged Al-Gharib with The indictment22 alleges that Anwar aiding and abetting crimes against Raslan had the rank of Colonel and humanity in at least 30 cases from worked as the head of investigations September 2011 until October 2012.26 at Branch 251. In this capacity, he was responsible for conducting and overseeing the interrogation of detainees.
11 Defected Mid-level From the experience of international Perpetrators tribunals such as the International Criminal Tribunal for the former An apparent aspect of the indictment Yugoslavia, early cases often focus on is the relatively low rank of both low-level perpetrators who can be Accused. While Raslan held the rank taken into custody by relevant of Colonel and led investigations at a authorities and subsequently face Branch of the GID, he is more aptly trial in person. Subsequent trials, described as a mid-level perpetrator. including trials against higher- Al-Gharib’s position was even lower. ranking perpetrators, can then build According to his Intelligence ID card, on these earlier trials.31 Al-Gharib held the rank of a Staff Sergeant.27 Some have criticized the Another critique of the Koblenz trial 32 fact that ‘the world’s first trial on is that both Accused are defectors. state torture’ is not being tried Raslan even joined the opposition, against officials of the highest rank, although it is unclear if and to what and instead has proceeded against extent he actually engaged with the mid- and low-level perpetrators who opposition movement. Critics claim were merely part of a larger that prosecutions should focus on machine.28 perpetrators who still identify themselves with the government and In criticizing the case selection, one not on those who defected and must consider that in light of the opposed the government. 33 As noted ongoing conflict and a lack of above, this is a practical result of the alternative judicial fora, foreign fact that defected officials are present domestic prosecutions and trials are in the prosecuting states. On the the only available option to achieve other hand, defection does not accountability for crimes committed foreclose criminal liability for acts by the Syrian government at this committed while the official worked time. However, such trials can only for the Syrian government. proceed against individuals whom the Nonetheless, it can be considered as a prosecuting state can arrest as trials mitigating factor by judges, in absentia are not permissible in particularly in sentencing. most states. While arrest warrants against high-ranking officials are still Suspects and Insider pending,29 UJ prosecutors have been Witnesses able to secure arrests of several mid- level perpetrators.30 Al-Gharib’s defense and others also raised concerns about the This trial should therefore be seen as differentiation between insider the first step on a long road to justice witnesses and suspects and the and accountability for crimes criteria used to determine if and when committed by the Syrian government. an insider becomes a suspect.
12 Early in the trial, Al-Gharib’s defense Joint Trial claimed that he was not aware that he was questioned as a suspect and not a The above-mentioned parallels in witness when the German police both cases relate to the circumstance interviewed him. 34 He consequently that the alleged crimes were incriminated himself, eventually committed during the same time leading to investigations against him, period between 2011 and 2012 and his arrest, and the present trial.35 are connected to Branch 251, where “systematic and brutal torture During the investigations, the police methods” were practiced, according to also heard insider witnesses who later the indictment. 41 In light of these testified in court but did not have commonalities, there are some charges brought against them. 36 benefits to a joint trial, as it allowed When confronted with questions on for a timely trial and obviated the how decisions are made to open need for repetitive evidence, including investigations against former Syrian witness testimonies. government employees, the prosecutor provided an anodyne For example, the contextual elements response. He indicated that criminal of crimes against humanity, namely a proceedings against individuals are “systematic and widespread attack only initiated when there are against a civilian population,”42 need ‘sufficient factual indications that a only be established in this one trial. person was involved in a crime’.37 In This was done through the such cases, the prosecutor has certain testimonies of several experts and discretion on whether to proceed with other witnesses who provided details investigations of a suspect under of Syrian history, social aspects, and German law. 38 It appears that once backgrounds to government the parallels between the violence. 43 Additionally, torture investigations against Raslan and Al- victims were only required to appear Gharib emerged, the investigations and testify a single time, thereby were joined 39 and it was presumed reducing the risk of traumatization. that the prosecutor had a strong case As this case was the first to discuss against both suspects. It begs the crimes against humanity by the question as to whether it was fair to Syrian government, there were no charge Al-Gharib while other insiders precedents to refer to, requiring an appeared only as witnesses. That analysis of all aspects in court. The said, the trial illustrates that German joint trial, therefore, guaranteed that authorities must ensure they both Accused received a timely trial,44 communicate clearly with witnesses reducing their time in pre-trial about their rights and the possible custody. Whether a joint trial may consequences of providing have prejudiced Al-Gharib as the information as to their own lower-level perpetrator remains an activities.40 open question.
13 Eyad Al-Gharib Judgement The trial against Eyad Al-Gharib and Limited Evidence Anwar Raslan was severed on February 17, 2021, followed by the In their oral reasoning, the judges pronouncement of the verdict against noted that a verdict against Al-Gharib Eyad Al-Gharib on February 24. was only possible due to the self- While the trial against Raslan incriminating statements 45 he made continues, the following section to the German asylum authority. examines two important aspects that While there was substantial evidence should have been considered in to support a finding that the Syrian determining the sentence, as well as government has committed a the public discussion of the Al-Gharib widespread and systematic attack verdict. against the civilian population since March 2011, there was limited evidence as to Al-Gharib’s role in arresting people, transferring them to Branch 251, and the exact number of victims. The judges found that there were 30 victims based upon Al- Gharib’s statement that there were “buses” (plural) used to transport detainees. According to the judges, this meant there were at least two buses. Coupled with the fact that a witness estimated that each bus had the capacity to carry at least 15 people, 46 the judges concluded that Al-Gharib transported at least 30 detainees to Branch 251. Although there was factual evidence to ground this finding, it is a striking example of how little evidence there was apart from Al-Gharib’s own statements. (Furthermore, plural in Arabic means at least three, meaning Al-Gharib may have been talking about three buses and at least 45 victims.)
When the prosecutors filed the case, Syrian Defendant Eyad al-Gharib arrives to hear his verdict, they might have had more detailed February 24, 2021 © AFP/Thomas Lohnes self-incriminating statements from Al-Gharib.
14 However, the German Federal Court Al-Gharib was a low-level officer in of Justice found that parts of Al- the much larger machine of Syrian Gharib’s statement to the German crimes. police were inadmissible evidence because he was not properly informed The judges also struggled to address that he would be questioned as a this fact and the consequences it has suspect nor were the specific rights for the determination of his sentence. ensured.47 One of the defense’s main strategies was to argue that Al-Gharib acted The eventual severance of the cases under duress.50 The application of the ensured that Al-Gharib’s right to be duress defense has confounded jurists tried in a timely and fair manner was for decades. From the beginning of the upheld. 48 With the severance and tribunal for the former Yugoslavia, sentencing, he is now symbolically the the judges were split on how it should first person worldwide to be found be applied. Indeed, reasonable minds guilty of aiding and abetting crimes can disagree as to how much personal against humanity committed by the risk a person must take to avoid Syrian government. commission of a crime.51 According to his defense, Al-Gharib allegedly had Defecting as a Low-Level no choice but to follow the illegal Warrant Officer orders of his superiors. Using this defense to request an acquittal might Immediately after the verdict was be too far-reaching, nonetheless, the announced, many celebrated it as a arguments should have been victory over one of Bashar al-Assad’s considered as mitigating factors in war criminals. However, Al-Gharib determining the sentence. was merely a low-level perpetrator. Prison guards or drivers should not be Instead, the judges found that Al- immune from prosecution. Gharib could have pretended to be International criminal law precedents sick or injured or simply tried to support criminal liability in cases escape in a big confusing crowd. They where lower-level perpetrators are based their arguments on the part of the machinery of death and testimony of one witness, a former destruction. Former Nazi prison employee of the General Intelligence guards continue to be extradited and Directorate, who said that he avoided prosecuted in Germany where participating in arrests by using evidence is limited to their presence illness and injuries as excuses. 52 and employment in Nazi However, this witness, as well as concentration camps. 49 In this case, others who did not show up for work,53 however, the rhetoric surrounding also stated that they were questioned the Al-Gharib verdict should not by their superiors and even detained outstrip reality. for a certain time when they were suspected of lying.
15 Al-Gharib would have faced Final Remarks on the Al- imprisonment and torture 54 and Gharib Verdict therefore faking an injury or using other excuses to avoid participation in Eyad Al-Gharib, the lower-ranking of arrests could have put his life, limb, the two defendants was the first to be and liberty at risk. If Al-Gharib had sentenced after the trials were disobeyed orders in the particular severed. The judgment in his case is instance at the heart of the trial – therefore the first worldwide decision when the ‘choleric’ Hafez Makhlouf against a former employee of the ordered Division 40 to shoot all Syrian government (although protestors – he would have likely been Sweden60 convicted a former member shot on the spot.55 of the Syrian Arab Army). While it is indeed a landmark judgment Regarding possible threats to his regarding the judicial evaluation of family in the case of defection, the government-led crimes against judges found that Al-Gharib left humanity in Syria, it remains Damascus without his family to hide important to recognize the in another city for several months. evidentiary weaknesses relating to They further noted that during this Al-Gharib’s self-incriminating time, his wife was merely questioned statements and that he had limited and his family was eventually able to options, as a low-level member of the join him and leave Syria. The judges Intelligence Services, to defect added that they could not say whether without risking his own or his family’s Al-Gharib indeed considered lives. As it is the beginning of a defecting after he committed the process to bring to justice offences in Fall 2011 and before perpetrators from the Syrian defecting in January 2012. Several government, survivors should be 56 57 58 insiders, witnesses, and experts heartened by the verdict in this case. told the court that, in Syria, one must But, it should also be a learning prepare his defection secretly to not process for prosecuting states. risk his own life or the lives of his family.59 Thus, it is unclear what kind of evidence would have satisfied the judges to prove that Al-Gharib sought to defect.
16 A Syrian Red Crescent COVID-19 Awareness Sign © Damascus Voice
3. A Trial in the Time of COVID-19 In addition to the already unique While the number of COVID-19 cases setup of the Koblenz trial with the and restrictions in Germany number of parties involved and novel decreased over the summer of 2020, charges of international crimes, the public interest in the trial appeared to trial faced additional challenges due wane. Securing a seat was no longer to the global COVID-19 pandemic. an issue. This might have been due to The first public hearing of the trial the fact that interested Arabic- started on April 23, 2020, as Germany speaking observers had no way to was slowly exiting the first lockdown. follow the proceedings. Interpretation The courtroom was retrofitted with devices are only available to plexiglass partitions and seats in the accredited journalists, following public gallery were limited to comply preliminary measures ordered by the with social distancing requirements. German Federal Constitutional Court Interest in the trial remained high in on August 19, 2020. 61 Additionally, the first weeks leading to long queues due to COVID-19 restrictions in front of the court building. People requiring a 1.5-meter distance lined up hours before the start of the between people, spectators were not hearing to secure a seat in the public permitted to be accompanied by a gallery, while others were denied personal interpreter. Some spectators entry. SJAC’s trial monitors have who were accompanied by a attended every single hearing and translator received warnings from the produce detailed reports based on court officers, leaving them without their notes. the option to follow the proceedings in real time.62
17 As the number of COVID-19 cases In light of ongoing concerns related to increased and Germany went back witness protection, 67 COVID-19 into lockdown at the end of 2020, the masks may have contributed to limits to participate in the trial making witnesses feel more became more pronounced. Hotel stays comfortable telling their stories and were only allowed for people on providing details. The court’s ability business trips and only obligatory to adapt to COVID-19 restrictions, travel was permitted.63 The audience with considerable effort and expense, consequently consisted of the same permitted the trial to proceed people, most of whom were trial promptly in respect of the rights of the monitors from different NGOs. Travel accused. restrictions not only affected public participation but witnesses as well. Summoned witnesses from abroad were either unable to come to Koblenz or did not feel comfortable traveling internationally.64 The judges tried to compensate by summoning police investigators from the German Federal Criminal Police who led the hearing of these witnesses. While this practice complies with procedural rules, it deprives survivors of their chance to tell their story in court and limits the evidentiary value of their testimony. 65 Nonetheless, the judges tried their best to thoroughly schedule the hearings, considering live-video testimonies, and preparing a reserve schedule such as reading out reports and publicly taking evidence in the event of last-minute changes caused by the pandemic.66
However, not all of the COVID-19 related restrictions had negative impacts on the trial. The obligation to always wear a mask inside the court building allowed witnesses to cover Public gallery in Koblenz, October 2020 parts of their face. © Ruptly/Pool Provider
18 Media gathering in front of the court, February 2021 © SJAC
4. A ‘Public' Trial Concerns about public access to the It is important to note that this proceedings in Koblenz did not only principle only covers access to oral arise in connection with COVID-19 hearings, and not to written court restrictions. The fact that devices to documents such as transcripts and follow the Arabic interpretation were case files. left unused when many Arabic- spectators could not follow what was The principle of a public trial is said in court, left many wondering fundamental within the German about the meaning of a public trial in criminal procedure code and an Germany. The same question arose important cornerstone guaranteeing regarding the absence of official the rule of law and fairness of transcripts, broadcasts, or recordings (criminal) proceedings. 70 The of the trial for those unable to travel principle of publicity prohibits secret to Koblenz. justice, especially hearings behind closed doors, which were quite Legal Framework common until modern times. 71 By requiring that hearings and the In accordance with European 68 and pronouncement of judgments take international law,69 the principle of a place before an interested audience, public trial or open justice is detailed the principle of publicity subjects the in §169 (1) s.1 GVG courts to a certain degree of Gerichtsverfassungsgesetz (German supervision. On the other hand, it Courts Constitution Act). According makes it clear to the general public to this provision, the main oral that there is no escaping from proceedings before a court, including criminal justice. the pronouncement of judgments and orders, are public.
In this respect, opening the trial to After the court denied the request, a the public provides the basis for the constitutional complaint was filed. 78 trust individuals and society have in To date, this has not yet been decided. the independence of courts and the However, the Federal Constitutional observance of the rule of law in Court issued a preliminary ruling judicial proceedings.72 This is all the that grants access to the court more true in criminal proceedings interpretation system to accredited since they also serve to restore legal journalists, at a charge if necessary.79 order. The public may only be While this decision is a first step in excluded from the hearing in the right direction, it ultimately exceptional circumstances if provided leaves two matters unaddressed. 80 by law.73 In any case, the judgment First, journalists will be charged for must always be pronounced in interpretation in addition to the cost public. 74 Unlawfully excluding the of their travel and accommodation. general public from a hearing Second, due to the limited subject constitutes an absolute ground for matter of the constitutional appeal.75 complaint, NGOs such as SJAC continue to be excluded. Lack of freely accessible interpretation of the Exclusion of Those Unable Koblenz trial to Travel to Koblenz
As a notable portion of the interested The majority of the interested Syrian audience did not speak the official community is unable to travel to language of the court, many Koblenz and unable to participate or considered the absence of Arabic observe the proceedings. Notably, the interpretation contradictory to the German concept of open justice only principle of a public trial. Journalist requires that all persons interested and regular spectators, however, are may come to court and have the not participants in the proceedings. possibility to follow the proceedings The interpretations of the court- on site. 81 Sound and television appointed interpreters are only recordings of the proceedings are, in transmitted directly to the parties of principle, not permitted, meaning the proceedings via headphones. 76 that an extension of the on-site-public Normally, the representatives of the by broadcasting the trial is not Arabic-language media could call in a possible.82 This is meant to protect the whispering interpreter at the same parties to the proceedings – especially time.77 This is currently not possible their privacy rights – and to prevent due to the already mentioned COVID- disproportionate pressure on the 19 measures. Media representatives, courts. The court may also import therefore, requested access to the further restrictions on the principle of audio track of the court publicity due to limited space and the interpretation. factual circumstances on site.
20 In Koblenz, the number of spectator Furthermore, the opposite concern is seats is severely limited due to equally present that a witness might COVID-19 protection measures. In change his or her testimony knowing practice, this has prevented public that it would not be subject to public participation only on a handful of scrutiny. days when media attention was at its height. However, if a criminal Special Public Interest in proceeding is of “outstanding the Koblenz trial contemporary importance for the Federal Republic of Germany”, the The above-mentioned reasoning of the Court may permit an audio-recording judges regarding the historical of the trial for academic purposes in importance of the trial, as well as the accordance with §169 (2) s.1 GVG. To absence of Arabic-interpretation for present, this relatively new provision the audience, points to the court’s is rarely used and is limited to general misconception of the Koblenz producing archived material for later trial. The proceedings in Koblenz are research and not to satisfy regular criminal proceedings, despite information needs of the public.83 the fact that they relate to a foreign country and are based on the principle Efforts to have the Koblenz trial of universal jurisdiction.84 The central recorded have so far failed. The court question the judges must answer is questioned whether the proceedings whether the two defendants are guilty met the threshold of outstanding of the crimes for which they are contemporary significance for the charged.85 Federal Republic of Germany as they concern crimes allegedly committed One must not ignore, however, the in Syria. This, however, ignores that overall context in which the trial the Koblenz trial is a striking example takes place. Conflicts such as the of how Germany takes part in the Syrian civil war traumatize not only global fight against impunity for the individual victims but also society international crimes. The trial is as a whole and will continue to do so therefore of utmost importance for the for decades. At the conclusion of the history and development of the conflict – and in the case of Syria German legal system as well as while the conflict is still ongoing – it others. The court further feared that requires a reappraisal and healing some witnesses might feel threatened process in which the past can be dealt by a recording and change their with collectively.86 In this transitional testimony as a result. However, if the phase, societal structures must also witnesses had a reasonable fear of be (re-)built to enable sustainable retaliation for their testimony, peace. This healing process is witness protection measures could generally referred to as transitional have been offered in particular cases. justice.87
21 It includes the independent and Broad-based communication about systematic clarification of events, the the criminal process is thus essential. identification and sanctioning of those In addition, this is the only way to responsible for international crimes, overcome skepticism that may exist the rehabilitation of victims, and, if regarding the question of what possible, compensation. 88 Criminal political interests the prosecuting proceedings against high-ranking state may have of its own and regime actors can send an important whether all relevant facts are taken message to the international into account. Such concerns are often community, even before the end of the highly pronounced among those conflict. If the Accused are convicted affected by international courts. For and sentenced, the court sends a national trials in a distant state (such message that there is no safe haven as Germany in this case) that has for such perpetrators. This is also an little to do with the conflict, this must important sign to the Syrian apply in the same manner. The community, which has been dispersed population’s trust in such a process abroad as a result of flight and can only be gained and maintained expulsion. Criminal proceedings through regular, understandable, and alone though cannot bring about in-depth reporting. healing and are only a small part of this larger process. 89 Even the most Against this background, free access severe punishment of an individual to the proceedings for the public, can never make up for the injustice including non-native German inherent in a crime under speakers is extremely important. international law.90 Once the conflict Considering the aboovementioned has been settled, however, the prohibition of recording or streaming criminal judgment may add to social from the courtroom, it becomes clear stabilization, particularly through its how difficult it is to facilitate such symbolic power.91 coverage. Interested Arabic speakers have no direct opportunity to follow For criminal proceedings abroad to the proceedings in court. They are make a meaningful contribution to therefore dependent on Arabic- this transitional justice process, the language reporting, which is limited. affected society must first become Such reliance is therefore neither in aware of them. 92 It must be able to the interest of the affected society nor follow the trial and participate in it. of the prosecuting state and courts. Only when the affected parties feel For UJ proceedings to meet their full that they are involved and that the potential, they must be shared not events are being dealt with by an only with the state in which they take impartial authority can the verdict be place but with the broader interested accepted and contribute to public, including those moset affected overcoming the conflict in society as a by the international crimes. whole.
22 Satellite Image of the Branch 251 Building in Damascus, May 2012 © Google Earth 2021
5. The Caesar Files and Digital Evidence Digital evidence was an important Historically, perpetrators have part of the trial in Koblenz, attempted to destroy documentation particularly the so-called “Caesar that exposed their mens rea Files.” Since the turn of the 21st (intention) or actus reus (conduct) by century, courts have confronted the time a conflict ended.94 Thus, the questions surrounding a new realm of significance of having a digital history digital evidence that emerged from of violations that may amount to evolving technologies and criminal liability lies in the ability to accessibility to the internet. Thanks preserve material in real-time. to smartphones, video recorders are at Citizens and organizations now have anyone’s fingertips, as are cameras the power to ensure that evidence and audio recorders. As a result, does not disappear. Moreover, digital telecommunications data, including evidence also assists in the call data records, telephone verification process of other evidence. intercepts, emails, social media posts, and records of financial transactions However, the use of digital evidence are all available in criminal also poses new challenges for investigations to corroborate witness prosecutors and judges. One testimony and to strengthen challenge faced by prosecutors is prosecutions. 93 Digital evidence has authentication, the process by which been particularly valuable for trials documentary evidence and other involving international crimes, physical evidence is proven to be including the Koblenz trial. genuine.95
23 Courts are particularly concerned A forensic expert, Professor Dr. about the authentication of digital Rothschild, provided a detailed evidence, which can be manipulated. analysis regarding signs of torture Another burden pertains to hearsay. and abuse on the thousands of Since digital evidence is removed corpses. 100 It was his testimony, in from its originating source and is not particular, accompanied by his clear live testimony, it is considered to be a and comprehensive presentation, that statement made outside the court, shed light on the stories behind the nonetheless aimed to prove the truth. photos and put them in the context of Therefore, this kind of evidence the stories of survivors and victims cannot be further tested in court. that the court had already heard. Methods to allow for an examination Based on the testimonies of these and validation of this evidence are experts, the judges were able to obtain witnesses that testify on how the insight into the Syrian government’s evidence was obtained. 96 practice of documenting corpses of Additionally, the chain of custody of tortured civilians, ensuring that the evidence is also a concern for evidence before them was authentic. prosecutors. 97 This refers to the In a personal note, the Presiding movement and location of physical Judge noted that she was forever evidence from the time it is obtained impacted by the images in the Caesar until the time it is presented in court. Files.101 This evidence has thus been invaluable for documenting the Consideration of these factors was atrocities committed in Syria and for particularly important in terms of the advocacy on behalf of other victims of “Caesar Files” – a compilation of the conflict, including those involved thousands of photos of corpses in in the Koblenz trial. Syrian government detention facilities. The photos were first Without the risks taken by people like introduced on trial day 28 by Garance Caesar to smuggle evidence out of Le Caisne, a French journalist who Syria, as well as the work of testified about her meeting with the organizations dedicated to preserving former Syrian military photographer such evidence, prosecutors might not “Caesar” and provided details on the be able to surpass the evidentiary origin, content, and structure of the hurdles associated with trying files. 98 The photos were further complex international criminal cases corroborated by a chief criminal in domestic courts. Undoubtedly, the inspector for the German police who Koblenz trial will set an important testified about the technical aspects of precedent for the way in which digital the photos, detailing digital and evidence is used during UJ cases in physical origins and storage of the Germany and throughout the world. photos, and directly attributing them to the Syrian government with the help of additional satellite images.99
24 Presiding Judge Kerber standing in front of the Court’s Files, observing the Parties, October 2020 ©Ruptly/Pool Provider
6. Evidentiary Challenges While much has been written about Only after the release of the evidentiary limitations in the case judgement will it become clear how against Eyad Al-Gharib,102 there are the court dealt with the below- more general concerns relating to mentioned aspects and considered the difficulties in obtaining and evidence presented at trial. understanding evidence in the Koblenz trial. These aspects not only Language Barriers relate to difficulties in obtaining evidence due to the geographic By the time of the pronouncement of distance between the crime scene and the Eyad Al-Gharib verdict, a total of prosecuting authorities, but also to 54 witnesses had been heard in court. the multilingual nature of the trial. They consisted of survivors, insider witnesses, and experts. Many of them, Given that the evidentiary hearings particularly survivors and insiders, are still in progress, the following did not speak the language of the observations are no assessment of the court, which is German. final evaluation of evidence by the court.
25 In accordance with German law, scope for eliminating existing cultural multiple interpreters were present on barriers between the witnesses and each day of the proceedings to German lawyers and judges. interpret statements, questions, testimonies, etc. into Arabic, German, Especially in the case of grave and if necessary, French or international crimes, the latter must English.103 always demonstrate a high degree of sensitivity. Even when the court is As a rule, everything that happens in assisted by experts, communication court has to be translated. between the judges and foreign Nevertheless, the details of what is a witnesses remains difficult and lawful interpretation process and misunderstandings arise, which must which criteria must be met remain be taken into account in the weighing subject to debate. 104 Interpretations of evidence. can easily give rise to confusion. Translation always involves a certain Apprehensive Witnesses level of interpretation, which can lead to the contents of the witness Moreover, the process of gathering statements being (unwittingly) evidence may also be affected by a altered. An example of this can be witness’ fear of retaliation or revenge. found in Trial Report 16, which This fear will naturally lead to a describes several misunderstandings change in the witness’ testimonial that arose between the judges and behavior, as was the case with 107 . witnesses due to translation. 105 P3. P3 was, apparently, Additionally, to assure impartiality intimidated and reported threats the interpreters assigned in the trial against his family. He nevertheless are non-Syrians. This, however, leads was encouraged to testify in court to further problems related to specific publicly. His testimony entailed Arabic dialects of the witnesses or a several inconsistencies which were lack of contextual understanding.106 examined by the judges and the prosecution. Many of the witnesses in Misunderstandings between judges Koblenz have consistently expressed and witnesses can further arise from serious concern for their own and cultural differences. As has been seen their families’ safety. Although the in other proceedings with a foreign court-ordered protective measures connection, the strictly predefined like the non-disclosure of personal procedural framework offers little data of certain witnesses,108 such data
Interpreter sign © Ruptly/Pool provider
26 was repeatedly disclosed by different evidence, and inspections. Per the parties during the proceedings.109 In principle of immediacy, the evidence one case, disclosure of protected data most closely related to the incident in was also caused by the behavior of the question must be presented in a direct witness him or herself.110 and unmediated way during the main trial.113 Nonetheless, the court must take the witness’ concerns seriously not only in The court must decide on the result of ordering protective measures but also the evidence taken according to its in evaluating their testimonies. free conviction gained from the hearing as a whole.114 Evaluating Evidence under German Law The judges took the above-mentioned difficulties relating to interpretation, Although trials under universal cultural-based misunderstandings, jurisdiction apply substantive aspects and fear of witnesses into of international criminal law, the consideration in their judgment procedures used are those imposed by against Eyad Al-Gharib. The court the domestic law of the prosecuting stated that it considered all witness state. 111 Thus, the procedural testimony to be credible and heavily framework in the Koblenz Trial is the relied on Arabic documents, which German Code of Criminal Procedure were translated by external (StPO) which contains several basic translators and the accuracy of these principles for conducting criminal translations was confirmed by the proceedings. One guiding principle of court-appointed interpreters during German criminal procedure is the the trial. 115 In this judgment, the maxim of ex officio investigations, judges further stressed the meaning that the court has the duty importance of expert statements from to ascertain the truth by extending non-German speakers in determining the taking of evidence to all facts and the overall political, social, and legal means of proof that are relevant to the situation in Syria before and after decision.112 March 2011.116 It remains to be seen how the court will eventually weigh German procedural law further the evidence when passing its allows for four means of evidence: judgment in the case against Anwar witnesses, experts, documentary Raslan.
27 The Witness Stand in Koblenz, January 2021 © Ruptly/Pool Provider
7. Witness Protection Witness testimonies are of Objectives of Witness tremendous importance for truth- Protection finding, which is one of the main tasks of criminal trials. This can also be Witness protection measures are seen by the amount of time the court designed to secure witnesses, their in Koblenz has spent on hearing families, and close contacts from witnesses throughout the first year of threats to their lives, bodily integrity, the proceedings. In light of the and liberty. At the same time, witness ongoing conflict and the fact that the protection is crucial to ensure the Syrian government – which is truth-finding function of criminal responsible for the crimes against trials. Only when witnesses feel safe humanity at heart of this trial117 – is and secure, can the court be assured still in power, many witnesses found that they have no reason to withhold themselves exposed to threats and information to protect themselves or danger. Several witnesses therefore their loved ones. In this vein, requested not to reveal their identity protective measures ensure that or expressed a wish to cover their powers of recollection are not faces when testifying in court. Some of compromised by inner discomfort these requests were granted118 while caused by fear.120 others were denied.119
28 Thus, the unreasonable refusal of This is, however, of importance in protective measures can increase the assessing the credibility of the likelihood of false testimony and testimony. 124 The decision to grant reduce the probative value of witness this type of anonymity is within the testimony. Effective witness discretion of the court which must protection is therefore in the best consider the severity of the danger the interest of witnesses and the fair and witness is facing. An abstract feeling effective administration of justice. of unease is not sufficient to justify obscuring a witness’ face. Witness Protection available in Germany A further method to grant witnesses a safer environment to testify is the German law allows for a wide range of exclusion of the public. 125 This protective measures to ensure method is rarely granted. It allows the unimpeded witness testimony. witness to testify in a less stressful Depending on the concrete nature and setting and is typically used for severity of the danger the witness is under-aged witnesses and victims of facing, German law allows a witness sexual offenses. The exclusion of the to conceal information on his or her public does not, however, spare the identity in court.121 If relevant for the witness from testifying in front of the assessment of the testimony, the alleged perpetrator. witness might, however, be required to state in what capacity he or she If there is a danger that a witness will obtained knowledge of the facts they not tell the truth when examined in are indicating. This limitation of the Accused’s presence, the court may information primarily protects the order the Accused to leave the witness from revealing personal data courtroom during the to the public. The parties to the trial examination. 126 As will be detailed generally know the information from below, this measure must be balanced court documents. Mistakes do occur, carefully against the fair trial rights however. For example, in the Koblenz of the accused. A less restrictive trial, Raslan’s defense counsel measure is the possibility of accidentally revealed personal questioning the witness in a separate information of a witness that was (possibly secret) room while live- granted anonymity by the court.122 streaming the testimony in court by audio-visual transmission. 127 This A witness may further request to measure ensures that a witness can cover his or her face.123 This measure testify in a safer setting, while also is more severe than a limitation of ensuring the right of the accused to (publicly shared) information, as the “ask or have asked questions” (Article parties and the judges can no longer 6(3)d ECHR). observe the witness’ demeanor and reactions.
29 Audio-visual transmissions might The decision for this kind of protection also be used to question witnesses program lies in the discretion of an who cannot come to the court in autonomous public authority, the so- person for other reasons, such as called “Zeugenschutzdienststelle,” in health issues 128 or due to long and consultation with the Office of the economically unreasonable travel.129 Public Prosecutor. As a general rule, witnesses can only benefit from this In addition to these general protection until the end of the trial. measures, particularly vulnerable After pronouncement of sentence, witnesses, especially victims, can be victim-witnesses have (as a matter of offered additional protection within a principle) merely the right to be formal witness protection program informed of certain prison policies or even before the public trial. This privileges. intense form of witness protection is very rarely used and subject to strict Balancing Witness regulations, set forth in the German Protection and an Effective Code for Witness Protection Defense Harmonization (Zeugenschutz- Harmonisierungsgesetz – ZSHG). In When deciding on protective accordance with this law, particularly measures, competent authorities vulnerable witnesses who are of must balance the security needs of the outstanding importance for a criminal witnesses with the rights of the trial may be admitted into a witness accused, namely the right to an protection program which provides effective defense including the right to them with, amongst others, a secure examine or have examined witnesses place of residence or even a temporary testifying against them, as provided new identity. Besides a concrete and by Article 6(3)d ECHR. Among the severe danger to the person to be fundamental rights of the accused is protected, the evidence produced by or the right to know who raised what with the help of this person must be accusation against them which indispensable to the investigation or implicates the right to know the trial. 130 Protective measures can be identity of witnesses. Moreover, in taken during the investigation phase light of thoroughly assessing a and endure throughout the trial. This testimony and the credibility of the means that the identity of the witness witness, it is essential to ask is concealed from an early point on, questions and to observe facial their personal information cannot be expressions. Exclusion of the public is found in court documents, and is an obvious limitation on the right to a therefore unknown to the accused and public trial. While the exclusion of the oftentimes even the court. accused him or herself conflicts with the right to be present, the usage of anonymous testimony limits the right to confrontation.131
30 This shows that all protective Thus, the above-mentioned measures measures – if granted too generously of witness protection must be limited – may constitute a breach of the to the most vulnerable witnesses who accused’s rights, and amount to an are facing severe and concrete absolute ground of appeal. 132 The endangerments. For other witnesses court therefore must carefully weigh understandably feeling threatened the concerns of endangered and/or and overwhelmed in the face of the intimidated witnesses against court and the accused, measures of legitimate interests and rights of the psychosocial support136 might be the accused. Eventually the court must better alternative. carefully assess when restrictions on the rights of the accused are strictly In the Koblenz proceedings, certain justified. 133 Incriminating witnesses were permitted to be testimonies that can only be tested to accompanied by someone to provide a limited extend by the defense due to emotional support during their protective measure, therefore have a testimony. However, when this lower probative value which weakens person must disclose their identity to the prosecution’s case.134 a full courtroom, witnesses might again feel unsafe.137 There were also Against this background, it is also in examples during this trial where the best interests of witnesses that there was no apparent support for protective measures are used with obviously stressed and frightened great care. Providing testimony is witnesses in cases where they were particularly stressful for victims. If not granted any protective measures. protection measures restrict the fair This begs the question of whether trial rights of the accused, the witnesses were adequately informed relevant testimony must not be of their right to protective measures relevant for the judgment “solely or to and whether they should have been a decisive extent,” as the European offered more liberally by the Court of Human Rights ruled. 135 prevailing authorities.
31 Cars driving out of a tunnel in Damascus, 2021 © Damascus Voice
Conclusion Following multiple UJ trials against The German Federal Prosecutor alleged affiliates of armed non-state General as well as the Federal groups, the Koblenz trial is the first Criminal Police should be commended against former officials of the Syrian for the allocation of significant government. While it raises hopes for resources to address war crimes and more such trials to follow, it also other crimes under international raises concerns regarding the ability law. 138 However, the German of German courts and authorities to judiciary would benefit from effectively contribute to transitional increased financial resources, justice in Syria and adequately additional capacity-building related address the needs of Syrian victims. to international crimes, transitional Based on SJAC’s detailed trial justice and transparency and monitoring, this report provides an outreach as proposed since the interim assessment of the world’s first commencement of the first UJ trials trial on Syrian state-organized in Germany.139 While one might argue torture. While cognizant of the need to that courts have a limited mandate to respect the independence of an determine the culpability and ongoing trial, it identifies certain sentence of accused persons, aspects that require careful universal jurisdiction involves consideration and an adjustment of international justice and implicates a policies for future trials. broader set of objectives.
32 These cases deal with particularly Simply interpreting the verdict at the grave and horrific crimes140 as well as end of the trial, as done in the trial the traumatization of entire societies. against Eyad Al-Gharib is not enough Where UJ aims to provide a venue to to create transparency. fight against impunity, the special needs of the survivor community Third, courts hearing UJ cases should require a more nuanced and generous allocate resources for public outreach. understanding of judicial mandates. Neither the court, nor the Federal Prosecutor General have been First, such needs include effective providing any information to the witness protection. This is public in English or Arabic. Not only particularly relevant in cases where must justice be done, but it must also (former) supporters of the be seen to be done. Communication perpetrators still hold a powerful with the Syrian community is crucial position. During the Koblenz trial, the for them to actually see the court was slow to adopt a policy of perpetrators being held accountable granting witness protection by through a fair and impartial trial. allowing not only insider witnesses to This visibility relates to the need of conceal personal information to the affected society to heal, but also to protect themselves and their families set the framework for a just and in Syria.141 peaceful future.
Second, affected societies require Finally, a consistent set of criteria effective participation. This relates to must be used to distinguish between direct participation of victims as those most responsible for atrocity plaintiffs which is an opportunity crimes and those who have relevant taken by several survivors in the inside information who may testify Koblenz trial. But effective against them. Prosecution of lower- participation should also include level perpetrators may limit access of the general public as well as opportunities for transitional justice Syrians who may not have a direct by forcing insider witnesses into linkage to the case as victims. Their hiding and preventing them from effective participation is intrinsically participating in justice measures. linked to the availability of interpretations into a language they The Koblenz trial is an important step understand. In Koblenz, only court- to hold perpetrators on all sides of the accredited Arabic speaking Syrian conflict accountable for their journalists are allowed to use the actions. It is a significant building court’s interpretation devices. Victims block for more comprehensive justice and other Arabic speaking audience and provides an important learning members, however, have to watch the opportunity for future processes. proceedings without understanding a word.142
33 Annex I a: Important Places
34 Annex I b: Important Branches
35 ANNEX II: Witness Summaries
Witness Expert Plaintiff
Ms. Thurmann Mr. Deußing Ms. Bohlmann
Witness, Expert Expert Witness Testified on April 24, May 27, Testified on April 28, 2020. Testified on April 29, 2020. September 2, October 29, 2020 and February 3, 2021. Ethnologist, formerly worked for Officer at the Federal Office for the BKA and conducted research Migration and Refugees Criminal Chief Inspector at the on the MENA region. She (BAMF) who testified German Federal Criminal Police testified on Syrian history and on Raslan’s asylum-seeking (BKA) leading structural background of the uprising in process in Germany. investigations into crimes arising 2011. Her expertise was questioned several times, from the Syrian conflict since 2011. Testified about particularly by the defense. investigations, arrests, searches, exhibits and witness interviews Ms. Huss
relevant to the cases of Anwar Witness Raslan and Eyad Al-Gharib. He Mr. Pütz also provided a very detailed Testified on April 29, 2020. analysis of the Caesar Files in Witness trial week 16. Officer at Foreigners' Testified on May 18, 2020. Registration Office who spoke about administrative aspects Caseworker at the of Raslan’s residency permit in BAMF who testified on Al- Germany, such as his language Ms. Drechsler Gharib’s interview when applying certificates and how much social for asylum in Germany. support he received. Witness
Testified on April 29, 2020.
Officer at the German Ministry of Foreign Affairs who testified Ms. Zensius Ms. Müller-Durmann on the background of Witness Raslan’s asylum procedure in Witness Germany. Testified on May 18, 2020. Testified on May 19, 2020.
Police Officer from Berlin who Social worker in Zweibrücken, Germany. She testified about Al- spoke about Raslan’s concerns about being under surveillance Mr. Wöllner Gharib’s involvement in several fights at the refugee shelter. by the Syrian Intelligence Service. Witness
Testified on May 18, 2020. Officer with decision-making Ms. Becker Mr. Abdullah power at the BAMF who testified on Al-Gharib’s interview when Witness Witness applying for asylum in Germany. Testified on May 19, 2020. Testified on May 18, 2020. Founder of an NGO for Syrian Interpreter working at refugees. She testified about her the BAMF who testified about Al- meeting with Raslan during Gharib’s interview with the which he expressed concerns office. about being under surveillance by the Syrian Intelligence Service.
36
Mr. Frey Mr. Schmidt Ms. Krüger
Witness Witness Witness Testified on May 27, June 25, Testified on May 28, 2020. Testified on May 28, 2020. September 3, 2020, and January Police Officer from Berlin Criminal Officer at the 14, 2021. who testified about her hearing Federal Criminal Police Criminal Inspector at the BKA with Raslan during which he (LKA) in Berlin. He testified who testified on exhibits, mentioned several incidents about his questioning of investigations, and arrests in Al- when he felt monitored by the Raslan. Gharib’s case. Syrian Intelligence Service in Germany.
Mr. Holtzky Firas Al-Fayyad (P1) P3 Witness Plaintiff, Witness Witness Testified on May 29, 2020. Testified on June 3+4, 2020. Testified on June 24+25, 2020. Police Officer from the BKA Syrian movie director who who interviewed Raslan as a testified about his own Former employee of the witness on Syrian Intelligence experiences of torture, General Intelligence mistreatment, and interrogations Services. Directorate. He testified about during his detention at Branch his work at Branches 295 and 251 and the conditions in this Branch. 255. He told the court that he saw charts documenting Anwar Al-Bunni corpses while working at (P2) Branch 255. Mr. Knappman Witness, Expert Witness, Expert Testified on June 4+5, 2020. P4 Testified on June 25, 2020, and Syrian lawyer who testified January 7, March 14, 2021 Witness about his own experience at Adra prison, his clients’ Criminal Inspector at the Testified on July 1, 2020. experiences at Branch 251, as BKA who he testified about his well as women’s experiences interviews with several This 30-year-old Syrian witness at Branch 251 including witnesses and the office’s testified about his experience of investigations into mass graves sexual assaults. torture at Branch 251 and the in Syria. overall detention conditions at this Branch.
P5 P6
Witness Witness P7
Testified on July 2+3, 2020. Testified on July 6, 2020. Witness
Former security guard at Cousin of Eyad Al-Gharib Testified on July 29, 2020. Branch 251. He testified about who spoke about his relation to his daily work there and the The 30-year-old his cousin and that Al-Gharib structures and hierarchies at witness who testified about his was supportive of the the Branch. experiences of mistreatment demonstrations and warned and torture at Al-Khatib friends if they were about to be and Kafar Souseh Branches and detained. detention conditions at Mr. Brücken these Branches.
Witness Kathrin Mittendorf Testified on July 2, 2020. Witness Criminal Officer with the French Police who testified Testified on July 2, 2020. about the questioning of P5. Officer with decision-making powers at the BAMF who spoke about P5’s asylum-seeking process.
37
P8 P9 P10 Witness Witness Witness
Testified on July 30, 2020. Testified on July 31, 2020. Testified on August 12+13, 2020. The 39-year-old witness who Former employee of the Syrian testified about his own government who testified about Former employee at the Syrian experiences of mistreatment his detention and told the court Intelligence Service with over and torture at Branch 251 that Raslan might have been 20 years of experience. He and Kafar Souseh Branch. He the one who interrogated him testified about the structure told the court about people during his detention. and hierarchy of the Syrian dying in detention. Intelligence Services as well as common torture methods.
P11 P12 Plaintiff, Witness Plaintiff, Witness Riad Seif (P13) Testified on August 19, 2020. Testified on August 20, 2020. Witness The plaintiff testified about his The witness, a Syrian software experiences of mistreatment Testified on August 26+27, engineer, testified about his and interrogations as a 2020. detention at Branches 251 and detainee at Branch 251 285. He told the court about Prominent Syrian figure of the and Kafar Souseh. He said that overcrowded cells and torture Syrian opposition who testified he would still recognize the and said he would be able to about his background and role voice of his interrogator at identify the person who in the opposition as well as his Branch 251. violently interrogated him at relationship with Raslan from Branch 251 by his voice. whom he had hoped to get information about the government. Mr. Lindemann
Expert Mr. Schneider Testified on September 2, Witness P14 2020. Testified on September 3, 2020. Witness Criminal Inspector at the BKA who testified on his analysis of Chief Inspector at the BKA who Testified on September 9+10, a HRW report titled “Torture testified on Al-Gharib’s stay at 2020. Archipelago” that was a clinic in Zweibrücken where conducted prior to Raslan’s the investigative judge ordered Insider witness who testified arrest. to uphold the arrest warrant about his work at a burial site against Al-Gharib. and the existence of mass graves where corpses from several Intelligence Service Mazen Darwish prisons were buried.
Witness, Expert P15
Testified on September 15, Witness P16 2020. Testified on September 16, Witness Director of the SCM who 2020. provided background on the Testified on October 1, 2020. history of Syria and events The 50-year-old witness who leading to the uprising in 2011. testified about two phone calls This female witness who He further provided additional he had with Raslan, whom he testified about her experiences documents to the court on also met twice. He further told of being beaten at Branch 251 Branch 251 and spoke about the court about the search for and shared stories of other the legal system in Syria as his cousin who was detained in female detainees being raped. well as his own experiences in Branch 251 and notes of She also told the court about a detention. compassion from Raslan. meeting she had with Raslan after he defected. According to her statement, he was the interrogator at Branch 251.
38
P17 P18 Mr. Reuter
Plaintiff, Witness Witness Witness, Expert
Testified on October 6, 2020. Testified on October 7, 2020. Testified on October 8, 2020.
The Syrian author who described Testified about the search for his German journalist who testified the search for his brother, who cousin who was arrested and about the situation in Syria in was arrested at Branch 251, as detained at Branch 251. 2011 and 2012 based on his well as his own detention with experiences. He further spoke the Syrian Intelligence Services. about two interviews he had with Raslan, who seemed to have a photographic memory. Professor Dr. Ms. Le Caisne Rothschild Expert Witness, Expert Mr. Horl Testified on November 3, 2020. Testified on October 27, 2020. Witness Forensics professor at the French journalist who provided Testified on November 4, 2020, University of Cologne. He background on the Caesar files and January 27, 2021 provided a detailed forensic and testified about her analysis of the Caesar photos. interviews with Caesar, the Criminal Inspector at the BKA military photographer who who testified about a CV that was leaked thousands of photos of found during the search of corpses from the prisons of the Raslan’s flat in Berlin and witness Syrian Intelligence Services. P19 interviews.
Plaintiff, Witness
Mr. Engels Testified on November 19, 2020. P20 Expert Female survivor who was detained by the Syrian Witness Testified on November 17+18, Intelligence Services several Testified on November 25 +26, 2020. times. She testified about her 2020. detention at Branches 251 and Director of Investigations and 285 where she was beaten and Former detainee of the General Operations at CIJA. He testified experienced sexual harassment. Intelligence Directorate at about the structure of the Branches 251 and 285. He Syrian Intelligence Services and testified about being tortured on handed in documents that CIJA the way to the detention facilities obtained from Syria (he also and identified Raslan as the explained how CIJA Ms. Hille interrogator who slapped and obtained them). kicked him in the stomach during Witness an interrogation.
Testified on December 2, 2020.
P21 Caseworker at the BAMF who interviewed P21 during his Witness asylum-seeking procedure in P22 Germany. She further explained Testified on December 1+2, Plaintiff, Witness how information about 2020. witnesses of war crimes is Testified on December 9, 2020. forwarded to her office. Former employee of the Syrian Intelligence Services with over Syrian doctor who was detained 30 years experience. He at Branch 251 and Kafar Souseh. testified about his work at He said that most of the wounds Branch 255 where he saw lists of the detainees were caused of dead people and orders to outside the branch. He described ‘extend interrogation methods’ his own experiences being coming from Branch 251. tortured as well as collective punishment of detainees. According to this witness, conditions at Branch 251 were better than at the detention facility in Kafar Souseh.
39
P23 P24 P25
Witness Witness Plaintiff, Witness
Testified on December 10, 2020. Testified on December 16, 2020. Testified on January 6, 2021.
Testified about being detained Female detainee at Division 40 Testified about his detention at at Branch 251 and transferred and Branch 251 who testified on Branches 251 and 285 and his to Harasta hospital where he detention conditions and other experiences being tortured. and other patients were detainees being tortured. She According to this witness, tortured, many of whom died. did not suffer sexual violence. conditions at Branch 251 were worse than at Branch 285. He testified that children and elderly people were also in detention. P26 P27
Witness Plaintiff, Witness
Testified on January 13, 2021. Testified on January 28, 2021. P28 He spoke about his two He testified about his detention Plaintiff, Witness detentions at Branch 251 where at Branch 251 where he had to he witnessed constant torture, endure torture during Testified on March 10, 2021 overcrowded cells, bad food, and interrogations and harsh inadequate hygienic facilities. beating upon his arrival. He He described the generally bad further heard other detainees, conditions in Branch 251 and including women, being mentioned torturing methods tortured. such as dripping hot melted plastic on one’s head and P29 back. Further described psychological and physical Witness traumas he is suffering from P30 his detention. Testified on March 11, 2021. Plaintiff, Witness He testified that he was tortured and sexually harassed Testified on March 17, 2021. on the way to Branch 251. P31 According to him, food at the He described the bad conditions Branch was sufficient. in Branch 251 where he saw Witness people being tortured with electric shocks and appliances Testified on April 7 + 8, 2021. on the wall, possibly used to hang people. He testified about He identified Raslan as a P32 a fellow detainee who was higher-ranking employee at the tortured with the German Branch and testified about Plaintiff, Witness Chair. constant torture during interrogations, overcrowded Testified on April 14 + 15, 2021. cells and inadequate hygienic conditions at the Branch. She spoke about her and her sister’s detention in Branch 251 and identified Raslan as a high- ranking employee at the Branch. She also testified on experiencing sexual violence during detention.
40 Citations
1 Throughout this report, the trial 10 Alexandra Lily Kather and against Anwar Raslan and Eyad Alexander Schwarz, “First Yazidi Al-Gharib will be called “Koblenz Genocide Trial Commences in trial”. Germany,” Just Security, April 23, 2 Roger O’Keefe, “Universal 2020, Jurisdiction: Clarifying the Basic https://www.justsecurity.org/69833 Concept,” Journal of International /first-yazidi-genocide-trial- Criminal Justice 2, no. 3, commences-in-germany/. September 1, 2004, at pp. 735-60, 11 UN Human Rights Council, “‘They https://doi.org/10.1093/jicj/2.3.735. Came to Destroy’: ISIS Crimes 3 United Nations Secretary-General, Against the Yazidis,” June 15, “The Scope and Application of the 2016, Principle of Universal https://syriaaccountability.org/wp- Jurisdiction,” United Nations, July content/uploads/They-Came-to- 9, 2020, Destroy-EN.pdf. https://undocs.org/en/A/75/151. 12 Hannah El-Hitami, “The Yazidi 4 See ANNEX I of SJAC’s Annual Trial in Germany: How to Prove Report 2020 and 2021. Genocide in a Single Case?,” 5 See SJAC’s Annual Report 2021, JusticeInfo, October 29, 2020, p18. https://www.justiceinfo.net/en/4580 6 Máximo Langer, “Universal 8-yazidi-trial-germany-prove- Jurisdiction Is Not Disappearing: genocide-single-case.html. The Shift from ‘Global Enforcer’ to 13 Victims Rights, “Interview: ‘No Safe Haven’ Universal Alexandra Lily Kather,” Victims Jurisdiction,” Journal of Rights International Journal , International Criminal Justice 13, January 5, 2021, no. 2, May 1, 2015, at pp. 245–56, https://victimsrightsinternationaljo https://doi.org/10.1093/jicj/mqv009. urnal.org/2021/01/05/498/. 7 “Jamil Hassan,” TRIAL 14 See SJAC’s Trail Report #18. International, accessed February 9, 15 See SJAC’s Trial Report #22. 2021, 16 Christopher F. Schuetze and Ben https://trialinternational.org/latest- Hubbard, “Syrian Doctor Accused post/jamil-hassan/. of Torture Is Arrested in 8 Emmanuel Jarry, “France Issues Germany,” The New York Times, Arrest Warrants for Senior Syrian June 22, 2020, Officials,” Reuters, November 5, https://www.nytimes.com/2020/06/ 2018, 22/world/europe/syria-doctor- https://www.reuters.com/article/us- torture-germany.html. syria-crisis-france- 17 [German only] Der idUSKCN1NA11L. Generalbundesanwalt, “Festnahme 9 Christoph Reuter and Fidelius Eines Mutmaßlichen Mitarbeiters Schmid, “Syrian General Hassan Des Syrischen Militärischen Receives Treatment Despite Geheimdienstes Wegen Des Warrant,” Der Spiegel, August 7, Dringenden Tatverdachts Eines 2019, Verbrechens Gegen Die https://www.spiegel.de/internation Menschlichkeit,” Der al/world/syrian-general-hassan- Generalbundesanwalt, June 22, receives-treatment-despite- 2020, warrant-a-1280876.html.
41 help-but-be-hopeful-about-this- https://www.generalbundesanwalt. trial. On the defense of duress, de/SharedDocs/Pressemitteilungen that was repeatedly brought /DE/2020/Pressemitteilung-vom- forward by the defense, see SJAC, 22-06-2020.html?nn=848266 “‘They Made Me Do It’ – Necessity 18 [German only] Der and Duress Defenses,” Syria Generalbundesanwalt, Justice and Accountability Centre, “Erweiterter Haftbefehl Gegen July 2, 2020, Einen Mutmaßlichen Mitarbeiter http://syriaaccountability.org/updat Des Syrischen Militärischen es/2020/07/02/they-made-me-do-it- Geheimdienstes Erwirkt,” Der necessity-and-duress-defenses/. Generalbundesanwalt, December 29 Reuter and Schmid, “Syrian 21, 2020, General Hassan Receives https://www.generalbundesanwalt. Treatment Despite Warrant.” de/SharedDocs/Pressemitteilungen 30 DW, “German Police Arrest Syrian /DE/2020/Pressemitteilung3-vom- Doctor for ‘Crimes against 21-12-2020.html?nn=848266. Humanity,’” Deutsche Welle, June 19 BBC, “Syria Civil War: Germany 22, 2020, Holds Unprecedented State https://www.dw.com/en/german- Torture Trial,” BBC News, April police-arrest-syrian-doctor-for- 23, 2020, sec. Europe, crimes-against-humanity/a- https://www.bbc.com/news/world- 53895002. europe-52393402. 31 Marco Sassòli and Laura M. Olson, 20 See SJAC’s Trial Report #1. “The Judgment of the ICTY 21 See SJAC’s Trial Report #27 and Appeals Chamber on the Merits in #28. the Tadic Case - ICRC,” 22 For more details see [German International Review of the Red only]: OLG Koblenz, “Anklage Cross, no. 839, September 30, gegen zwei mutmaßliche 2000, Mitarbeiter des syrischen /eng/resources/documents/article/ot Geheimdienstes wegen der her/57jqqc.htm. Begehung von Verbrechen gegen 32 SJAC, “Justice or Forgiveness? The die Menschlichkeit u.a. Case of Anwar Raslan,” Syria zugelassen,” Oberlandesgericht Justice and Accountability Centre, Koblenz, March 10, 2020, February 27, 2019, https://olgko.justiz.rlp.de/de/startse https://syriaaccountability.org/upd ite/detail/news/News/detail/anklag ates/2019/02/27/justice-or- e-gegen-zwei-mutmassliche- forgiveness-the-case-of-anwar- mitarbeiter-des-syrischen- raslan/ geheimdienstes-wegen-der- 33 Hannah El-Hitami, “Syria’s Long begehung-von-verbr/. Road to Justice and the Man 23 §7 (1) Nr. 1, 5, 9 VStGB (German Hoping to Walk It There,” Code of Crimes Against AlJazeera, April 30, 2020, International Law), §25 StGB https://www.aljazeera.com/features (German Criminal Code). /2020/4/30/syrias-long-road-to- 24 §211 StGB. justice-and-the-man-hoping-to- 25 §177 (1) Nr.1, (2) Nr.1, (3) Nr.1 walk-it-there. StGB [old version]. 34 See SJAC’s Trial Reports #1 and 26 §7 (1) Nr. 5, 9 VStGB, §27 StGB. #3; SJAC, “Witness or Suspect? 27 See SJAC’s Trial Report #24. The Trial of Anwar Raslan and 28 See e.g. “‘I Can’t Help But Be Eyad Al Gharib,” Syria Justice and Hopeful About This Trial,’” Branch Accountability Centre, July 30, 251, at sec. 18:35-19:58, 2020, https://branch- 251.captivate.fm/episode/i-cant-
42 46 See SJAC’s Trial Report #6, days http://syriaaccountability.org/updat 16 and 17. es/2020/07/30/witness-or-suspect- 47 Case No. StB 14/19 (BGH June 6, the-trial-of-anwar-raslan-and- 2019). eyad-al-gharib/. 48 Art.6 I (1) ECHR. 35 Case No. StB 14/19 (BGH June 6, 49 Michael Levenson, “Tennessee 2019); Hannah El-Hitami, “They Man Who Served as Nazi Camp Felt Too Safe: How Two Syrian Guard Is Deported to Germany,” Agents Ended up on Trial in The New York Times, February 21, Germany,” Justiceinfo, May 4, 2021, 2020, https://www.nytimes.com/2021/02/ https://www.justiceinfo.net/en/4420 21/us/us-deports-former-nazi- 7-they-felt-too-safe-how-two- guard.html; The Guardian, “Man, syrian-agents-ended-up-on-trial-in- 100, Charged in Germany over germany.html. 3,518 Nazi Concentration Camp 36 See SJAC’s Trial Report #20. Murders,” The Guardian, February 37 See SJAC’s Trial Report #20. 9, 2021, 38 See §152f. StPO (German Code of http://www.theguardian.com/world/ Criminal Procedure). 2021/feb/09/man-100-charged-in- 39 See SJAC’s Trial Report#1. germany-over-3518-nazi- 40 SJAC, “Witness or Suspect? The concentration-camp-murders. Trial of Anwar Raslan and Eyad Al 50 SJAC, “‘They Made Me Do It’ – Gharib,” Syria Justice and Necessity and Duress Defenses.” Accountability Centre, July 30, 51 Marcus Joyce, “Duress: From 2020, Nuremberg to the International http://syriaaccountability.org/updat Criminal Court, Finding the es/2020/07/30/witness-or-suspect- Balance Between Justification and the-trial-of-anwar-raslan-and- Excuse,” Leiden Journal of eyad-al-gharib/; Hannah El- International Law 28, no. 3 Hitami, “Syrian Torture Trial in (September 2015), pp. 623–42. Germany: Insiders without 52 See SJAC’s Trial Report #20. Protection,” Justiceinfo, July 27, 53 See SJAC’s Trial Report #5. 2020, 54 Khaled Yacoub Oweis, https://www.justiceinfo.net/en/4498 “Psychologically Battered, Syrian 2-syrian-torture-trial-in-germany- Soldiers Abandon Assad,” Reuters, insiders-without-protection.html. July 12, 2012, 41 Der Generalbundesanwalt, https://www.reuters.com/article/us- “Anklage Gegen Zwei Mutmaßliche syria-crisis-defectors- Mitarbeiter Des Syrischen idUSBRE86B0NF20120712. Geheimdienstes Wegen Der 55 HRW, “Syria: Defectors Describe Begehung von Verbrechen Gegen Orders to Shoot Unarmed Die Menschlichkeit u.a. Erhoben,” Protesters,” Human Rights Watch, Der Generalbundesanwalt, October July 9, 2011, 29, 2019, https://www.hrw.org/news/2011/07/ https://www.generalbundesanwalt. 09/syria-defectors-describe-orders- de/SharedDocs/Pressemitteilungen shoot-unarmed-protesters. /DE/2019/Pressemitteilung-vom- 56 See SJAC’s Trail Report #5. 29-10-2019.html. 57 See SJAC’s Trail Report #6. 42 §7(1) VStGB. 58 See SJAC’s Trail Reports #13, #15, 43 See e.g. SJAC’s Trial Report #17. #16. 44 Article 6 I (1) ECHR. 59 Oweis, “Psychologically Battered, 45 SJAC, “Witness or Suspect? The Syrian Soldiers Abandon Assad.” Trial of Anwar Raslan and Eyad Al Gharib.”
43 Courts Act - JGG), in the event of 60 Lena Bjurström, “Sweden on the danger to state security (§172 No. Frontline with Syria Cases,” 1 GVG), in proceedings concerning JusticeInf, February 11, 2021, crimes against sexual self- https://www.justiceinfo.net/en/7358 determination (§171b GVG) or in 7-sweden-frontline-syria- the event of danger to a witness cases.html. (§172 No. 1a GVG). 61 SJAC, “PRESS RELEASE: Syrian 74 §173(1) GVG. Journalist and Human Rights 75 §338 No.6 StPO. Organization Secure Access to 76 Prof. Dr. Stefanie Bock and Dr. Arabic Translation of the Anwar Markus Wagner, „Nationale Raslan Trial,” Syria Justice and Strafverfolgung von Accountability Centre, August 19, Völkerrechtsverbrechen - in 2020, kleinen Schritten weitergedacht,“ http://syriaaccountability.org/updat Neue Juristische Wochenschrift, es/2020/08/19/press-release-syrian- no.43, 2020, at pp. 3146, 3147 et journalist-and-human-rights- seq. organization-secure-access-to- 77 Ibid. arabic-translation-of-the-al-khatib- 78 For more information see e.g. trial/. SJAC, “PRESS RELEASE: Syrian 62 For more detail on public Journalist and Human Rights participation, see: “4. A Public Organization Secure Access to Trial”. Arabic Translation of the Anwar 63 For an overview of all COVID- Raslan Trial,”. related restrictions, see 79 Case No. 1 BvR 1918/20, (BVerfG “Coronavirus: Frequently Asked 18 August 2020), more about this Questions,” German Federal preliminary ruling at SJAC, Ministry of the Interior, Building “PRESS RELEASE: Syrian and Community, accessed January Journalist and Human Rights 21, 2021, Organization Secure Access to http://www.bmi.bund.de/SharedDo Arabic Translation of the Anwar cs/faqs/EN/topics/civil- Raslan Trial,”. protection/coronavirus/coronavirus- 80 Prof. Dr. Bock and Dr. Wagner, faqs.html?nn=9385444. ”Nationale Strafverfolgung von 64 See SJAC’s Trial Report #22, day Völkerrechtsverbrechen - in 53. kleinen Schritten weitergedacht,“ 65 §251 StPO. at pp. 3146, 3148. 66 See SJAC’s Trial Report #24, day 81 Peter Allgayer, “§169”, in: Jürgen 56. Graf (ed.), Beck’scher Online- 67 For more detail on challenges Kommentar zum regarding protection of witnesses Gerichtsverfassungsgesetz (GVG), in the Koblenz Trial, see “7. Band 9, November 15, 2020, paras Witness Protection”. 3 and 7. 68 Art. 6 ECHR. 82 §169(1) s.2 GVG; Allgayer,“§169”, 69 Art. 14(1) ICCPR. paras 15, 16. 70 For all different procedural 83 In addition, the personal rights of maxims in detail: Hans Kudlich, the defendants usually prohibit “Introduction”, in: Hans Kudlich early access to such material, see: (ed.), Münchener Kommentar zur Allgayer,“§169”, para. 25. StPO Band 1, 2014, paras 126 et 84 Stefanie Bock, Markus Wagner, seq. and in detail paras 177 et seq. Nationale Strafverfolgung von 71 Ibid. para. 193. Völkerrechtsverbrechen - in 72 Ibid. 73 E.g. in juvenile criminal proceedings (§48 (1) Juvenile
44 97 Ibid. kleinen Schritten weitergedacht, 98 See SJAC’s Trail Report #16, day in: NJW 2020, 3146, 3147. 38. 85 Ibid. 99 See SJAC’s Trial Report #16, day 86 Ibid. 40. 87 Christoph Safferling, 100 See SJAC’s Trial Report #17. Internationales Strafrecht – 101 See SJAC’s Trial Report #28. Strafanwendungsrecht – 102 See “6. Evidentiary Challenges”. Völkerstrafrecht – Europäisches 103 §185 I GVG. Strafrecht, § 4 paras. 79 et seq., 104 Christian Kranjcic, “Dolmetschen Heidelberg 2011. im Strafverfahren: Wider die 88 Stefanie Bock, Markus Wagner, Wörtlichkeit und für wirkliche Nationale Strafverfolgung von Zweckorientierung (oder: Wem Völkerrechtsverbrechen - in dient der Dolmetscher?),” Neue kleinen Schritten weitergedacht, Zeitschrift für Strafrecht vol.31, no. in: NJW 2020, 3146, 3147. 657, 2011, pp. 657, 659. 89 Ibid. 105 See SJAC’s Trial Report #16, day 90 Klaus Günther, Vasco Reuss, 38. Legitimation des Völkerstrafrechts 106 See SJAC’s Trial Report #10. in Deutschland – Völkerstrafrecht 107 See SJAC’s Trial Report #5. als Bürgerstrafrecht, in: 108 Such measures may impair the Völkerstrafrechtspolitik, p. 147, rights of the defendant and reduce Heidelberg 2014. the probative value of the 91 For more details on this aspect: testimony (see also the section on Larry May, Shannon Fyfe, witness protection). International Criminal Tribunals – 109 See e.g. SJAC’s Trial Report #15, A normative defense, pp. 61 et seq., day 36; Trial Report #5. See also Cambridge 2017. “7. Witness Protection”. 92 Here and in the following: Stefanie 110 P14 was disguised for protection Bock, Markus Wagner, Nationale during the trial but spoke without Strafverfolgung von this disguise in front of the Völkerrechtsverbrechen - in courtroom, see SJAC’s Trial Report kleinen Schritten weitergedacht, #12, day 30. in: NJW 2020, 3146, 3147. 111 Christoph Safferling, “§4 93 Lindsay Freeman, “Digital Grundlagen“, Internationales Evidence and War Crimes Strafrecht – Strafanwendungsrecht Prosecutions: The Impact of Digital – Völkerstrafrecht – Europäisches Technologies on International Strafrecht, (Springer 2011), para Criminal Investigations and 12. Trials.” Fordham International 112 §244 II StPO; Case No. 2 BvR Law Journal 41, no. 2 (n.d.): 283– 2628/10, BVerfGE 133, (BVerfG 336. March 19, 2013), paras 133, 168; 94 Nikita Mehandru and Alexa see also Case No. 3 StR 281/70, Koenig, “ICTS, Social Media, & the BGHSt (BGH October 10, 1979), Future of Human Rights.” Duke paras 29, 109, 112. Law & Technology Review 17 113 See Holle Eva Löhr, “Der (2019): 129–45. Grundsatz der Unmittelbarkeit im 95 Aida Ashouri, Caleb Bowers and Deutschen Strafprozess,” Cherrie Warden, “An Overview of Strafrechtliche Abhandlungen, the Use of Digital Evidence in Band 8, 1972, p. 18. International Criminal Courts.” 114 §261 StPO. Digital Evidence and Electronic 115 See SJAC’s Trial Report #27. Signature Law Review 11 (2014), pp. 115–27. 96 Ibid.
45 Possible to Speak of “Fair Trial”?,” 116 See SJAC’s Trial Report #28. pp. 116-142. 117 See SJAC’s Trial Report #28. 134 Case No. 5 - 3 StE 6/10 (OLG 118 See Trial Report #8, day 22; #12. Stuttgart, September 28, 2015) 119 See Trial Report #13, day 33. paras 430, 435. Also: Lorena 120 Prashant Rahangdale, “Witness Bachmaier Winter, “Transnational Protection: An Important Measure Criminal Proceedings, Witness For The Effective Functioning Of Evidence and Confrontation: Criminal Justice Administration,” Lessons from the ECtHR’s Case Think India (Quarterly Journal), Law,” Utrecht Law Review, vol. 9, vol. 22, no. 4 (October-December) no. 4, September 2013. 2019, pp. 129-42. 135 Van Mechelen and others vs. The 121 §68 StPO. Netherlands (ECtHR April 23, 122 See SJAC’s Trial Report #15, day 1997) para. 55.. 36. 136 See German Ministry of Justice, 123 §176 (2) GVG; §68 (2)-(5) StPO. Psychosocial Support in Criminal 124 Simone Lonati, “Anonymous Trials,(accessed March 01, 2021). Witness Evidence before European 137 See SJAC’s Trial Report #19. Court of Human Rights: Is It Still 138 “BKA - Central Unit for the Fight Possible to Speak of “Fair Trial”?,” against War Crimes and Further European Criminal Law Review, Offences Pursuant to the Code of vol 8, 2018, p. 123. Crimes against International Law 125 §171b, 172 GVG. (ZBKV),” accessed January 25, 126 §247 StPO. 2021, 127 §247a StPO. https://www.bka.de/EN/OurTasks/ 128 See SJAC’s Trial Report # 10, day Remit/CentralAgency/ZBKV/zbkv_ 26. node.html. 129 Case No. 5 - 3 StE 6/10 (OLG 139 ECCHR, “Universal Jurisdiction in Stuttgart, September 28, 2015) Germany? The Congo War Crimes paras 426ff. Trial: First Case under the Code 130 Deutscher Bundestag, “Drucksache of Crimes against International 14/638: Gesetzentwurf des Law,” June 8, 2016, 31f., Bundesrates, Entwurf eines https://www.ecchr.eu/fileadmin/Jur Gesetzes zur Regelung des istische_Dokumente/Report_Execu Schutzes gefährdeter tive_Summary_FDLR_EN.pdf.; Zeugen,“ German Parliament, Nicolai Bülte et al., “Monitoring March 23, 1999, p. 12, the Trial of Onesphore R. Before http://dipbt.bundestag.de/dip21/btd the Oberlandesgericht Frankfurt,” /14/006/1400638.pdf. German Law Journal 16, no. 2 131 Sebastian Ziegler, (May 2015): 285–314, “Konfrontationsrecht vs. https://doi.org/10.1017/S207183220 Opferschutz: Der Ausbau der 002085X. Zeugen- und Verletztenrechte im 140 Compare, preamble of the “Statute Sinne des rechtspolitischen of the International Criminal Zeitgeistes und seine Folgen für Court,” UNTS 38544 Rome Statute die Verteidungsrechte des (2002). Beschuldigten im Strafverfahren 141 See the different Trial Reports at am Beispiel des SJAC, “Trial Monitoring,” Syria Konfrontationsrechts,” Schriften Justice & Accountability Centre, zum Strafprozessrecht, 2015pp.67- accessed January 25, 2021, 161. https://syriaaccountability.org/upd 132 §338 StPO. ates/. 133 Simone Lonati, “Anonymous Witness Evidence before European Court of Human Rights: Is It Still
46 Arabic Translation of the Anwar 142 SJAC, “PRESS RELEASE: Syrian Raslan Trial”. Journalist and Human Rights Organization Secure Access to
47