Yasmine Mashaan, second from the left, together with other Syrian activists in front of the Higher Regional Court in Koblenz, Germany, 13/01/2022 (Paul Wagner/The Syria Campaign)
BEIRUT — Jubilation spread among Syrian lawyers, activists, and survivors in January after a German court found Anwar Raslan, the former head of a notorious Syrian detention center, guilty on charges of murder, torture, and sexual violence and sentenced him to life imprisonment. After more than a decade of uprising and atrocities, Raslan was the first high-ranking Assad government official to be convicted of crimes against humanity in Syria.
It was a historic day. But for Yasmin Mashaan, it was a bittersweet day.
“At first I felt frustrated, it is not enough with the conviction of Raslan—that is not justice,” said Mashaan, who together with dozens of Syrian activists went to the Higher Regional Court in Koblenz on January 13 to hear the landmark verdict. Once she saw the joy of Raslan’s victims, though, her initial bitterness gave way to happiness. “Anwar’s victims took their justice. That gave me hope that one day there will be justice for me, too.”
Mashaan lost five of her brothers since 2011: one shot dead at a protest, two killed by shelling, one forcibly disappeared by the Islamic State (IS), and one tortured to death in a Syrian prison. She found him among the “Caesar photographs,” a collection of more than 50,000 images smuggled out of Syria that show thousands of detainees killed in state-run detention centers. Today, Mashaan lives in Germany and is the Managing Coordinator of the Caesar Families Association.
“We can’t stop now, we want more steps,” she said. “I hope the Koblenz trial will encourage other European countries to follow the example.”
The Koblenz trial was held under the legal principle of universal jurisdiction, which allows states to try international crimes regardless of the nationality of perpetrators or victims, or where the crime was committed.
Many Syrians like Mashaan have pinned their hopes of holding Syrian perpetrators accountable in courts in European countries through universal jurisdiction, given that Russia and China’s vetoes at the UN Security Council block the referral of the Syrian case to the International Criminal Court (ICC).
“The Koblenz verdict is a message to the criminals who are still in Syria or escaped, to those that feel comfortable because a member of the Security Council is blocking [the ICC option], now there’s no way to escape from justice,” said Anwar al-Bunni, Director of the Berlin-based Syrian Center for Legal Studies and Research.
Al-Bunni was himself detained for five years in the General Security branch where Raslan oversaw investigations—Branch 251, also known as the al-Khatib Branch—, but for him the relevance of the verdict goes beyond Raslan. “I don’t care about Anwar Raslan, the important matter is that the verdict charges the whole system, and the killing machine in Damascus is still arresting, torturing and killing people.”
“The Koblenz verdict is an important building block to remind the international community that justice needs to be done and can be done,” said Alexandra Lily Kather, a Berlin-based legal consultant in international criminal justice.
Kather considers the verdict “groundbreaking” because the sexual and gender-based violence (SGBV) crimes committed in detention were prosecuted as crimes against humanity, with Raslan convicted of three cases of sexual violence. “It is a legal acknowledgement of the political dimension of sexual violence,” she said.
“It’s very important to pave the road of justice for the female victims, and to empower them to speak out,” added Syrian lawyer Joumana Seif, a research fellow at the European Center for Constitutional and Human Rights (ECCHR).
“The verdict provides momentum to continue pushing and to bring a few cases building on the success and lessons learned at Koblenz,” explained Mai El-Sadany, Managing Director at the Tahrir Institute for Middle East Policy (TIMEP). Even so, she does not expect “tens of cases to spring up all of a sudden,” given that international justice “often takes time and is subject to politicization.”
El-Sadany says it is key for states to strengthen legislation around universal jurisdiction to allow for more cases to make it to court. For example, Germany and Sweden are among the European countries that hold a particularly expansive understanding of universal jurisdiction, while the United States has a very narrow view of this principle.
France has a history of applying universal jurisdiction and has brought several cases against Syrian perpetrators, but last November French prosecutors halted a trial against a former regime official indicted on crimes against humanity. They held that they could only prosecute crimes that are criminalized by the state where they were committed.
Go after every cog in the machine or the ‘big fish’?
The Koblenz trial has sparked a debate about where to draw the line in terms of holding perpetrators accountable. Should efforts focus on the leadership figures or go after every individual involved in the system?
Anwar Raslan was a high-ranking official, but Eyad al-Gharib was a low-level figure who was charged by German authorities after being questioned as a witness to crimes committed in Syria. During the investigation, he mentioned he had helped to arrest and send protesters to the Branch 251 detention center. After incriminating himself, he was convicted in Koblenz and sentenced to four-and-a-half years in prison last February for aiding and abetting 30 cases of crimes against humanity.
Nessma Bashi, a human rights lawyer at the Syria Justice and Accountability Centre (SJAC) explained that her team had “several insider witnesses, who couldn’t easily defect or deny orders, and they were debating to come forward [and testify in a court].” When al-Gharib was convicted, they backed out. “Our witnesses were scared for their own safety, this is a loss to the police and prosecutors,” she added. “What makes these trials is having reliable witnesses.”
Going after every individual involved in the Syrian state apparatus may be impossible. “The scope of perpetration almost becomes too big,” said Bashi, adding that “at some point, Syrians will have to make a decision about what they feel comfortable with in terms of holding people accountable.”
El-Sadany agreed that “the cogs in the machine” are too “extensive” to try to hold every individual accountable but stressed that “torture, disappearances, all of this will never have happened if these low-level officials were not playing their parts.” In her opinion, there is “legitimate and important benefit to both types of strategy.”
For example, while the Netherlands and Canada are going after the “big fish” before the ICJ (see infographic), mid- and low-level officials are being tried in European countries where courts have access to them because they are physically present, unlike more ‘protected’ senior figures.
Syrian lawyer Seif and her team at ECCHR supported 14 plaintiffs at the Koblenz trial. “Our main strategy is to target high-level officials,” she said. “But when, like in Koblenz, we have the suspects, the victims and accumulated testimonies and evidence, we need to seize this opportunity.”
Al-Bunni argued that if there were a specific tribunal trying crimes in Syria, it would be easier to “strategize,” but as things stand today, “nobody can grant amnesty to any criminals if there are victims seeking for justice.” He said debates about amnesties can only happen in a future democratic Syria.
Syrian activists staged a protest the day of the Koblenz verdict in January, 13/01/2022 (Paul Wagner/The Syria Campaign)
The transitional justice path
The concept of justice goes beyond verdicts at courtrooms. In the aftermath of Latin American dictatorships, conflict and genocide in the former Yugoslavia, South African apartheid, and the Rwandan genocide, the concept of transitional justice was developed.
The UN defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” In the transitional justice framework, criminal prosecutions became one tool among many others, such as survivor-led truth commissions, reparations, memorialization or institutional reforms.
Traditionally, transitional justice has been framed as a post-conflict mechanism, but in the case of Syria, activists started early in the conflict documenting and archiving mass violations, collecting survivors’ testimonies, and memorializing in the diaspora.
“Back in 2012, we put the plan for transitional justice, building memory, following the criminals and trying them, thinking of reparations for the people who lost their homes, building social peace between the Syrians, and drafting laws to prevent these criminals from existing in our future,” said al-Bunni.
For Yasmin Mashaan, from the Caesar Families Association, justice goes beyond trial verdicts. To her, it means “identifying the fate of the missing and releasing the detainees.” For lawyer Joumana Seif, “without political transition toward democracy, there will be no peace, no justice.”
“Transitional justice doesn’t need to wait until the conflict ends, the time for transitional justice is always now,” said El-Sadany. And in this process, it is key to provide “space for victims and survivors to lead the conversation,” she added, mentioning the “extremely effective mobilizations by family members of the disappeared in Latin America.”
For Mashaan, her reference is Argentina’s Mothers of the Plaza de Mayo, who have been fighting for more than 40 years to uncover the fate of victims of forced disappearance during the country’s military dictatorship. “They taught me about the power of perseverance,” said Mashaan, “we know how long it took them to overthrow their regime and to start the real search for the missing.”
For Kather, Guatemala is an example of how “different justice processes can complement each other.” A survivor led truth-commission dealing with SGBV crimes against indigenous women during Guatemala’s civil war “came up with very tangible reparations such as access to land, access to education or their children.” Last January, a court found former paramilitary soldiers guilty of crimes against humanity. In these court proceedings, “the initial reparation demands from the truth commission were taken into account by the court,” she said.
Accountability vs. normalization
Even as accountability efforts like the Koblenz trial begin to bear fruit, they are not happening in a vacuum. At the same time that a former Syrian state official has been convicted of crimes against humanity, several countries such as Jordan and the United Arab Emirates are normalizing ties with the very same government. “It’s extremely dystopian and surreal, it feels like two different realities,” said El-Sadany.
But as normalization spreads, with Assad in control over two-thirds of Syria, there is still value to imagining what a broader vision of justice might look like, says Kather. “Envisioning how it could look different, imaging a different Syria, is a tool of resistance against those actors that are committing all this harm,” she said.
“It’s the duty of Syrians to struggle against the normalization of the regime, we will bring the [Koblenz verdict in] the face of those countries looking to normalize with the regime,” added Seif.
For Mashaan, there is no path forward but to keep fighting for accountability. “I lost my brothers, they will not come back, but I don’t want my children to experience this pain,” she said. “If we stop seeking justice, the tragedy will be repeated for our children and grandchildren.”