AMMAN ‒ In an unprecedented step, three Syrian organizations filed criminal complaints in Germany yesterday on behalf of the victims of two chemical attacks perpetrated in Syria. The complaints include new evidence allegedly proving the involvement of regime officials - namely Bashar al-Assad and his brother Maher, the Fourth Division commander - in the poisonous sarin gas attacks against Ghouta in 2013 and the city of Khan Sheikhoun in 2017.
Although it is not the first case before German courts concerning human rights violations in Syria, this case “is the first to press charges against Bashar al-Assad, in his capacity as President of the Republic [of Syria] and the Commander-in-Chief [of the army and armed forces]. He bears the supreme responsibility for approving the eastern Ghouta attack, which could not have been carried out without his knowledge at least,” said lawyer Mutasim Kilani, the director of the litigation program at the Syrian Center for Media and Freedom of Expression (SCM).
"An informed witness,” Kilani told Syria Direct, “confirmed that Assad gave his approval for the [the eastern Ghouta] attack directly to Maher Al-Assad, who [in turn] ordered the attack." Adding that "the complaint will [also] be filed later in France, along with another case related to targeting civilian installations in Syria."
The new lawsuit is the result of concerted efforts of three Syrian organizations: SCM, the Syrian Archive, and the Justice Initiative, building upon “the efforts of our missing colleague Razan Zaitouneh and the field documentation team that documented the chemical massacre and worked to preserve evidence related to the Ghouta attack, as well as the team of monitors who were working with [Zaytouneh] on the day of the strike,” Kilani said, highlighting that the documentation was carried out "in a professional manner that made the Violations Documentation Center a professional and reliable source of information."
Zaitouneh, a lawyer born in Damascus in 1977, had worked as a human rights activist in eastern Ghouta and was one of the founders of the Violations Documentation Center at the SCM before she was kidnapped, in December 9, 2013 - along with three of her colleagues: Nazem Hammadi, Samira al-Khalil and Wael Hamada - in the city of Douma, controlled at the time by the opposition-affiliated Jaysh al-Islam faction.
The three organizations started “working on this case, preparing and collecting evidence in 2017,” Muhammad Abdullah, the Campaign and Advocacy Coordinator of the Syrian Archive, told Syria Direct. The submission of the case to the German prosecutor "coincides with the request of the Organization for the Prohibition of Chemical Weapons (OPCW), to the Syrian government to declare its chemicals, which makes working on the case now very important," Abdullah added.
The Syrian Archive team, based in Berlin, worked on “collecting and archiving materials related to the chemical attacks, in cooperation with a large number of activists who documented the crimes,” according to Abdullah. He stressed that “the evidence we obtain is subject to a strict methodology to verify the information and analyze and collect data.
"This methodology was strengthened through consultations with experts and academics to ensure the best legal standards suitable for this archiving process, with commitments to ethics, including the principle of ‘do no harm’ to witnesses and activists."
The Syrian Network for Human Rights (SNHR) documented 222 attacks with chemical weapons in Syria between January 23, 2012, and August 21, 2020; the seventh anniversary of the chemical massacre in Ghouta, of which 98% of the incidents were perpetrated by the Syrian regime forces and 2% by ISIS. Still, the two most horrible attacks, with rockets loaded with poisonous sarin gas, are the one on Ghouta, in Reef Dimashq province, on August 21, 2013, which killed 1,127 civilians (including 107 children and 201 women) and injured 5,935 others; and the bombing of the city of Khan Sheikhoun in the southern countryside of Idlib province, on April 4, 2017, which resulted in the death of 91 civilians (including 32 children and 23 women) and wounded around 520 others.
Assad’s immunity dilemma
After more than nine years since the outbreak of the Syrian revolution, the German city of Koblenz witnessed, in May 2020, the start of the first trial of two former Syrian regime officers, charged with human rights violations. Anwar Raslan, the head of the investigation bureau at the Syrian State Security-affiliated al-Khatib branch in Damascus, along with his colleague Iyad al-Gharib, is accused, among other violations, of torturing detainees at al-Khatib. More recently, the Netherlands announced last month that it will hold the Syrian government responsible for gross human rights violations before an international court.
However, the SCM, according to Kilani, has called for “raising the ceiling of accusations to include the Presidency of the Republic and its National Security Bureau.”
“The center, represented by its director Mazen Darwish, testified as an expert before the Koblenz court to explain the structure of the military and security apparatus, and showed that it was not possible for the head of the Syrian regime, Bashar al-Assad, to be ignorant of what was happening in the security services and during military operations,” Kilani said.
But legal action against political figures like Bashar al-Assad as well as Syrian diplomats may be hampered by the immunity they enjoy. “In the jurisdiction in which we work, there is immunity for the head of state and diplomatic missions or diplomats, such as Minister of Foreign Affairs Walid al-Muallem or [Syria’s UN representative] Bashar al-Jaafari,” noted Jumana Seif, a Syrian human rights defender and member of the European Center for Constitutional and Human Rights (ECCHR). "According to law and custom, they cannot be arrested or prosecuted while they are in tenure," Seif added.
This was confirmed by Roger Lu Phillips, the legal director of the Syrian Center for Accountability and Justice, based in Washington, DC. Although there is "a possibility that German authorities could open an investigation into alleged war crimes and crimes against humanity committed by Bashar Al-Assad based upon a complaint from a human rights organization", Lu Phillips told Syria Direct, “the German authorities would need to acquire custody of Assad as trials in absentia are not permissible in Germany, not to mention that during their tenure, heads of state enjoy immunity from prosecution in foreign countries”.
Further, even if Assad was no longer president, "the Syrian legislature [the People's Assembly] would have to strip him of his immunity for the German case to move forward" according to Lu Phillips, citing the case of former Chadian President Hussein Habre, who could be tried in a special court in Senegal only after the Chadian Legislative Council voted to strip his immunity.
Nonetheless, the current trend of filing cases before European national courts remains important to achieve justice, stressed Seif. "All the evidence and documents gathered and the resulting legal documents issued by the courts or legal authorities during the investigations, as judgments or documents supporting the judgment, have great legal value because they become by legal custom one of the sources of international law and they can be relied upon in future lawsuits.”
No accountability, no peace
For some of the families of victims and survivors of atrocities committed by the Assad regime, the lawsuits against the latter in Europe may amount to nothing more than "diluting the issue until it becomes forgotten," as expressed by Diaa al-Din al-Shami, a survivor of the chemical massacre in eastern Ghouta. As long as "the head of the regime is safe from punishment, these cases do not matter," al-Shami told Syria Direct previously.
The feeling of discontent among the survivors of the Syrian regime’s crimes is understandable, given that these trials “will not do justice to the victims nor compensate them for damages,” Seif said, stressing the need for “cooperation between human rights and civil society organizations to push for compensation for the victims, as this is a part of justice".
However, one should not lose sight that “what has been achieved is very important and represents a foundation for the future,” according to Seif, because such investigations and lawsuits have proven that “the Assad regime has committed crimes against humanity, which could push the European countries, who host hundreds of thousands [of Syrian refugees], to act in pursuit of justice," and "not to accept that such a regime, who committed these crimes, be part of the solution in Syria or its future."
"There can be no solution in Syria without going through the process of justice and accountability to establish a just peace, with the participation of the victims, who hold the primary role in this process,” Kilani asserted.
This report is part of Syria Direct’s project promoting gender equality, supported by the Canadian Embassy to Jordan's Canada Fund for Local Initiatives (CFLI). It was originally published in Arabic and translated into English by Lyse Mauvais.