Fritz Streiff: It was 2019 and Khaled al-Halabi was still, according to most reports, living freely in Austria. The investigation against him was apparently still being pursued, and the dossier bursting with documentary evidence had even been supplemented with strong witness testimony. And yet Halabi still wasn't on trial. But Operation White Milk, the agreement between the Austrian and Israeli intelligence agencies to move Halabi to Austria and look after him there, had been revealed. And it was now that the Austrian authorities finally stepped into some sort of action.
This is The Syria Trials, The Disappearing General. I'm Fritz Streiff and this is Episode Nine - The Wheels of Justice.
Journalist at German Weekly Der Spiegel, Wolf Wiedmann-Schmidt.
Wolf Wiedmann-Schmidt: Well, in 2018, the Austrian prosecutors they started an investigation into several BVT officials for abuse of authority, because they had been hiding him.
Fritz Streiff: Austria's prosecuting office accused these BVT officers - the BVT being the Austrian intelligence at the time - of having illegally smuggled Khaled al-Halabi, a torture suspect, into the country, and having kept his locations secret from justice officials, particularly after a 2016 meeting at the Austrian Ministry of Justice. This was the meeting when Ambassador Stephen Rapp and Chris Engels of CIJA, the Commission for Justice and Accountability, first handed over the Halabi dossier to these investigating authorities. Here’s Ambassador Rapp.
Ambassador Stephen Rapp: Another bit of news was that early in 2019, I had a contact from Austria indicating that they had begun an internal investigation in regard to this whole case and what had occurred in terms of individuals from the domestic intelligence agency that had been involved. And they were wanting to speak with me and Chris Engels.
Fritz Streiff: Chris Engels being CIJA’s Director of Investigations and Operations.
Ambassador Rapp: And I discussed it with the prosecution staff person by telephone and decided that I could, you know, describe what happened to me in the meeting in 2016. I suggested that Chris Engels go and provide information, and I believe he did so, scheduled sometime, I think, for the summer of 2019. That, as I understand it, played a role in the investigation that led to the suspension of four agents from this domestic intelligence agency called the BVT.
Fritz Streiff: As the investigation started into the BVT officers, perhaps not unexpectedly by this point, in a case that had been beset by problems since the beginning, yet another obstacle was about to get in the way of the Halabi investigation. Founder of CEHRI, the Centre for the Enforcement of Human Rights International, Tatiana Urdaneta Wittek, had helped to take witness statements for the Halabi dossier. These were submitted to the Austrian prosecutor in 2019. But when the time finally came for the prosecutor to begin interviewing these witnesses, there was a global pandemic.
Tatiana Urdaneta Wittek: This was the time of Covid, and travel bans related to Covid. So it was not easy for the witnesses to follow the summons of the prosecutor, and it took more time than expected.
Fritz Streiff: Was there no hurdle the Halabi case wouldn't come up against? CIJA director Nerma Jelacic, who has worked on the case since the very beginning, attempts to summarise why the case has been just so complicated.
Nerma Jelacic: Well, there are two ways it's complicated. Any case, even when you have both political and judicial will to prosecute the individual, any case of command responsibility is more complex to prosecute than a direct perpetrator case. But then the other complexity, like the specific one that we faced with Halabi, which I must say we haven't really seen anywhere else, and that is that the state elements were not keen to arrest him. At least that's how it appears from their internal documents and from the actual outcome that he's not arrested six years later, right! But the Halabi case taught us, you know, even at a time when you have the strongest evidence, you have the accused, you have the victims and everything in one place that you still can't get to that evasive of justice without the support of the state.
Fritz Streiff: In many ways, the Halabi case exemplifies just how difficult pursuing justice for Syria is, and it particularly highlights two of the biggest obstacles. One being that the Assad regime is still in power in Syria. And so justice for the huge number of crimes against humanity and war crimes cannot happen inside the country itself. The second obstacle is that pursuing justice at the international level is not available for Syria. Ever since Russia and China vetoed the UN Security Council resolution to refer the Syria file to the ICC, the International Criminal Court. This means that Syrians have to resort to what in many ways is a third best option - pursuing cases in other countries where the principle of universal jurisdiction is available.
Universal jurisdiction means that a state can claim jurisdiction over crimes against international law, even when the crimes did not occur on that state's territory, and neither the victim nor the perpetrator is a national of that state. But even with universal jurisdiction, the idiosyncrasies of every country's individual legal system, as we've seen with the Halabi case in Austria, and political will - or lack thereof - to pursue international crimes cases means the path to justice for Syria is not straightforward. And it's especially difficult when it comes to pursuing high ranking individuals like Khaled al-Halabi.
Nerma Jelacic: Syria is not the first conflict where you started putting people on trial for the crimes they committed in their country and then they escaped to somewhere else. I mean, people from my country, the first accused in the tribunal for the former Yugoslavia was arrested in Germany, and then The Hague demanded that he's handed over, even though he was just a low ranking guard. But this is the first time where so much hope currently rests on the national authorities, on the national law enforcement, that the focus on these high ranking individuals is important from the wider contextual elements of it. It's difficult for law enforcement, prosecutorial or police elements in these countries to build so many cases at a higher level because they don't have the resources. And also they don't usually build these types of cases. They are used to the low level, direct perpetrator cases. So these ones that require more complex elements of evidence, which raises more questions, more risks, etc.. So if you're a prosecutor who at the end of the year has to come up and say, this year I did 20 cases and got 20 convictions, or I did three. You know, there are different ways in which their output is measured.
Fritz Streiff: We’ve spent a lot of time going through the various hurdles that were thrown up all over the Halabi investigation. And it's frustrating enough just to hear about the insufficient legal frameworks and the meddling of intelligence agencies. But for Halabi’s victims, those directly involved in the case and those who are unable to participate because amongst other reasons, they're not in Europe, the countless obstacles are beyond frustrating - they’re distressing. Justice for the horrific crimes they suffered at Halabi’s branch in Raqqa, always hovering just out of reach. Victims like Thaer Dandoush, who we heard from earlier in the season.
Thaer Dandoush: Khaled al-Halabi asked to meet me and some others to make sure we wouldn't participate in any of the protests. It was an act of intimidation. I didn't go to that meeting. I was detained in the State Security Branch for a few days. I was tortured in many different ways, and al-Halabi was the Head of the Branch. So he was responsible for everything that went on inside it. He was an intelligence officer and he is currently free in Europe. That very fact is extremely unjust.
Fritz Streiff: But despite the immense challenges and frustrations, the hard work of Syrian and Western lawyers, activists and civil society groups has led to positive breakthroughs in the pursuit of justice for Syria.
Nerma Jelacic: I think there are a number of countries in Europe where there is appetite to build those more complex cases, and we are seeing them obviously in Germany. You're seeing some movements in France now, etc.. So I think that is a changing field and it is changing because of Syria and all the activism we're seeing through the Syrian accountability lens there.
Fritz Streiff: The first major development in the justice and accountability for Syria field could be said to be the trial of Anwar Raslan. This was the first time that atrocity crimes committed by the regime in Syria were put on trial. Raslan was the Head of Interrogations at Branch 251 in Damascus. The trial started in the German city of Koblenz in early 2020. It concluded in 2022, with Raslan being sentenced to life imprisonment.
And do you remember any moments in the investigation that kind of felt like a breakthrough? Like now we've really achieved like an important step?
Abdallah: Yes. When we saw Anwar Raslan in the jail. The other criminal.
Fritz Streiff: Syrian investigator and activist Abdallah worked on the investigation.
Abdallah: Also we work on this case and we bring some witnesses in this case. And when we saw them in the jail and when we saw some justice, I felt okay. Almost there.
Fritz Streiff: Can you describe how that felt?
Abdallah: As a person who was in the jail. And I went through all this torture, heavily tortured, and through this detention time… I can't describe my feelings, just like… I think that this thing, the justice? The only thing that we have right now to fight for. This is the only thing. Sometimes I'm thinking when the other officers, who still now with the Assad regime, when they see there is a, when they put their names on the blacklist or the criminal list or the courts here and in Europe. So make them, some of them (I don't know if that's true or not) make them maybe scared to not killing anymore or stuff like this. I hope.
Nerma Jelacic: I think the most meaningful cases are the ones where you can actually get the accused in a courtroom where they can mount proper defence, challenge the information and the evidence you're presenting against them. And that way you prove, whatever the judges decide in the end, they really weighed the evidence and whether it stands or not. And when we miss those opportunities in cases like Syria, they cost a lot because you don't know when the next person will come. And as you've seen since Raslan, we didn't really… I mean, we've had a couple of regime arrests, but they're not high ranking individuals I would say, that would allow you to present structural evidence to that level that I think is important. I know how it was for my people, for my region and for my country. You know, as people were brought to trial, it wasn't only at the end a decision whether he's guilty or not and whether it's 20 years or five or life that was important. But the actual story that came through, the judgement of what happened to the country, what happened to the people and who bears responsibility on a wider infrastructure level. This was really just as important as these individuals.
Fritz Streiff: The Raslan case provided the first opportunity for Syrian victims to have their testimonies heard and documented in a court of law. And it also opened up discussions Syrians were having about what justice really meant for them and how they wanted to pursue it. Legal investigator Mariana Karkoutly was doing her training at ECCHR, the European Centre for Constitutional and Human Rights, a legal NGO based in Berlin, when the Koblenz trial started against Anwar Raslan. She decided to write her second master's thesis on the trial, looking at what Koblenz meant to Syrian activists from both older and younger generations. As the trial unfolded, Mariana asked the group of Syrians she had selected about their different perceptions of justice.
Mariana Karkoutly: How did the whole process transform the way that Syrians were perceiving the concept of justice and conceptualising as - and this is my argument basically - that Syrians were conceptualising, as these courts are happening, an opening of the very concept of justice. And I think that generally working towards accountability and justice is one and was one of Syrians’ demands from the beginning of the revolution. Justice was on the table and being able to pursue those cases and open the discussion outside of the courtroom among Syrian civil society, asking what is justice for us at the moment? What does it mean collectively and individually, is already a very, very important step forward. So in that sense I do realise and recognise that there is a very, very high value to the cases that are being opened.
Fritz Streiff: Mariana found that there were generational differences in how the Syrians she spoke to considered the justice process.
Mariana Karkoutly: I think what stood up to me is that a large number of the older generation that I spoke to were pushing towards those justice processes to happen inside the country, inside Syria. And they were glad that the accountability processes are happening today and that those war criminals are being held accountable. But they were worried that this is not happening inside the country. And also they were mostly looking at high ranking officials. So like, how are we going to open the cases against the high ranking ones? While with the younger generation, I kind of saw that there was a certain understanding to every crime should be prosecuted, every war criminal should be held accountable.
Fritz Streiff: Mariana is herself representative of the new younger generation of Syrian lawyers and investigators who are moving into the justice and accountability space, and providing a fresh lease of life to the pursuit of justice for Syria.
Mariana Karkoutly: I mean, at least to me personally, it makes complete sense to bring those two arguments together, right? Like to say it's important and we're using the universal jurisdiction at the moment, and utilising this tool, and those cases are being opened. And at the same time, we need to be aware that the universal jurisdiction has something to do with certain political decisions. And at some moment, these very particular European countries can also decide not to open these cases against these war criminals. So we need to have a judicial system inside the country to actually take over these cases. Now, it's impossible at the moment with the Assad regime being in power, you can't do that. And that's why we find a window of hope within the universal jurisdiction. But it's a window. It's not the end goal. I would say.
Fritz Streiff: The Halabi case in Austria revealed many of the problems that can arise when attempting to pursue cases for crimes committed in Syria through universal jurisdiction in national courts. Austria was slow to work on the Halabi case for a mixture of the reasons that Marianna outlines, like the lack of political and judicial will and the fact that there was only one prosecutor working on international crimes cases. But Austrian lawyer Tatiana Urdaneta Wittek has seen improvement in this area in the country.
Tatiana Urdaneta Wittek: I see a great improvement because when I started to work on UJ cases in 2012, the prosecutors did not even know what universal jurisdiction entails for their work. And they were really reluctant to the idea to work on universal jurisdiction cases due to the workload in national prosecutions. And we did also a lot of advocacy work since then. And the awareness and of course the developments in other European countries brought to the attention of the Minister of Justice that there is work to be done in this field.
Fritz Streiff: While legal investigators continued to push the Office of the Prosecutor in Austria to investigate the case properly, another investigation was progressing much faster. This was the investigation against the BVT officers, who were accused of helping Halabi into Austria and setting up his life there.
Tatiana Urdaneta Wittek: The prosecutor who is investigating against Khaled al-Halabi, got to know about this alleged abuse of office of this Austrian Secret Service while working on the investigation against al-Halabi, and submitted a complaint. And another department of the Office of Prosecutor then indicted them.
Fritz Streiff: The prosecutor indicted five officials, four former BVT intelligence officers and one former asylum agency officer. On the 14th of April 2023, four of the five went on trial in Vienna. The fifth man, one of the BVT officers, was in Dubai and cited medical reasons for not being able to appear. He will get a separate trial later. Lawyer at the Open Society Justice Initiative, Steve Kostas.
Steve Kostas: So these are Austrian officials. They're being prosecuted for their alleged role in bringing Halabi from France to Austria, sheltering him in Austria. So providing him an apartment, a monthly salary, getting him asylum and delaying or undermining the potential investigation of Halabi. So they're being prosecuted essentially for corruption or abuse of office. And they are alleged to have done this in the reporting and evidence in a trial certainly indicates, and I think even the accused admit, that this is in collaboration with Mossad, Israel's intelligence service, and in some form of coordination with France's DGSI, one of their intelligence services.
Fritz Streiff: So what has this trial revealed?
Steve Kostas: In the trial so far, there's been testimony that they understood that Halabi was, quote, in danger in France in 2015. So even though they are going to be responsible for sheltering Halabi, they didn't inquire, A, what that danger was. So that's ridiculous. And B who Halabi was. So they didn't know that he was suspected to be a war criminal. So A, why are they being asked to hold this guy and what do they need to protect him from? And apparently, they say, they didn't inquire about those things. If they had inquired, which of course they did, they would know that the real danger was that France changed its laws in 2015 to require that anyone rejected for asylum on the grounds that they were suspected to be a war criminal would be referred to the prosecutor. So the prosecutor would likely receive the Halabi file and would start an investigation of Halabi. So he was in danger of being prosecuted. Why did they not want to inquire about what they needed to do to shelter him? That's because, of course, if they learned that he's a war criminal, which they did of course know, then they would have had to refer that information to the prosecutor themselves. So, you know, they both undermined the potential investigation in France and delayed the investigation in Austria. At least that's the allegation.
Fritz Streiff: And in May 2023, a month after the trial began, a surprise witness took the stand.
Steve Kostas: Halabi is in Vienna, and in fact, he was in a Vienna courtroom when he testified in the trial of the BVT officials.
Fritz Streiff: That's right. Halabi has finally appeared in a Vienna courtroom - just not at his own trial.
Steve Kostas: [00:22:26] Yes. So Halabi has finally been brought to court, just only as a witness. And in fact, both Halabi and the prosecutor, Luschin, were in court in this case. It is really wild.
Tatiana Urdaneta Wittek: Khaled al-Halabi was summoned as a witness, and he came and testified. In order not to incriminate himself, he refused to answer to nearly all of the questions. And then as it came to the topic of this cooperation agreement, the public was excluded from the trial because there could have been a possibility of the violation of Austrian interests. So for a small part of his statement, we don't know what he said, but according to my information, there was no interesting information and obviously no relevant information for the investigation against himself.
Fritz Streiff: Halabi’s lawyer, Timo Gerersdorfer, told the Associated Press that Halabi is cooperating fully with the Austrian authorities and that his client is not guilty. Gerersdorfer said, I quote, He fled Syria with the help of the Free Syrian Army. If he had agreed with the Assad regime, he would have stayed in Syria.
In protecting an alleged war criminal, the actions of the BVT officials in impeding the pursuit of justice has had a distressing impact on the witnesses that OSJI and CEHRI represent in the Halabi case.
Tatiana Urdaneta Wittek: It impacted them quite a lot. And this is quite understandable. To live in the same country as the perpetrator of the crimes of which they had fled from, is a really huge burden. And to know, in addition, that Austrian officials were responsible for his presence in Austria. I can tell you of one of the survivor who addressed me repeatedly with concerns about the presence of al-Halabi every time when he read newspapers about the case.
Steve Kostas: 13 of our clients have applied to join that case as private parties. So victims can join a prosecution if they are harmed by the crimes alleged in that case, and can seek finding that they were in fact harmed and can seek remedies for that. And our clients are attempting to show to the court and really to the public at large that this bringing Halabi to Austria, sheltering him there, undermining the investigation, has harmed them, has harmed not only their rights to the prosecution of their perpetrator, but also knowing that he is living with state support in Europe is harmful to them. It's retraumatizing to them. And so we're trying to sort of bring that to the court.
Fritz Streiff: But before the Halabi witnesses could join the trial, in July 2023, the Vienna court, perhaps surprisingly, found the four Austrian officials not guilty of abuse of power. The court ruled that the accusations against them had not been proven beyond a reasonable doubt. Without more of an inside view on the case and dossier of evidence presented against the accused, it's hard to know how this acquittal came about exactly. The verdict was appealed by the Office of the Prosecutor. So if the court admits the appeal, a second instance court will examine the case again. But for the moment, we do not know if and when the trial will be reopened.
It was another disappointment in the Halabi saga, a heavy blow for the witnesses involved in the Halabi case.
Tatiana Urdaneta Wittek: So of course, the situation already that the General received asylum status here in Austria and is residing in Austria is harming the survivors who were tortured by him. Some of the survivors weren’t granted asylum status in Austria, but had to find support in other countries, like, for example, the Netherlands. So this unequal treatment of Halabi and our clients is striking and it is understandably difficult for them to accept this situation. Many of the survivors who received asylum status had a difficult start here. They were not treated very well when requesting asylum, and they had to go through all the hurdles of the Austrian authorities. So they, of course, expected some form of justice from the trial. And they ask themselves, how can a person who tortured them receive a privileged treatment here in the democratic state of Austria. And with the background that they had fought for their own lives, for democracy and human rights, under the most dangerous conditions. And they now have to be confronted with this situation.
Fritz Streiff: When slapped with this many setbacks, it can be very difficult not to lose faith and hope in the justice process. But despite all its disappointments, there is, of course, still the desire among Syrians to see Halabi brought to justice. Even Syrians who are living inside Syria, far away from the European courts of law. Like Hazem al-Harami, a civil activist from Raqqa.
Hazem al-Harami: Khaled al-Halabi was a member of Raqqa’s State Security Branch, which contributed to the suppression of protests, arbitrary arrests and inhuman treatment of civilians. Al-Halabi is a symbol. He doesn't hold meaning for me personally, but he represents the criminal behaviour of a large system. He is one of thousands who have helped the Syrian regime and its crimes against the Syrian people.
Justice is a beautiful thing, for every Syrian citizen. For me personally, it means life itself. Each system has its own legal and judiciary actions, respected and valued by European citizens. But we hope that Khaled al-Halabi doesn't end up like other criminals who have found legal protection under the name of asylum.
Fritz Streiff: And Wisal Ibrahim, also a civil activist from Raqqa.
Wisal Ibrahim: I heard of this trial and this individual. Many countries have intervened in the situation, which I find surprising. Why this individual was protected specifically, even though he had committed violations in Raqqa and in Syria in general. He is free and present in a European country that offers him full support and protection, which of course is unacceptable and does not represent the human rights these countries supposedly stand for.
We want justice for the victims that were detained, oppressed and killed by the Syrian regime. I wish, after the end of all this oppression, that those responsible for it will be held accountable. Whether it is in Syria or, as we see currently, in trials in Europe.
Fritz Streiff: The much sought after justice being pursued in Europe for other cases in the Syria file, not just Halabi’s, remains paramount for Syrians to. Like for Mahmoud al-Hadi.
Mahmoud al-Hadi: We are following the proceedings in European courts relating to trials against some of the former members of the Syrian regime, as well as those from terrorist organisations who committed crimes. We follow and strongly support these trials and we hope that they continue tracking those who have joined in the bloodshed of the Syrian people.
Fritz Streiff: And Muhammad, the activist from Raqqa that we heard earlier in the season as well.
Muhammad: In my opinion, anyone who has caused harm to a Syrian during the Syrian revolution should be held accountable. Whether it's psychological, physical, material, any form of harm, they should face justice. It should serve as a lesson for anyone who believes they are superior to others. No one is above the people. We all are children of Adam. All Syrians, regardless of our religious or ethnic backgrounds, whether Alawite, Sunni, Kurd, Shiite, or Druze. The law applies to everyone without discrimination.
Fritz Streiff: It will perhaps be impossible for any legal system to adequately address what has happened in Syria since 2011. There are so many perpetrators, so many crimes, so many victims, that to bring a case for every single one is just not feasible. Which is why the central goal for justice remains, for many Syrians, to see the man who is ultimately responsible, President Bashar al-Assad, on trial. This is Rashid Satouf, who we also heard from earlier in the season.
Rashid Satouf: From my perspective, any sentence towards any person who committed violations towards Syrians is a step forward. These trials that are happening in Europe are a small and simplistic step on a long path, because the main violation is still happening in Damascus. The main reason behind these violations, the main culprit and the main criminal network, are all in Damascus. The people on trial are essentially just the tools. I am not saying that the tools should not undergo trials as well. I'm just saying that real justice will happen when the Assad gang is put on trial. There is a long road ahead with many stops along the way.
Fritz Streiff: We have heard time and again over the years that this is and will remain the ultimate goal of any justice and accountability for Syria efforts - Bashar al-Assad behind bars and on trial. But as long as Assad is President, it seems he can't be tried. And as long as he remains out of reach, Syrians continue to fight for whatever justice they can. As the Halabi case stalls, there are many other cases being pursued in Europe today. We delve into some of them next time here on the podcast, in Episode Ten of The Syria Trials.
This was Episode Nine of The Syria trials, The Disappearing General. If you've been enjoying this new season, you know what I'm about to say… please do subscribe and leave us a review. I'm your host, Fritz Streiff. The producer is Sasha Edye-Lindner, and the editor and fact checker is Mais Katt. The Syria Trials is a 75 podcast production. Thank you very much for listening.