On the 24th of February, the judges are scheduled to pass a verdict in the case of Eyad A. He could face a prison sentence if convicted, but the question is: should he be convicted at all? Because, what choice did he really have?
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Slavenka Drakulić’s book ‘They Would Never Hurt a Fly - War Criminals on Trial in The Hague
Syria Justice and Accountability Centre's monitoring of the trial
Today’s episode was made possible with the support of Förderfonds Demokratie.
Logo design by laurenshebly.nl -- Photo by James Lawler Duggan/AFP/Getty Images.
Theme music by Kevin McLeod. Additional music via Blue Dot Sessions.
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Fritz Streiff: No, he would not do it. He couldn't kill men just like that point-blank. As he went up to his commander, his hands were trembling. "I don't want to do this," he said. Brano Gojkovic turned towards Dražen as if he had not heard him properly, "What?" Dražen knew the trick, Gojkovic wanted him to repeat his words loud enough for everybody to hear so that he would have witnesses for whatever might happen next.
Dražen looked at the soldiers, "Comrades, I don't want to do this. Are you normal? Do you know what you're doing?" he said but less firmly, feeling his bravery quickly evaporating as the others studiously avoided his eyes. Pero openly laughed at him. A moment of awkward silence followed. It occurred to Dražen that he had not heard a single bird singing that day. Gojkovic looked at Dražen without flinching, his expression was serious.
"Erdemović," he said, "If you don't want to do it, walk over there and stand together with the prisoners so that we can shoot you too. Give me your machine gun." Dražen must have understood instantly that the officer meant what he was saying, but he was confused. He had not expected such a reaction. He had hoped briefly that he could get out of this mess if he just said no. What did he expect?
He remembered hearing about an earlier case of disobedience when a soldier had been executed at the order of Lieutenant Colonel Pelemis. He realized that now it was too late to say no, he should have said it long ago. His heart was beating so strongly that he could hear nothing but its pumping. For perhaps a minute or even less, Dražen stood there with the Kalashnikov in his hands. For a moment, he thought of running into the woods, but he saw the face of his wife before him, and he felt helpless, they could take revenge on her and the baby at any time. He was responsible for three lives. It was an excuse, yes. The truth was that he had proved to be a coward and he knew it, but what else could he have done?
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Gojkovic would not hesitate to order him killed, and Pero would do it with pleasure although Dražen did not understand what he had against him. Maybe the fact that Dražen was not a pure Serb, which made it even more advisable to take Gojkovic's threat seriously. The commander was no longer looking at him, as if, he had no interest in his decision. He ordered the soldiers to take up a position behind the prisoners and the prisoners to kneel on the ground.
Dražen took his place at the end of the squad. His heart was still beating loudly when he aimed at an elderly man whose face, luckily enough, he had not seen before. He quickly feverishly weighed up his options. Of course, he could fire between two prisoners, but his prisoners would still have to be killed, like having to die twice. Besides, the firing squad was a small one only of a dozen soldiers and if he didn't aim properly, it could be detected immediately. The commander would know and he would be executed. No, he must aim properly. Then a command came, "Shoot."
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Noor Hamadeh: From 75 Podcasts, this is Branch 251. I'm Noor Hamadeh.
Fritz: I'm Fritz Streiff.
Noor: The text we just heard is from Slavenka Drakulić's book, They Would Never Hurt a Fly from Chapter 8 titled One Day in the Life of Dražen Erdemović. When Fritz told me about this case, I went to the Yugoslavia Tribunal website to look it up. There, it says that Dražen Erdemović was a soldier in the 10th Sabotage Detachment of the Bosnian Serb Army in July 1995.
He participated in the executions of hundreds of unarmed Bosnian Muslim men from the Srebrenica enclave. It mentioned something striking. Erdemović was the first person to enter a guilty plea at the tribunal and later testified as a witness in other cases, including against such high ranking accused as Mladić and Karadžić, where he provided significant and detailed evidence about the crimes he committed. Erdemović was eventually sentenced to five years imprisonment. Drakulić's book mentions that he is now free and enjoys the status of a protected witness.
Fritz: The decision in Eyad A's case is coming up in two weeks. This will be the first-ever decision in a criminal trial against the former Syrian regime official, so it's a highly symbolic decision. In anticipation of that, we discussed his case and went back to the earlier episode we did about him in season one, about his life, his background, and the charges against him. We talked to our court reporter Hannah about how the trial against him went, what the evidence presented in his case looks like, and crucially, what he himself, what Eyad A says about the case against him and the crimes that he's accused of.
During our discussions, it dawned on me for a while, and then I remembered. A lot of it reminded me of the Erdemović case at the Yugoslavia Tribunal because both men are in comparison, relatively small fish in international criminal history, but they were both part of a system, of a structure that at some point got them into a situation that presented them with the ultimate dilemma.
Noor: After what we heard from witnesses and other evidence presented to the court as well as from Eyad A himself in his personal letter, the question the court will have to answer in two weeks is, should he be convicted at all? Outside of the court, outside of this case, outside of criminal justice generally, if Eyad A did commit the crimes that he's charged with, that's one thing, but could he have said no? Could he have refused? Is that asking too much? What choice did he have?
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Fritz: These are big questions, and perhaps it is good to start at the beginning. The court confirmed that the verdict against Eyad A is scheduled for February the 24th, so the judges must be busy weighing the arguments and drafting the decision as we speak.
Noor: To understand the upcoming decision better and what to expect, let's take a couple steps back. Who is Eyad A? How did he end up as an accused in the worldwide first criminal trial against Syrian regime officials? Hannah jogs our memory a bit.
Hannah El-Hitami: Eyad A was born in Damascus in 1976, but his family is from Deir ez-Zor originally. He became a member of the intelligence service as early as 1996 and was an instructor until 2010. Then he started working for the religious department of Branch 251 where it was his job to monitor mosques. Then he was transferred to what he called a dangerous division, Division 40, a subunit of Branch 251.
He said, "It is like a mafia. Once you're in, you can't get out." Quotes like these we did not hear from Eyad A himself. All the information we have about him is actually pieced together from the interrogations with federal police and the asylum authorities, who in turn testified in court to reproduce what he said. Just once during this whole trial, we heard a very personal and emotional message from Eyad A himself when a few weeks ago his lawyer read out a letter that the defendant had written.
Fritz: Eyad A had been part of the Mukhabarat, the Syrian intelligence services since 1996, so for about 15 years before the crimes allegedly occurred that he's accused of in this trial. In 2010, he was transferred internally to Branch 251 and then to its Subdivision 40, a notoriously brutal unit, where he was allegedly involved in hunting down peaceful demonstrators, roughing them up, and bringing them to interrogation centers where they would be tortured oftentimes with deadly consequences.
A former colleague of Eyad A that we talked to on Episode 6 of the podcast said he got transferred from a relatively innocent posting as sports instructor to this kind of work against his will, that Eyad A didn't want to join Branch 251 and Subdivision 40. The same colleague told us that he transferred to Branch 251 already as early as 2006, so four years earlier than what Eyad A himself told the German authorities. It is unclear what the exact timeline is.
Noor: In this new position in Subdivision 40, at least one time, he found himself part of a situation that it seems he himself felt was wrong. He must have instinctively noticed that he had become part of a criminal endeavor. This scene became a central part of his memory of those last days on the job.
Hannah: According to a federal police officer who interrogated him in 2018, Eyad A had gotten orders to shoot civilians from the very beginning of the protests. The moment he decided to defect was during one protest in Douma. Eyad A told the police officer that Hafez Makhlouf, the president's cousin and head of Division 40 arrived at the site of the protest, fired around from his machine gun, and shouted, “If you love the president, shoot at the traitors.” Eyad A claimed in his interrogation that he tried to avoid aiming at protesters and that afterwards he and his colleagues had to search the streets and arrest anybody trying to run away.
Noor: It led him to a big decision.
Hannah: He said during his asylum hearing that he didn't want to kill his fellow Syrians and that's why he defected in January 2012. He hid in his hometown for a few months before leaving the country together with his family because at the time the secret service was already searching for him.
Noor: He left Syria on a long journey and eventually ended up in Germany.
Hannah: He, his wife, and six children left Syria on the 12th of February 2013, and traveled through Turkey and Greece. Altogether, it took them five years, two months, and 13 days by airplane, on foot, minibus, and rubber boat to arrive in Germany. After three years in a camp in Turkey and then a camp in Greece, his youngest son was able to bring the whole family to Germany via family reunion in April 2018.
Fritz: Eyad A must have thought he had finally reached safety after what must have been a long and difficult journey, but this feeling of comfort and safe arrival did not last long. Eyad A must have felt like, and perhaps to him still feels like an impossible position.
Hannah: On the 12th of February 2019, he was summoned to the immigration office near where he lived in order not to arrest him at home in front of his children. He was very surprised and he was sure that there must be a misunderstanding. He kept insisting that he hadn't done anything. Three months later in May, the authorities had to release him again based on a motion filed by his lawyer claiming that he hadn't been informed about his rights as a suspect during his interrogation with the federal police.
When he was re-arrested in June, he had some breakdown that sounded to me like a panic attack and he needed to be hospitalized for one night. Since then he has been in pretrial detention in a town not too far from Koblenz.
Noor: All of a sudden, Eyad A found himself in detention. "Surely a misunderstanding," he thought. Had he not been invited to testify as a witness? How did the authorities turn this around and put him in prison instead? What did they even accuse him of? What did he do wrong?
Hannah: The charges are that he assisted in the torture and detention of at least 30 individuals between September and October 2011. These charges are based on the protest he had mentioned to the federal police. They had originally summoned him to ask him about Hafez Makhlouf for the structural investigation, that's an investigation going on since 2011 to collect all the evidence on crimes in Syria regardless of individual perpetrators.
Eyad A gradually turned from witness to suspect and ended up incriminating himself by talking about his work for Division 40. How he arrested civilians at checkpoints during raids and after said protests in Douma, where he and his colleagues had orders to arrest protesters and take them to Branch 251 where he knew that they would be tortured.
Noor: Eyad A thought he had given testimony to the German federal police as a witness. Based on that information, the police developed an interest in him but this time as a suspect himself. That's usually where the police have to inform someone that they have the right to remain silent in the sense of nobody can be forced to self-incriminate.
Hannah: The police informed Eyad A too late of his rights as a suspect and as a consequence, he had to be released after his first arrest. This is also the reason that his statements about working at checkpoints and participating in raids could not be used for the indictment and are not part of the charges he's now facing on trial. Then he was re-arrested because the Federal Supreme Court ruled that what he told the asylum authorities and the police about the 30 protesters he and his colleagues arrested in Douma that that information can be used and is enough for an indictment. Ironically the event that made Eyad A decide to detect would later become the event where he incriminated himself in the view of the German prosecution.
Fritz: Similar to Anwar R, he gave this information to the police himself voluntarily. In a way, he got himself into trouble by trying to help by being open about his past, about his position, the chain of command he worked in, his role, and the actions of his superiors, and the scenes of his unit shooting at protesters. He incriminated himself, perhaps operating on the assumption that the police were only interested in the ultimately responsible, in his bosses, the Makhlouf’s and the Assad’s.
It seems he had not considered that in the German police’s books crimes remain crimes, whether or not committed in a command hierarchy or reported about in the capacity of a witness. However, what's turned him into a defendant is what would eventually be essential piece of his defense. The fact that he volunteered all this incriminating information as a witness and as part of his asylum procedure.
Hannah: The defense has objected to the use of Eyad A’s asylum hearing as evidence because he was not informed about his right to remain silent. Later, the prosecution reacted to this objection saying that the rules that apply to a criminal proceeding do not apply to an asylum hearing. They said, "Yes, it is a dilemma when an asylum seeker has the choice to say something that might support their asylum request while at the same time making them a suspect in a criminal case." That's a dilemma, but this dilemma is not relevant to the trial. The question, whether or not the asylum hearing will be admitted as evidence has not yet been decided.
Noor: Eyad A incriminated himself and his lawyers are trying to get that off the table to have it declared inadmissible evidence. If they are successful at that, the question is, what else is there in terms of evidence that could prove the charges in the indictment.
Hannah: The defense strategy has been for him to remain silent. They don't need to add any more statements by him to the trial. Instead, they're actually trying to remove that which he has already said. Other than that, there is not much against him. There are no individual witnesses who confirmed his arresting protesters. The survivors and family members of victims who have joined the trial as civil parties are all part of the proceedings against Anwar R and so, none of them are against Eyad A.
Basically, there's just the overall situation, so testimonies of violence during protests, violence during arrests, evidence of mass graves, and the Caesar files proving that crimes against humanity took place. Then from there, the deductive reasoning of how someone of Eyad A’s position must have assisted in them by arresting people. Also, there was one single witness who claimed to have seen Eyad A at the mass graves in Najha allegedly accompanying a convoy that delivered dead bodies.
Fritz: The case against Eyad A has lasted pretty much exactly two years since the day he was arrested until now. The trial against him has lasted about nine months. Every single session, Eyad A would sit in the dark being forced to listen to all the evidence presented to the court. A lot of that evidence he would have thought did not relate to his case, not directly to the charges against him. He must have thought again, and again that he had nothing to do with all these structural elements, the politics, the criminal actions by those in higher positions like his co-defendant Anwar R, the main accused, the so-called bigger fish.
Hannah: He sometimes was brought in handcuffed because he had gotten into trouble with the guards. Once, he even spat on the floor when he was brought in. There seemed to be a lot of anger and frustration about his situation. Later, when it became clear that his verdict was coming up sooner than expected, he seemed a bit calmer to me. He wasn't as interested as Anwar R so he didn't take as many notes as him. Sometimes he even seemed asleep or he took off his translation headphones, so he stopped following the hearing. Other than that, he kept a mask on most of the time to cover his face and also never allowed any cameras to film him.
Noor: Eyad A remained silent for a long time, frustrated but silent until one day in court. Some court observers describe that day as the heaviest, the most difficult one since the very first days of the trial when similarly gruesome accounts were reproduced in court.
Hannah: After the forensic analysis of the Caesar photos in court in November, Eyad A wrote a letter that was later read out by his defense lawyer. In that letter, he said that it had broken his heart to see the pictures and that he had to cry afterwards when he was alone in the car on the way back to the prison. He talked about his hatred for the regime and about his anger that they’re still in power. He said that some of his relatives were missing as well, so he had actually looked for them among the Caesar photos, but at the same time hope not to find them because he was still hoping that they were alive.
Then he said that in 2011 as a secret service member, you only had three options either to refuse orders and be killed immediately or to defect, leave your family behind and let them be killed, or to wait until there's a safe way out for you and your family, and that's what he did, he said. He asked in his letter whether he should be blamed for loving and protecting his family. He added that this was an important question to be answered by the court also regarding other generations of soldiers in whose countries a civil war might break out in the future. He ended by thanking the judges, the plaintiff, the lawyers, witnesses, and basically everyone supporting the Syrian Revolution.
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Fritz: According to the case overview provided by the European Center for Constitutional and Human Rights, or ECCHR, Eyad A faces 2 to 15 years in prison if found guilty of aiding and abetting torture as a crime against humanity. If he's found guilty of lesser charges than that, he faces between six months and roughly 11 years. Next to his lawyer’s procedural arguments, Eyad A’s personal defense is what choice did I have?
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Noor: His lawyers are going for the inadmissibility argument to get the evidence off the table that he gave himself to the German authorities with which he incriminated himself. If that works, could it perhaps even get him off the hook entirely? We'll have to wait and see. Let's take a closer look at his defense of what choice did I have? Eventually, there are two standards in the law that we should hold this against and that the court may be looking at as well, German law and the international legal framework.
Fritz: In terms of international standards, in short, what we're dealing with here is a defense of superior orders or a defense of duress. In other words, Eyad A is saying, “I had no choice but to obey my orders to shoot at civilians, arrest them, bring them to Branch 251 where they would be tortured. If I had disobeyed, they would have killed me on the spot,” is what he said in his personal letter.
Noor: The first defense will look at under international law is the defense of superior orders, which is basically the idea that the accused committed the crime because they were told to do so by a superior. According to international law, this defense doesn't work if the accused knew that the act they were ordered to commit was illegal. With that being said, there is some wiggle room here.
Even if the defendant knew that the act they committed was illegal, they may still be able to use the defensive superior orders to mitigate their sentence. Basically, Eyad A is saying, "I just did what I was told," and that may or may not work depending on whether the judges find it credible that he didn't know what he was doing was illegal. The severity of his crime will impact whether or not this will work for him.
The other defense that Eyad A is raising is called the defense of duress. It's similar to the defensive superior orders. You're doing something illegal because someone told you to, but there are two crucial differences. The person giving you the order is, not necessarily your superior and the reason you're following the order is because you feel threatened. Generally, under international law as it stands now, the defense of duress requires that a person committed an unlawful act to avoid imminent danger to life, limb, or freedom to themselves or family or a person close to them. The threat has to come from another person, not just from the circumstances surrounding the incident.
A very basic example of this is the difference between a situation where someone steals a car to drive away from and avoid a hurricane. Compare this to a situation where someone steals a car because someone puts a gun to their head, and demands that they steal it. The first situation is one where the circumstances cause the person to do something illegal. Whereas the second example, the person did something illegal because of a threat coming from another person.
Fritz: Going back to what you said a minute ago, the threat has to be imminent or immediate. Meaning that if they don't listen to the person threatening them, they will almost immediately do exactly what they're threatening. The defendant also has to have had no way to avoid the threat other than committing the crime they're being coerced to commit. In other words, the defendant must make a convincing argument that they had no choice but to commit the crime.
This brings up an interesting point when it comes to Eyad A’s situation. Based on his testimony, there was no direct threat articulated. No one directly verbally threatens to hurt or kill him or his family members if he didn't follow orders. Eyad A’s fear of not obeying orders came from general knowledge of what happens when someone doesn't do what they're ordered to do in Syria, dissent or failure to obey orders or not taken lightly.
The court in Koblenz may consider these international legal standards and considerations as a reference point, but what it's mostly concerned with and eventually needs to base its decision on is the relevant German law. Germany's Code of Crimes against International Law states in Section 3 that if you commit a crime as part of an order of a superior that you won't be found guilty, but only if one, you don't realize that it's illegal what you're doing, and two, that what you're ordered to do is not obviously illegal. Not things that anyone would intuitively feel in your gut are illegal.
Noor: In this case, this may be hard to show indeed. It seems that Eyad A was well aware of the irregularity of the criminal nature of the situation he found himself in, shooting at civilians. Eyad A also described to the German authorities that he did not want to work for Subdivision 40 because of its brutal reputation. How will the court in Koblenz look at all this?
Fritz: We'll see in a few weeks. Whatever the court decides the situation Eyad A describes, the duress, his unwillingness to participate in the crimes, his now fierce criticism of the regime he once worked for. If the court was to believe him, all of these could be mitigating circumstances and the judges can take those into account when determining his sentence, should they find him guilty. His lawyers have one last shot at convincing the judges of the arguments we just described and any other points that they want to raise.
Their final pleas are scheduled for the 17th and the 18th of February so a week before the decision. We will cover both the final pleas and the decision in our upcoming episode about that symbolic and pretty historic first decision in a criminal trial against former Syrian regime officials.
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Aside from the legal questions that the court will have to eventually decide on, cases like the one concerning Eyad A bring up a bunch of other questions that are worth considering for a moment. We heard about Dražen Erdemović and the situation he found himself in back in July 1995, close to Srebrenica. Eyad A apparently described to the German authorities a similar situation, shoot or be shot. Legal questions aside, as a human, in that situation what do you do? What can you do?
Noor: Much has been written on the moral-philosophical and sociological aspects of the question how regular men like Erdemović and Eyad A end up as war criminals on trial, how they end up committing crimes against humanity, allegedly, in Eyad A’s case.
Fritz: In preparation of this episode, I had the chance to talk with journalist and writer Tjitske Lingsma. In her article titled, How do you become a war criminal? Few people have the guts to refuse orders, which is in its original Dutch, she writes that it is this strong needs to be loyal that makes humans suited to become accomplices of violence. Loyalty is a deeply human condition that seems to serve as an important element. Lingsma interviewed criminologist Anette Smeulers who is a professor of criminal law and criminology of international crimes in Groningen.
According to Smeulers, the crux is people are not necessarily bad but they're weak. In the social context, we are too cowardly to go against orders even if we do harm to another, we are by and large followers which in exceptional situations leads to exceptional crimes. In her search for answers to the question how regular people turn into war criminals, Lingsma identified a general school of thought on the topic based on the concept of crimes of obedience, an act at the order of an authority that is considered illegal or immoral by the International Community.
These crimes of obedience, Lingsma writes, are most likely to occur in strictly hierarchical organizations such as the military, special military units, prisons, and police units. It happens, especially in dictatorships and criminal states.
[music] "First of all, honorable judges, I wish to say that I feel sorry for all the victims not only for the ones who were killed then at that farm. I feel sorry for all the victims in the former Bosnia and Herzegovina regardless of their nationality. I have lost many very good friends of all nationalities only because of that war. I'm convinced that all of them, all of my friends were not in favor of a war. I am convinced of that, but simply they have no other choice. This war came and there was no way out, the same happened to me.
Because of my case, because of everything that happened, I of my own will without being either arrested and interrogated or put under pressure admitted even before I was arrested in the Federal Republic of Yugoslavia, I admitted to what I did to this journalist. I told her at the time that I wanted to go to the International Tribunal, that I wanted to help the International Tribunal understand what happens to ordinary people like myself in Yugoslavia.
Because of those victims, because of my consciousness, because of my life, because of my child and my wife, I cannot change what I said to this journalist, and what I said in Novi Sad because of the peace of my mind, my soul, my honesty, because of the victims and war, and because of everything. Although I knew that my family, my parents, my brother, my sister would have problems because of that, I did not want to change it. Because of everything that happened, I feel terribly sorry, but I could not do anything. When I could do something I did it. Thank you. I have nothing else to say."
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Noor: That was an excerpt from Dražen Erdemović's guilty plea at the Yugoslavia Tribunal. It illustrates one possibility we have not considered here. It doesn't happen often especially in these kinds of international cases, but it happened in this case at the Yugoslavia Tribunal. Full remorse and a guilty plea, even combined with the deal to testify as a witness for the prosecution against other accused. In return for a milder sentence and a new life as a protected witness. Erdemović did it, could Eyad A have done it and testified against Anwar R?
Fritz: I remember there was talk of that at the start of the trial among trial observers, that this could be an opportunity for Eyad A but it never happened. It seems Eyad A chose to go with his lawyer's advice to argue for the inadmissibility defense to largely remain silent, and he chose to make one personal statement pleading for what comes down to a defense of superior orders or a defense of duress. Eyad A in his letter expressed a deep sadness about the developments in Syria, and said that he now hates the regime that he once served. He condemns the system strongly, but in his letter, he does not express regret for having been part of it himself. Was he just one tiny part of a huge machinery, a man without a choice or was he one of the many, many willing executioners of Assad's early violent response to the uprising?
Noor: He did have a choice. He said so himself when he noted the three options in his personal letter. When he could, he left and fled the country, but is that all he could have done? If he had refused orders, would he have been an example to others perhaps? Imagine for a moment he had rebelled, would others have followed? Because after all doesn't it take one to start a movement? Does the machine not only work if all or at least most of its tiny parts do what they're told? What if they don't? Anette Smeulers said something that may serve as an answer to all these questions. According to her very few people have the guts to refuse. That's the bottom line.
Fritz: Perhaps Eyad A did not have a choice during that scene where he was ordered to shoot at civilians, but he started working for the intelligence services in 1996. Did he have a choice then? His former colleague we talked to in the earlier episode about him argued that he joined the service for financial reasons, that he did not have the opportunity to go for higher education. Could he have chosen another profession, another trade so to say? What he eventually did was work for a system that had been criminal, and at least dictatorial for a few decades before he joined the intelligence services in 1996. Did he not know that?
Noor: When Eyad A told his story to the German police, and slowly changed roles from witness to accused, he could have pleaded guilty. He seems to understand that what he was involved with was wrong. He could have agreed to testify against his former boss Anwar R and others in the future to possibly receive a reduced sentence. Considering other mitigating circumstances perhaps he could have even walked free after the time he has already spent in pretrial detention, or gotten witness protection and started a new life like Erdemović. Eyad A made a different choice, but when you consider all of this what is choice really?
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Next episode will be all about the specific horror that is sexual and gender-based violence. It's rampant in Assad's torture prisons, and people who survived the initial attacks then have to navigate a society that often isn't tolerant of them. Often isn't able to offer the support that they need.
Fritz: See you then.
Noor: See you.
Pauline Peek: Branch 251 is a 75 Podcasts production. This episode was written and hosted by Fritz Streiff and Noor Hamadeh. It was produced and edited by me, Pauline Peek. Today's episode was made possible with the support of Förderfonds Demokratie.
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