In this court update, Hannah and Fritz discuss the most recent testimonies, the court's puzzling decision to block the recording of the final pleas as well as a motion to label the charge of enforced disappearance as a crime against humanity. Like many times before, the seemingly dry, bureaucratic legal questions that the Koblenz court grapples with during this trial, raise fundamental questions about international law, universal jurisdiction and justice itself.
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Fritz Streiff: Hannah, what happened in Koblenz since our last court update two weeks ago?
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Hannah El-Hitami: I actually haven't been to Koblenz these past weeks. I've read the ECHR reports and spoken to some of my contacts on the ground in order to keep you updated on the recent developments. Generally, there were more survivor witnesses who confirmed once again the description of treatment, and the prison conditions in Branch 251. These were actually the last survivor witnesses and plaintiffs before the collecting of evidence by the court is closed.
Fritz: The Koblenz court is really trying to get a very complete picture of those contextual elements, it seems so. It makes sense if you take a step back and have a look at a large number of charges in the indictment against Anwar R. He's charged as a co-perpetrator in 4,000 counts of torture, 4,000 counts of torture, and originally 58 counts of murder. The second part has, actually, since the beginning of the trial been updated with another 10 counts, so in total, 68 counts of murder.
Hannah: Right. The court is gathering all the evidence presented to it in this really large framework of charges.
Fritz: It makes sense in a way that we're hearing many stories describing the general treatment of prisoners and the prison conditions at Branch 251, right?
Hannah: Yes. There was also a special testimony that's stuck in my mind, which was by a famous Syrian artist who testified anonymously, so he's famous apparently, but we don't know who he is. He was detained, and he was interrogated by Anwar R personally. Anwar R, it seems, treated him quite well and told him that he wasn't "scum" like the other protesters. When the witness's father came to pick him up at the branch, Anwar R went to meet the father and introduced himself. Apparently, the witness's father was also a very famous artist, although we also don't know who he is.
The witness assumed Anwar R wanted to meet him because he was a famous artist. This resonates with some testimonies that we heard in the past that showed that Anwar R had a particular admiration for culture and arts, treating artists in the prison better than others, and having some light conversations with them about cultural topics. I find this very interesting because it reminds me of other historical contexts where professional cruelty went hand in hand with a certain admiration for intellectual and aesthetic sophistication.
Fritz: I remember when you told us about this testimony, we both had this similar reaction, and we talked about it, this historical reference. There is something about that. A well-known example of this, of course, is Adolf Hitler's fascination with Richard Wagner and his operas. Also, it reminds me of the Bosnian Serb war criminal Radovan Karadzic who reportedly was a passionate writer of poetry. Not just reportedly, in fact, he had published some of his, I think, what real poets would say, rather mediocre poetry.
Hannah: Yes. I guess if we want to try to understand Anwar R better, not just in the context of the charges against them, but as a person, I find this very interesting testimony.
Fritz: Yes, I agree. What else do you have for us, Hannah?
Hannah: Apart from the recent testimonies, I would actually like to use this update to tell you about two important issues that have been and are still being discussed over a longer term. One of them is the question whether the trial should be recorded. This is something that academics and NGOs and others have been lobbying for from the very beginning because they see the trial as historic, and they want to preserve it for future generations, for example, to study it, and perhaps even learn from it for future trials.
Fritz: This topic goes way back to the beginning months of the trial. I remember, we did an episode on this in August of the last year of 2020.
Hannah: Exactly. Last month, the court rejected this request for the third time. The judges had originally argued that recordings could put witnesses at more risk and also make them feel insecure and less willing to testify. In the last request, the European Center for Constitutional and Human Rights, the ECCHR, merely asked to record the final pleas and the verdict. This was also rejected, though, based on the argument that trials can only be recorded when of special historical significance for Germany, and they argued that this trial was only of special significance for Syrians.
Fritz: The court also made reference to this part in German law when they first refused the recordings back when we reported on it in August of last year. I was wondering then, and now again, and for the third time, how does that make sense when you're talking about the worldwide first criminal trial against former Syrian regime officials taking place, not in The Hague, not in any other country, but in Germany?
Hannah: Yes, for me, this seems like another example of how the German judiciary is conducting an international trial in a very national framework. Because the whole principle of universal jurisdiction is based on the idea that certain crimes are so grave they concern the international community as a whole, regardless of national borders. Yet, a German court argues that the al-Khatib trial is not historically significant for Germany, and therefore, based on Germany's Criminal Procedure Code may not be recorded.
That doesn't seem logical to me. If countries are to conduct more of these universal jurisdiction trials in the future, it only makes sense that they adapt their criminal procedure codes in an adequate way. Until then, journalists, NGOs, and of course us at the podcast are doing our best to document and preserve this important trial.
Fritz: I find this one a really hard one to pass. It's probably a longer discussion that we and the whole field around this trial and universal jurisdiction should have. Because, I mean, sure, if the code on German Criminal Procedure does not allow for it when interpreting it in a narrow sense, which is what the judges seem to have been doing, that's one thing, and you can hide behind those articles and paragraphs if you want. As far as I understand, the court and its judges do have the authority to allow this on a case by case basis, including if a trial is of special historical significance for Germany, which this one clearly is. It's almost as if the German system does not allow itself to be proud of the achievement of being the jurisdiction that is pioneering in this sense.
Hannah: Yes, I mean, this could be an evening-filling conversation and discussion, so I guess we should probably move on to the next topic.
Fritz: Yes. Okay, but I'm not going to let go of this, you know?
Hannah: Yes. Another debate that has not yet been decided is the question whether enforced disappearances should be evaluated as crimes against humanity in the indictment. In addition, of course, to the torture, killing, and sexual violence against civilians, the joint plant of lawyers brought this motion forward. Also, to recognize how much terror the Assad regime has caused Syrians by just disappearing their loved ones without a trace. Until today, tens of thousands are still missing, and their families don't even know if they're still alive. This motion by the Joint plaintiffs has not yet been decided. In August, the prosecution announced that they would not be joining the motion, that they are not supporting it.
Fritz: From what I understand from Syrian colleagues, this is perhaps the most underestimated and undervalued form of structural torture in the whole Syrian tragedy. When you look at similar historical examples of this crime, it really becomes clear how insanely cruel this actually is, just thinking of other historical examples like the Mothers of the Plaza de Mayo in Argentina, not knowing where your loved ones are holding out this hope that becomes increasingly desperate.
Also, in the legal sense, it's considered an ongoing crime. As long as the person or the body has not been found, it goes on and on and on. From what I gather, and I can only imagine, it's a whole different level of mental torture on the family and the next of kin. More generally, it really tears at the deepest fabrics of society. That makes you wonder why did, in this case, the prosecution not agree that this crime should be qualified as a crime against humanity in the indictment?
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Hannah: Well, apparently, they argued that enforced disappearances were not the aim of the regime, but merely a side effect of arrests and that the actual aim of arrest was to get information. Obviously, the statement provoked anger among the audience and among the plaintiff lawyers, because after all, this trial has shown more than clear that that was not the case. So many people were detained for no reason and tortured arbitrarily. Some were never even asked any questions; they were simply punished for questioning the regime.
Fritz: The choice not to join the motion of the joint planters, I think, is also a strategic one by the prosecution. It would have put them in a really difficult position, namely to have to prove a crime that has actually never been successfully prosecuted as an international crime, never in history.
Not only would the prosecution have to show the systematic nature of enforced disappearances, specifically here concretely in the framework of the limited, roughly one-year timeframe of the indictment in this case, but it's also really hard not to crack in terms of legal elements that need to be proved. For example, one of the prerequisites for this crime, one of the elements is that family or friends of the disappeared person have to have requested official information on their whereabouts with the authorities and did not receive any.
Hannah: Yes. That's one of the reasons why Syrians reacted with such disbelief to the prosecutor's decision because, in Syria, there are hardly any official ways of requesting information on arrested people, and on top of that, whoever tried to get information would even risk being detained themselves and tortured themselves.
Fritz: The prosecution would still have to show this, to prove this element, which seems close to impossible, including for reasons that you just mentioned in the Syrian context. Last week I spoke to a colleague who has been in the field of international criminal law for a long time and I spoke to her about this. She said it's one of those examples which clearly show that the crime, how it's now included in international codes, including in the German one, seems to have been designed and written by legal experts perhaps with no or little practical criminal law courtroom experience. And the reality then is that this makes it extremely hard for prosecutors to eventually practically and successfully prosecute the crime. Strategically, from the prosecution's point of view, they maybe just decided they rather don't even try.
Hannah: Yes. Imagine if they try and then fail, the headline could be "Anwar R and the regime he represented acquitted of enforced disappearances as crimes against humanity".
Fritz: That wouldn't only be unfortunate but perhaps also counterproductive. They chose to prosecute this part of the indictment, enforced disappearances, on the basis of the German criminal code instead of the international Code of Crimes against International Law. They're prosecuting it as a so-called national offence, which is less difficult and has a higher chance of succeeding, and in the end, that may be more important for the victims waiting for justice. They're waiting for some kind of healing at least if you compared with potentially unsuccessful prosecution as a crime against humanity.
Hannah: Well, let's wait and see how the court decides on this matter. I'll definitely be back in Koblenz next week for some of the last testimonies and I'll let you know as soon as possible what happens. Then we're only going to hear the final pleas by the defense, the prosecution, and the joint plaintiff lawyers before the verdict.
Fritz: Thanks, Hannah. Speak to you soon.
Pauline: Branch 251 is a 75 Podcast production. This episode was written and presented by Hannah El-Hitami and Fritz Streiff. Production, editing, and mixing by myself, Pauline Peek. Support for our podcast comes from German Federal Foreign Office funds that are provided by IFA’s zivik funding program.
