In October, German Chancellor Angela Merkel took the unusual step of facilitating the Syria Summit. Held in Turkey, Merkel’s unlikely alliance included counterparts from Russia, Turkey and France. After eight years of violent conflict in Syria, described as the ‘worst man-made disaster’ since the Second World War, the four leaders were taking advantage of a fragile ceasefire. It was also an opportunity for Germany and France to consider how Syrian asylum seekers could return safely to their respective country, and, with it, curtail the rise of the far right across Europe. While the four leaders focused on important political objectives to stabilize Syria, such as fair elections and constitutional amendments, one vital ingredient was missing: accountability. 

Accountability is vital for Syria for two reasons. First, accountability is the means by which to ensure stability in Syria for the long-term. Holding to account those senior Syrian leaders most responsible for alleged atrocity crimes will curtail the disproportionate use of organised violence the Syrian government has used with impunity against the civilian population to date. 

Second, and following on from the above, there is little chance Syrian refugees will return from Europe as long as senior Syrian government officials continue to demonstrate an unwillingness or inability to constrain organised violence in response to civil disobedience and unarmed protest. 

For these reasons, a plan to negotiate reconstruction funding with the Assad government must include a road map for accountability. Unlike many states, Germany has the capacity and means to negotiate such a road map.

A plan to negotiate reconstruction funding with the Assad government must include a road map for accountability. Unlike many states, Germany has the capacity and means to negotiate such a road map.

Prosecuting the top five suspects 

Germany has the capacity to negotiate the funding of a ‘stabilization and reconstruction program’ with other like-minded states (hereafter referred to as Norway, Canada and Denmark). In September, German Foreign Minister Heiko Maas signalled Germany’s readiness to take ‘responsibility’ for contributing to reconstruction efforts in Syria. In this respect, Germany, and like-minded states, should arrange a combined contribution of several billion euros, as a Phase I (three-year) instalment, of a two-phased approach. The conditions for a ‘stabilisation and reconstruction’ funding package in Phase I should not only include planned free elections, as Maas and Merkel have indicated. It should also include the handing over of the top five senior leaders of the Syrian government suspected of core international crimes, with a view to extraditing them to either German jurisdiction or the International Criminal Court (ICC). The combined financial contribution would need to be an attractive sum to ensure the Syrian people sufficiently debate the reward-cost of such a swap, thus pressuring the Syrian government. The top five suspects could include:

• Major General Ali Mamluk, Director of the General Intelligence Directorate and member of the Central Crisis Management Cell (CCMC);
• General Jamil Hassan, Director of the Air Force Intelligence Directorate and member of the CCMC;
• Major General Mohammed Dib Zaitoun, Director of the General Security Directorate;
• Major General Abdel-Fatah Qudsiyeh, Deputy Director of the Syrian National Security Bureau and former Director of the General Intelligence Directorate; and
• Major General Rafiq Shahada, Head of Military Intelligence.

Given that Germany, and like-minded states, are not known for advocating a policy of regime change across the Middle East – unlike the US and the UK – it would be a difficult claim for neighbouring states and Syria to advance. 

While in principle all those in the Syrian government suspected of core international crimes should be prosecuted, including Assad, prosecuting the top five suspects provides an opportunity to commence the accountability process. Should any number of them be found guilty, it would make it increasingly difficult for the Syrian government to continue to deny atrocities commissioned by the state. Thereafter, the extradition of Assad and others could form part of a Phase II.

Bypassing the blocked UN Security Council

Although Russia and China, as permanent members of the UN Security Council, have continued to block any formal investigation of core international crimes in Syria, and the ICC continues to lack the requisite jurisdiction, there are other means available to effect accountability. 

First, Germany could draw upon the work of groups like the Commission for International Justice and Accountability (CIJA). As a non-state actor, CIJA have investigated in the field in Syria since 2011. CIJA claim to have collected over 800,000 pages of documentation produced by the Syrian government; and prepared eight case briefs against the top fifty senior leaders in the Syrian government, including for the illegal detention, torture and disappearance of demonstrators. Currently, Germany, Norway, Canada, Denmark, and the European Union financially contribute to CIJA, and have access to the material. CIJA also signed a memorandum of understanding (MOU) with the International, Impartial and Independent Mechanism (IIIM) for Syria. 

Second, the German Office of the Federal Public Prosecutor General has also been investigating core international crimes committed by senior leaders in the Syrian government since 2011. The combination of Germany’s universal jurisdiction, numerous witness statements, and access to the ‘Caesar photographs’ have been key to the ongoing investigation. Their investigation has also been supported by other non-state actors, such as the European Centre for Constitutional and Human Rights (ECCHR). On 8 June 2018, the German Federal Court of Justice issued an arrest warrant on a respective motion by the Office of the Federal Public Prosecutor General for the arrest of Jamil Hassan for ‘crimes against humanity.’ The office is keen to highlight that it never intended to act as an international ‘Office of the Prosecutor’ (OTP). Nevertheless, in the absence of an international criminal tribunal, it continues to investigate suspected atrocity crimes. 

Pooling existing extra-territorial jurisdiction

Third, the German government could involve the IIIM for Syria in negotiation plans. The IIIM could act as the Office of the Prosecutor to support the work of the German Office of the Federal Public Prosecutor General and CIJA.

Germany could consider working with other states in Europe and beyond to amalgamate existing extra-territorial jurisdiction for Syrian-related cases through a treaty process.

Lastly, the German Foreign Ministry and judiciary could consider working with other states in Europe and beyond to amalgamate existing extra-territorial jurisdiction for Syrian-related cases through a treaty process. Advocates, such as Stephen Rapp and Ingrid Elliott argue that this would effectively create an ‘international criminal tribunal for Syria’. Given that many states in Europe have universal jurisdiction, and are in the process of investigating and prosecuting cases relating to Syrian atrocity crimes, there would be value to ‘pooling existing extra-territorial jurisdiction’ to form a single inter-state criminal tribunal, which would be supported by the IIIM. Operating under universal jurisdiction, this tribunal could also prosecute the top five suspects, in the event that the ICC could not.

Accountability is in the domestic interest of Germany

The obligation to hold to account those senior leaders most responsible for atrocity should never rest with one state – nor, indeed, one interstate agency, such as the ICC. However, Germany and like-minded states have the capacity and means to establish long-term stability in Syria by commencing the accountability process.

A combined contribution of several billion euros may seem excessive, even for countries as wealthy as Germany and like-minded states. However, the political stakes for not solving the Syrian refugee ‘crisis’, and the rise of the far-right across Europe more broadly, remain high.

It is unlikely that the next generation of Syrians will refrain from wanting a voice in any future election process – and just as unlikely that the current Syrian government will show restraint in the face of large scale civilian protest. If Europe wants Syrians to return to Syria and remain there, it must hold those most responsible for core international crimes to account.

This article is a summary of the forthcoming academic journal article ‘Negotiating Accountability with Assad and the ‘Responsibility to Prosecute’: Opportunities and Innovations in International Criminal Law’.