Report 1: Trial against Syrian Brigader-General accused of aiding and abetting war crimes
On 15 April, a trial is commencing in Stockholm District Court in which a former brigadier-general in the Syrian army is charged with aiding and abetting war crimes through indiscriminate attacks against civilians and civilian property. The brigadier-general is the most high-ranking military official from Syria to be put on trial accused of core international crimes in a European court. The trial is also the first in Europe to concern conduct of hostilities in Syria.
Civil Rights Defenders will closely monitor the trial from the courtroom throughout the entirety of the trial and will publish weekly reports from the trial in English, which will also be translated into Arabic.
This initial report describes the events that the trial is about, the background to the case, the content of the prosecution’s indictment, the evidence in the case and the schedule for the trial.
An Arabic language version of this report can be found here.
Background
In December 2010, a wave of anti-government protests started in Tunisia which soon spread across large parts of the Middle East. In March 2011, protests began in Syria against the government of President Bashar al-Assad, whose family has been ruling Syria since 1971, and demanded a number of reforms.
Although the protests began peacefully, the government reacted to them with a militarised response, which escalated as opposition to the Government grew.[1] The Government established the Central Crisis Management Committee (CCMC) on or around 27 March 2011, which became responsible for coordinating the security and military response to the demonstrations. [2] The Government’s violent response did not silence protesters, but eventually lead to the establishment of an armed opposition, as defectors from the Syrian army began to lead an armed defense against the government.[3] A group of such defectors founded the Free Syrian Army (FSA) in July 2011, which began to establish territorial control in some cities and areas. By late 2011, the FSA’s territorial control was most pronounced in the Homs Governate, and in particular, in the neighbourhood Baba Amr in Homs, which had grown into an FSA stronghold. The FSA had also established a Military Council in Baba Amr, which served as a local coordinating body. Other FSA-affiliated military councils were later announced in Hama and Ar-Rastan between Homs and Hama in March 2012.[4]
In February 2012, the Government launched a month-long operation against Baba Amr which featured regular and systematic use of heavy artillery, all the while the neighbourhood was kept under siege with tanks, thousands of ground forces and helicopters that provided aerial support. Days before the attack, the CCMC instructed military and security commanders to “resort [] to appropriate means of psychological war, wearing down and draining the enemy”. Amidst the shelling, locations such as the hospital and the local media centre were targeted with additional shells.[5]
Towards the end of February and the beginning of March, the FSA carried out a phased withdrawal to avoid further bloodshed, which allowed Government forces to enter Baba Amr on 29 February and to capture it on 2 March 2012. A significant number of people died during the month-long campaign, which also resulted in massive material damage.[6] According to eyewitnesses, the majority of the buildings in the neighbourhood were reduced to rubble by 1 March 2012.[7]
The violence did not stop when the Government entered Baba Amr. In March 2012, the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) recorded a high incidence of extra-judicial executions by Syrian military and security forces and by shabbiha (a term used for state sponsored militias of the Syrian Government, loyal to the Assad family)protected by the armyin several neighbourhoods in the city of Homs. In May 2012, the indiscriminate and period bombardment of Homs resumed. [8]
The Syrian military’s attacks in other parts of Syria started to follow the same pattern as in Homs, where towns and cities would be put under siege and heavily bombarded, followed by a ground invasion. The modus operandi of the Government forces to drive civilians out of opposition control areas had become targeted attacks against civilians and the physical destruction of infrastructure.[9] The city of Ar-Rastan, located between Hama and Homs, and towns in the Al-Houla region approximately 30 kilometres northwest of Homs, experienced similar tactics during the Spring of 2012 with sieges, indiscriminate shelling and extrajudicial executions.
The indictment
The defendant is accused of having aided and abetted war crimes in his capacity as head of the armament unit of the 11th division of the 3rd Corps of the Syrian army in Homs and Hama, specifically in the neighbourhood Baba Amr, the town of Ar-Rastan as well as in the Al-Houla region between 1 January 2012 and 20 July 2012.
The acts
The prosecution argues in its indictment that the warfare of the Syrian army in and around Homs and Hama during the period 1 January 2012 to 20 July systematically included attacks in violation of the principles of distinction, caution and proportionality under international humanitarian law. As such, the warfare was indiscriminate and in violation of common article 3 of the I-V Geneva Conventions and of customary international law.
The indiscriminate warfare was committed through unknown perpetrators within the Syrian army conducting extensive attacks with air and ground forces, without distinguishing between civilians and combatants or between civilian property and military targets. Through the attacks, civilians and civilian property suffered harm that was not proportional to the concrete and immediate overarching military advantages that could reasonably be achieved.
Aiding and abetting such acts, if they have a nexus with an armed conflict, is a crime in accordance with section 6 in chapter 22 (in its wording before 1 July 2014) and section 4 in chapter 23 of the Swedish Criminal Code.
The prosecution further argues in its indictment that the war crimes are to be considered grave, since they encompass a large number of attacks which were conducted in a systemic and strategic manner, resulting in the death and injury of many civilians and extensive loss of property of great consequence for civilians.
The existence of an armed conflict
For the acts in question to be classified as war crimes, the prosecution needs to show that an armed conflict was ongoing and that there was a nexus between the acts and the armed conflict. The prosecution has stated in its indictment that an armed conflict was in fact ongoing between the Syrian Government and a large number of armed opposition groups at the time when the relevant acts were committed. Swedish courts have previously found in at least two cases concerning core international crimes committed in Syria, that an armed conflict was taking place by May 2012.
The alleged role and responsibility of the defendant
The defendant served in the Syrian army until 20 July 2012, upon which he defected. During the temporal scope of the indictment, the 1 January 2012 – 20 July 2012, he held the position as Brigadier General and head of the armament unit of the 11th division of the 3rd Corps of the Syrian army. In this position, he also had a function as staff in the division leadership.
The prosecution argues in its indictment that the defendant, through his position, was important for the functioning of the armament within the 11th division and that the defendant contributed to the capability of the military leadership of the division to make strategic decisions and to perform planned military operations. As such, he contributed to the indiscriminate attacks described above, conducted by the 11th division together with other military units.
The prosecution further states that his concrete contribution consisted in his overarching responsibility for the armament of the 11th division and in him coordinating with the division’s leadership team and the staff responsible for armament within the division’s different battalions on issues related to armament, such as the need for and access to weaponry.
Additionally, the defendant formed part of the division’s leadership team on a needs basis and that he provided the military leadership of the division with necessary information concerning the armament of the division. This, together with other information, formed the basis for the division leadership’s strategic and operative decisions on military operations.
The defendant also received orders and information from the division’s leadership and forwarded information on a needs basis to the division’s operative units and was involved in ensuring that orders related to armament could be implemented. Lastly, he was responsible for making sure that the armament unit fulfils its obligations, such as stockholding, transporting and repairing weapons and that weapons being added to or passing through the division are registered.
The evidence
The evidence that will be presented by the prosecution primarily consists of written evidence and testimonies of plaintiffs and witnesses, as well as some photographic and video evidence.
Written evidence
Reports, memos and briefs by the Chatham House, Human Rights Watch and the International, Impartial and Independent Mechanism for Syria (IIIM) are used to describe the situation in Homs and Hama during 2011. Reports, memos and briefs from Chatham House and IIIM are also used to prove that there was an ongoing armed conflict in Syria during the relevant time period (between 1 January and 1 July 2012).
To prove the structure and area of responsibility of the 11th division, its role in the attacks in and around Homs and the defendant’s function and position within the 11th division, the prosecution is referring to information from the defendant’s own asylum interview with the Swedish Migration Agency, various public reports, reports from the Commission for International Justice and Accountability (CIJA), documents produced by the Syrian government, responses from the Syrian government to the reports of the Commission of Inquiry for Syria, newspaper articles, videos and photographs depicting either injured plaintiffs and witnesses or the situation Ar-Rastan, Al-Houla and Baba Amr during the relevant time period.
Plaintiffs
There are currently 8 plaintiffs in the case. Several plaintiffs had their homes destroyed as a result of the attacks, whereas other plaintiffs suffered injuries or lost close family members to the attacks. The plaintiffs will be heard during the trial about their observations of the presence and conduct of the Syrian military in and around Homs and Hama during the relevant time period, about the existence of indiscriminate attacks by the military resulting in civilian harm and the destruction of civilian objects as well as about the harm that they have suffered.
Witnesses
There are currently 15 witnesses in the case, presented by the prosecution. The witnesses could be roughly described as belonging to three different categories.
The first category consists of eyewitnesses who can speak to the events that took place in Homs, Ar-Rastan and Baba Amr between 1 January and 1 July 2012.
The second category consists of insiders who are primarily defectors who can testify about which military units were present in and around Homs and Hama at the time, the involvement of the 11th division in the attacks, the involvement of other divisions in the attacks, which areas the 11th division was responsible for, how the responsibility for and the access to arms was typically organised within a military division, the structure and chain of command within the 11th division and what the importance was of the leadership team of the 11th division for the work of the leadership of the division. Amongst the insiders is a person who has previously formed part of President Bashar al-Assad’s inner circle for many years.
The third category consists of expert witnesses who can speak to how the military structure of a division containing brigades, battalions and function units normally work, what the chain of command, the distribution of information and the division of responsibilities usually looks like and what role, information and responsibilities a Brigadier General who is the head of the armament unit of a military division normally has.
Schedule
The trial beings on 15 April and lasts for five weeks, with between 2 and 4 trial days per week.
The trial will begin with the prosecution’s statement of facts during 15 and 16 April, followed by the plaintiff counsel and the defense counsel’s opening statements on 22 April.
The first plaintiff hearing will begin later on 22 April, followed by plaintiff hearings on 23, 24 and 25 April.
The hearing with the defendant is scheduled for 29 April.
The first witness hearing is scheduled for 3 May, followed by additional witness hearings on 6, 7, 8, 13, 16 and 17 May.
The closing statements of the prosecution, defense counsel and plaintiff counsel are scheduled for 21 May which currently marks the (scheduled) end of the trial.
A verdict will likely be issued a few weeks later.
Next report
The next report will summarise the statement of facts of the prosecution which will be presented during the first two days of the trial on 15 and 16 April.
[1] International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM), Brief on the Commencement of the Initial Non-International Armed Conflict in Syria, September 2020.
[2] Ibid.
[3] Pax and the Syria Institute, No return to Homs – a Case Study on Demographic Engineering in Syria, 13 October 2017.
[4] IIIM, Brief on the Commencement of the Initial Non-International Armed Conflict in Syria, September 2020.
[5] Ibid.
[6] Ibid.
[7] Matthew Weaver, Battle for Baba Amr – timeline, The Guardian, 1 March 2012.
[8] Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic (COI). Human Rights Council, 20th session, 26 June 2012.
[9] Pax and the Syria Institute, No return to Homs – a Case Study on Demographic Engineering in Syria, 13 October 2017.
