Report 2: The Prosecution’s Opening Presentation
The previous report introduced the indictment, the evidence supporting the indictment and provided a background to the case. This report provides a summary of the first three days of the trial which took place on 15, 16 and 17 April and during which the prosecution conducted its opening presentation. An Arabic version of the text can be found here.
Introductory Remarks by the Court
The presiding judge, Jakob Hedenmo, opened the trial by introducing each actor in the trial. He explained that the court was comprised of himself as the presiding judge, Katarina Fabian as the reporting judge, a law clerk as the note taker and four lay judges. He further introduced the three prosecutors Reena Devgun, Karolina Wieslander and Jonas Lövström, the plaintiff counsel Degol Embaye, the defense counsel Mari Kilman as well as the two interpreters.
Hedenmo then briefly went over the schedule of the trial before he turned to the prosecution to inquire about minor changes of the indictment, which entailed additional witnesses and plaintiffs.
The Prosecution’s Statement of Charges
After the introductory remarks, the prosecution was given the floor to briefly introduce its statement of charges. In short, the Prosecution alleged that the Syrian army had systematically engaged in attacks without adhering to the principles of distinction, precaution and proportionality in and around Homs and Hama, including Ar-Rastan and Al-Houla, between 1 January and 20 July 2012. As such, the attacks were indiscriminate. The prosecutor further explained that the defendant, through his role as Brigadier-General and head of the armament unit of the 11th Division of the 3rd Corps of the Syrian Army had aided and abetted these attacks by enabling the armament of the division and strategic decisions by the division’s leadership. The acts are, according to the Prosecution, to be considered as grave war crimes.
The Plaintiffs’ Position to the Charges
Plaintiff counsel Degol Embaye began by explaining that the plaintiffs support the Prosecution’s statement of charges and refer largely to the same facts as the Prosecution.
Eight plaintiffs are involved in the case, and Embaye went through the individual claims for compensation of some of the plaintiffs. One plaintiff is seeking compensation for psychological suffering, as a result of the killing of his brother in a demonstration in the neighbourhood Khalidiya in Homs in January 2012. Another plaintiff is seeking compensation for property damage as his apartment was demolished as a result of rockets and missiles shot by the Syrian Army during the spring of 2012. A third, fourth and a firth plaintiff are all seeking compensation for physical injuries and psychological suffering which they underwent as a result of missiles being shot against the media centre in Homs on 22 February 2012. The remaining three plaintiffs have not sought compensation. However, one of those three plaintiffs is the wife of the plaintiff seeking damages for property damage. She does not have an individual claim of her own, since her husband was the legal owner of the apartment.
The Defence’s Position to the Charges
In response to the prosecution’s introduction, the defense presented its position in the case. Defence counsel Mari Kilman explained that the defendant denies the allegations and that the defence will further elaborate on its stance during its opening statement next week. The defense further asserted that even if the defendant would be found by Court to have practically aided and abetted the attacks, he lacked the intent to do so. He further acted within the bounds of his obligation to obey military orders. Addressing the individual claims, the defense attested that no compensation should be granted to the plaintiffs and argued that there is no right to compensation under Syrian law for injuries or damages caused as result of the acts relevant in the case.
Legal Framework
After the Plaintiff and Defense counsel had expressed their position to the charges, the Prosecution was given the floor to present its opening statement.
The prosecution began by introducing the relevant legal framework applicable to the case, contending that international humanitarian law (IHL) applies due to the presence of an armed conflict at the time of the events. The presentation commenced with an overview of the relevant provisions of IHL, emphasizing that IHL sets out to mitigate the suffering among civilians and combatants alike. Key to the IHL framework are the principles of distinction, precaution and proportionality. The principle of distinction means that attacks against civilians and civilian objects are forbidden, and is codified in article 48 of the Additional Protocol I to the Geneva Conventions I-IV. Meanwhile, the principle of precaution, which his codified in article 57 (I) of Additional Protocol I, means that the warring parties should take all feasible precautions to avoid or minimize incidental loss of civilians, injury to civilians or damage to civilian objects. The principle of proportionality, expressed in article 51 (5) (b), states that warring parties should refrain from attacking military targets if the expected harms to civilians or civilian property is too excessive in relation to the expected military advantage. Meanwhile, the common article 3 of the Geneva Conventions I-IV and article 4 of Additional Protocol II offers fundamental protections to civilians in conflict. Article 13 (2) of the protocol specifically states that civilians shall not be object to attack and that acts that have the primary purpose of spreading terror among the civilian population is prohibited.
The Prosecution went on to note that the mentioned principles and provisions have all acquired status as customary international law in both non-international and international armed conflicts and are this binding even for states that have not ratified the relevant conventions and protocols.
The Prosecution further explained that Section 6, in Chapter 22 of the Swedish Criminal Code (in its wording before 1 July 2014) is applicable in the current case and that the provision establishes criminal responsibility for grave breaches of international law (including customary international law) whether conducted in international or non-international armed conflicts.
The Existence of an Armed Conflict
The Prosecution asserted that for IHL to apply, the existence of an armed conflict must be established, and that the acts in question must have a nexus to the conflict. It then went on to apply the criteria first established through the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case concerning Dusko Tadić for the determination of the existence of a non-international armed conflict (NIAC). This includes examining the intensity of the armed violence, as well as the level of organisation of the armed group.
The prosecution referred to a report by the Chatham House, which was based on input from legal experts and experts with in-depth knowledge about the situation in Syria. The conclusion of the report was that the required threshold of intensity of the violence was met by at least the summer of 2011 while the criteria pertaining to the level of organisations of the armed groups was met by March 2012 at the latest. As such, it concluded that a non-international armed conflict was ongoing in Syria no later than March 2012.
To further substantiate the existence of an armed conflict, the prosecutor referred to reports by the Independent International Commission of Inquiry on the Syrian Arab Republic (COI), the Commission for International Justice and Accountability (CIJA) and the International, Impartial and Independent Mechanism for Syria (IIIM), which all addressed the intensity of the fighting as well as the organizational structure of the Free Syrian Army (see the previous report for a brief background to the Free Syrian Army). The report from CIJA found that an armed conflict was ongoing at the latest by November 2011, while the IIIM found that it was ongoing by the end of December 2011 at the latest and the COI that it was ongoing by March 2012 at the latest.
The Criminal Acts
The prosecution contended that even before the onset of an established NIAC, there were occurrences of indiscriminate attacks on civilians. It further noted that the Syrian regime and its army not only failed to adhere to the principles of precaution and proportionality but also deliberately targeted civilians. While it was not directly relevant for the trial at hand, it was evident that the Syrian government was conducting a systematic attack against the civilian population in order to break the resistance against the government.
With the defendant serving as the head of the armament unit of the 11th Division, the prosecution argued that it could be assumed that he was aware of the Syrian army’s conduct already before the relevant time period for the indictment.
The prosecution went on to present written evidence comprising of the same reports that had been utilized to confirm the existence of an armed conflict, but now with an emphasis on establishing the presence and conduct of the Syrian army in selected places in Syria. The focus was on demonstrating instances of military violence against peaceful assemblies advocating for freedom, especially in the Baba Amr district in Homs, but also on indiscriminate attacks elsewhere in Homs such as Khalidiya and Karm al- Zaitoun, in Hama, al-Houla, al-Qubeir and Al-Qusayr. Additionally, the prosecutor presented various publications, including newspaper articles, video clips and photographs, describing attacks on the areas of Homs, Hama, Ar-Rastan and Al-Houla or depicting their aftermath.
Evidence of the war crimes also included documentaries produced by two British journalists who were present in Homs during the relevant time period, and who will be heard later in the trial. These documentaries depict the daily bombardment and assaults on civilians and civilian property in Baba Amr in February 2012. The creator of one of the documentaries, who is also a victim of the attacks, captured footage of the assaults on the media centre in Baba Amr which is part of the indictment.
The Criminal Responsibility of the Defendant
The prosecution presented the overall structure of the Syrian army as well as the role of the 11th Division and its armament unit in that structure. In the prosecutor’s presentation of the army’s organizational structure, significant emphasis was placed on the chain of command and the transmission of information across hierarchical levels. The prosecution asserted that the army’s structure was characterized by top-level control, with the president as the highest commander. However, information flowed both upwards and downwards within the system.
The prosecutor cited reports by the Institute for the Study of War to ascertain the military structure and regional allocation of responsibilities within the army, delineating the 11th Division as a division based in and mandated to operate in Homs and Hama. Furthermore, in mapping the 11th Division’s mandate and geographical responsibilities, the prosecution heavily relied on reports by CIJA and information given by the defendant himself during his asylum interview at the Swedish Migration Agency to describe the structure of the Syrian army and the 11th division’s position within that structure. Notably, the Prosecution referred to official documents belonging to the Syrian Government, which had been obtained by CIJA, to demonstrate how information was being exchanged between the Military Intelligence branch 261 and the 11th division about events and circumstances in and around Homs and Hama. The prosecution further referred to a number of reports and testimonies tying the 11th division to the attacks relevant in the case.
On the basis of evidence concerning the role of armament units in other divisions, the prosecution asserted that heads of armament units would usually have direct contact with the head of the division. Information would flow between the brigades within the division and the armament unit of the division and would be sent upwards to the division leadership, where decisions were made.
The Prosecution argued that as Brigadier-General and head of armament unit in the 11th Division of the 3rd Corps of the Syrian army, the defendant had enabled the distribution of arms and ammunition to brigades within the division and consequently facilitated the military operations conducted by the division by passing information upwards and downwards the chain of command. As such, he had aided and abetted the 11th division’s indiscriminate warfare in and around Homs, Hama, Ar-Rastan, and Al-Houla.
To demonstrate that information regarding the criminal acts had reached the defendant, who was not part of a ground-level operational unit, reference was also made to a conversation between the defendant and the organization CIJA. During this conversation, it became apparent that the defendant had received a request from the 147th brigade under the 11th division to provide additional arms and ammunition during the army’s attacks on Ar-Rastan and Talbiseh and that he had been surprised by the scale of the operation and the quantity of ammunition used in such small towns. The prosecution also referred to statements made in his asylum interview with the Swedish Migration Agency, in which he admitted to being aware of the massacre of civilians in Al-Houla on 25 May 2012.
Next Report
The upcoming report will encompass summaries of the opening presentations of both the plaintiff counsel and the defense counsel. These presentations are slated to take place on Monday April 22, followed by the initial testimonies of the injured parties.
