Report 9: Closing Arguments by the Prosecution, the Plaintiff Counsel and the Defense Counsel

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The previous report covered the second part of the hearings of witnesses and the complementary hearing of the defendant. This report will summarise the last days of the trial on 22 May and 23 May, which comprised the closing arguments of the prosecution, the plaintiff counsel and the defense counsel. An Arabic version of the report can be found here.

Personal Circumstances

Before the commencement of the closing arguments by the prosecution, the plaintiff counsel, and the defense counsel, the defense was given the opportunity to elaborate on the defendant’s personal circumstances. Defense counsel Mari Kilman inquired about the defendant’s family situation, citizenship, economic situation, and health. Kilman focused on the defendant’s mental health, emphasizing the impact of the indictment, and the toll that the arrest and the extended period between being informed of the suspicion of crime in 2021 and the start of the main hearing has had on his mental health. She also informed the court about the death of the defendant’s spouse coinciding with the indictment of the defendant.

The Prosecution’s Closing Arguments

Legal Framework and the Criminal Act

The prosecution began its closing arguments by addressing whether a non-international armed conflict (NIAC) occurred at the time and place specified in the indictment. Establishing that an armed conflict was ongoing is essential for international humanitarian law (IHL) to be applicable. The prosecution revisited the criteria outlined in the Tadić case for the determination of the existence of a NIAC (see report 2). To substantiate the existence of an armed conflict in Syria, the prosecution referred to reports by Chatham House, the Commission for International Justice and Accountability, and the International, Impartial and Independent Mechanism (IIIM). Summarizing their arguments, the prosecution concluded that a NIAC had been present in Syria from at least the end of December 2011.

In addressing the Syrian army’s indiscriminate warfare against civilians in 2011, the prosecution cited evidence from IIIM, Human Rights Watch, the COI, media coverage, and witness testimonies previously presented throughout the trial. The evidence demonstrated a strategic use of violence to suppress demonstrations. As these tactics were widely known within the army, which was stated in an expert witness hearing, the prosecution argued for the defendant’s oblique intention. Focusing on Homs, Hama, and Ar-Rastan in 2012, the prosecution cited previously presented UN statements, COI reports, and a documentary to show the army’s deliberate strategy to use heavy artillery to “clean up” rebel areas. The prosecution argued that this demonstrated an intentional escalation in the army’s approach to quelling demonstrations, reinforcing the argument that such actions were not isolated incidents but part of a deliberate and systematic military strategy.

When addressing the 11th Division’s role in the alleged crimes, the prosecution acknowledged that no witnesses held roles equivalent to the defendant’s within the armament unit or as a Brigadier General, attributing this to the risk of prosecution that witnesses in similar positions as the defendant would face if testifying in court. However, they argued that the witnesses’ substantial experience of functional units and their familiarity with the 11th and similarly structured 18th Divisions rendered their testimonies valuable, providing critical context about the 11th Division and its armament unit’s role in the conflict. Citing statements from witness testimonies and expert witnesses, the prosecution underscored the 11th Division’s mandate in Homs and the armament unit’s crucial role in ensuring the flow of weapons within the division, essential to the army’s warfare efforts. The prosecution noted that the defendant’s testimony about the military structure largely aligned with information from witnesses and other evidence, such as CIJA documents.

Complicity to War Crimes

When addressing the complicity of the defendant, the prosecution emphasized the absence of rules of complicity in customary international law. It was highlighted that, based on the legislative history of Section 6 in Chapter 22 of the Swedish Criminal Code, the rules on complicity in the Swedish Criminal Code apply to war crimes as well.

The prosecution further argued that the evidence demonstrated that the defendant’s action amounted to complicity to war crimes. Citing evidence presented throughout the trial, the prosecution argued that it had been proven that the defendant had cooperated with division management on replenishing belligerent battalions, had provided crucial information about armament within the division, and had ensured that the armament unit fulfilled its roles in warehousing, transporting, repairing, and registering arms. The prosecution further emphasized that complicity in a crime does not require intent for the main crime or a desire for the same outcome as the perpetrator; indifference towards the result of the aide’s actions in promoting or facilitating the crime is sufficient. The prosecution argued that the indiscriminate attacks against civilians depended on the proper functioning of the chain of command, and that the defendant, through his actions within the armament unit, had aided and abetted the attacks and was thus complicit.

Reflections on the Statement of the Criminal Act Charged

The prosecution dedicated a section of its presentation to addressing new evidence submitted by the defense, consisting of legal opinions drafted by academics Ove Bring and Martin Borgeke. The opinions had recently been submitted by the defense counsels in a parallel trial that is ongoing in Stockholm District Court, and which concerns charges against representatives of the oil company Lundin Oil for allegedly aiding and abetting war crimes in South Sudan. The prosecution noted that, by filing the legal opinions in the case at hand as well, the defense counsel objected to how the statement of the criminal acts was formulated in the indictment.

The prosecution deduced from the opinions that the defense claimed that the criminal acts as charged were too vague, and that each individual attack conducted in and around Homs and Hama during the first half of 2012 had to be described. The prosecution underscored that it was not necessary to detail every individual attack that the defendant was responsible for, Systematic attacks against civilians constitute an unlawful warfare strategy, which in itself constitutes the crime. The prosecution argued that adopting the proposed approach would make it impossible to hold perpetrators higher up in the chain of command accountable for war crimes rather than only those directly engaged in combat.

Discharge from liability and mitigating circumstances

The prosecution then moved on to address whether there were any mitigating circumstances, or whether any circumstances existed which should lead to the defendant being discharged from liability. The prosecution noted that the fact that the defendant had defected from the army, and that he had suffered hardship over the past couple of years, did not exempt him from liability. Neither did it constitute a mitigating circumstance, as, claimed the prosecution, the defendant had only defected as a result of re-assignment and his declining status.

The prosecution further noted that Section 8 in Chapter 24 of the Swedish Criminal Code only allowed the exemption from liability for individuals following the orders of a superior in cases of minor violations. As such, the provision is not applicable in the case at hand.

The prosecution then addressed the issue of whether the defendant could be exempt from liability on the grounds that he had to perform his duties in order to not risk his own or his family’s life or health. Here the prosecution noted that the armed opposition consisted of defected military personnel, which showed that it was possible to leave the army without being killed or tortured. The prosecution further noted that several of the witnesses heard in court had defected from the army and while several of them had been detained as a result of that, none of them had said that they had been subjected to torture.

The Proposed Sentence

The prosecution claimed that the appropriate sentence for serious cases of war crimes was lifetime in prison. The defendant was not the main offender and did not have decision-making authority which the prosecution argued should affect the value of the penalty. Nevertheless, the prosecution acknowledged that each person should be sentenced in accordance with his or her actions, noting that the defendant at least possessed the authority to decide whether to remain or leave the army.  

In determining the appropriate sentence for the defendant, the prosecution urged the court to consider the duration of the offense. The indiscriminate warfare conducted by the Syrian army, along with the defendant’s awareness of these actions, had persisted for several months and was only interrupted due to the defendant’s demotion.

The prosecution further argued that the amount of time that had passed between the defendant’s receipt of notification of suspicion in 2021 and the start of the trial was normal considering the complexity of the crime. However, the suffering experienced by the defendant as a result of being the subject of suspicion over a prolonged period of time should affect the meting out of punishment.

All things considered, the prosecution concluded that the defendant’s actions corresponded to a minimum of six years in prison. Considering the nature of the crime, the prosecution deemed it inadequate to impose any penalty other than imprisonment.

The Plaintiff Counsel’s Closing Arguments

In his closing arguments, the plaintiff counsel, Degol Embaye, addressed the defendant’s responsibility for the injuries sustained by his clients and articulated the legal foundations underpinning his clients’ entitlement to compensation for these injuries.

Drawing on expert witness Eman Shahoud’s testimony, the counsel substantiated the plaintiffs’ right to compensation under Syrian tort law. Embaye clarified that those suffering injuries as a result of criminal acts are entitled to compensation in accordance with section 138 of the Syrian criminal code. He emphasized that compensation could be awarded for both physical injuries and mental harm, outlined the eligible claimants in accordance with section 223, and discussed compensation calculations per sections 222 and 223. He also highlighted that, in accordance with legal jurisprudence, the amount awarded to claimants  should be based on the monetary value at the time of the verdict.

To substantiate his clients’ entitlement to compensation, the plaintiff counsel referred to  evidence that had been presented throughout the trial, which he argued demonstrated the defendant’s participation in the attacks and that resulted in injuries to his clients. He cited evidence supporting the 11th Division’s authorization to conduct operations in Homs, its actual activities in the region, the pivotal role of the armament unit in these operations, and the injuries sustained by his clients as a result.

In a separate section of his closing argument, the counsel scrutinized the credibility of the defendant and the reliability of his testimony. Contrary to the defendant’s claim of having no choice in participating in the crimes committed, the counsel aligned with expert witness Philip Dygeus, who asserted that all human beings are capable of making their own choices. Notably, the counsel emphasized the defendant’s deliberate choice to enlist in the army just a year subsequent to the 1982 Hama massacre perpetrated by the same army. Embaye also highlighted a paradox in the defendant’s testimony: the defendant claimed no knowledge of the events that took place in the field while simultaneously asserting that the army, during the armed conflict in Syria 2011-2012, deviated from the principles taught at the military academy. Furthermore, Embaye questioned the defendant’s assertion that inconsistencies in his testimonies regarding the military structure and the mandate of the 11th Division were due to poor interpretation. The counsel noted that most words in the specific testimonies were common terms, making misunderstandings as a result of poor interpretation unlikely. He contended that such statements of the defendant undermined the credibility of all his testimonies.

The Defense Counsel’s Closing Arguments

Objections related to the indictment

Initially, defense counsel Kilman argued that the prosecutor’s indictment describes indiscriminate unlawful warfare by the Syrian army, committed by unknown perpetrators, without specifying particular attacks. She contended that this basis does not constitute a crime under Swedish law nor under international humanitarian law. To support her argument, she cited expert opinions from Ove Bring and Martin Borgeke (mentioned above).  Kilman asserted that indiscriminate attacks, as a method of warfare, does not constitute a crime under Swedish law, referencing Section 6 in Chapter 22of the Swedish Penal Code, and Borgeke’s opinion. She also presented the Milosevic case (Prosecutor v. Dragomir Milosevic, IT-98-29/1-PT) to argue that the charges must specify attacks limited in time and space, as opposed to how the attacks are formulated in the prosecution’s indictment. Hence, defense counsel Kilman argued for the indictment to be dismissed.

Furthermore, defense counsel Kilman argued for the indictment to be dismissed on the grounds that the indictment describes warfare carried out by multiple unknown perpetrators across various locations and times, which cannot be treated as a single crime. Kilman contended that for allegations of multiple attacks as an illegal method of warfare to hold, they must be directly attributed to an individual responsible for all aspects, as only individuals can commit crimes. She argued that it contradicts Swedish law to view different actions by various perpetrators as a single crime. Additionally, Kilman referred to the Milosevic case, as mentioned above, as well as the Galic case (Prosecutor v. Galic, IT-98-29-T), arguing that jurisprudence from the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court has established that each alleged violation must be individually assessed and proven beyond a reasonable doubt. This includes verifying the civilian status of victims of each attack, confirming violations of humanitarian law in each attack, and excluding mistakes regarding the perpetrator’s actions in each attack. Kilman argued that the current indictment’s lack of precise descriptions of individual attacks makes it impossible to determine the accused’s responsibility. Overall, the defense counsel argued that the indictment’s failure to specify and individualize the alleged crimes and perpetrators renders it legally insufficient under both Swedish and international law.

Objections related to issues of facts and presented evidence

The defense counsel also raised objections concerning both factual matters and the presented evidence. Initially, she emphasized the significant passage of time since the events in question took place, spanning 12-13 years, and highlighted the trauma experienced by the plaintiffs and witnesses. Additionally, she noted that these individuals had previously recounted their experiences in various contexts, including during asylum interviews and police investigations. She additionally argued that there had been misunderstandings in the Arabic interpretation in previous interviews with the defendant. Regarding the written evidence sourced from CIJA, Kilman argued that the organisation’s method of performing interviews cannot guarantee that the documentation reflects what the interviewed person intended to disclose. According to a document from CIJA, the defendant participated in an interview with CIJA, which has later been used as evidence in the case at hand. However, the defendant does not recall having an interview with CIJA. These circumstances, she argued, should be considered by the court when evaluating the presented evidence.

Kilman argued that the Rome Statute’s rules on complicity should be applied in the case at hand since Section 4 in Chapter 23of the Swedish Criminal Code is subsidiary to the statue. She further stated that Article 25(3) of the Rome Statute defines the criteria for individual criminal responsibility and that, according to the Rome Statute, the defendant’s actions must aim to facilitate warfare or to promote the group’s activities, while also being aware of the group’s intent to commit international crimes. Kilman argued that the defendant’s role within the 11th Division did not significantly influence its armament or military leadership’s ability to make strategic decisions and carry out planned operations. She further contended that the prosecutor’s evidence is insufficient to secure a conviction in the matter of his intent and knowledge of how his actions would contribute to international crimes.

Discharge from liability, degree of severity, damages and penalty

Regarding the grounds for discharge from liability, Kilman argued that the defendant should be exempt from liability as a result of following a superior’s orders, in accordance with Section 8 in Chapter 24 of the Swedish Criminal Code and the Article 33 of the Rome Statute. She further argued that he should be exempt from liability in accordance with Section 4 in Chapter 24 of the Criminal Code on the grounds that the refusal to follow orders would have resulted in harm against his own or his family’s life or health.  

Kilman also argued that the expert opinions cited by the plaintiff counsel in respect of  the plaintiff’s claims for damages were authored by individuals lacking recent legal experience in Syria. She also noted the court’s margin of discretion in determining the scope and amount of damages according to Syrian law, suggesting it may choose to find no valid claim for damages.

Lastly, Kilman presented circumstances she argued the court should consider as mitigating when meting out the punishment, such as the defendant defecting from the Syrian Army in July 2012 and his cooperation throughout the investigation of the crime he is accused of.

The Verdict

Before closing the trial, the president of the court informed that the verdict would be published on 20 June 2024 at 11:00 CEST.

Next Report

The next report will summarise the court’s verdict.