Report 10: The Verdict
On 20 June 2024, the Stockholm District Court issued its verdict on the case involving a former Syrian Brigadier-General accused of aiding and abetting war crimes in Homs and Hama, Syria, during early 2012. The trial included testimonies from eight plaintiffs, ten witnesses, and four expert witnesses knowledgeable about military structures and Syrian compensation law respectively. The Court, comprising presiding judge Jakob Hedenmo, reporting judge Katarina Fabian, and four lay judges, unanimously acquitted the defendant of all charges. This report will provide a comprehensive summary of the Court’s verdict. An Arabic version of the report can be found here.
The Court’s Assessment of Legal Objections to the Formulation of the Indictment
In its concluding statement during the last days of the trial, the defense objected to the formulation of the indictment. It was argued that an indictment concerning prohibited warfare, without detailing each individual attack, cannot objectively constitute a crime. The defense contended that several separate offenses by separate offenders cannot be considered as a single coherent crime. If the indictment pertains to the overall warfare, a clear link between the defendant and all aspects of the warfare must be established.
In its verdict, the Court contests the defense’s claim, stating that the court had already assessed the indictment as valid by issuing the summons to the parties to the case. Additionally, the Court highlights the defense’s lack of objections to the indictment’s formulation earlier in the process. The Court notes that although the indictment pertains to the Syrian army’s warfare, it specifies systematic attacks violating principles of distinction, precaution, and proportionality. The Court added that the attacks had been detailed to the extent possible given the nature of the crime. The Court concludes that illegal warfare can be considered a single crime despite multiple underlying offenses, and that the requirements for specification and concretisation of the attacks had been met in the indictment.
The Reasoning of the Court
Legal Framework
The Court begins its reasoning by outlining the criteria for establishing the defendant’s guilt for aiding and abetting grave war crimes under Section 6 in Chapter 22 of the Swedish Criminal Code. It explains that to hold someone accountable for violating International Humanitarian Law (IHL), the presence of an armed conflict must first be established, and subsequently concludes that a non-international armed conflict was ongoing in Syria from 1 January 2012, making IHL applicable during the time period relevant for the indictment. Furthermore, the Court notes that indiscriminate attacks constitute war crimes under both international and Swedish law. The Court highlights, however, that for the defendant to be held criminally liable, it must be proven that the 11th division had been involved in such indiscriminate attacks and that the defendant had aided or abetted those attacks.
Questions of Evidence
The Court then moved on to outline its reasoning regarding the evidence presented during the trial. It emphasizes that for a conviction, the prosecution must establish beyond reasonable doubt that the defendant has committed all alleged actions. Additionally, it stresses the need for robust evidence, which is extensive enough that further investigation is unlikely to alter its worth. The Court further clarifies that both the prosecution’s and plaintiffs’ evidence must collectively meet the evidentiary requirement required for a conviction; inadequate evidence will warrant acquittal of the defendant. If the evidentiary requirement is indeed deemed to be met, the Court needs to consider any evidence contradicting the statement of criminal acts as expressed by the prosecution. If that evidence contradicts the statement to the extent where it cannot be considered to have been proven without a reasonable doubt or if the defendant’s story weakens the prosecution’s evidence to the extent that the evidentiary requirements can no longer be considered as met, the indictment should be dismissed. The Court further highlights that while “direct” evidence from the prosecution is preferred, solely “indirect” evidence can also suffice to meet the evidentiary requirement for approving the indictment.
In a separate part of the verdict, the Court discusses the prosecution’s evidence. It concludes that the written evidence presented during the trial is largely “indirect”, and that its reliability thus depends on how it was gathered. Regarding reports from the Commission of Inquiry on the Syrian Arab Republic (COI), the Court emphasizes that the information included in the reports had not been collected and compiled for the purposes of being used in a legal proceeding in court. As such, the reports can merely serve as supporting evidence. The reports from the Commission for International Justice and Accountability (CIJA) are deemed somewhat probative by the Court. However, the Court notes that CIJA is a non-governmental organisation that is not bound by law to uphold legal standards the way that national authorities are and is not bound by law to respect certain legal safeguard when conducting interviews with victims and witnesses. The Court considers this to limit the evidentiary value of information collected by CIJA. As for the reports by the International, Impartial and Independent Mechanism (IIIM), the Court concluded that the evidentiary value of its reports would be determined on a case-by-case basis. The Court also addresses the evidentiary value of information given by the defendant himself during his asylum interview with the Swedish Migration Agency and noted that the information had limited evidentiary value since it was collected for purposes other than criminal proceedings and due to extensive interpretation issues during the interviews. The Court further notes that media reports can be considered as supporting evidence but that additional evidence, apart from media reports, would be needed in order to establish a comprehensive understanding of events taking place at specific times and locations.
Secondly, the Court addresses the value of the oral evidence referenced by the prosecution. Concerning the overall reliability of the oral testimonies, the Court notes that the testimonies cover events from 12 years ago. Additionally, the Court underscores that the witnesses’ observations were made during an internal armed conflict, where emotional distress at the time when the observations were made could later impact the accuracy of the information. Moreover, the Court emphasizes that some testimonies were conducted with interpretation, which increases the risk of lost nuances and details.
Indiscriminate Attacks by the Syrian Army
The Court then moves on to address the attacks described by the prosecution in its indictment. The Court concludes that the prosecution’s evidence suggests that the Syrian army engaged in warfare during the time period detailed in the indictment and that the warfare included military attacks conducted in violation of the principles of distinction, proportionality, and precaution, which resulted in significant harm to civilians and their property. However, the Court underscores that the prosecution is required to establish beyond reasonable doubt that these attacks occurred as described in the statement of the criminal acts, and at the specified times and places. The Court thus proceeds to assess attacks allegedly conducted in each location mentioned in the indictment during the time period detailed in the indictment.
- Baba Amr January and February 2012
The Court finds that the written evidence presented in the case shows that that Baba Amr was attacked by the Syrian army in February 2012. It concludes that injuries to civilians and damage to civilian property, along with detailed descriptions of the attacks, are supported by extensive evidence, including credible testimonies, UN reports, and media accounts. Therefore, the Court finds it proven beyond reasonable doubt that the attacks on Baba Amr during 2012 were indiscriminate, and that the civilian casualties were disproportionate to any anticipated military advantage. Based on evidence regarding the weaponry used in the attacks, the Court determines that only the Syrian army could have carried out the attacks.
The Court concludes that oral evidence supports the that the Syrian army conducted indiscriminate attacks in Baba Amr in January 2012 but that the evidentiary requirement of criminal law had not been met since no other evidence corroborates indiscriminate attacks in Baba Amr during that period.
As such, the Court finds that only the attacks against Baba Amr in February 2012 have been indiscriminate and that the indictment can only be considered to have been proven as regards to the February 2012 attacks.
- Ar-Rastan January-May 2012
The Court states that the investigation provides some support for the claim that the Syrian army indiscriminately attacked Ar-Rastan during parts of the period between January and May 2012. The Court asserts that the prosecution has referenced evidence that support that attacks on Ar-Rastan took place during the spring of 2012. The evidence includes testimonies, photographs, videos, media reports, and an analysis memorandum by the Swedish Police’s National Operation Unit. Additionally, the prosecution cited information from CIJA to substantiate the claim that Ar-Rastan was bombarded daily during January and February; however, as elaborated above, the Court argue that information from CIJA does not alone, without supporting evidence, satisfy the evidentiary requirements. The Court indicates that the evidence pertaining to the army’s presence and actions in Ar-Rastan between January and April is both limited and unclear. Nonetheless, additional information or rationale for this conclusion is not provided.
However, based primarily on the testimony of Plaintiff 2, which the Court finds credible and unchallenged, it is determined that the plaintiff’s residence was indeed damaged during one of the indiscriminate attacks on Ar-Rastan in May. The detailed account of the damage, along with corroborating evidence regarding the weaponry accessible to the Syrian army, substantiates the assertion that the attacks were executed by the Syrian military. Furthermore, the extent of destruction in the neighborhood is supported by video evidence presented by the prosecution. Consequently, the Court concludes that the attacks in May 2012 did not distinguish between civilians and combatants or between civilian property and military targets, and that the attacks were disproportionate to the specific and immediate overall military advantages expected to be gained. This part of the indictment is considered to have been proven.
- Homs in the beginning of 2012
The Court discusses an incident not initially included in the indictment as an example of indiscriminate attacks but highlighted during the trial by the prosecution. Witnesses in the trial testified to the destruction of civilian homes in Jouret Al Shayah in Homs in early 2012 due to shelling, believed to have been intended to target the Free Syrian Army (FSA). Despite extensive evidence on the Syrian regime’s tactics in Homs, including its military presence there before and during the relevant time period, the Court finds that there is a lack of direct evidence linking the army to specific actions in the area, and in particular in Jouret Al Shayah. The Court also concludes that it had not been proved beyond reasonable doubt that Plaintiff 3’s residence had been destroyed in an attack which failed to distinguish between civilian property and military targets and was disproportionate to the specific and immediate military advantages. Thus, this part of the indictment is not proven.
- Al Qusayr February-July 2012
The Court concludes that reports from several sources, included the United Nations (UN), show that, Al Qusayr was subject to attacks by the Syrian regime between February and May 2012. While written reports support the claim that the Syrian army attacked Al Qusayr, the Court deems that these reports, in the absence of additional supporting evidence, is insufficient on its own to establish that the events took place as described in the indictment. Therefore, it cannot be established beyond reasonable doubt that the Syrian army conducted the attacks on Al Qusayr as alleged by the prosecution. Consequently, the Court does not find this part of the indictment proven.
- Al-Houla May 2012
Moving on to the alleged acts taking place in Al-Houla in May 2012, the first Court notes that UN reports describe a massacre of about 100 civilians, including many children, on 25 May 2012 in the al-Houla region of Syria, which includes the town of Taldou. The Court further notes that while substantial evidence suggests that the Syrian army attacked al-Houla in May 2012, reports from sources such as the COI is insufficient to establish whether events took place as described in the indictment, in the absence of supporting evidence. As such, it has not been proved beyond reasonable doubt that the Syrian army carried out the attacks on al-Houla as alleged by the prosecution. This part of the indictment is thus not considered to be proven.
Involvement of the 11th division
According to the Court, the evidence presented by the prosecution establishes that the Syrian army conducted indiscriminate attacks on Baba Amr in February 2012 and on Ar-Rastan in May 2012. Specifically concerning these attacks, the Court states its intention to examine the involvement of the 11th division in the attacks. It initially concludes that it has been established through the evidence presented in the case that the 11th division of the 3rd corps of the Syrian army was geographically responsible for Homs and Hama in peacetime. The Court also notes that the prosecution has primarily relied on oral evidence to assert the 11th division’s role in the attacks on Baba Amr in February 2012 and in Ar-Rastan in May 2012.
Beginning with Baba Amr, the Court concludes that while there is “indirect evidence” placing the 11th division geographically in or around Baba Amr, the evidence does not directly support the division’s presence and actions in Baba Amr during February 2012. Several witnesses have stated that the division was in the area at the time of the attacks but have not been able to express this with certainty. Additionally, the witnesses have often relied on second-hand information. None of the witnesses have confirmed the 11th division’s presence in Baba Amr in February 2012. Furthermore, the Court argues that there is insufficient detailed evidence regarding the division’s activities, such as military orders or other documentation. According to the Court, there is not enough evidence to establish beyond reasonable doubt that the 11th division acted as alleged in the indictment in Baba Amr in February 2012. This part of the indictment is therefore not proven.
The Court acknowledges indirect evidence placing the 11th division in the vicinity of Ar-Rastan but finds no direct support for their presence and actions there in May 2012. Statements by one witness suggesting their presence there in 2011 offer partial support, yet other witnesses and plaintiffs did not confirm this. Information from CIJA indicates communication about Ar-Rastan to the 11th division from Syrian security services in 2012, but, according to the Court, the 11th division’s role cannot be concluded from the communication. Consequently, the Court concludes insufficient evidence exists to establish beyond reasonable doubt that the 11th division acted as alleged by the prosecution in Ar-Rastan in May 2012. As such, this aspect of the indictment also remains unproven.
According to the Court, the prosecution has not sufficiently proven the 11th division’s involvement in neither the attacks in Baba Amr in February nor in Ar-Rastan in May. The indictment is thereby dismissed on its merits by the Court.
The Criminal Responsibility of the Defendant
Despite dismissing the indictment due to insufficient evidence implicating the 11th division in the attacks, the Court deems it appropriate to proceed with an assessment of the defendant’s alleged complicity in the crimes.
The Court first affirms that Swedish rules on complicity apply in the case, rejecting the defense’s argument that the Rome Statute’s rules on complicity should be used.
The Court then argues that using the ordinary military structure of the Syrian army to substantiate the defendant’s complicity in the crimes is insufficient. Testimonies and reports, including the security report authored by Joseph Holliday’s and presented as evidence in the case by the prosecution, suggest that the Syrian army may have operated differently during times of crisis and war. The Court additionally asserts that it finds compelling reasons to agree with the defense’s argument that specific units loyal to the president, frequently led by Alawite officers, may have undertaken distinct roles during the civil war. Consequently, the Court concludes that the conventional structure and geographic jurisdiction of the army were indeed deviated from during this period, thus constituting insufficient evidence to establish the role of the 11th division, the armament unit and the defendant’s complicity.
The Court then moves on to discuss the role of the defendant. The Court states that it is undisputed in the case that the defendant held the rank of Brigadier-General and was the head of the armament unit in the 11th division. However, the Court notes a lack of direct evidence regarding the operational procedures of the division during the relevant period. Expert witnesses, though knowledgeable about the Swedish military, admitted to lacking specific insight into the Syrian army. Other witnesses lacked direct experience in the defendant’s division and their information relied on general military training or experiences from other divisions. The main evidence regarding the defendant’s role is “indirect”, with his own statements being the primary “direct” information available. The Court also finds that evidence, such as the testimony of witness 8, supports the defendant’s claim that Sunni Muslims were excluded from certain confidential information.
Indictment Dismissed on Its Merits
Based on the above considerations, the Court considers that the prosecutor has not proven the objective elements of the charges. Therefore, the indictment is dismissed on its merits, on these grounds alone. In light of the Court’s conclusion, it is assessed that there is no need to address the question of the defendant’s intent.
Compensation for Damages
Given the outcome concerning the defendant’s criminal responsibility, the Court decided that the individual claims should be dismissed.
