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Report of the 29th Meeting of the Network for investigation and prosecution of genocide, crimes against humanity and
war crimes
24 - 25 March 2021, via videoconference
The 29th meeting of the European Network of Contact Points for the investigation and prosecution of genocide, crimes against humanity and war crimes (‘Genocide Network’), took place on the 24th and 25th March 2021 via videoconference, convened by the Portuguese Presidency.
The meeting was attended by over 180 participants coming from 25 Member States (AT, BE, BG, CY, CZ, DE, DK, EE, EL, ES, FI, FR, HU, IE, IT, LT, LU, LV, NL, PL, PT, RO, SI, SK and SE), 6 Observer States (Bosnia and Herzegovina, Canada, Norway, Switzerland, the United States and the United Kingdom), along with representatives from Eurojust, Europol, the European Asylum Support Office (EASO), and General Secretariat of the Council. In addition to EU representatives, the meeting was attended by the International Criminal Court (ICC), the International, Impartial and Independent Mechanism on international crimes committed in the Syrian Arab Republic (IIIM), the International Residual Mechanism for Criminal Tribunals (IRMCT), the Organisation for the Prohibition of Chemical Weapons (OPCW), the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), and the International Committee of the Red Cross (ICRC). Furthermore, representatives from several non- governmental organisations (Amnesty International, Human Rights Watch, TRIAL International, Redress, the Coalition for the International Criminal Court (CICC) and the International Federation for Human Rights (FIDH)) also attended the meeting.
Due to the continuing restrictions caused by the COVID-19 pandemic, the meeting was organised through videoconference. The meeting was divided in open, closed and restricted sessions.
The open session focused on accountability for the use of chemical weapons in Syria as a core international crime and steps towards accountability. The topic highlighted accountability efforts led by national jurisdictions, international organisations and civil society to bring those accountable for core international crimes committed in Syria, including the use of chemical weapons against the Syrian civilian population, to justice.
The closed session, with participation by contact points from Member States and Observers only, provided an opportunity for national contact points to confidentially share and exchange operational information related to specific cases and topics.
Day 1 – 24th March – Open session Welcoming remarks and introduction
2 Mr João Melo, Deputy Director, Polícia Judiciária (Portugal), chaired the meeting. He noted the renewed challenges in organising the 29th meeting of the Genocide Network, due to the COVID-19 pandemic preventing an in-person meeting, and expressed its gratitude to the Genocide Network Secretariat and Eurojust for making the event possible through videoconference. He praised the commitment of participants to the meeting, who registered in high numbers despite the difficult circumstances.
Mr Ladislav Hamran, President of Eurojust, welcomed the participants and highlighted the dedication of practitioners from varied backgrounds, committed to see justice done for the most horrendous crimes. He also briefly elaborated on the topic of the day, the use of chemical weapons and other core international crimes committed in Syria, and steps taken to ensure accountability by EU practitioners.
The use of chemical weapons in Syria as a core international crime and steps towards accountability
Ms Nele Verlinden, International Committee of the Red Cross (ICRC), provided an overview of the prohibition of chemical weapons within the International Humanitarian Law framework. Ms Verlinden noted that the first prohibition of chemical weapons use on the battlefield, specifically asphyxiating gas, dates back to early 20th century. In 1918, the ICRC appealed to belligerents, asking for a ban on this “appalling method of waging war”. While chemical weapons were subsequently banned by the Geneva Protocol (1925) and the Chemical Weapons Convention (1993, ‘CWC’), which created the Organisation for the Prohibition of Chemical Weapons, this practice subsists today. Ms Verlinden further explained that chemical weapons are also prohibited under general rules of International Humanitarian Law, including the principles of distinction and proportionality, the prohibition to use means or methods of warfare that may cause superfluous injury and unnecessary suffering, and the prohibition to attack or destroy objects indispensable for the survival of the civilian population (for instance by polluting water sources with chemicals). Finally, according to Article VII(1)(a) CWC, State parties have the obligation to criminalise violations of the CWC domestically, with extraterritorial application to their own nationals. The use of chemical weapons is also defined as a war crime in international and, since the 2010 Kampala amendments, non- international armed conflict in the Rome Statute of the International Criminal Court.
Mr Grant Dawson, Organisation for the Prohibition of Chemical Weapons (OPCW), presented highlights in the timeline of OPCW’s involvement regarding chemical attacks committed in Syria. In September 2013, Syria joined the CWC, following the Ghouta attack led in August 2013. An OPCW-UN joint mission prepared the removal operation of Syria’s declared stockpile. However, chemical attacks started again, prompting the creation of the OPCW Fact-Finding Mission (FFM) in 2014 to investigate whether the likely use of chemical weapons occurred. The creation of an OPCW-UN Joint Investigative Mechanism (JIM) seeking to attribute such attacks followed in 2015, but its
3 mandate expired in 2017. The OPCW Conference of the State Parties subsequently created an Investigation and Identification Team (IIT), tasked with the identification of perpetrators of the use of chemical weapons in Syria in those instances in which the FFM determines or has determined that use or likely use occurred, and cases for which the JIM has not issued a report.
The speaker stressed that neither the FFM nor the IIT are international tribunals or law enforcement agencies.The IIT is mandated to determine the facts, on the basis of a standard of proof equal to “reasonable grounds to believe”standard before national criminal courts.The speaker further mentioned that the IIT’s reports are shared with the OPCW Executive Council and the UN Security General. Furthermore, the OPCW Conference of the State Parties has instructed the Secretariat of the OPCW to provide information to the IIIM, insofar as it is potentially relevant to the IIIM’s mandate, and in line with OPCW Policy on Confidentiality. Finally, the speaker presented the findings contained in the first IIT report, issued on 8 April 2020, regarding 3 specific chemical attacks in Ltamenah (March 2017).
Ms Tobias Schneider, Global Public Policy Institute (GPPi), presented the dataset on the use of chemical weapons in Syria compiled and published online by GPPi. The dataset is the result of a 3-year long project aiming to identify logic and patterns of chemical weapons use in Syria, containing data on 349 ‘confirmed’ incidents. The speaker emphasised that GPPi is a think tank rather than an investigative mechanism. As such, their work aims to understand the ‘big picture’ of reported chemical attacks in Syria, while accepting some level of uncertainty. Hence, the dataset clearly distinguishes reported attacks based on the level of credibility of the information analysed. He further explained that GPPi compiles various layers of data received from Syrian and international partners (through information-sharing agreements or memoranda of understanding), including open source information, into a large dataset, which is then used as a basis for analytical judgment. By breaking down data – such as the location and distribution of attacks overtime, the type of chemical agent or munition used or helicopter activity in attacked areas – and placing it into context, GPPi is able to identify patterns and attribute attacks to perpetrators, down to the unit or squadron responsible. He further indicated that according to GPPi’s analysis, chemical attacks are:
(i) more pervasive that commonly understood, (ii) attributable to a handful of military units, (iii) closely intertwined with conventional warfare, and (iv) best understood as part of a wider strategy of indiscriminate violence against the civilian population.
Mr Mazen Darwish, Syrian Center for Media and Freedom of Expression, presented the work undertaken with victims, witnesses and defectors of the Syrian regime. In particular, he supported the creation of a chemical weapons victims association, which gathers direct victims as well as doctors and medical staff working in the impacted areas. The association communicates with victims and documents the use of chemical weapons. However, he stressed that the security of witnesses and defectors remains the most cumbersome challenge, especially for those who still reside or have family residing
4 in Syria. It is difficult to maintain communication lines with them, and the association relies heavily on video testimony. It is important to find ways to guarantee the security of potential witnesses.
Mr Hadi al-Khatib, Syrian Archive and Mnemonic, presented his work to create digital archives of international crimes since 2015. Mnemonic aims to collect, preserve, process, verify and investigate the archived data. The archive notably consist of photos and videos collected from direct sources or via the internet. He explained that each file is verified, authenticated, and preserved in independent and secured servers. This way, the archive is able to maintain multiple copies of videos that may have otherwise been deleted from the internet. He mentioned that the chemical weapons video database archives over 200 incidents and 1,000 videos from 190 sources. Mr al-Khatib added that analytical work undertaken using the database has allowed to identify suspects, chain of command structures, locations such as impact sites, weapons used, indicators of an attacker’s intent (i.e. by analysing characteristics of targeting), or military units. This analytical work ultimately led to an open source investigation on chemical supply chains, which allowed identifying manufacturers and exporters of chemicals based in Europe, including in Belgium, Germany or The Netherlands. The work of Syrian Archive and Mnemonic is essential to ensure that data from the media does not become inaccessible over time.
Mr Steve Kostas, Open Society Justice Initiative (OSJI), introduced the three-fold focus adopted by his organisation regarding chemical weapons. First, in collaboration with Syrian Archive, OSJI led a 3-year investigation into Syria’s Scientific Studies and Research Centre (SSRC), responsible for manufacturing chemical weapons. The final confidential report resulting from this investigation, which is notably based on open source research and testimonies from a large number of defector witnesses from the SSRC and Syrian chain of command, provides new, comprehensive information on the SSRC structure and operation, its personnel and chain of command, as well as undeclared chemical weapons stockpiles and production facilities. Additionally, he mentioned that while Syria only declared 43 SSRC sites to the OPCW, 61 facilities were identified by the investigation, as well as 149 involved individuals, some of which are not yet subject to international sanctions. OSJI shared the report with relevant international organisations and several national authorities. He further indicated that the report could be shared with law enforcement agencies. Second, OSJI is investigating, with Syrian Archive, ArcticWind, and C4ADS, companies and individuals thought to supply chemicals and equipment to the SSRC, and they have filed criminal complaints in Belgium and Germany concerning alleged violations of Syria export embargoes. Finally, OSJI, Syrian Archive and Syrian Center for Media and Freedom of Expression filed a criminal complaint concerning the Al Ghouta (August 2013) and Khan Shaykhun (April 2017) chemical attacks in Syria before judicial authorities in Germany and France, in October 2020 and March 2021, respectively. Another criminal complaint will be filed
5 shortly in Sweden.1 The NGOs are calling for the establishment of a structural investigation in Germany into the use of chemical weapons in Syria, and coordination between investigations in France, Germany, and Sweden through a Joint Investigation Team (JIT). The NGOs believe that national criminal investigations are necessary to show that there will be no impunity for the use of chemical weapons in Syria.
Mr Aditya Menon and Ms Chelsea Fewkes, UN International, Impartial and Independent Mechanism for Syria (IIIM), presented the IIIM mandate in relation to chemical weapons use in Syria, indicating that they were not able to discuss specific incidents currently being looked at by the IIIM. In brief, they explained that for the purpose of collecting evidence, as per its mandate, the IIIM is guided by the need to collect and preserve forms of evidence required to establish criminal responsibility, building on the investigative work of other organisations as much as possible. They stressed that the IIIM relies heavily on cooperation with a range of providers to fill gaps in the investigative work that has already been carried out. The institution aims to add value to what has already been done, rather than to replicate existing work. The IIIM’s core contributions to accountability efforts for chemical weapons use in Syria include:
(i) identifying evidential gaps and investigative priorities from voluminous collections, (ii) discerning links between unlawful attacks, and (iii) integrating cross-cutting strategies on gender, crimes against children and a victim/survivor-centred approach.
When conducting its independent evidence review, the IIIM examines incidents in clusters, where appropriate, to identify patterns that enable a better understanding of the military strategy or objective underpinning the attacks. This approach also facilitates analysis that looks beyond immediate harm to the broader, collective impact of incidents. The IIIM evaluates evidence to determine whether the collected evidence could establish the material elements of a crime under international law, and categorises evidence in terms of strength and relevance to assist future recipients of the materials in competent jurisdictions. Incidents currently in focus for the IIIM have been prioritised for a number of reasons, including the anticipated evidential strength of investigated incidents and the volume of available records. After evaluating evidence against the factual elements required to establish an allegation with a sufficient degree of certainty and admissibility, the IIIM has observed, in the incidents reviewed thus far, evidential gaps, including: (i) provenance of visual evidence and medical records, (ii) gaps in the chain of custody evidence, (iii) independent expert analysis and verification of evidence, and (iv) attribution evidence. The IIIM further explained that as part of its review process, it designs investigative objectives around evidential gaps, on notice of the likely defence challenges to a future prosecution. The speakers also mentioned that the IIIM is striving to achieve a victim and survivor-centred approach to evidence collection and analysis, and is currently identifying sources who could provide information pertaining to the unique experience of women and children regarding the chemical attacks under review.
1 The complaint was filed before the Swedish police’s specialized war crimes unit on 19 April 2021.
6 Mr Mikaël Griffon, Head of Department for Arms Control and OSCE, Ministry of Europe and Foreign Affairs, France, presented the work of the International Partnership Against Impunity for the Use of Chemical Weapons (‘Partnership’), launched in 2018. The Partnership now brings together the EU and 40 States. It acts as a cooperation forum, whose participating States have made commitments to share, collect, compile, record, and preserve available information on chemical weapons use. The Partnership also publishes online names of perpetrators of chemical attacks or otherwise involved individuals, and works towards the imposition of collective restrictive measures (‘naming and shaming’ approach). The speaker indicated that the Syrian chemical attacks are at the heart of the Partnership’s work. Further, he mentioned that the Partnership has and may continue to serve as an opportunity for the OPCW and IIIM to present their ongoing work, providing a different forum to discuss the state of play. The speaker explained that in early 2020, the Partnership issued a guiding document, presenting a summary of potential legal means and measures available to States willing to implement them. The speaker emphasised that while Syria has hampered ongoing investigations of the OPCW and IIT, the Conference of the State Parties to the CWC is currently considering the adoption of a decision drawing consequences from the non-compliance of Syria with its obligations under the CWC, aiming to bar access to certain bodies by the Syrian regime.2 The speaker stressed that this decision would not be meaningless. In fact, it would be the first time that any State Party would be subject to such measure. This would be a mean to reaffirm that there is no impunity for such crimes.
Presentation of landmark judicial decisions issued by national jurisdictions in the EU
Mr Christoph Barthe, Senior Public Prosecutor, Germany, presented a landmark decision issued by the Federal Court of Justice on 28 January 2021, reaffirming that functional immunity under customary international law does not preclude criminal proceedings against organs of a foreign State for international crimes. The issue resurfaced recently during appeals proceedings concerning a former lieutenant in the Afghan army who fled to Germany in 2015. The accused was prosecuted for the war crime of torture as well as outrage upon personal dignity for having desecrated a body.
The first instance court initially found that the mistreatment was not severe enough to amount to the war crime of torture. During appeals proceedings, a hearing was scheduled before the Federal Court of Justice in order to determine whether the accused could benefit from functional immunity and be exempted from prosecution before national courts. The Prosecution presented that a State official cannot benefit from functional immunity for war crimes charged despite those crimes being committed while discharging his duties for the State of Afghanistan. The Federal Court of Justice
2 On 22 April 2021, the Conference of the State Parties to the CWC adopted a Decision to suspend certain rights and privileges of the Syrian Arab Republic under the Convention pursuant to paragraph 2 of Article XII of the Convention. The decision was adopted with 102 States Parties present and voting; 87 States Parties voted yes, and 15 States Parties voted no.
7 followed the Prosecution’s reasoning, finding that functional immunity is not applicable in presence of two counts of crimes under international law for which the accused incurred direct criminal responsibility. The speaker presented the full legal reasoning and background supported by the Prosecution before the Federal Court of Justice, including references to the International Military Tribunal of Nuremberg, according to which perpetrators acting in their official capacity cannot shelter themselves. Additional precedents include the Eichmann trial, findings of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, and numerous domestic courts (Belgium, France, Germany, Finland). Although the works of the International Law Commission (ILC) on immunity of State officials from foreign criminal jurisdiction sparked some controversy in 2018, without consensus on functional immunity exceptions, there is no indication that foreign officials accused of international crimes have benefited from functional immunity before national courts since then. In the present case, the accused was finally found guilty of the war crime of torture.
Ms Christian Ritscher, Federal Public Prosecutor, Germany, presented the decision issued by the Higher Regional Court in Koblenz on 24 February 2021, convicting Eyad A., a former Syrian security officer, to four and a half years in prison for aiding and abetting crimes against humanity (torture). Eyad A. provided information on crimes committed in ‘Branch 251’ detention centre in the context of his asylum request, while indicating that he had not participated into the crimes himself. Eyad A. was first interviewed as a witness, within the framework of the Syrian regime structural case opened in Germany.
He stated that during a protest in Duma, his superior had shot at peaceful protesters with a machine gun, killing at least 3. He further admitted to arresting at least 30 persons and sending them to Branch 251 for detention, where they were abused and tortured. Eyad A. also declared working at roadblocks and ensuring transportation to Branch 251. He reported seeing at least 10 bodies carried out of Branch 251. In November 2018, criminal proceedings were initiated against him. However, the incriminating statements made by Eyad A. under witness status had to be disregarded upon the decision of an investigative judge, and his arrest warrant was revoked. Eyad A.
was released and the Prosecution lodged an appeal. A new arrest warrant was issued in June 2019, but some parts of the statements remained unusable in the case. Indeed, the Federal Criminal Court found that the witness should have been instructed on his rights, including the right to keep silent, given that a witness should be treated as a suspect if there is sufficient evidence indicating a person has committed crimes. Although the prosecuting authorities have some discretion in treating a person as a witness or a suspect, this depends on the gravity of the offence and the level of evidence. The Court therefore considered that Eyad A. should have been treated as a suspect during the second part of his interview by the police. Based on the new arrest warrant, Eyad A. was arrested again and charged with aiding and abetting crimes against humanity for delivering prisoners to Branch 251. The trial against Eyad A. and his superior Anwar R.
commenced in April 2020. Proceedings were swift, and included testimonies by Syrian victims and activists, expert witnesses, and a journalist who had worked on the so-called
“Caesar” files. Two witnesses refused to appear, fearing retribution on their families in
8 Syria, and the prosecuting authorities were unable to persuade Caesar and his accomplice to testify. The prosecuting authorities noted attempts of the Syrian regime to tamper with witnesses: some witnesses’ relatives were intimidated and threatened by local intelligence officials who visited them. Eyad A.’s case was separated from Anwar R.’s case during the trial and closing arguments were delivered on 17 February 2021.
The Defence requested that the accused be acquitted, on the basis that he had no choice but to act as he did. However, the Defence did not deny the existence of a crime against humanity against the Syrian population. Eyad A. was found guilty of aiding and abetting a crime against humanity. The Higher Regional Court further found that the systematic and extensive attack against the Syrian population started at the end of April 2011, and that, regardless of the abuse, imprisonment alone constitutes a crime against humanity, due to the horrible conditions within the prison. The written decision should be made public in June 2021. An appeal has been lodged, but the decision is not expected before the second half of the year. As for Anwar R., his verdict is expected by the end of the year.
Update on the Initiative for a Multilateral Treaty for MLA and extradition for domestic prosecution of the most serious international crimes
Mr Gérard Dive, the President of the Belgian Task Force for International Criminal Justice, updated the Genocide Network on the Initiative for a Multilateral Treaty on Mutual Legal Assistance and Extradition for domestic prosecution of the most serious international crimes. He informed the Genocide Network Members that a Draft Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, and War Crimes (‘Draft Convention’) would be circulated this spring. Mr Dive further mentioned that informal consultations on Parts 1- 4 of the Draft Convention will take place on 22 and 23 June 2021, and that informal consultations on the remaining parts of the Draft Convention are planned on 19 and 20 October 2021, to take place via electronic means. In addition, he explained that the Diplomatic Conference, originally planned to take place in Ljubljana in June 2020, is now postponed to the first half of 2022 due to the applicable COVID-19 restrictions.
Updates on the Genocide Network Secretariat’s activities
Mr Matevž Pezdirc, Head of the Network Secretariat, Eurojust, provided an overview of the Secretariat’s recent and upcoming activities, including the facilitation of a practical workshop on cooperation with Rwanda for contact points (February and March 2021), and the delivery of a CEPOL (European Union Agency for Law Enforcement Training) training on cumulative prosecution of Foreign Terrorist Fighters for core international crimes and terrorism-related offences (March 2021). Upcoming activities include the 6th EU Day Against Impunity in May 2021, which will focus on EU accountability efforts for core international crimes committed in Syria. Several other workshops and trainings are scheduled for 2021, and the Genocide Network Secretariat
9 is planning, inter alia, to update its case law compendium and to publish a new expert report on sanctions (restrictive measures) violations.
Updates by civil society organisations
Representatives of TRIAL International and Redress presented their ongoing projects, including in particular the launch on 24 March 2021 of the International Accountability Platform for Belarus (IAPB), a consortium of independent Belarusian and international human rights organisations aiming to collect evidence of alleged grave human rights violations, including torture, committed by Belarusian authorities in the context surrounding the 2020 presidential election (https://iapbelarus.org/).
Day 2 – 25th March 2021 – Closed session
The closed session began with a presentation of ongoing investigations and cooperation issues of relevance to EU national jurisdictions by the IIIM and UNITAD. The closed session continued in the sole presence of contact points from Member States and Observer States with an overview of ongoing cases – both at investigation and trial stage. Practitioners shared their operational and legal expertise on cases, and requested assistance from other contact points in some matters, taking into account the online format of the meeting.
Conclusions of the meeting
The members of the Network adopted conclusions after the meeting following a written procedure.
