The Bashar Al-Ashad regime in Syria has been the object of condemnation by the international community due its severe violations of international law ever since the uprising against Al-Ashad in March 2011, and the atrocities which followed. Discussion surrounding this conflict pertains to the application of international humanitarian law in non-international armed conflict, the use of mass destruction weapons and crimes against humanity. The Koblenz Court in Germany was the first institution to hand down a decision on crimes against humanity by the Syrian Government, in particular, for torture committed in the detention facility known as “Branch 251.” The first judgment was directed at an intelligence officer, namely, Eyad Al-Gharib who aided the torture and imprisonment campaign carried out against peaceful opposition movements in Syria. He was responsible for the arrest and transfer of at least 30 (thirty) people to Branch 251. In this judgment, the Court established that this campaign was carried out as a policy to eliminate the increasing number of possible peaceful protests by the Syrian population. Branch 251 was required to locate protesters taken after a demonstration and torture them (including, beating and hitting, amongst other things). After establishing the existence of crimes against humanity in this instance, the German Court also convicted an individual from the command control of Branch 251 of the General Intelligence Directorate, Anwar Raslan.
On 13 January 2022, Anwar Raslan was sentenced to life imprisonment for 27 (twenty-seven) murders, 4.000 (four thousand) cases of torture, and deprivation of liberty committed between April 2011 and September 2012 in Branch 251 (“Landmark Judgment”). Previously, a lower-ranking officer of Syrian authorities, Eyad Al-Gharib, had become the subject of criminal proceedings after submitting an application for asylum status in Germany, whereas Anwar Raslan had already obtained asylee status. German authorities decided to proceed with their trial based on “universal jurisdiction”—a principle that allows for the investigation and prosecution of individuals regardless of the location of the crimes committed and regardless of their nationality. It is the only measure available, for the time being, when referring to the accountability process in Syria, which will be addressed in this article.
This landmark judgment is amongst hundreds of decisions issued by European countries based on international criminal law (ICL) and involving an asylee. ICL aims to administer retribution by means of holding perpetrators accountable and deterring similar acts in the future. Almost all issues related to ICL face challenges regarding impunity; where offenders can escape accountability due to failings in the legal system within their home country. On the other side, refugee law allows individuals to escape from the oppression of their home country and find stability and peace in another country. Thus, a misperception may arise that refugee law could provide an impunity blanket to offenders of international crimes. In other words, it might lead people to believe that an offender of international crimes may seek protection by fleeing to another country under the umbrella of “refugee” or “asylee.”
Refugee law as enshrined in the 1951 Refugee Convention (“Refugee Convention”) seeks to protect asylum seekers who face a well-founded fear of persecution. However, the Refugee Convention provides an exclusion clause to prevent the asylum seeker from obtaining refugee status where the person is under suspicion of committing certain crimes including, but not limited to, crime against humanity. In theory, the Refugee Convention thus aligns with the purpose of ICL by affirming the rule that the criminals (for limited, serious crimes) will not be able to evade prosecution and punishment by claiming asylum. Nevertheless, this article will analyse how Anwar Raslan obtained asylee status and evaded the exclusion clause.
THE LONG JOURNEY TOWARDS CONVICTION AGAINST SYRIAN AUTHORITIES
The Syrian conflict, which started in 2011, continues to add to the toll of civilian deaths, destruction of property, and refugees. One problematic thing about this conflict is the political situation between the Syrian Government and countries involved in the decision making of the United Nations Security Council (UNSC), i.e., Russia and China. Both countries played a pivotal role in vetoing at least 15 (fifteen) UNSC resolutions regarding the accountability process in Syria, including a referral to the International Criminal Court (ICC).  It wasn’t until 2016 that a fact-finding body created by United Nations General Assembly International, Impartial and Independent Mechanism began to investigate and document abuses committed in Syria. This body confirmed the existence of a non-international armed conflict, as well as, the commission of alleged crimes against humanity by the Syrian Government. Nevertheless, it took even longer for someone with a rank as high as Anwar Raslan to be brought to justice. It is highly unlikely that Syria will initiate criminal proceedings against its state officials as the crimes concerned are connected with key governmental bodies and demonstrate a systematic structure. The ICC’s procedure also seems unachievable since Syria is not a party to the Rome Statute nor has it shown any signs of consenting to ICC jurisdiction.
The ICC’s procedure adheres to the statutory nature of the Rome Statute in which the Statute limits the court’s jurisdiction to crimes committed in the territory of a member state or crimes where the perpetrator is a national of a state party. However, a UNSC referral serves as an exception for a situation that occurred in non-state party’s territory or which involved non-state party nationals. The Court can also exercise jurisdiction based on the initiative of the prosecutor (proprio motu) regarding non-state party related cases, but consent from such states is required. The establishment of an ad-hoc tribunal under Chapter 7 of the UN Charter is also not possible as long as Russia and China continue to vote against it. Both the International Criminal Tribunal for Former Yugoslavia (ICTY) and Rwanda (ICTR) were established by UNSC Resolution under the mandate of international peace and security (Chapter 7). In other instances, a state can also sign an agreement with the United Nations (UN) to create a non-permanent judicial body, an example being the Special Court for Sierra Leone. Unfortunately, such an institution cannot be realized without the initiative of the respective state.
To date, universal jurisdiction appears to be the only feasible ground for fighting against impunity in Syria and can be found in several international conventions as well as in international customary law. There has been consensus amongst scholars and practitioners suggesting that the permissive form of universal jurisdiction over crimes is regulated under customary international law, i.e., war crimes, crimes against humanity, torture, and genocide. Furthermore, the Geneva Convention 1949 will be the most relevant treaty for member states to find a basis for exercising universal jurisdiction; however, it’s application is limited to war crimes. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Convention for the Protection of all Persons from Enforced Disappearance adds jurisdiction for the crime of torture when a suspect is present on a state’s territory. In the same manner, Germany enacted a criminal code in 2002 following the Statute of International Criminal Court, namely, the Code of Crimes Against International Law (CCAIL). CCAIL provides definitions for war crimes, crimes against humanity, and genocide, as well as, several modes of liability. It does not demand material condition, only the person’s presence in German territory. The German government even went a step further and created specialized units, namely, the Federal Criminal Police (BKA) and Federal Public Prosecutor General in order to investigate the crimes concerned. The Federal Public Prosecutor General has investigated the Syrian regime, Da’esh members, and other terrorist groups. Although he was considered a high-ranking officer, functional immunity did not apply in the Landmark Judgment, as the German Federal Court of Justice denied functional immunity with regard to acts carried out within the scope of their duties.
REFUGEE CONVENTION’S EXCLUSION CLAUSE AND INVESTIGATIVE PROCEEDINGS INVOLVING ASYLUM SEEKERS
As described hereinabove, refugee law is generally perceived as a protective measure toward non-nationals in a foreign territory. Once granted refugee status, a person may enter a state’s territory—without being deemed an illegal immigrant—and enjoy human rights fulfilment by the host country. In special circumstances, specific individuals might be denied this status if “there are serious reasons”, for example, if they have committed: (1) crimes against peace, a war crime, or crime against humanity as defined in the relevant international law; (2) a serious non-political crime outside host state; or (3) have been guilty of acts contrary to the purposes and principles of the UN.
Refugee proceedings are an administrative process, civil in nature, but if the exclusion clause is applicable then the authorizing officer also needs to facilitate a quasi-criminal investigation, and potentially, a criminal trial. It is noteworthy that the implementation of the exclusion clause as contained in Article 1(F) of the Refugee Convention requires the officer to undertake a preliminary judgment in relation to the alleged crimes. Moreover, the language in Refugee Convention reads: “as defined in the international instruments drawn up to make provision in respect of such crimes.” This means the immigration officer applying the Refugee Convention must dwell on international conventions and any other documents related to the crimes mentioned in the exclusion clause. The interpretative guidance of the Refugee Convention even suggests the officer refer to international criminal tribunal statutes, e.g., ICTY, ICTR and ICC. This system adds a burden for immigration officers who have to master a branch of law that they might otherwise be unfamiliar with. In the worst case, the provision may allow impunity in cases where the host state does not support international prosecution, nor is a party to the Rome Statute. Germany, on a positive note, has progressively embraced ICL in its legal system.
In the justice system context, the German Migration Authorities (BAMF) are the first to welcome asylum seekers and undertake interviews. If they encounter individuals who have a connection with certain serious crimes, the assigned officer will refer the case to a special division of BAMF, which is responsible for implementing CCAIL. In addition to BAMF, BKA is also entitled to receive information regarding the case and to send specific follow-up inquiries before the matter proceeds to the prosecution stage.
In terms of evidence, the interpretative guidance for the Refugee Convention only notes that clear and credible evidence is required. In the absence of specific rules of evidence, immigration authorities may rely heavily on the personal account of the applicant, in addition to documents or reports from a reliable and credible source. Aside from documents and reports, it is hard to imagine that immigration authorities might be able to find any criminal involvement within a personal account unless the person chooses to disclose their involvement directly. For example, in the Anwar Raslan case, immigration authorities in Germany found no indication of crimes in his personal account and thus, Raslan benefited from this system by having obtained authoritative documentation.
Initially, Anwar was known to German immigration authorities as a member of the Syrian opposition. He was granted asylum by virtue of a recommendation on behalf of Syrian opposition leaders due to his participation in a peace conference in Geneva, in 2014.  During Anwar’s criminal trial, it was established that his asylee status was granted based on political grounds, in accordance with Article 16a of the Basic Law (Grundgesetz – GG) of the Federal Republic of Germany. Anwar Raslan’s case was initiated after he personally submitted a criminal complaint to the local police station in 2015. He claimed to be followed by a Syrian intelligence agency member because of his past involvement as a Colonel in Syria’s General Intelligence Directorate. This statement was delivered to BKA and the Federal Public Prosecutor General which led to an investigation against him. In comparison, Eyad Al-Gharib revealed his identity as a member of an intelligence agency during his asylum proceeding in May 2018.  There was no definite reason for his self-incriminating statement, however BKA invited him to provide a further statement and act as a witness in the case against Anwar Raslan. During the police interrogation process, he later admitted that he was also involved in the arrest of peaceful protestors in Douma as well as their transfer to the Branch 251. In February 2019, the Federal Court of Justice in Germany issued an arrest warrant for both Anwar Raslan and Eyad Al-Gharib.
Germany has proven itself to be one of the leading countries when it comes to upholding justice against the Assad Regime for the Syrian conflict, particularly concerning torture, which is said to have occurred in the detention camp known as “Branch 251.” The Koblenz Court produced a milestone decision in the long stagnancy of accountability in Syria. This country and its government seemed untouchable, especially since it has no ties with the ICC and since it managed to avoid becoming the subject of UNSC Resolutions. However, German authorities applied universal jurisdiction in their proceedings against Anwar Raslan, despite his nationality and limitations regarding territorial jurisdiction. The German Court of Justice also denied the possibility of him invoking immunity as he is not an effective officer, nor does the law permit the application of functional immunity.
This Landmark Judgment did not begin because of an investigation by Germany authorities, rather, it was because of Anwar Raslan himself. The investigation of Raslan began after he admitted to being a Colonel within Syria’s General Intelligence Directorate whilst filing his criminal complaint against a stalker. Such a situation can seem ironic when considering refugee law under the Refugee Convention and Germany’s legal system, both of which have been sophisticatedly designed to detect the involvement of asylum seekers in international crimes, also when considering Anwar’s contribution to his own confinement. Furthermore, the situation also sheds light one possible loophole in the system. In the case of Eyad Al-Gharib and Anwar Raslan, it becomes clear that an investigation would not have been triggered without the error or admission made by the suspected person. Despite the Landmark Judgment’s breakthrough when it comes to the accountability process in Syria, Anwar was still able to pass the screening process in the immigration system and escape criminal responsibility for certain period of time. Given that prominent names of high-ranking officers in Syria have been exposed during Eyad Al Gharib and Anwar Raslan’s trial, Germany and other countries should consider starting an active investigation rather than waiting for such proceedings to be triggered by an admission from the person.
Ardya Syafhana holds a law degree from the Faculty of Law of Universitas Islam Indonesia. She has worked in Jakarta International Law Office and is presently serving as a legal assistant in a law firm in Jakarta and as a Blog writer at Platform for Peace and Humanity. Ardya has participated in several international moot court competitions and Model United Nations conferences.
 Yasmine Nahlawi, The Responsibility to Protect in Libya and Syria: Mass Atrocities, Human Protection, and International Law (Routledge Research in International Law, 2020) (“Yasmine Nah -).
 Human Rights Watch, ‘Germany: Conviction for State Torture in Syria Former Syrian Intelligence Officer Found Guilty’ (Human Rights Watch, 13 January 2022) < https://www.hrw.org/news/2022/01/13/germany-conviction-state-torture-syria > accessed 25 February 2022 (“HRW, Germany Conviction for State Torture in Syria”).
 Syria Justice and Accountability Centre, ‘Inside the Raslan Trial: The Al-Gharib Verdict in Detail’ (Report) (18 March 2021).
 Syria Justice and Accountability Centre, ‘Inside the Raslan Trial: Details on Branch 251’ (Report) (June 2020).
 HRW, Germany Conviction for State Torture in Syria.
 Ibid; Amnesty International, ‘Universal Jurisdiction: The Duty Of States To Enact And Implement Legislation’ (Report) (31 August 2001) AI Index: IOR 53/003/2001.
 Zoe Egelman, ‘Punishment and Protection, Two Sides of the Same Sword: The Problem of International Criminal Law Under the Refugee Convention’ (2018) Harvard International Law Journal Vol. 59 No. 2 <https://harvardilj.org/wp-content/uploads/sites/15/HLI203_crop-1.pdf> accessed 27 February 2022 (“Zoe Egelman, 2018”), -.
 Ibid, .
 Refugee Convention, Art 1(F).
 United Nations High Commissioner For Refugee Data, “Situations in Syria”, last updated 24 February 2022, <https://data2.unhcr.org/en/situations/syria>.; United Nations News, “Syria: 10 years of war has left at least 350,000 dead”, 24 September 2021, <https://news.un.org/en/story/2021/09/1101162> accessed 26 February 2022; United Nations Children’s Fund, “Syrian Refugees Appeal: Humanitarian Action for Children”, <https://www.unicef.org/appeals/syrian-refugees> accessed 26 February 2022.
 United Nations Meetings Coverage and Press Releases, “Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution” 22 May 2014, <https://www.un.org/press/en/2014/sc11407.doc.htm accessed 26 February 2022> accessed 16 March 2022. ; International Commission of Jurists, “Syria: Ten Years on, Impunity for Atrocities Continues” 15 March 2021 < https://www.icj.org/syria-ten-years-on-impunity-for-atrocities-continues/> accessed 16 March 2022.
 UNGA Res 71/248 (11 January 2017) UN Doc A/RES/71/248.
 Yasmine Nahlawi (n 1); Human Rights Council, “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic” 16 August 2012- 14 September 2021.
 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (“ICC Statute”) Art 12.
 ICC Statute, Art 13(b).
 Ibid, Art 15.
 UNSC Res 872/3288 (5 October 1993) UN DOC S/RES/872; UNSC Res 955/3453 (8 November 1994) UN DOC S/RES/955.
 Statute of the Special Court for Sierra Leone (adopted 14 August 2000, entered into force 1 July 2002).
 International Center for Transitional Justice, ‘Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes’ (Report) (3 December 2020).
 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 Art 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 Art 50; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 2 November 1950) 75 UNTS 135 Art 129; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 2 November 1950) 75 UNTS 287 Art 146.
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 Art 9; International Convention for the Protection of All Persons from Enforced Disappearance (adopted 12 January 2007, entered into force 23 December 2010) 529 UNTS 89 Art 9.
 United Nations General Assembly Sixth Committee, ‘The scope and application of the principle of universal jurisdiction (Agenda item 86) (Germany Report) (30 April 2021) https://www.un.org/en/ga/sixth/76/universal_jurisdiction.shtml.
 Refugee Convention, art 31.
 Refugee Convention, Art 1(F).
 Zoe Egelman, 2018.
Refugee Convention, Art 1(F).
 Zoe Egelman, 2018, ; United Nations High Commissioner For Refugee, ‘Guidelines on International Protection: Application of the Exclusion Clauses: Art. 1F of the 1951 Convention relating to the Status of Refugees’ (Document) (4 September 2003), UNHCR, UN Doc. HCR/GIP/03/05  (“UNHCR Guidelines”).
 Q&A Koblenz Trial.
 UNHCR Guidelines, -.
 Ilia Maria Siatitsa, ‘Thematic Chapters, C Accountability, 12 National trials of international crimes in 2014: prosecuting ‘refugees’ suspected of international crimes’ in Annyssa Bellal (eds), The War Report: Armed Conflict in 2014 (Oxford University Press 2016), .
 Hannah El-Hitami, ‘They Felt Too Safe: How Two Syrian Agents Ended Up On Trial In Germany’ (Website) (4 May 2020) <https://www.justiceinfo.net/en/44207-they-felt-too-safe-how-two-syrian-agents-ended-up-on-trial-in-germany.html > accessed 28 February 2022.
 Syria Justice and Accountability Centre, ‘Inside the Anwar Raslan trial: the first four days’ (Report) (7 May 2020).
 Q&A Koblenz Trial.
 Syria Justice and Accountability Centre, (n 3).
 Q&A Koblenz Trial.