Lessons Learned from the Anwar R. Prosecution in Germany
Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California.
Trigger warning: this blog post contains descriptions of extreme violence, sexual violence, and atrocity.
The Arab Spring reached Syria at the end of 2010. Protesters called for diversification in government and economic empowerment. Demonstrations reached a fever pitch in mid-March 2011 prompting a bloody crackdown. Protests were quelled with tear gas and live munitions. Protesters were suppressed, killed, or jailed in detention facilities controlled by a diverse constellation of law enforcement agencies. Branch 251 was one such prison.
Sexual violence at Branch 251 was routine. Detained protestors were stripped naked in interrogations, sexually mutilated, and raped. Some detainees were impregnated by captors. Some sought surgery to care for internal wounds or abort their rapists’ children. Detainees that weren’t killed suffered social ostracization upon release.
Sexual violence in conflict is a cruel weapon of fear, humiliation, and violence. Syrian forces have and continue to wield sexual violence against civilians and noncombatant detainees to quell and deter civil resistance to the Assad Regime. The international community has struggled to address Syrian aggression. But national governments have found success in affirmative prosecutions of Syrian war criminals under universal jurisdiction.
On January 13, 2022, Anwar Raslan was convicted of torture and sexual abuse of Syrian prisoners in Germany. Raslan was accused of overseeing the torture of detainees at “Branch 251,” the General Intelligence Directorate’s (GID) Intelligence Section detention facility in Damascus. He was convicted of crimes against humanity including sexual violence crimes.
Swedish prosecutors are in the midst of a similar effort. In February 2019, nine torture survivors in Sweden brought a criminal complaint against at least 25 senior Syrian intelligence officials for crimes against humanity. The plaintiffs were arrested during a peaceful anti-Assad demonstration in 2011. They were jailed and tortured in 15 different detention centers across the country run by Syrian intelligence services. Their abuse included battery, sexual assault, electrocution, and sleep deprivation.
War crimes prosecutions are inherently fraught and the challenges to charging sexual violence as a war crime are especially arduous; victim witnesses alleging sexual violence face internalized and societal shame, and prosecutors sometimes face an unsympathetic or misinformed judiciary. Prosecutors may opt for more predictable charges, leading critics to cite a “persistent impunity for conflict-related sexual violence.”
Germany’s rare success in holding Raslan accountable for sexual violence as a crime against humanity may serve as a model for the Swedish prosecution. This paper analyzes the German prosecution (see infra Part I) and Swedish complaints (see infra Part II), details the German prosecution’s successes and missteps (see infra Part III), and recommends actions to maximize chances of conviction in Sweden (see infra Part IV).
I. The Successful German Prosecution of Anwar Raslan
Anwar Raslan led the GID Investigations Section from April 2011 until September 2012. The GID helped lead suppression efforts against anti-government protests and rebel militias. The GID employed force, arrests, detention, torture, and extrajudicial executions to execute their mandate. Among other duties, Raslan oversaw operations at Branch 251. In the Fall of 2011, Raslan dispersed an anti-government demonstration in Douma, arrested demonstrators, and transported them to Branch 251.
Raslan defected in December 2012 and entered Germany as a political asylum seeker in June 2014. He came to criticize the Assad regime and gained modest notoriety among Syrian diasporas. In February 2019, Raslan and an associate were arrested in Germany after Raslan noted their work at Branch 251 to authorities during an unrelated dispute with a neighbor. His statement came to the attention of a joining German-French investigation team (JIT) supported by Eurojust and the Genocide Network. JIT was established in 2018 to support national governments in investigating, apprehending, and prosecuting Syrian war criminals.
Specialized German war crimes prosecutors alleged that Raslan ordered and commanded the systematic torture of at least 4,000 prisoners in his pursuit of opposition intelligence, causing the deaths of at least 58 prisoners. Raslan was charged with crimes against humanity including 58 counts of murder, one count of rape, and one count of aggravated sexual assault. The charges were brought under universal jurisdiction and Germany’s legal framework for war crimes.
Originally, Anwar R.’s acts of sexual violence were not charged under the German implementation of the Rome Statute but under the general German criminal code. German prosecutors later updated their charges to include sexual violence charges in the German code for crimes against humanity in response to criticism.
The trial against Raslan and his associate began on April 23, 2020. It was the first to hear charges brought for torture during the Syrian Civil War. The prosecution was supported in part by the testimonies of victim-witnesses, several of whom identified Raslan on sight. Several reported sexual abuse and rape at the hands of Raslan’s subordinates. The resultant stigma followed these particular victims; they reported social ostracization and violence related to their sexual abuse after release. On January 13, 2022, Anwar R. was convicted of crimes against humanity, including the murder, torture, and sexual abuse of Syrian prisoners. The court found that Raslan was culpable as an accomplice because he was plainly aware of the torture program implemented by his inferior officers, used coded language to order torture, and acted intentionally. Raslan was sentenced to life in prison with the possibility of parole.
The trial was criticized for further placing victim witnesses at risk. Critics highlighted inadequate witness protection, insufficient community outreach, absent translation services, and failure to record proceedings. Critics cited the prosecution’s failure to prosecute “sexualized violence against women, men, children, and lesbian, gay, bisexual, transgender, queer, and intersexed community (LGBTQI) persons.”
Nonetheless, Anwar Raslan’s conviction is a rare example where sexual violence during an armed conflict was charged and proven as a standalone offense under international criminal law and not as a form of torture.
II. Nine Syrian Survivor Complainants in Sweden
In February 2019, nine unnamed Syrian torture survivors gave witness evidence to the Swedish War Crimes investigations and prosecutions unit. They alleged that they were arrested, jailed in 15 detention centers across the country run by Syrian intelligence services, and tortured. The alleged abuse included battery, sexual assault, electrocution, and sleep deprivation. The survivors named 25 perpetrators and described several unnamed perpetrators. They alleged crimes including genocide, illegal abduction, torture, degrading treatment, rape, and severe bodily injury. Two survivors’ accounts are particularly relevant. Survivor 5 asserted that he was detained at Branch 251 from May 2011 to July 2011 and from December 2012 until early 2014, the same Branch overseen by Anwar Raslan between April 2011 and September 2012. Survivor 8 was held at other detention sites for two months in November 2012 where she was subjected to torture and sexual violence. In May 2019, four of the nine gave witness evidence and six offered to give testimony at future trials. They urged Swedish officials to lodge charges against and pursue the arrests of 25 named and some unnamed perpetrators. Their criminal complaint and testimony have yet to yield an incitement.
Sweden’s investigative resources are structured like those leveraged by French and German authorities to pursue Raslan. Sweden and France established a JIT under EuroJust to investigate and prosecute Syrian war criminals. The Genocide Network Secretariat and UNITAD support their efforts.
Sweden’s universal jurisdiction statutes broaden its capacity to fulfill complainants’ request and charge sexual violence as a war crime or crime against humanity. Sweden mirrored the Rome Statute in enacting its crimes against humanity statute in 2001 and its war crimes statute in 2014. The Act of 2014 in particular “is substantially broader in its scope” than the Rome Statute’s war crimes provisions because the Act of 2014 “does not require the existence of an armed conflict nor genocide, but rather a widespread attack on a civilian population” for its subsidiary offenses to be charged. Like the Rome Statute, the Act of 2014’s section concerning genocide includes three international crimes, two of which may apply to sexual violence. The second provision criminalizes serious harm or suffering against an enumerated group, which can include rape and other forms of sexual violence. The third criminalizes specific gender-based violence including sexual mutilation, forced sterilization, forced birth control, separation of sexes, and marriage prohibitions. The Act of 2014’s second section includes crimes for slavery, rape, forced prostitution, forced pregnancy, and gender-based persecution. Unlike the Rome Statute, this section defines rape according to the ICC’s nonbinding Elements of Crimes, ICTY caselaw, and ICTR caselaw. The second section also reaches beyond the Rome Statute in its inclusion and interpretation of sexual violence of “comparable gravity.” While the Rome Statute and related preparatory works contemplate such offenses as akin to battery, the Swedish statute references the ICTR’s Akayesu case where the charge was satisfied by extreme humiliation including forced nudity. The Act of 2014’s third section addressing war crimes aligns with the Rome Statute. It includes crimes against severe gender-based human rights violations in connection to armed conflict, which can include sexual violence, sexual slavery, degrading treatment (such as forced nudity), and sexual torture. The Act of 2014 emphasizes that when both it and other domestic crimes apply to a conduct, the conduct should be charged under the Act of 2014. Courts may observe precedents set by foreign courts (and ad hoc tribunals) in deliberating over conduct charged under the Act of 2014. Overall, the Act of 2014 “constitutes a significant development of gender-based crimes by explicitly prohibiting” specific acts of sexual violence.
Should Swedish authorities announce prosecutions related to the 2019 criminal complaint filed by Syrian survivors, prosecutors may look to the precedent set in the case against Anwar R. and apply it to their statutes.
III. Analysis of Factual, Statutory, and Procedural Disparities Between the Anwar R. Potential Swedish Prosecutions
While similar procedures and victims’ rights protections indicate that a Swedish prosecution will match German success, the broader set of facts presented by the Swedish complainants and limited chargeable statutes undermine prosecutorial prospects. This section analyzes how different factual (see infra Part III.A.), statutory (see infra Part III.B.), and procedural circumstances (see infra Part III.C.) enable and disable the Swedish prosecution of sexual violence in Syrian detention facilities as an international crime relative to the successful Anwar R. prosecution in Germany.
A. Swedish Complainants’ Broader Factual Record Undermines Prosecution
The facts presented in the Anwar R. case and the criminal complaints before Swedish authorities bear striking similarities. First, the conduct alleged in the Swedish complaints took place during or shortly after Raslan’s tenure at GID. Second, both Anwar R. and the Swedish complaints concern abuses at GID civilian detention sites. One Swedish survivor was detained at Branch 251, Raslan’s bailiwick. Third and finally, the conduct alleged by survivors in Sweden matches the scheme in which Raslan participated. Raslan’s torture program “included beatings with fists and various objects, inflicting electric shocks, suspending victims from the ceiling by their wrists, sleep deprivation,” threatening detainees’ families, and “at least one case of rape and sexual assault.”; survivors recount regular beatings with fists and objects, electrocution, suspension in stress positions, and at least one instance of sexual violence.
But the similarities between the courses of conduct at issue in Germany and Sweden end there. Whereas Raslan’s charged conduct was specifically cabined within GID’s operations at Branch 251, Swedish criminal complainants also detail abuse at seven or more other facilities overseen by four agencies (including GID). Most importantly, the single instance of sexual violence alleged by Swedish survivors occurred in another facility overseen by another agency approximately two or three months after Anwar Raslan left his commission.
The advantages of prosecuting a similar pattern of abuse are tempered by the incongruities in space, time, and agency responsibility between alleged facts in Anwar R. and the Swedish complaints. The German precedent’s similar abuse pattern presents circumstantial evidence that government forces employ a systematic, interagency torture program and direct evidence that the torture program was employed at GID facilities, including Branch 251. But the German Court did not conclude that the Syrian torture program was implemented across agencies or by a national authority. Should Swedish prosecutors pursue conduct beyond that alleged in Branch 251, they will find the German precedent merely persuasive and circumstantial, if admissible at all. Practically speaking, the strategy decision may be at the mercy of investigators’ success in apprehending defendants. A high-ranking official may be held liable for a broad torture campaign, but an agency- or site-specific perpetrator may only face evidence tied to those affiliations. Given the opportunity to bring all their evidence to bear, Swedish prosecutors may nonetheless find limited support from the Anwar R. record given comparative factual incongruities.
B. Swedish Legislative History Limits Potential Charges
Both German and Swedish statutes provide ample basis for charging sexual violence in Syria as a war crime or crime against humanity under universal jurisdiction. Both Sweden and Germany retain domestic statutes implementing the Rome Statute. Both incorporate the various modes of liability typical in international criminal law, including command responsibility. Both retain substitute domestic criminal statutes chargeable in place of war crimes, such as statutes criminalizing terrorist organization affiliation. Neither country requires party linkages to their countries to exercise universal jurisdiction (though German law allows prosecutors to exercise discretion to forego prosecution when no party or victim is German). And crimes against humanity and war crimes do not face statutes of limitations in Germany or Sweden.
While German and Swedish statutes’ facial similarity invites the conclusion that they equally support war crimes prosecutions, their war crimes statutes’ disparate enactment dates present a substantial challenge. Sweden’s failure to criminalize war crimes until 2014 demands that prior chargeable conduct be charged under then-existing statute, such as its crimes against humanity statute. Under both Swedish statute and the general principle of nullum crimen sine lege, individuals cannot be charged for conduct that was not illegal at the time the conduct was committed. Sweden’s inability to pursue war crimes charges is a severe limitation that devalues any prosecution brought by the Swedish complainants.
But Sweden may be able to charge the alleged conduct as a war crime despite lacking a war crimes statute when the conduct occurred. Criminal charges may be brought under customary international law even when the conduct was not yet criminalized by statute. This is to say that a state can charge customary international law crimes, including war crimes, for conduct that offended customary international law when the conduct was committed despite the contemporaneous absence of an express statute to the same effect. Moreover, universal jurisdiction may be exercised to prosecute crimes under customary international law. But stretching universal jurisdiction to prosecute beyond what is express statute is unrecognized by some states and criticized by others as dangerous. Customary international law is definitionally malleable and may be ripe for prosecutorial overreach. But the prospect remains that this untested strategy has been acknowledged and, to at least one international criminal tribunal’s eyes, is an avenue open to the discretion of national governments.
C. Similar Procedural Flexibility Supports the Swedish Prosecution
Procedural similarities between the Anwar R. trial and a potential Swedish prosecution are near total. Both German and Swedish authorities have dedicated war crimes units investigating crimes in Syria. German courts permitted the prosecutors to present a robust record substantiated over approximately 50 days of trial, by the testimonies by survivors, insiders, and experts, and by physical evidence chiefly distilled from the Caesar Files. Similarly, the Swedish survivors’ criminal complaints rely on their own accounts and physical evidence produced in the Caesar Files. Each of those evidentiary forms are admissible and commonplace in Swedish universal jurisdiction prosecutions; indeed, Swedish prosecutors need only authenticate relevant open-source material to admit it at trial and, like Germany, Swedish victims’ rights present ample opportunity for survivors to testify. Finally and most fundamentally, Sweden’s obligations under the 1970 European Convention on the International Validity of Criminal Judgments all but require it to observe the Raslan findings.
Sweden’s statutory and precedential bases for admitting diverse evidence in a war crimes prosecution are similar, if somewhat broader, than those in Germany. Those broad bases provide prosecutors greater strategic latitude, a necessary ingredient for any successful prosecution.
IV. Conclusion and Recommendations
Swedish prosecutors face significant strategic challenges compared to their German counterparts. The factual accounts presented by criminal complainants cover a regime-wide torture system while witnesses to crimes prosecuted in Germany attested only to conduct in Branch 251. Sweden’s delayed enactment of a war crimes statute prevents addressing alleged conduct as a war crime, thereby limiting the opportunity to earn landmark findings concerning the Assad Regime’s actions during the Arab Spring, while German authorities had (but forewent) the opportunity to pursue that conclusion.
But those limitations are eclipsed by a robust record and supportive witness protection scheme. Swedish prosecutors can rely on the Caesar Files, witness accounts, open-source information, and the German court’s findings to support broad prosecutions or piecemeal, defendant-specific cases. That flexibility is a compelling, necessary boon in an impugned area of international criminal law.
Against competing incentives, Anwar R. stands as a guide to Swedish prosecutors. Anwar R. illustrates that sexual violence can be proven as a standalone charge and need not be lumped into a broader torture charge. Regardless of the outcome, charging sexual violence gives greater meaning to the specific wrong committed by the accused and a greater voice to survivors.
As perpetrators become available to Swedish prosecutors, they must seek sexual violence charges wherever appropriate and substantiated. Affirmative prosecution of sexual violence stands for the principle that survivors’ unique trauma will not be lost for the sake of expedience and that we can one day ensure that the body of international criminal law wholly recognizes sexual violence as a systemic threat to our collective humanity.