The New Humanitarian | Syrian war crimes on trial in Germany: Will justice be lost in translation?


In the coming weeks, a German judge is expected to read the verdict in a historic trial: the first seeking to convict members of Syrian President Bashar al-Assad’s government of war crimes. But many onlookers will be listening for more than just the words “guilty” or “not guilty”. They’ll also be noting if the words are translated into Arabic, so millions of Syrians impacted by the conflict – or even just the few in the courtroom – can fully absorb the impact of the moment. 

By focusing on language, activists, lawyers, journalists – and the makers of a podcast called Branch 251, which has been broadcasting updates and analysis in English and Arabic since the trial began in April 2020 – are flagging a problem that has long plagued proceedings around the world, from the International Criminal Court (ICC) to ad hoc courts in places like Rwanda and the former Yugoslavia: When justice happens far from where the crimes were committed, or in a language other than the one the victims speak, it often fails to include the people it is ostensibly meant to serve. 

In legal jargon, this is called the “outreach gap”. And it isn’t just an abstract concept in cases like that of Anwar Raslan, the former Syrian security officer on trial for war crimes and crimes against humanity at a small regional court in the southwest German town of Koblenz. In fact, experts say too large a gap can have important real-life consequences: It can stop key witnesses or accusers from coming forward, and an information vacuum can lead to the spread of misinformation, or even of deliberate disinformation – an almost permanent feature of the Syrian war.

For this reason, some courts, including the ICC, have begun to build outreach into their operations, using translation and press releases, comic strips and theatre, and working with local journalists. When done well, proponents say this kind of approach incorporates community feedback into the work of courts and allows affected people to feel part of the process. 

Yet the job of transmitting the information to audiences directly impacted by the trials is often left to civil society groups. In the case of Koblenz, this includes the creators of Branch 251 – named after the notorious detention centre Raslan is accused of running in 2011-2012.

Before Raslan defected to the opposition and eventually fled to Germany, the indictment says 4,000 people at Branch 251 were subjected to “systematic and brutal torture”. A second defendant, Eyad al-Gharib, has already been convicted of helping Raslan, and sentenced to four and a half years in prison. 

It was only possible to hold the precedent-setting trial in Koblenz – rather than at the ICC in The Hague or in a regional tribunal in the Middle East – because Germany follows a legal principle called universal jurisdiction. This holds that certain grave crimes are so serious they are considered crimes against humanity itself, and therefore they can – in theory – be prosecuted anywhere. The first (and still most famous) use of universal jurisdiction was the 1998 arrest in London of Chilean dictator Augusto Pinochet, who had been accused by a Spanish court of abuses committed in his home country.

READ MORE: What is universal jurisdiction?

Universal jurisdiction has become the weapon of choice for efforts to find justice for crimes committed in Syria because the creation of an ad hoc court similar to the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia would require a UN Security Council resolution. And since Syria is not a party to the ICC, a referral to The Hague would also have to go through the Security Council. Both are non-starters with al-Assad ally Russia a permanent member of the council.

Despite the fact Pinochet was never tried, his arrest remains the best-known use of the principle. More recently, this June, Liberian rebel commander Alieu Kosiah was sentenced to 20 years in prison by a Swiss court after it found him guilty of war crimes committed during the 1990s. Kosiah had fled to Switzerland before his arrest in 2014, and in 2011 the country instituted a new law that allowed for the prosecution of war crimes committed anywhere. 

A network of Syrian activists, international rights groups, and national prosecutors are now collaborating across Europe – including in France, Germany, the Netherlands, Norway, Spain, and Switzerland – to leverage universal jurisdiction in prosecuting the most serious offenders of the Syrian conflict.

Universal jurisdiction offers a way to tackle impunity for serious crimes when other courts won’t or can’t do so, and the push to use it for crimes committed in Syria – mostly in European courts – is gaining steam: In July, a German federal prosecutor accused a Syrian military doctor, who now lives in Germany, of torturing opponents of al-Assad. 

This only makes efforts to reach out to – and involve – Syrians in justice about their country even more urgent. From the perspective of the podcasters at Branch 251, they are not just putting information out into the ether. They are also actively changing the answer to a question that crops up consistently in discussions about outreach (or the lack thereof) in international trials, which sometimes have big budgets and often plenty of English-language publicity: Who is justice really for?

One of Branch 251’s producers, Noor Hamadeh, who lives in the United States but has family in Syria, hopes the podcast is giving Syrians some ownership over a trial about their own country despite the fact it is taking place in a small European court and mostly in a foreign language. 

“The court itself is very much German,” she told The New Humanitarian. “The trial doesn’t really take into account that it’s part of the larger context [of the Syrian war].” But, she continued: “It’s against Syrian officials, and it has a much larger impact beyond Germany… It seems that the court isn’t really accommodating that. I think, as a result, a lot of Syrians don’t necessarily feel that the trial is theirs.”

Why translation matters

While activists have long hailed the Koblenz trial as a landmark in the fight for Syrians harmed by the war, the impact hasn’t necessarily been felt as strongly in Syria or among the 6.6 million Syrians who are refugees or asylum seekers

It’s a problem Asser Khattab, a Syrian journalist based in Paris who fled his country in the early years of the war and who hosted the Arabic version of Branch 251’s second season, noted from the outset.

“It struck me that every time I spoke to someone inside the country – and often Syrians outside the country – almost none of them knew there was a trial happening in Koblenz,” he told The New Humanitarian.

That gulf is exactly what made him want to be part of the podcast. When he heard about it, he thought: “This is great: It’s free, it’s accessible, and it’s in Arabic.”

Branch 251 was not founded by a Syrian, but by Fritz Streiff, a Paris-based human rights lawyer and podcast buff who recognised the trial’s importance early on and felt more people should know about it. 

Its first season was in English only, run on a shoestring, and funded by private donors. By season two, the podcast had picked up funding from the German Ministry of Foreign Affairs, giving them enough money to hire people like Hamadeh and Khattab, and to make a separate Arabic-language version. Season three kicked off in late August. 

But the podcast – which has nearly 70,000 downloads, including, as far as the producers can tell, just under 200 from inside Syria – can only do so much, and the Koblenz court has come under criticism for its lack of outreach to Syrian communities, particularly its failure to offer regular Arabic translation. “We thought we would be part of the outreach,” said founder Streiff. “We didn’t think we would be the outreach.”

When the trial – which is conducted in German – first opened, simultaneous Arabic translations were only available to the accused and the plaintiffs via headsets, all of whom are Syrian. Following advocacy from various groups, the court does now allow some pre-accredited journalists to receive their own simultaneous translation, but the accreditation process closed before the trial began, so few Arabic-speaking journalists signed up. 

In theory, Arabic-speaking visitors in the public gallery should at least be able to understand the Arabic testimony. But they complain it can be difficult to hear without access to the simultaneous translation system, particularly when witnesses speak softly or unclearly.

When testimony is in Arabic, it is consecutively translated into German by loudspeakers to everyone in the courtroom. 

Hear how Branch 251 producer Saleem Salameh felt on the day Eyad al-Gharib’s verdict was handed down in Koblenz in February 2021.

Official court press releases are in German too, and while at least two different NGOs (the Syria Justice and Accountability Centre, SJAC, and the European Centre for Constitutional and Human Rights, or ECCHR) have been providing multilingual reports monitoring the goings-on at the trial, they aren’t necessarily pleased that it has been left to them to communicate basic information about the trial to Arabic speakers. 

“We are happy to play our part, but providing court information is a public task,” said Patrick Kroker, a human rights lawyer at the ECCHR. A third group, the Syrian Centre for Media and Freedom of Expression, or SCM, posted Arabic summaries for the first year or so of the trial but has since stopped. “Civil society is already doing a lot,” argued Balkees Jarrah, associate director of the international justice programme at Human Rights Watch. “The authorities now really need to step up.”

To Kroker, one of the lawyers representing victims at trial, it looks like the spirit of internationalism that Germany has been widely praised for in prosecuting Syrian war crimes hasn’t translated (often quite literally) into the day-to-day operations at Koblenz. “The problem here is we have a trial based on the principle of universal jurisdiction, which is founded in the idea that some crimes are against humanity as a whole,” he said. “But they are being treated like any other criminal trial in Germany.”

This was powerfully demonstrated during the verdict of Raslan’s co-defendant, al-Gharib, in February 2021. When it was announced, the judge signalled for an Arabic translation to be broadcast over a loudspeaker. 

In court that day was Syrian activist and writer Ameenah Sawwan, who arrived in Germany in 2015 after fleeing the war, and who had been attending the hearings from the start, also listening to some episodes of Branch 251. She was surprised and delighted to hear her language spoken at such an important moment in the trial, and for the first time felt truly included in the process. 

“That really meant something. It made a huge difference,” she told The New Humanitarian. “I would not have felt the same if I was there listening to a person read the verdict for three hours in German. I actually took my own notes. I wrote 16 pages down in Arabic about what was being said. I was very proud that I had my own notes from this very special session on this verdict.” 

Following the verdict, however, the proceedings reverted back to German.

A poor track record

Given international justice’s poor track record in making people feel a part of trials that deal with their own communities, perhaps the situation in Koblenz should have been less of a surprise.

In 1993, when the International Criminal Tribunal for the former Yugoslavia (ICTY) was established to deal with crimes recently committed in the Balkans, it was the first war crimes court set up by the UN, and the focus was just on getting things up and running. 

It was not until 1999 that the court established its outreach programme, with the aim of explaining to people impacted in the former Yugoslavia how the court works, and responding to their feedback.

But, by that point, it may have been too late to avoid the spread of what ICTY deputy prosecutor David Tolbert has called “gross distortions and disinformation” about the court in the region, as politicians were already using its work as a “political football”. 

Alison Smith, legal counsel and director of the international criminal justice programme at No Peace Without Justice, an Italy-based non-profit, said by the time the court started doing some outreach “it was really an uphill battle, because it wasn’t included from the beginning.”

For a while, it seemed these lessons had been learned. The ICTY’s experience directly informed the operation of the Special Court for Sierra Leone. When it opened in 2002, outreach was built in from the start: Hearings were broadcast across the country, and booklets, films, and radio programmes about the court’s work were distributed widely – all explaining what it did in simple terms.

 A UN-commissioned review of the Sierra Leone court described this programme as “exceedingly effective”, and the “crown jewel” of the court, recommending it serve as a model for future international courts.

“I’d love to say that [Sierra Leone] informed everything that came after in terms of outreach,” said Smith. But it wasn’t the turning point many had hoped for.

For example, The Hague-based ICC began operating in 2002, but it didn’t form a dedicated outreach unit with a separate budget until 2007, following pressure from NGOs – and many people still say the funding remains insufficient, limiting its work.

Why timely outreach is important: The case of Georgia

At the outset of the ICC’s work, one of the main arguments against outreach was that it would interfere with the low-profile approach favoured by the prosecutor’s office. The court has had to rely on national police and security forces for assistance in the past, and didn’t want anything to exacerbate perceptions of bias.

But Smith said another reason for the ICC’s limited outreach is that it is still not considered “critical work” in some quarters. “It is considered a bit of a luxury – not by everyone, but by some people at the court.”

The main pushback against outreach at the ICC comes from prosecutors with experience in national court systems who believe the work of carrying out justice speaks for itself, Smith added. 

Limited resources are another reason it is ICC policy to only begin reaching out to communities when a situation enters what it calls the “investigation phase” – by which time court officials have already been in a country, looking into whether there’s a case to be made for serious crimes. 

Even when an investigation is finally opened, there’s often a lag before outreach begins. 

Analysts say that’s too late, and courts should get started right away, before a dearth of information allows propaganda to flourish.

For example, Nika Jeiranashvili, a Georgian human rights activist and director at Justice International in the Hague, said he has been struggling almost single-handed to explain what the ICC is doing to people impacted by the August 2008 South Ossetia conflict. He describes receiving “absolutely zero support” since the court opened an investigation into crimes committed there five years ago. 

During the 2018 presidential elections in Georgia, politicians accused the ICC of bias and of taking sides in the polls. “Georgian elites began taking advantage of widespread ignorance about the ICC proceedings and using it to their own political advantage,” Jeiranashvili told The New Humanitarian. The ICC was not only at risk of being delegitimised, it was also being used to threaten the stability of the country as a whole. “It was an incredibly tense situation,” he said. 

Jeiranashvili, who worked day and night to try and explain the work of the ICC to the media and civil society, said it was more than he could do alone: “We were waiting for the court to come and provide some neutral, updated information about its work; but they never came.”

In response to criticisms against its outreach programmes, a spokesperson for the ICC told The New Humanitarian via email: “The priority of the ICC outreach has always been the situations with the active cases and focused on the most affected communities.”

The Koblenz complication

For all the criticisms of its work, the ICC does now acknowledge that outreach is an important part of its mission. That is not the case at the court in Koblenz, which argues that it needs to be run in the same way as any other serious criminal trial in Germany.

“German procedural law stipulates that negotiations in litigation – including criminal proceedings – must be conducted in German,” a spokesperson for the court told The New Humanitarian by email, explaining the minimal translation into Arabic. 

This is not good enough for some. Streiff, Branch 251’s founder, said the court is taking a “very literal interpretation of the applicable law, which allows them to hide behind legal checks as a way to defend their exclusive use of the German language”.

Streiff and others find it concerning that precedent-setting trials like the one happening in Koblenz are going on while many of the victims of the crimes and their families live far away, with little to no understanding of what’s going on.

Hear Branch 251 reporter Hannah el-Hitami describe the witness testimony that “stuck in her mind” from a German police officer who interviewed an alleged torture victim.

Some do have sympathy for the position the Koblenz court finds itself in.

It would be unusual for a small court in Germany, with the same funding as any other criminal trial, to get in touch with people in Syria in the same way that the ICC might be expected to, said Franck Petit, editor at and former head of the outreach programme at the Extraordinary African Chambers in Senegal, which is considered by many to be a model for how outreach should be done. 

“Even in international courts, [outreach] is the last thing they think about,” Petit told The New Humanitarian. “But they do accept they should do it. What we can say is they always think about it, as opposed to the national courts.”

Doing more for non-citizens and refugees than for German citizens could also create tensions, so most of the work in a trial like the one in Koblenz will inevitably be left to individuals, local media, and NGOs, Petit said.

What can go wrong

An early episode of Branch 251 tackles the question of how the trial is perceived among Syrians, both in Europe and in Syria. It’s a mixed bag, with some hopeful about the possibility that more people will someday be held accountable for atrocities, and others believing it is a lost cause. 

Sawwan, the Syrian activist and writer who has been closely following the trial, believes most Syrians just aren’t paying attention, but that doesn’t mean they don’t care. Sawwan speaks German fairly fluently, but it can be hard even for her to understand complex legal language.

Both Sawwan’s brother and uncle were held in detention centres in Syria. Although they were not held in Branch 251 itself, the fact that a trial about the system of detention and torture in Syria is even happening means a lot to her. 

“Syrians are being told this is a major trial, but they don’t understand why,” she told The New Humanitarian. “All they see is two relatively junior people on trial and ongoing atrocities in Syria. They don’t even know what universal jurisdiction is.” 

The risk that the most important stakeholders – Syrians like Sawwan and her family – will be left behind or feel left out of the process is concerning. But there’s a deeper fear brewing: As more Syria-related indictments are filed across Europe without pre-emptive outreach from courts, some worry that trials will be subject to active disinformation campaigns.

Steve Kostas, a senior lawyer at the Open Justice Society Initiative, which helped build a case against the Koblenz defendants, pointed out that false information has been circulating about the trial against Raslan and el-Gharib. But given many Syrians find out about the trial through informal networks such as WhatsApp groups and Facebook, some of this is “completely understandable confusion and legitimate questions” rather than intentional disinformation, he told The New Humanitarian.

However, Eric Witte, senior lawyer at the Open Society Justice Initiative, said deliberate “fake news” or propaganda could still become a bigger problem in future universal jurisdiction cases.

Witte’s organisation – along with Syrian victims and Syrian groups – has filed several complaints against al-Assad’s government for using chemical weapons against civilians. They haven’t gone anywhere yet, but given the sensitivity of this subject and the fact that various sides to the conflict have tried to manipulate news during and after attacks, he is concerned. “If those filings went to trial,” he said, “you would see very active targeting [of disinformation] involved.”

And that’s not the only way experts say the lack of outreach might derail justice efforts. When potential witnesses don’t understand the justice process, they are less likely to come forward, said Smith, from No Peace Without Justice.

Hear why it’s difficult (and sometimes dangerous) for some Syrians to speak out.

“Outreach definitely contributes to [Syrians’] willingness to come forward. It informs them about proceedings and can also build trust,” said Kroker, the lawyer at ECCHR. But he added that there are other factors – such as concern for the safety of witnesses – that cannot be addressed through outreach. 

A Human Rights Watch report found that Syrian refugees in Germany – some of whom could be potential witnesses in this and future trials – have been reticent to share information that could be useful in courtrooms because they’re scared of potential retribution by the al-Assad government against relatives back home. 

There’s also no guarantee that those listening to initiatives like Branch 251 are secure in their own homes, a concern that Hamadeh, the producer, can’t get out of her head. “It’s something I wonder about a lot,” she said of those tuning in from inside Syria. “I wonder if it is people in the regime listening to keep track… or if it is normal, average Syrians who are listening. I wonder if listening puts them at risk? If I was in Syria, I would be scared to even acknowledge that the podcast exists.”

What should be left to civil society?

The lack of court-led community connection from Koblenz took the Branch 251 team by surprise, leaving them with an outsized role (and responsibility) in disseminating information that they never expected. 

But experts say it is common for local NGOs and activists – or in this case podcasters –  to be saddled with the job of explaining complicated court proceedings, despite not having the money, staff, or time to do it properly.

When done right, these types of organisations have proven to be excellent partners for courts. Working together, they have been able to make sure the court is in touch with the people it needs to reach, and to disseminate important messages. 

The outreach programme run by Petit at the Extraordinary African Chambers in Senegal relied heavily on local civil society to make sure the population affected by the crimes understood the process.

The EAC was established under an agreement between the African Union and Senegal to try international crimes committed when Hissène Habré was president. The trial began in July 2015, and in May 2016 Habré was found guilty of rape, sexual slavery, and ordering the killing of 40,000 people during his tenure and sentenced to life in prison.

Petit and others on his team had the advantage of dealing with a quick trial that took place relatively close to where the crimes were committed, and money that was budgeted for outreach from the start.

Much of the budget was passed on to local media-focused NGOs, which explained the process and responded to feedback from people who had been impacted by the violence meted out during Habré’s rule. However, Petit pointed out, these civil society groups were not expected to do public relations for the court. That enabled them to deal more openly and honestly with people who had questions about it. 

Sometimes, the ICC has done it well too, with many experts noting the Uganda outreach programme run by Maria Mabinty Kamara, who is also credited for outreach at the Special Court in Sierra Leone.

Kamara worked with victims’ groups, religious and cultural leaders, the media, representatives from academia and law, as well the general public in northern Uganda. In all, the ICC trained 200 local facilitators to help people understand what was happening in The Hague as it prosecuted leaders of the Joseph Kony-run Lord’s Resistance Army. 

A big international court like the ICC can’t compete with locals who understand the environment they live and work in, Kamara said, and local groups will never have the resources of an ICC. The key is to work together. 

Kamara’s work on the Uganda trial culminated in what she called the most important moment of her career so far.

During the closing statements in March last year, the ICC held a live screening in the northern Ugandan city of Gulu.

As the courtroom officer in The Hague, some 9,000 kilometres away, said “All rise”, a translation into the local Acholi language blasted through the speakers. 

All 400 people at the screening in Gulu solemnly stood, immersed in the experience. “It was just phenomenal,” Kamara told The New Humanitarian. “I could pack my bags and go home! I wanted to make this process as meaningful and as relevant as possible, and this demonstration sealed it all for me.”

How local news can help

These examples of courts partnering with local groups could – experts say, should – inform how justice via international jurisdiction does outreach from here on out, particularly when it comes to working with local media.

Media access for local journalists clearly helps get the word out. The non-profit news organisation New Narratives, for example, recently sent three well-known Liberian journalists and an illustrator to cover the trial of former Liberian rebel commander Alieu Kosiah, who was convicted of war crimes in June 2021 in a Swiss court that uses universal jurisdiction. 

The journalists (Anthony Stephens, James Harding Giahyue, and Rodney Sieh) and one illustrator (Leslie Lumeh) were well known and trusted, and their reports were published in major newspapers in Liberia and Sierra Leone, and broadcast by more than 30 Liberian TV and radio stations. Stephens also broadcasted via Facebook Live

“The court could have been more helpful,” said Prue Clarke, founder of New Narratives, which focuses on building journalism in the Global South. As in Koblenz, translations from French into the reporters’ first language, English, were not provided for Kosiah’s trial. That meant the journalists relied on summaries of the proceedings by an NGO.

But the reporters were given access to prosecution and defense lawyers throughout the trial, and could hear and understand the testimony of the English-speaking accused, Kosiah, and the plaintiffs.

Clarke says their model of investing in local journalism about justice is a model that “could and should be replicated elsewhere”.

New Narratives is supporting Liberians in covering another trial too – one that challenges the assumption that universal jurisdiction proceedings will always struggle to connect with the communities they are focused on. In that case, Finland is prosecuting a former rebel commander, Gibril Ealoghima Massaquoi, suspected of war crimes during Liberia’s civil war. 

Remarkably, the Liberian reporters don’t have to travel far to report on the proceedings: The court actually moved to Liberia to hear testimony from 80 witnesses and visit sites where atrocities are alleged to have been carried out under Massaquoi’s orders. Massaquoi will remain in Finland. The proactive creativity of the Finnish court has impressed onlookers. “It is quite extraordinary,” said Witte at the OSJI. 

But in many cases, including the trial in Koblenz, moving isn’t an option: Syria is still a conflict zone and the accused government is in power. This means anything the court can do to include Syrians in the process would be much appreciated, said Sawwan, who has been attending proceedings whenever she can.

Including people like Sawwan is important because the case, and future cases, are about more than just the individuals on trial. Having had family members tortured, she said that hearing the first verdict, aloud and in Arabic, held great meaning for her and for history. “It meant that state torture, the atrocities committed by the Syrian regime, are being read out loud in a German fair court,” Sawwan said. “It is about preserving the narrative.”

Hear what the first Koblenz verdict meant to one Syrian who was in court that day.

Meanwhile, the producers of Branch 251 would love for more people to get involved. 

Podcast founder Streiff said their work “shows that there are creative ways to try to communicate complex and technical legal matters to interested listeners beyond the more traditional formats… I think there is a lot of potential, not just with podcasting as a tool, but also in other forms of modern communication like social media.”

Even if the number of official listeners inside Syria is low, Branch 251 believes it is reaching Syrians all over Europe and the Middle East – they’ve had plenty of positive feedback. 

And while Hamadeh continues to worry about the safety of whoever is downloading the episodes from inside Syria, she feels that – on the whole – reaching them is worth it. “I’m happy they are listening. It is sort of validating,” she said. “What we are doing is important, and it is reaching audiences that it is meant for. I find [the fact they are listening] very brave.”

Edited by Annie Slemrod.


Source link

Related Posts

Leave a Reply