[Prefatory Note: The post below is a much modified text of my responses to questions given to a Turkish journalist, Murat Sofuoglu, associated with TRT. The questions related to a German court decision that held a Syrian intelligence official guilty of aiding and abetting a crime against humanity. The case is significant because it asserts the legal authority of a national court to impose accountability when the territorial sovereign is itself the culprit and international tribunals lack the means to pursue those most responsible for the commission of the most serious international crimes. In this instance, Russia and China vetoed an attempt in the UN Security Council to authorize allegations against Syria.]
A German Court Punishes An International Crime Committed in Syria
- What is your legal assessment of the case against the Syrian intelligence member in Germany?
This is a notable case because it invokes international criminal law to punish a Syrian accused of aiding and abetting crimes against humanity in Syria while working as an intelligence officer for the Damascus government. The German court in the city of Koblenz found Eyad al-Ghraib guilty as charged, imposing a prison sentence of 4.5 years. His alleged crime was to continue detaining opponents of the Damascus government in 2011 after he had knowledge that once delivered them to the al-Khatib Prison (also known as Branch 201) they would face torture. The exercise of such legal authority by a national court in Germany, punishing a Syrian acting in Syria under governmental authority has been hailed a landmark decision in the struggle to extend accountability for international crimes beyond what can be done by way of international tribunals such as the International Criminal Court in The Hague. Such a decision is particularly welcomed in the Syrian context where there have long been extensive proof of widespread torture and other abusive behavior, millions of Syrians had fled abroad after being victimized, and international judicial redress was unavailable. For many human rights activists the German decision came as a kind of deliverance from a long dark night, and the use of Universal Jurisdiction was applauded as filling, at least symbolically, the accountability gap.
Less noticed so far, however, was a certain moral complexity in the case. The accused individual did not contest the use of torture in the prison or deny his knowledge of what was occurring, but claimed that he was acting on orders from his superior in the Syrian intelligence service and was threatened with death to himself and his family if he refused to deliver 30 detainees to the prison. Beyond this al-Ghraib failed to carry out order to shoot the demonstrators, and later defected, becoming himself so endangered in Syria that he became a refugee. Aside from the testimony of Syrian refugees, the most persuasive evidence against al-Ghraib apparently came from information he gave German immigration authorities at the time he applied for asylum in Germany. Did not the court act over-zealously under these circumstances? The lawyer for the defense has indicated an appeal, but apparently not to the verdict, but to the harshness of the sentence. The judge, Anna Kerber, was reported to have condemned the specific acts associated with the prosecution with a broader reliance on torture as itself part of ‘a system of torture. This sense of the wider and deeper setting of al-Ghraib’s actions led human rights experts and the Syrian refugee community to welcome the decision, but insist that the punishment was too lenient. There are difficult moral judgments to be made. This defendant was faced with a tragic dilemma, and he was a person who was not a policymaker but a cog in the wheel. When those that put these policies into operation are beyond reach does it make sense to punish those near the bottom of the bureaucratic hierarchy?’
There is a parallel case in the same court against another more senior Syrian intelligence official, Anwar Raslan, who is accused of committing a Crime Against Humanity consisting of supervising the torture of 4,000 Syrian detainees, leading to the death of 58 persons. The case is more serious and complex, and no decision is expected until October. Raslan more than al-Ghraib was in a responsible position carrying out official policies, and seeming less deserving of a certain degree of empathy. It is not known why Raslan left Syria or arranged entry to Germany.
This far reaching legal authority, known as Universal Jurisdiction, means that anyone who enters a foreign country could be accused of committing an international crime in another country, provided sufficient evidence was presented to justify prosecution and conviction. It was also necessary to be able to bring the accused perpetrator physically before the court , requiring that he was either present in the prosecuting country or could be extradited from a third country. Al Ghraib defected from Syria in 2012. He initially entered Turkey and then Greece as a refugee, eventually entering Germany in 2018 as an asylum seeker. A year later he was recognized by other Syrian refugees who were victims of the 2011 torture experience in the Damascus prison, and the prosecution was launched.
Such an assertion of legal authority generally presupposes that a country’s legislation criminalizes certain specified forms of behavior such as genocide, war crimes and crimes against humanity. The judicial exercise of Universal Jurisdiction rests on the international behavior being prosecuted having been incorporated as a crime in the national legal system of the country. This German decision deserves our attention because it is the first time that such a claim has been internationally prosecuted in relation to the widespread pattern of criminality attributed to the Syrian Government in responding to the popular uprising that began in 2011 in the context of the Arab Spring. Some 30 years earlier Spanish courts claimed a limited authority to prosecute individuals accuses of international crimes committed in Chile.
There was a prominent American case, Filitaria v. Pena-Irala, in 1980 which awarded large damages for acts of torture carried out in Chile against a non-American victim. Unlike this Al Gharib case, Filitaria, was a tort claim, not a criminal prosecution, but it posited the same kind of extra-territorial claim of authority to apply the law of one country to wrongful acts performed in a foreign country so as to uphold a grievance of the harmed individual even if a non-national.
- How could the case affect other potential prosecutions across the world against Syrian government officials?
The decision of this German court provides a legal precedent for similar prosecutions, provided evidence is available, the defendant can be brought before the court, and the nation legal system endorses the practice of Universal Jurisdiction. Democratic countries generally vest such legal authority in their national courts. It is easy to understand that the widespread application of such claims resting on Universal Jurisdiction, while a victory for criminal accountability, could seriously hamper travel, tourism, commercial relations, and even diplomatic relations, and hence is both controversial and subject to abuse. It was reported at various times that such public figures as Henry Kissinger and the former Israeli Foreign Minister, Tzipi Livni, were warned by their governments or lawyers not to travel to certain West European countries because they might be subject to arrest on the basis of accusations of war crimes, and subject to detention or extradition. A much publicized case in 1998-99 involved a Spanish request of extradition of the former Chilean dictator, Augusto Pinochet, present in the UK for medical treatment. If extradited, Pinochet faced charged in Spain for his role in presiding over the torture of numerous political prisoners in Chile during his time as president of the country.
It is possible that in light of this German precedent that future legal arguments will be made that Universal Jurisdiction is globally applicable even without criminalization by law at the national level. If this happens, more cases could be launched as there exist many grievances against international crimes throughout the world. Of course, more is needed than an allegation. There must be a legally valid way of bringing the accused individual before the national court, and the prosecuting entity must possess sufficient evidence to produce a guilty verdict. Such legal events would give rise to frictions in the diplomatic relations between states, and could intensify tensions and conflict, but they also hold out hope that new limits on territorial impunity could be achieved, accountability for international crimes extended, and to some extent recourse to criminal forms of governance could be to some extent deterred.
- Do you find the verdict as a historic decision in a legal sense?
The decision does provide a potential path to greater accountability for international criminal activity in situations where the government of the country where the actions took place is unwilling or unable to prosecute and no international tribunal or punitive remedy is available. It remains to be seen whether the follow up to the German decision creates a trend or is but an
Isolated instance. The lawyer of the loser in the Ghraib case has indicated that the decision will be appealed. Should the decision be reversed the outcome will be quickly forgotten. If not, then a lot depends on whether other law suits of a similar kind go forward, and are successful.
There is a second case being litigated in German courts, but apparently several months from reaching the decision stage. It involves allegations against Anwar Raslan, a more senior prison official in Syria, who is charged with Crimes Against Humanity, which included involvement in the murder of 58 prisoners and the torture of another 4,000. If the Raslan case reaches a similar conclusion to the Ghraib case it will definitely create an international stir, but it could be a backlash involving the repudiation of Universal Jurisdiction. It could with the help of extradition greatly strengthen procedures of accountability in relation to serious international crimes.
It should be remembered that it is somewhat unusual for the perpetrator, as was the story with Ghraib and Aslan, to have sought asylum in a country whose government had opposed the Syrian response to the post-2011 challenge to its leadership of the country. With more than four million Syrian refugees in Turkey it seems likely that if UJ is available cases would be forthcoming.
Global Justice in the 21st Century 
Is Israel an Apartheid State?
26 Mar[Prefatory Note: This post was originally published on March 22, 2017 by The Nation under the title “The Inside Story of Our UN Report Calling Israel an Apartheid State,” the text of which can be found at this link: https://www.thenation.com/article/the-inside-story-on-our-un-report-calling-israel-an-apartheid-state/ What is below is somewhat modified.]
Is Israel an Apartheid State?
Six months ago, the UN’s Economic and Social Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study examining the applicability of the international criminal law concept of apartheid to Israel’s policies and practices toward the Palestinian people. We were glad to accept the assignment, and conceived of our role as engaging in an academic undertaking. ESCWA, one of several UN regional commissions, requested the study as a result of an uncontested motion adopted by its 18 Arab member governments.
Almost within hours of its release on March 15, our report [bearing the title “Israel’s Practices Toward the Palestinian People and the Question of Apartheid”] was greeted by what can only be described as hysteria and derision. The newly appointed US ambassador to the UN, Nikki Haley, denounced the report and demanded that the UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly and publicly called for ESCWA to withdraw the report from its website, and when Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather than comply, Khalaf resigned, explaining her reasons in a gracious, principled letter to the Secretary General, an eloquent expression of public conscience that is itself extremely rare in UN experience and worthy of the most favorable notice and commentary. [for text of letter see Soon thereafter, the report was withdrawn from the commission’s website, despite containing a very clear disclaimer at its outset noting that the report represents the views of its authors and not necessarily that of ESCWA or the UN.
What is striking about this pattern of action and reaction, which resembles in many respects the US government response to the Goldstone Report (the UN Fact-Finding Mission on the Gaza Conflict of 2008-9), is the degree to which Israel’s officials and supporters, in response to criticism, have sought to discredit and wound the messenger rather than address the message by offering a detailed substantive explanation and defense. Each time such a technique succeeds in this mission of discrediting, wounding, and diverting attention the role of the UN as a promoter of the public good is weakened, and the Organization becomes rather an instrument by which dominant geopolitical forces assert their will at the expense of truth, reason, and human wellbeing.
Virginia Tilley, a professor of political science at Southern Illinois University Carbondale and a leading world expert on apartheid, and I, as well as ESCWA, would welcome substantive discussion and critical feedback, and we had hoped that our analysis and conclusions would provide the basis for debate, dialogue, and further consideration of the recommendations appended at the end. ESCWA, for its part, took steps to ensure that the report lived up to scholarly standards, submitting the draft text to three prominent international jurists, who had been anonymously solicited to offer objective vetting. Each submitted a strong positive appraisal along with suggestions for revision, which we gratefully incorporated before the final text was released. Against this background, it is irresponsible for government officials and others to dismiss our report as a biased polemic, and to do so damages the authority of the UN and respect for international law.
It is also misleading to do what the American and Israeli diplomats did, as well as the media– treating this study as if a report officially endorsed by the UN. Such treatment overlooks the disclaimer on the opening page of the report, which clearly states that the analysis and interpretations presented are those of the authors alone, and are not to be attributed to the UN. In effect, it is a document initiated by a UN agency, appraised for quality by reference to scholarly standards, but not adopted nor even endorsed at this point, although this might happen in the future, a step we as authors would welcome.
During my tenure as the UN’s Special Rapporteur on human rights in the occupied Palestinian territories (2008-14), I witnessed how defenders of Israel attempted to discredit critics. My reports in that post often included sharp criticisms of Israel and other actors, ranging across various topics including defiance of international law, unlawful expansion of settlements, excessive use of force, and complicity of international corporations and banks that do business for profit with the settlements, and others. To my surprise, I never received substantive pushback regarding these specific allegations, but I did have the unpleasant experience of having my words on completely unrelated issues torn out of context, and brought to the attention of UN high officials and important diplomats representing member states. Among my harshest critics were not only the usual ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I mention this personal experience only to note that it falls into a longstanding pattern of diversionary rebuttal that prefers to smear rather than engage in reasoned debate about the important issues of law and justice at stake.
The international crime of apartheid was authoritatively specified in the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid. The main elements of the crime consist of deliberate and systematic acts of racial discrimination with the purpose of maintaining unlawful structures of racial domination, that is, a dominant race subjugating another race. Our report also considered whether, in the context of inquiring into the presence of apartheid, it was appropriate to consider Jews and Palestinians as distinct races; we found that there were abundant grounds for doing so. As our report shows, “race” in this legal context is treated as a socially and politically constructed category developed to identify a distinct people. It has no necessary correlation with biogenetic realities, which in this case actually shows an overlap between Jews and Palestinians.
Even Palestinian citizens of Israel, who can vote and form political parties, are subject to many discriminatory laws that impair security and the quality of life. The report also proceeds from the proposition that whether apartheid exists or not depends on the overall treatment of the Palestinian people as a whole, and not by accepting the fragmentation that has been imposed by Israel. Adopting what we believe to be an innovative methodology, we approached this challenge by dividing the Palestinians into four domains that correspond to the manner in which Israel has exercises its authority over the course of many decades, although the specific tactics of control vary through time. In the past, a thorough study by international law scholars found that Israel’s practices in the occupied Palestinian territories are consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in the occupied Palestinian territories [Pluto: London, 2012]. It called attention to the discriminatory treatment of Palestinians, who are subject to military administration as compared to the Jewish settler population, which enjoys the full benefit of the rule of law as it is observed in Israel in relation to Jewish nationals. That study found that “settler-only roads,” dual legal systems, and the draconian separation of the two populations into regions on the basis of race hallmarks of apartheid. Repressive practices that have made the lives of ordinary Palestinians a daily ordeal are a core dimension of this racially organized system of control. It should be also noted that according to preferred readings of international law, penalizing and criminalizing nonviolent forms of resistance to apartheid itself constitutes the crime of apartheid.
A second domain investigated in the report involves Palestinians who are residents of Jerusalem. Here the apartheid character of Israeli rule is exhibited in the way the government of Israel severely undermines the human security of Palestinians living in Jerusalem, manipulating their rights of residence as well as imposing a variety of discriminatory practices, ranging from fiscal measures, demolitions, to the arbitrary withholding of building permits.
The third domain deals with the Palestinian minority living in Israel, perhaps the most problematic component in terms of establishing a definition of apartheid that encompasses the entire Palestinian population. In this category are some 1.7 million citizens of Israel, who are allowed to form political parties and vote in elections. But this minority, which makes up about 20 percent of the overall Israeli population, is prohibited by law from challenging the proclaimed Jewish character of the state and is subject to a wide range of discriminatory nationality laws as well as administrative practices that severely restrict their rights, with effects on land acquisition, property, immigration, family reunification, and marital freedom.
International law has detached apartheid from its South African origins; it’s now a stand-alone crime against humanity that does not stand or fall by whether it contains similar features to those that constituted the apartheid regime in South Africa.
A fourth domain, and the one affecting the largest demographic segment, is made up of Palestinians registered as refugees by UN procedures or living under conditions of involuntary exile. In the background is Israel’s rejection of UN General Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed or displaced by Israel in 1948 enjoy a right of return. General Assembly Resolution 3236 declares this right of return or repatriation to be an “inalienable right,” which thus presumably incorporates those additional several hundred thousand Palestinians later displaced by the 1967 war. As far as is known, no Palestinian displaced since the establishment of Israel in 1948 has been granted a right of return to resume residence.
The report argues that the crime of apartheid has been detached from its historical origins in South Africa. Neither the 1973 Convention nor the 1998 Rome Statute underlying the International Criminal Court ties apartheid to South Africa, but rather treats its practice as a stand-alone crime against humanity. Thus, there are important differences between the way apartheid operated in South Africa and the way it is currently being imposed on the Palestinians, but these differences are not relevant to the question of whether it fairly and accurately applies to Israel. One notable difference is that in South Africa the Afrikaner leadership forthrightly proclaimed apartheid as a reflection of its ideological belief in the separation of races, whereas for Israel such a structure of separation on the basis of race is denied and repudiated, and its attribution is treated as an inflammatory insult. There are other differences as well, relating to degrees of labor dependence and the demographic ratio between Jews and Palestinians.
This quasi-permanent structure of domination cannot be justified or explained by reference to Israel’s legitimate security needs.
Our report concludes that Israel has deliberately fragmented the Palestinian people in relation to these four demographic domains, relying on systematic discrimination, including “inhuman acts,” primarily to maintain its control and render resistance more difficult, while continuing to expand territorially at the expense of prospects for Palestinian self-determination. On the basis of these findings—backed up by detailed presentations of empirical data, including reliance on Israeli official sources—we conclude that the allegation of apartheid as applied to the Palestinian people is well founded and descriptive of the present situation, more so than the terminology of occupation.
As earlier suggested, we are keenly aware that our report is the work of academic investigators and does not represent an authoritative finding of apartheid by a formal judicial or governmental institution. As mentioned—contrary to media coverage and diplomatic denunciations—the report has never been endorsed or accepted by the UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN, national governments, and civil society to take measures designed to encourage Israel to dismantle its apartheid regime and treat the Palestinian people in accord with the dictates of international law and human rights, as well as elementary morality.
The broader setting associated with our contention that Israel has become an apartheid state draws on the reality that there is no peaceful resolution to the conflict on the diplomatic horizon, and thus no foreseeable prospect for ending the discriminatory regime and the attendant suffering of the Palestinian people. This quasi-permanent structure of domination cannot be justified indefinitely by invoking Israeli security needs, which are themselves partly created by the unwillingness of Israel to respect Palestinian rights under international law. A people cannot be permanently repressed in by military force and administrative coercion ways without viewing the structure that has emerged as an apartheid regime. Indeed, part of the reason for not awaiting a more formal assessment of these charges of apartheid is our sense of urgency in ending a set of arrangements that have for so long been responsible for so much suffering and denial of basic rights, above all the right of self-determination.
It remains our central hope, one shared with ESCWA, that the widespread availability of this report will lead to a clearer understanding of the Palestinian plight and encourage more effective responses by the UN, by governments, and by civil society. Beyond this, it is our continuing wish that people of good will throughout the world, especially within Israel, will work toward a political solution that will finally allow Jews and Palestinians to live together in peace, with justice.
Tags: apartheid, Apartheid Convention, ESCWA, Gutteres, international crime, Israel, Palestinian people, racism, Rima Khalaf, South Africa