ECLI:NL:GHDHA:2025:3116

Start of the 26Vescher investigation

The criminal investigation against the defendant was initiated following e-mails sent on 2 October 2020 addressed to the International Crimes Team of the National Police Unit . The e-mails indicated that the defendant was residing in the Netherlands, that he was allegedly a member of the armed group Liwa al-Quds in the Palestinian camp of al-Nayrab located near Aleppo (Syria), and that he was allegedly involved in (international) crimes in that capacity. The defendant was investigated within the present criminal investigation entitled ‘26Vescher’. The police arrested the defendant in the Netherlands on 24 May 2022.

Brief summary of the criminal proceedings

The offences charged should be considered against the background of the situation in Syria from 2011 to 2017, during which period the regime of former president Bashar al-Assad used extreme violence against its own civilian population in response to the uprising demanding reforms and in an attempt to remain in power. An armed conflict broke out between the Assad regime and the opposition, that lasted for years.

The defendant is charged first and foremost with having been a leader of the pro-regime militia Liwa al-Quds and one or more shabiha groups, which are both criminal organisations, in Syria in the period from 2011 to 2017. These organisations ensured that opponents of the Assad regime were suppressed in various gruesome ways. When considered from a legal perspective, the aim of these organisations was the commission of various international crimes, such as violence to person, arbitrary detention and pillaging as war crimes and unlawful deprivation of liberty as crime against humanity.

In addition, the defendant, as a member of Liwa al-Quds, is charged for his involvement in the unlawful deprivation of the liberty of [victim] (hereinafter: [victim]) towards the end of January 2013 in the Al-Nayrab camp during which [victim] was removed in the middle of the night under duress and with brute force and for his involvement in the subsequent torture both as an isolated crime and as a crime against humanity of [victim] in a AFID prison in Aleppo. At this prison, the victim was allegedly electrocuted, beaten on the soles of his feet until he lost all feeling, struck on the head with a stick, denied medication and medical care, and threatened with summary execution. He stayed there together with other persons in degrading and wretched circumstances. Eventually, he was released after 20 days.

Before that time [victim] lived at the Al-Nayrab camp that was set up in 1948-1950 for refugees from Northern Palestine. He lived there since 1956 until he left Syria in December 2013. At the time, [victim] was an outspoken opponent of arming the camp’s residents, especially the youth, for the armed conflict between the opposition and the Assad regime, and of involving (the residents of) the camp in that struggle. He spoke out against this together with others from a Neighbourhood Improvement Committee they had established.

Succinct outline of the charges

Briefly summarised, the defendant is charged on appeal of having committed the following four criminal offences (whereby the numbering of the indictment is followed below):

Spelling of persons and locations

The relevant persons and locations in the file are spelled in different ways. As in the verdict of the District Court, an overview of several of these different spellings is provided below and it is indicated to whom and to which location reference is made. In this judgment, the latter spelling is consistently used to refer to the person in question.

Reader's guide

The Court of Appeal has issued an extensive judgment in this case. Therefore, the Court of Appeal has divided the ruling into different chapters, which are presented in a table of contents.

The structure of the judgment broadly is as follows. First several formalities will be addressed, such as the admissibility of the appeals lodged by the defendant and by the Public Prosecutor on appeal (the advocate general), and the validity of the summons.

Next, an overview is provided of all legal frameworks regarding issues relevant to this case; these are bundled into one chapter.

Subsequently, factual findings are made regarding the charge of participation in a criminal organisation under Count 7, after which the Court of Appeal will immediately give a substantive judgment on whether that charge can be proven. In this section, the Court of Appeal will also address the various substantiated positions of both parties. The Court of Appeal follows the same approach in its considerations regarding Counts 1, 2 and 3, which concern the crimes against humanity of unlawful deprivation of liberty and torture, and the crime of torture as an isolated act.

Finally, the Court of Appeal will address inter alia the culpability of the defendant, the sentence and its justification, and the victim’s claim for compensation.

This judgment was rendered following the hearing in first instance and the hearing on appeal before this Court on 11 and 12 June 2025. The examination at the appellate hearing was closed on 13 August 2025.

The Court of Appeal took note of the request of the Advocates General and the matters put forward by the defendant, his Defence Counsel A.M. Seebregts, LLM and N.F. Christiansen LLM, and B. van Straaten LLM, the lawyer of the injured party [victim].

In the first instance proceedings, the charges set out in Counts 1 and 3 of the indictment were declared partially void. Furthermore, the defendant was acquitted of the charges under Counts 4, 5 and 6convicted of the charges under Counts 1, 2, 3 and 7, and sentenced to a term of imprisonment for the duration of twelve years with credit for time served in pre-trial detention. The claim of the injured party was declared inadmissible, as further specified in the contested judgment.

An appeal was lodged against the trial judgment on behalf of the defendant and by the Public Prosecutor.

The defendant was acquitted in first instance of the charges brought against him under Counts 4, 5 and 6 of the indictment. The appeal was lodged on behalf of the defendant without limitation and is therefore also directed against the decisions of acquittal rendered in first instance. However, in view of Article 404, paragraph five, of the Dutch Code of Criminal Procedure (DCCP), the defendant cannot lodge an appeal against these decisions. The Court of Appeal will therefore declare the appeal lodged by the defendant inadmissible insofar as it is directed against the acquittals pronounced in the contested judgment.

Furthermore, the Defence has primarily taken the position that the defendant is inadmissible in his appeal against the acquittal of the special intent of arbitrary deprivation of liberty as a war crime. The Defence contends that Count 7 is an (implicitly) cumulative charge, while only the defendant has appealed against the acquittal regarding this part of Count 7, thus making it a so-called protected acquittal.

The Advocates General have taken the position that Count 7 is to be addressed in full on appeal.

The Court of Appeal rejects the Defence’s submission and considers as follows.

The indictment is based on Article 140 of the Dutch Criminal Code (hereinafter: DCC), in Title V of Book 2 (“Crimes against public order”).

The Court of Appeal is of the opinion that the charged participation (as leader) in this criminal organisation must be regarded as a single offence and that therefore the entire indictment relating to this charge falls within the court’s assessment. The Court of Appeal has taken into account that the interest protected by the criminalisation in Article 140 DCC is primarily public order, and that the indictment includes a single violation of Article 140 DCC, despite the distinct crimes to which the organisation’s intent was directed. The Court of Appeal has also taken into account that this concerns a criminal offence that may relate to a multitude of acts over a certain period involving different crimes to which the intent was directed, but that this does not imply that a conviction thereof leads to multiple qualifications of that offence (cf. Supreme Court 8 April 2025, ECLI:NL:HR:2025:535 and Supreme Court 20 June 2017, ECLI:NL:HR:2017:1113).

After the resumption of the appeal proceedings on 26 May 2025, the Advocates General requested at the hearing of 11 June 2025 that the appeal of the Public Prosecution Service lodged against the acquittals of the charges under Counts 4, 5 and 6 be declared inadmissible. The Court of Appeal understands this to mean that there are no (longer) grievances against the decisions relating to the offences charged under Counts 4, 5 and 6. The Court of Appeal also sees no reason, ex officio, to substantively examine of these charges on appeal. Pursuant to article 416, paragraph 2, DCCP, the appeal of the Public Prosecutor is declared inadmissible insofar as it is directed against the acquittals rendered in the contested judgment.

Where reference is made hereinafter to “the case” or “the judgment”, this refers to the case or judgment insofar as it is subject to the verdict of this Court on the basis of the foregoing.

The defendant is charged - after amendment of the description of the indictment pursuant to Article 314a of the Dutch Code of Criminal Procedure and insofar as subject to the judgment of the Court of Appeal – with the following:

1.

that he, the defendant, on or about 28 January 2013, or at any rate at a time in or about the month of January 2013, alternatively at a time in or about the month of January 2012, in Al-Nayrab, or at any rate in Syria, together and in concert with another or others, or at any rate alone, deprived a person, namely [victim], of his physical liberty in violation of fundamental rules of international law, which deprivation of physical liberty consisted of the fact that he, the defendant, in his capacity as a member of the pro-regime militia Liwa al-Quds and/or one or more shabiha group(s) from the Al-Nayrab camp, and/or one or more co-perpetrator(s), stood guard in front of the house of this [victim], and thereby prevented possible assistance from third parties, while this [victim] was being forcibly removed from his home and/or forced into a vehicle by other members of the Liwa al-Quds militia and/or one or more shabiha group(s) from the Al-Nayrab camp and/or the military security service and/or the intelligence service of the Syrian Air Force, while this deprivation of physical liberty was committed as part of a widespread and/or systematic attack directed against a civilian population, while he, the defendant, knew that these acts were part of a widespread and/or systematic attack carried out by the Syrian intelligence apparatus and/or the Syrian army and/or pro-regime militias against the Syrian civilian population;

Alternatively:

one or more members of the Liwa al-Quds militia and/or (a) shabiha group(s) from the Al-Nayrab camp and/or the military intelligence service and/or the intelligence service of the Syrian air force on or about 28 January 2013, or at any rate at a time in or about the month of January 2013, or alternatively at a time in or about the month of January 2012, in Al-Nayrab, or at any rate in Syria, jointly and in conjunction with others, or at any rate alone, deprived a person, namely [victim], of his physical liberty in violation of fundamental rules of international law, which deprivation of physical liberty consisted of the aforementioned person(s) forcibly removing this [victim] from his home and/or forcing him into a vehicle,

for the purpose of and/or during the commission of this/these crimes, he, the defendant, on or about 28 January 2013, or at any rate in or about the month of January 2012, in Al-Nayrab, or at any rate in Syria, intentionally provided the opportunity and/or means and/or information and/or intentionally assisted, by, in the capacity of member of the pro-regime militia Liwa al-Quds and/or (a) shabiha group(s) from the Al-Nayrab camp, standing guard in front of the house of [victim], and thereby preventing possible assistance by (a) third party/parties, while he, the defendant, knew or was aware of the substantial likelihood that this [victim] would thereby be exposed to deprivation of his physical liberty, while this deprivation of physical liberty was committed as part of a widespread and/or systematic attack directed against a civilian population, while he, the defendant, knew that these acts were part of a widespread and/or systematic attack carried out by the Syrian intelligence apparatus and/or the Syrian army and/or pro-regime militias against the Syrian civilian population;

2.

one or more employee(s) of the (prison of the intelligence service of the Syrian Air Force, or alternatively one or more person(s) acting on behalf of the Syrian government, acting in the exercise of his/their duties, at one or more times in or about the period from 28 January 2013 up to and including 1 March 2013, or alternatively the period from 28 January 2012 up to and including 1 March 2012, in Aleppo, or at any rate in Syria, together and in concert with another or others, or at any rate alone, tortured a person, namely [victim], on multiple occasions, or at least once, which torture, as an isolated crime, consisted of the aforementioned person(s) inflicting (each time) severe pain or severe suffering upon [victim], whether physically and/or mentally, while [victim] was in the custody and/or under the control of the aforementioned person(s), (each time) for the purpose of punishing [victim] for an act had he committed and/or to obtain (a) confession(s) from him and/or to intimidate him, committed by or on behalf of a government authority, by, then and there, striking [victim] with a stick, or at any rate a hard object, on his bare feet and/or his head, and/or repeatedly, or at least once, kicking him in the side and/or back, and/or committing (an)other act(s) of violence, and/or threatening him with death by saying the following words: “You will go back home in pieces, we will chop you into pieces” and/or “You will be summarily tried”, or at any rate words to that effect, and/or committing (an)other act(s) that intentionally inflicting severe pain or severe suffering,

for the purpose of and/or during the commission of this crime/these crimes, he, the defendant, on or about 28 January 2013, at any rate in or about the month of January 2013, or alternatively in or about the month of January 2012, in Al-Nayrab and/or Aleppo, at any rate in Syria, intentionally provided the opportunity and/or means and/or information and/or intentionally assisted, by transferring this [victim], after having deprived him of his physical liberty in violation of fundamental rules of international law, together and in concert with (an)other(s) to the intelligence service of the Syrian Air Force, or alternatively to one more person(s) working in the service of the Syrian government, while he knew or was aware of the substantial likelihood that this [victim] would thereby be exposed to torture within the meaning of Article 8 ICA;

3.

one or more employee(s) of the (prison of the) intelligence service of the Syrian Air Force, and/or one or more member(s) of Liwa al-Quds and/or one or more member(s) of (a) shabiha group(s) from the Al-Nayrab camp and/or (an)other person(s) acting on behalf of the Syrian government, at one or more times in or about the period from 28 January 2013 up to and including 1 March 2013, or alternatively the period from 28 January 2012 up to and including 1 March 2012, in Aleppo, at any rate in Syria, together and in concert with (an)other(s), at any rate alone, tortured a person, namely [victim], which torture consisted in that the aforementioned person(s) repeatedly at least once, striking [victim] with a stick, or at any rate a hard object, on his bare feet and/or his head, and/or repeatedly, or at least once, kicking him in the side and/or back, and/or committing (an)other act(s) of violence, and/or threatening him with death by saying the following words: “You will go back home in pieces, we will chop you into pieces” and/or “You will be summarily tried”, or at any rate words to that effect,

for the purpose of and/or during the commission of this crime/these crimes, he, the defendant, on or about 28 January 2013, or alternatively in or about the month of January 2012, in Al-Nayrab and/or Aleppo, at any rate in Syria, intentionally provided the opportunity and/or means and/or information and/or intentionally assisted, by transferring this [victim], after having deprived him of his physical liberty in violation of fundamental rules of international law, to the intelligence service of the Syrian Air Force, while he, the defendant, knew or was aware of the substantial likelihood that this [victim] would thereby be exposed to torture, while this torture was part of a widespread and/or systematic attack directed against a civilian population, while he, the defendant, knew that these acts were part of a widespread and/or systematic attack carried out by the Syrian intelligence apparatus and/or the Syrian army and/or pro-regime militias against the Syrian civilian population;

7.

he, on one or more occasions in or about the period from 1 January 2012 up to and including 31 December 2017, in Al-Nayrab and/or Aleppo and/or Khanassar and/or Eastern Ghouta, or at any rate in Syria, participated in (an) organisation(s), namely (a) shabiha group(s) from the Al-Nayrab camp and/or the pro-regime militia Liwa al-Quds, to which in any event the defendant and/or (an)other person(s) belonged, which organisation(s) (each) had the objective of committing international crimes, namely:

and/or

while he, the defendant, was the leader and/or founder and/or administrator.

The Advocates Geneal have requested that the judgment under appeal be overturned and that the defendant be sentenced to a term of imprisonment for a duration of 15 years for the offences charged under Counts 1, 2, 3 and 7.

The judgment under appeal cannot be upheld because the Court of Appeal does not concur with it in all respects. However, the Court of Appeal has incorporated parts of the judgment under appeal into this ruling.

At the hearing on appeal, the Defence took the position that the summons should be declared null and void with regard to the phrases charged under Count 7: “and/or other war crimes”, “and/or other crimes against humanity” and “the commission of violence to person as a war crime”. To this end, the Defence argued – following the District Court – that these phrases do not meet the requirements of Article 261 DCCP, given the nature of the wording and the scope of the case file. The defendant cannot be expected to adequately defend himself against these phrases, according to the Defence.

At the hearing on appeal, the Advocates Geneal endorsed the Defence’s position regarding the phrases “and/or other war crimes” and “and/or other crimes against humanity” charged under Count 7. With regard to the phrase “the commission of violence against person as a war crime”, they argued that the Defence’s objection should be rejected.

The Court of Appeal agrees with the Advocates Geneal and the Defence that the summons must be declared null and void with respect to the phrases “and/or other war crimes” and “and/or other crimes against humanity” charged under Count 7.

With regard to the phrase of “the commission of violence to person as a war crime”, the Court of Appeal considers the following.

The Court of Appeal notes at the outset that Article 261(1) DCCP requires the summons to contain a specification of the facts charged, insofar as relevant. This concerns a concrete act that must be described in a sufficiently factual and specific manner against the background of the case file.

When read against the background of the evidence contained in the case file, the Court of Appeal is of the opinion that the term “violence to person” has sufficient factual meaning, while it is sufficiently clear to the defendant on the basis thereof what he must defend himself against. The charge concerns participation in an organisation with the aforementioned intent, whereby it is sufficiently clear that, in the view of the Public Prosecution Service, Liwa al-Quds handed civilians over to the AFID who were then, as everyone knew, detained and tortured under deplorable conditions. Furthermore, the phrase “the commission of violence to person as a war crime” refers to Article 6(1)(a) of the ICA, in which cruel treatment and torture are expressly mentioned as examples of violence to person.

In the opinion of the Court of Appeal, the requirements laid down in in Article 261 DCCP have thereby been met.

Moreover, it is not required at all that the intent be described in further detail in the indictment (Supreme Court, 5 July 2022, ECLI:NL:HR:2022:969).

The Court of Appeal will declare the summons partially void with regard to the charge under Count 7; for the remainder, the summons is valid.

In this case, various legal questions arise, including those of an international nature. For the sake of readability of the judgment, the Court of Appeal will set out all relevant legal frameworks in this chapter. Where necessary, the Court of Appeal will refer back on these frameworks when assessing the facts.

Non-international armed conflict

To determine whether a criminal organisation with the intent to commit war crimes (Count 7) can be found to exist, it must first be established whether international humanitarian law applies. This requires examining whether – given the wording of the indictment – a non-international armed conflict existed in Syria at the time relevant to the charges. An armed conflict is considered of a non-international nature when there is protracted armed violence between governmental authorities and organized armed groups or between such groups.

Such a conflict should also be distinguished from cases of internal disturbances and tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature. According to the established case-law of, inter alia, the International Criminal Court, this distinction must be made on the basis of two criteria, namely: 1) the intensity of the conflict; and 2) the degree of organisation of the parties involved.

Degree of intensity of the armed conflict

When assessing whether the armed conflict had already reached a sufficient degree of intensity at the time when the acts charged were committed, the following factors, among other, are relevant:

The intensity of the conflict and the protracted nature of the hostilities do not require fighting to take place continuously and entirely without interruption. In the absence of direct clashes during a certain period, the fact that a non-State party to the conflict had control over the part of the territory can be an indicator of the intensity of the conflict, as this demonstrates that the opposing party was unable or unwilling to challenge this territorial control.

Organised armed group

Whether an armed group qualifies as an “organised armed group” within the meaning Article 8(2)(f) of the Rome Statute, may be determined, inter alia, on the basis of the following factors:

It follows from international case-law that this assessment must be carried out in a holistic manner, on a case-by-case basis, taking into account the specific context of the case and all the facts established on credible and reliable evidence. There is no exhaustive list of mandatory criteria that should be fulfilled in order to find that the organisation requirement is met. Furthermore, the fact that one or more criteria have not been met, does not necessarily mean that an armed group did not possess the required level of organisation.

It is not necessary to conduct a legal assessment of the degree of organisation of the national army as well, since the application of international humanitarian law to a potential situation of non-international armed conflict in which government forces are engaged, depends on the level of organisation of the party opposing the government and not the manner in which the government is organised.

Crimes against humanity

The indictment focuses inter alia on the crimes against humanity of torture, unlawful deprivation of liberty (offences 1 and 3) and participation in a criminal organisation with the intent of committing crimes against humanity (offence 7). In light of the foregoing, an explanation of the contextual elements of crimes against humanity will be provided below.

Article 4(1) of the International Crimes Act (hereinafter: ICA) contains the criminalisation of crimes against humanity. Article 4(1) ICA reads – insofar as relevant to the present case – as follows:

“Anyone who commits one of the following acts, when carried out as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack, shall be punished with life imprisonment or a term of imprisonment not exceeding thirty years, or a fine of the sixth category: (…)

Furthermore, Article 4(2)(a) ICA explains what is meant by “attack directed against any civilian population”, namely “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack”.

Crimes against humanity differ from ordinary crimes due to the so-called contextual requirements that the specific underlying crime must be part of a widespread or systematic attack against the civilian population, whereby the perpetrator has knowledge of the attack. These requirements form the necessary framework within which the acts of the defendant must be assessed.

A brief legal explanation of the elements of crimes against humanity is provided below.

Contextual elements of crimes against humanity

The contextual elements of crimes against humanity are:

The attack – which does not necessarily have to be of a military nature – must be directed against civilians, i.e. non-combatants. Civilians must be the primary target of the attack, whereby it suffices that the population is of a predominately civilian nature. Although it must concern a large group of persons – as these are crimes of a collective nature – it is not required that the entire population is affected. The conduct that forms part of the attack does not necessarily require the use of armed violence, it may also involve large-scale human rights violations. Furthermore, an attack need not consist of the same type of conduct directed at the protection of the same legal interest.

(ii) The policy of the state or organisation

Article 4(2) ICA stipulates that the attack must be carried out pursuant to or in furtherance of a State or organisational policy to commit such attack. According to Elements of Crimes, this means that the state or organisation actively promotes or encourages such attack against the civilian population. In exception circumstances, such a policy may also be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.

This element does not coincide with the concept of a systematic attack (see under iii); although under certain circumstances there may be a certain degree of factual coherence or overlap.

(iii) a widespread or systematic attack directed against a civilian population;

The attack must have a widespread or systematic character. Widespread refers to the large-scale nature of the attack and the high number of victims. Systematic refers to the existence of a certain pattern of crimes or a plan or policy. Only the attack must be widespread or systematic in nature. These requirements do not apply to the conduct of the defendant. A single act on the part of the defendant can be prosecuted. Furthermore, this is an alternative test concerns an alternative test, meaning either widespread or systematic.

(iv) a close link (nexus) between the act(s) of the defendant and the attack

The act(s) of the defendant must form part of the attack directed against the civilian population. The attack may consist of an accumulation of acts of violence, provided there is sufficient connection between the act(s) of the defendant and the attack. The acts performed by the defendant may, but do not have to be the same type of offence as those committed during the attack. When assessing such a nexus, due regard must be given to the characteristics, aims, nature and consequences of the acts carried out by the defendant.

According to the Elements of Crimes, it is by no means necessary that the defendant had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. Nor does the defendant need to share the criminal plan of the State or the organisation. Finally, it is not required either that the defendant intended his acts to form part of the attack directed against the civilian population.

Specific requirements regarding prohibited conduct in Article 4 ICA

“e. imprisonment or other severe deprivation of physical liberty”

Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law is criminalized as a crime against humanity under Article 4(1)(e) ICA.

To determine whether a person has been imprisoned or otherwise deprived of his or her liberty depends on the circumstances of each particular case, taking into account a range of factors including the type, duration, effects, and the manner of implementation of the measures allegedly amounting to deprivation of liberty.

Severe deprivation of physical liberty

Imprisonment refers to a form of formal detention in a closed institution (such as a prison), as opposed to severe deprivation of liberty which concerns various forms of restriction of the personal freedom of a person (such as in a camp, a house, or a ghetto). The addition of the language “other severe deprivation of physical liberty” to the concept of imprisonment aims to prevent forms of serious liberty deprivation that do not fall within the definition of imprisonment from being excluded from criminalization. According to the Court of Appeal, unlawful arrest or detention may, under certain circumstances, also be regarded as such (see below).

The severity of the deprivation of liberty must be determined based on the facts and circumstances of each case. Depending on the circumstances, the following factors are among others relevant:

The duration of the deprivation of liberty may play a role in determining whether the required severity is met, but it is not decisive. If the conditions under which the deprivation of liberty occurs or the (further) detention conditions are inhumane, cruel or degrading and/or the person is subjected to torture, ill-treatment or sexual violence, even a relatively short duration of the deprivation of liberty may be qualified as severe.

Furthermore, the circumstances under which the deprivation of liberty in the form of unlawful arrest took place may also be taken into account, such as the degree of physical force use, the threat of the such force and the victim’s awareness (and the resulting fear) that he would be detained without legal protection, as well as the knowledge of what awaited him, such as further detention to be subjected to torture or ill-treatment.

As becomes apparent from the Elements of Crimes, it is sufficient for the application of this provision that one person is detained.

In violation of fundamental rules of international law

The legal framework in this regard is a collection of fundamental rules of international law on this matter. According to Article 7(1)(e)(2) of the Elements of Crimes, fundamental rules of international law must have been violated in order to determine whether a deprivation of liberty was grave. The Explanatory Memorandum to the International Crimes Act also emphasises that the act can only be classified as a crime against humanity if it concerns unlawful forms of imprisonment or other severe deprivation of physical liberty.

Depending on the situation in which the deprivation of liberty occurs, the relevant provisions of international humanitarian law or international humanitarian rights treaties provide the relevant legal framework. In peacetime, for example, Articles 9, 10 and 11 of the Universal Declaration of Human Rights and Articles 9, 10, 11 and 14 of the International Covenant on Civil and Political Rights (hereinafter: ICCPR) apply in full. Similar provisions can also be found in regional human rights conventions, including Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) and Articles 14, 15 and 16 of the Arab Charter on Human Rights. During armed conflict, Articles 147 of the Fourth Geneva Convention and Articles 75 and 85(4)(e) of Additional Protocol I may also apply, or Articles 5 and 6 of Additional Protocol II, depending on whether it concerns an international or non-international armed conflict. In such situations, international humanitarian law serves as the lex specialis in relation to human rights treaties, which are the lex generalis.

Violation of fundamental rules of international law includes, in any event, the breach of fair trial rights during arrest or the deprivation of liberty. This includes the right to be informed promptly of the reason for arrest, the obligation on the part of the arresting authority to bring the person concerned promptly before a judge or competent authority, and the right to have the lawfulness of detention speedily examined by a Court. There may also be a violation if there is no legal basis for detaining or depriving a person of their liberty.

Finally, the defendant must have been aware of the factual circumstances that established the gravity of the conduct.

Torture as a crime against humanity

Article 4(1)(f) ICA includes the criminalization of torture as a crime against humanity.

Pursuant to Article 1(1)(d) ICA, torture in this context is defined as follows:

“torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person who is in the custody or under the control of the defendant; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”

What distinguishes torture from similar international crimes, such as cruel or inhumane treatment, is the level of severity of pain and suffering. Although there is no definition of the severity threshold, consistent international case-law shows that an important degree of pain and suffering has to be reached for a criminal act to amount to an act of torture.

In determining whether torture has occurred, the Court of Appeal will take inter alia the following factors into account:

Conditions imposed during detention such as beatings, sexual violence, prolonged denial of sleep or food, hygiene or medical care, as well as threats involving torture, rape or other crimes directed against the victim or their relatives, are considered sufficiently severe so as to amount to torture, in the form of severe physical or mental pain or suffering.

Exposing a person to the fear of, or threatening this person with death or execution can cause severe mental anguish or psychological suffering and/or trauma. Such mental suffering can also be caused when detainees are compelled to live in a constant atmosphere of fear and anxiety that they might be subjected to physical abuse, or even killed. This is particularly the case when detainees:

The defendant must have had intended the conduct – whether conditionally or otherwise – and it must be established that the victim endured severe pain or suffering as a result. serious pain or suffering on the part of the victim caused by these acts must be established. It is not necessary to demonstrate that the defendant knew that the harm inflicted was severe.

Moreover, the victim must have been in the custody or under the control of the person accused of torture. These concepts must be interpreted broadly. The term “custody” includes any form of detention or imprisonment, including arrests, other restrictions on liberty such as those used crowd control by security forces or enforced disappearances. The term “under the control of the defendant” refers to any other form of restraint by another, including enslavement.

Finally, torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. However, the mere fact that sanctions are accepted under domestic law does not necessarily make them lawful. International law prevails in this regard.

Torture as an isolated crime

The criminalisation of the crime of torture is included in Article 8 ICA. Prior to the entry into force of the International Crimes Act on 1 October 2003, torture was already criminalised in Article 1(1) of the Implementation Act of the Convention Against Torture (old). Article 20 ICA stipulates that this Act was repealed upon the entry into force of the ICA.

Unlike genocide, crimes against humanity, war crimes and aggression, torture is not included as a core international crime within the Rome Statute. Therefore, only limited guidance can be found in the Elements of Crimes for the further definition of this international crime.

Pursuant to Article 1(1)(e) ICA, torture is defined as follows:

“‘torture: torture as defined in Article 1(1)(d) – committed by or on behalf of a government official – of a person for such purposes as obtaining from him or a third party information or a confession, punishing him for an act he or a third party committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind;”

It follows from this definition that alignment was sought with the definition of torture in Article 1(1)(d) ICA, which in turn is based on Article 7(2)(e) of the Rome Statute (torture as a crime against humanity).

Although the definition of torture as an independent crime differs from the definitions of torture as a war crime and as a crime against humanity, the legislative history indicates that the same underlying conduct is assumed.

Unlike torture as a war crime or as a crime against humanity, torture as a crime in and of itself can also be prosecuted if it concerns incidental or isolated acts. After all, it is not required that torture be committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack (crime against humanity), nor does it have to be committed during an armed conflict (war crime).

Furthermore, torture requires two additional elements which lie in the fact that the conduct must have been committed by or on behalf of the government for a specific purpose.

This means that in order to qualify as torture, the following elements must be met:

Torture committed by or on behalf of the government

It follows from the definition of torture included in Article 1(1)(e) ICA that the torture must be committed by or on behalf of the government. Supplementary to this definition, Article 8 ICA includes an additional requirement regarding the capacity of the perpetrator.

Article 8 ICA reads as follows:

a. the public official or any other person working in the service of the government who, in the exercise of his duties, instigates torture by one of the means mentioned in Article 47, paragraph 1, under 2°, of the Dutch Criminal Code, or who intentionally allows another person to commit such torture;

b. He who commits torture, if a public official or any other person working in the service of the government, in the exercise of their duties, has instigated such torture by one of the means mentioned in Article 47, paragraph 1, under 2°, of the Dutch Criminal Code or has intentionally allowed such torture.

Torture is therefore a qualified offense. An essential characteristic of torture as an isolated crime is the abuse of government powers. It concerns practices for which persons vested with public authority bear responsibility in some way.

These may be Dutch public officials and persons equivalent thereof, in which connection the legislator refers to the Dutch Criminal Code for the interpretation of the term of ‘public official’. The Dutch Supreme Court has interpreted the term ‘public official’ in Article 84 Dutch Criminal Code broadly. A public official is anyone appointed by public authority to a public position to perform part of the duties of the State or its bodies.

In addition to public officials, persons otherwise working in the service of the government who act in the exercise of their duties can also commit torture.

Not only Dutch public officials or their equivalents, but also those holding public office in the service of a foreign State fall within the scope of the criminalization under Article 8 ICA (see Article 1(2) ICA).

Torture for a specific purpose

Finally, torture must be committed for one of the specific purposes described by the legislator. These include, inter alia, the purpose of obtaining a confession, punishing the victim or intimidating the victim.

It follows from case-law of the Supreme Court that the criterion of ‘purpose’ in the context of this offence must be interpreted more strictly than the usual meaning of intent, which generally requires that the perpetrator was aware that his conduct would necessarily, and therefore wilfully, produce certain intended goals or consequences. It concerns the goal intended by the perpetrator, also referred to as their “inner characteristics or motives.” The Court of Appeal must determine with what intention or purpose the defendant performed the acts charged.

Organisation (Article 140 of the Dutch Criminal Code)

The element “organisation” must be understood as: a collaborative association, with a certain degree of permanence and structure, between the defendant and at least one other person. It is not required to establish that a person must have cooperated with, or at least been aware of, all other members of the organisation to be considered a participant, nor that the composition of the association remains the same at all times (cf. Supreme Court 22 January 2008, ECLI:NL:HR:2008:BB7134).

For an organisation as referred to in Article 140 DCC, the existence of “divisions” or “hierarchy” is not required (Supreme Court 11 April 2006, ECLI:NL:HR:2006:AU9130, NJ 2006/393). Joint action towards third parties may also be an indication of the existence of an organisation, but is not essential. The finding that a collaborative association only exists if it is established common rules and a common objective existed within that group, to which the individual members were bound and through which commonality a certain pressure could be exerted on those members to adhere to those rules and to be considered bound by that objective, would therefore concern an overly strict interpretation of the element “organisation (Supreme Court 2 February 2010, ECLI:NL:HR:2010:BK5193).

Participation in an organisation (Article 140 DCC)

It should be noted first and foremost that participation in a criminal organisation can only be said to exist if the person concerned belongs to the collaborative association and has a share in, or provides support to, conduct aimed at or that are directly related to the realisation of the organisation’s objective.

The element of participation in an organisation as referred to in Article 140, paragraph 1, DCC also implies the intent of the defendant. According to the Supreme Court, a reasonable interpretation of the law entails that for “participation” it is sufficient that the defendant is generally aware (in the sense of direct intent) that the organisation’s objective is to commit crimes. It is not required that he has knowledge of one or more specific crimes intended by the organisation or that his intent is directed at committing those crimes, even if the crimes are of varying nature (see Supreme Court 18 November 1997, NJ 1998/225, Supreme Court 8 October 2002, ECLI:NL:HR:2002:AE5651, NJ 2003/64 and Supreme Court 5 September 2006, ECLI:NL:HR:2006:AV4122, NJ 2007/336). The defendant does not need to have been involved in multiple crimes committed by the organisation. After all, the issue is not whether his intent was directed at committing (multiple) crimes or whether he participated in crimes whose objective is to commit crimes (Supreme Court 15 May 2007, ECLI:NL:HR:2007:BA0502, NJ 2008/559).

The defendant’s intent must, therefore, be directed at participating in the organisation. If the evidence shows that the defendant performed an act contributing to or supporting the realisation of the organisation’s objective, his knowledge regarding that objective is implicitly included therein.

Leader (Article 140 DCC)

In view of the legislative history, the question whether a participant in an organisation as referred to in Article 140 DCC can be regarded as a ‘leader’ of that organisation hinges on whether that participant holds a certain power or authority within the organisation. Relevant factors may include whether the participant can give binding instructions to other participants or whether the participant takes significant initiatives within the organisation that other participants follow.

Under certain circumstances, it is possible in to designate multiple participants within an organisation as ‘leader’ (Supreme Court HR 18 December, ECLI:NL:HR:2018:2331). Furthermore, the fact that the participant in question is subordinate to one or more participants within the organisation does not preclude designating that participant as a ‘leader’ (Supreme Court 23 April 2024, ECLI:NL:HR:2024:619).

Objective of the organisation (Article 140 DCC)

The objective of the organisation must be aimed at committing multiple crimes, although it is not required that the commission of crimes is the organisation’s main raison d'être (Supreme Court 15 June 2010, ECLI:NL:HR:2010:BK6148).

The objective concerns the actual and desired goal of the organisation. For a conviction, it is sufficient that the commission of crimes is intended, so that the actual commission thereof need not yet have commenced.

When establishing the element of “objective”, weight may be attached, inter alia, to crimes already committed within the framework of the organisation, to the more lasting or structured nature of the cooperation, as may be evidenced by the division of tasks or the coordination of activities among the participants with a view to achieving the common goal of the organization, and, more generally, to the planned or systematic nature of the activities carried out by participants with that goal in mind (Supreme Court 15 May 2007, ECLI:NL:HR:2007:BA0502, NJ 2008/559).

The situation in Syria from 2011 onwards

The Syrian government vs. the Free Syrian Army (FSA)

In March 2011, an insurrection broke out in Syria to demand reforms from the regime of President Assad. The Syrian government responded with a militarized approach to the civil unrest that was spreading all over Syria. This approach intensified as the armed opposition emerged and consolidated under the Free Syrian Army (FSA). As early as April 2011, the Syrian government mobilised military units to respond to the unrest. As the armed opposition grew stronger and unrest increased throughout Syria, the Syrian government escalated its response by deploying tanks, armoured vehicles and aircraft; by conducting joint security and military operations in certain tense governates from August 2011; by appointing senior military officers responsible for the security response at governate level from October 2011; and by establishing operational command centres in November 2011 to coordinate the operations.

The gradual reinforcement of the Syrian government’s militarised response to the unrest coincides with evidence of its forces carrying out large-scale offensives. At least until the end of September 2011, government forces, supported by tanks and artillery fire, were engaged in intense multi-day clashes with the FSL in Ar Rastan, and in a similar attack on Baba Amr in November. However, firsthand evidence of consistent use of large-scale military offensives by the Syrian government, involving the use of heavy weapons, artillery, air support and in some cases siege tactics, is only available from December 2011 onward.

In the second half of 2011, the Syrian government resorted to large-scale offensives against the backdrop of increasingly frequent and widespread armed confrontations.

The steadily intensifying nature of the hostilities is reflected in the increased attention it received from the international community during the second half of 2011 and early 2012. In November 2011, months of calls for de-escalation of the violence led the Arab League to attempt to mediate a peace initiative by drafting an Action Plan. After a vote to suspend Syria’s membership of the League until it fulfilled its obligations under that Plan, the Arab League sent a monitoring mission to Syria between late December 2011 and January 2012 to monitor compliance. In February 2012, the completion of the monitoring mission was followed by the appointment of former Secretary-General Kofi Annan as the UN-Arab League Joint Special Envoy. The peace plan presented by Annan, which was endorsed by the Security Council, led to a temporary ceasefire that began in April 2012. Within a few months, however, both the peace plan and the ceasefire had failed, and Syria remained trapped in conflict.

The Free Syrian Army (anti-regime)

In December 2011, the FSA had expanded its control over parts of the territory in the governates of Homs and Idlib. Subsequently, the FSA’s territorial control was further strengthened, particularly in the governate of Homs. By the end of December, Baba Amr had grown into an FSA stronghold, with multiple checkpoints controlled by the FSA and a sniper nest. In this “state within a state”, the FSA, in cooperation with civilian actors, had replaced the government in providing medical and other services to the local population. By late December 2011 or early January 2012, the FSA controlled – or was in the process of taking control over – the suburbs of the city of Damascus through numerous checkpoints and patrols.

To navigate key areas still under the control of the Syrian government, the FSA developed a complex logistical network to transport goods and people across provincial and state borders. From its inception, FSA members coordinated movements and shared intelligence to maintain supply lines and to transport weapons, medical supplies and people – including civilians, fighters, casualties and journalists – to and from areas under its control. The FSA’s logistical capacity continued to grow through late 2011 and early 2012, with the FSA operating a logistical base just outside the city of Homs and a liaison office from Antakya, Turkey, at least from February 2012.

Beyond its territorial control and logistics capacity, the FSA’s increasing ability to withstand heavy military pressure from the Syrian government is a key indicator of its organisation. Although the FSA did not possess the same operational capacity across all provinces where it operated, a pattern of increasingly effective resistance in some of these provinces has been visible since the government’s offensive against Baba Amr started in late December 2011. During this offensive, government forces attacked Baba Amr for four days with continuous tank and mortar fire, while helicopter and reconnaissance aircrafts provided air support. Although FSA units were military inferior in strength and capacity to government forces, they offered a level of effective resistance that resulted in casualties, the capture of government equipment and personnel, and prevented government forces from immediately seizing the area. While other factors – including the intervention by the Arab League – may ultimately have played a role in preventing the Syrian government from capturing Baba Amr in December 2011, the ability of the FSA to defend itself for several days against a large-scale attack is a significant indicator of its degree of organisation. It is also relevant that the FSA’s resistance in December 2011 was not an isolated event. It formed part of a broader pattern in which the FSA offered increasingly effective resistance to heavy government offensives in January, February and March 2012.

The improved operational capacity of the FSA at the end of 2011 is reflected in its ability to conduct small-scale offensive operations. Furthermore, there are indications that from early 2012 the FSA was capable of planning and coordinating more complex operations.

Although the FSA did not have a fully functional centralised leadership structure, it did have a leadership body that exercised limited control and communicated with certain FSA units. However, the evidence for the FSA’s authority at the local level is stronger. The authority of local commanders often stemmed from the rank they previously held in the Syrian army or from their access to local contacts and resources. While the local nature of the FSA meant that issues of structure and disciple varied from unit to unit and between governates, FSA units in the period from 2011 to early 2012 generally consisted of many military defectors who had sufficient training and discipline to provide the FSA with an additional level of organisation.

In the period prior to January 2012, the FSA began establishing regional and governate military councils to create greater internal coordination and establish control over individual FSA units. By mid-January, a functioning council already existed in Baba Amr, and in March 2012, announcements were made about the formation of similar entities in Hama and Rastan.

Shabiha groups (pro-regime militias)

The Assad regime attempted to supress citizen’s calls for reform using brutal force. Partly due to a shortage of regular manpower, the regime relied heavily on groups of local sympathisers to suppress the demonstrations with an iron fist. These pro-regime militias were referred to as Shabiha groups. Within a few months of the uprising, the shabiha groups began to better organize themselves into so-called “people’s committees” (lijan shabiyya) on the instructions and with the assistance of the security services. The regime supplied these people’s committees with weapons and resources to recruit new members and deploy them primarily against unarmed demonstrators and activists.

In 2011, the United Nations Independent International Commission of Inquiry on the Syrian Arab Republic (hereinafter: IICISAR) reported that the number of shabiha groups armed by the Syrian regime amounted to approximately 10,000 civilians.

The Syrian regime’s conduct towards the civilian population

The Syrian regime increasingly used lethal force against protesters. The regime ordered the arrest, torture and murder of demonstrators on a large scale. The IICISAR reported that between 15 March 2011 and 15 February 2012 6,399 citizens and 1,680 deserters were killed. Since the fall of 2011, violence escalated, with the regime deploying snipers and mortars against civilians. The IICISAR documented cases of torture since 2011 in 38 named detention locations.

In the period that followed, large-scale military operations frequently took place between government forces and armed anti-government groups, involving the use of military weapons and vehicles such as tanks and artillery. According to the IICISAR, by 2019 6.7 million civilians had fled and 6.2 million civilians were internally displaced as a result of the Syrian conflict.

The aforementioned shabiha groups played a major role in the violent suppression. Virtually all periodic reports of the IICISAR since 2012, as well as reports compiled by human rights organisations such as Amnesty International and Human Rights Watch and other renowned international organisations and researchers, document serious human rights violations for which pro-regime militias were responsible or involved.

As the peaceful uprising evolved into an armed rebellion, many people’s committees transformed into quasi-autonomous militias that fought rebel groups at the local level or nationwide, in cooperation with regular armed forces. In most cases, these militias were directed by various branches of the security services and supplied with weapons and ammunition by the regular armed forces. Financial resources were often acquired through pillaging, smuggling, kidnapping for ransom, extortion and the levying of excise duties at checkpoints.

The formation of the shabiha groups in the Al-Nayrab en Handarat camps

The first armed pro-regime groups in the Palestinian Al-Nayrab and Handarat camps in Syria were formed in the autumn of 2011. Within a few months,these groups developed into armed militias with hundreds of members, led by a small number of individuals who, while collaborating with one another, each commanded their own group. Some of the best-known shabiha leaders were: [shabiha leader 5], [shabiha leader 2], [shabiha leader 1], [shabiha leader 3] and (later) [shabiha leader 4]. The members of these groups were residents of the Al-Nayrab and Handarat camps.

According to the leaders of these shabiha groups, the reason d’être for existence of these groups lay in the necessity to protect the inhabitants of the Al-Nayrab and Handarat camps from a threat posed by rebel groups surrounding the camps. Nevertheless, the shabiha groups were also involved in suppressing demonstrations far beyond the camps. The unrest in and around Aleppo provided the shabiha groups and especially their leaders with an opportunity to increase political influence within the camps and beyond, which they used for lucrative purposes. In particular, the career of [shabiha leader 1] and his activities in Aleppo’s corrupt construction sector prior to 2011 suggest a clear financial motivation. In this regard, attention can also be drawn to the manner in which he and other leaders of Liwa al-Quds later seized upon their acquired positions of power to enrich themselves through pillaging, smuggling, extortion and the seizure of their opponents’ property.

The Syrian uprising in Aleppo

The Syrian uprising did not reach the city of Aleppo until a late stage. Most demonstrations in 2011 were relatively small-scale and took place in and around the University of Aleppo and in a number of mosques. In early 2012, the demonstrations began to take on larger forms and expand particularly to the eastern part of the city. For instance, mass demonstrations took place in Aleppo’s eastern districts, to which the regime responded with violence.

The Syrian Air Force Intelligence Directorate (AFID)

Even before the Syrian uprising in March 2011, the AFID had developed into a security service that became a key pillar in suppressing any form of opposition in Syria through prolonged arbitrary detention, torture and enforced disappearances. Its ties with the Assad family were close and were reinforced by the fact that almost all leaders of the AFID came from the Assad family’s native region and belonged to the Alawite community, to which the then-president and his father also belonged. Within the Syrian security apparatus, the AFID was considered the most feared and active intelligence service.

According to the Syrian Network for Human Rights, between the start of the Syrian uprising and August 2023, over 135,000 people were arrested and detained for extended periods – or never released – by the Syrian intelligence services. This number corresponds to approximately 6 percent of the entire Syrian population.

At the outbreak of the uprising in March 2011, the regime immediately resorted to various intelligence and security services, including the AFID, to brutally suppress the rebellion. A ‘Central Crisis Management Cell’ (hereinafter: Crisis Cell) was formed within the regime, in which key figures such as the Minister of Defence and the heads of the regime’s intelligence and security services participated. The Crisis Cell issued instructions to violently supress demonstrations, directed military troops and security forces in the use of force against insurgents, and played an active role in encouraging, mobilising and arming the people’s committees.

In addition, from 2012 onward, the AFID also took the initiative to form pro-regime militias, including in the camps in Aleppo, in order to have a substantial number of troops at its disposal who could be deployed to combat the uprising, instil fear among the civilian population and inflict suffering.

The role of the AFID in Aleppo and the Al-Nayrab en Handarat camps

The AFID in Aleppo had several detention centres, including one at the Al-Nayrab airport, which was run by head of security [head of security].

The AFID played a key role in the formation of popular militias in the Al-Nayrab and Handarat camps, from which Liwa al-Quds emerged. For example, [shabiha leader 1] was already a trusted representative of the AFID in Aleppo before 2011 and the main liaison with the AFID in the Al-Nayrab camp. In an interview in April 2017, [Shabiha leader 2] explained that after receiving the green light from the AFID to arm themselves and expand, small shabiha groups began operating. Thus, he [shabiha leader 1] and [shabiha leader 3] received weapons on an individual basis or purchased them from the weapons depot at Al-Nayrab airport. The camp was soon flooded with weapons and the shabiha group set up various checkpoints around and within the camp. As a result, [shabiha leader 1] established a close bond with the head of the AFID in Aleppo [AFID head], and his subordinate [head of security].

[shabiha leader 1] and [shabiha leader 2] had close connections with the regime. According to the witness, they had received orders to form a group to act against demonstrators. They subsequently took action against protesters at the University of Aleppo and the surrounding neighbourhoods.

The consequences of the conflict for the Palestinian refugee camps Al-Nayrab and Handarat

In the early years of the conflict, both camps adopted a cautious attitude, which manifested itself in a predominantly neutral stance aimed at involving the camps as little as possible in the conflict in Syria. In the Al-Nayrab camp, a local coordination group formed by local leaders of Palestine factions attempted to maintain neutrality in July 2012 by banning anti-regime demonstrations and by urging pro-regime groups that wanted to “protect” the camp against the advancing rebels by force of arms, not to operate outside the camp, let alone assist regime forces in suppressing demonstrations in Aleppo.

Regular regime troops were stationed at the airport and the AFID coordinated the military operations against the rebels from this location. In April 2013, the rebels entered the Handarat camp. The airport and the Al-Nayrab camp were subsequently besieged by the rebels, but their continued attempts to capture the airport failed, and the Al-Nayrab camp remained under regime control as well.

Development of shabiha groups into Liwa al-Quds

The smaller armed groups in the camps gradually merged into Liwa al-Quds.

In fact, the establishment of Liwa al-Quds meant that various shabiha groups continued their activities under a new name with a formally appointed unified leadership. The formation of Liwa al-Quds was essentially a restructuring, as evidenced by the significant continuity between Liwa al-Quds and the shabiha groups. For instance, virtually all shabiha leaders who played a prominent role in the organisation prior to the establishment of Liwa al-Quds continued to do so after the formation. In addition, the close ties between the leaders of the shabiha groups/Liwa al-Quds and the AFID also persisted. This close bond is attested by a publication of the human rights organisation Zaman al-Wasl from September 2013 and the many photos of [head of security] with the commanders of Liwa al-Quds (including [shabiha leader 2]).

The close cooperation is also evident from the fact that, during the siege of East Apello, Liwa al-Quds used the AFID headquarters in al-Zahraa, Aleppo city as its main military base in the city.

Liwa al-Quds’ close relations with the AFID were essential in the organisation’s early years for the arming, organisation and training of the group. Financially, Liwa al-Quds relied predominantly on the AFID, in addition to the income from thefts it committed in the places it invaded.

At the time, the founding of Liwa al-Quds received very little publicity. Only later did [shabiha leader 1] indicate that Liwa al-Quds was established on 6 October 2013 in Al-Nayrab camp. However, there are convincing indications that Liwa al-Quds was founded even before 6 October 2013. [Shabiha leader 5], the shabiha leader who was killed in September 2012, is presented by Liwa al-Quds as its “first martyr” and on 3 October 2021, an invitation was posted on the official Facebook page of Liwa al-Quds for the celebration of the 10-year anniversary on 6 October 2021. This suggests that the merging of the shabiha groups into Liwa al-Quds took place earlier than October 2013, namely in 2011.

Interim conclusion regarding Liwa al-Quds

Based on the factual findings presented above, the actions of the shabiha groups from the Al-Nayrab and Handarat camps can effectively be attributed to, and should be regarded as actions by Liwa al-Quds as the overarching group, which already existed as of 6 October 2011.

Development of Liwa al-Quds into a paramilitary infantry division

Liwa al-Quds developed into one of the most loyal allies of the Syrian regime through its participation in the suppression of demonstrations, the persecution of opposition activists in Aleppo and subsequently by providing significant military support in most battles since 2013. From 2014 onward, Liwa al-Quds grew into a tightly organised militia with branches throughout the country. However, the leadership of Liwa al-Quds remained based in Aleppo, with headquarters both in the Al-Nayrab camp, headed by [shabiha leader 2] and in the Hamdaniya district in Aleppo city, headed by [shabiha leader 1].

Liwa al-Quds and its shabiha predecessors thus evolved from a group involved in suppressing peaceful protests in Aleppo into an armed militia and infantry unit focused on fighting rebels. Initially, Liwa al-Quds consisted of only a few hundred fighters, but within a short time, it managed to develop into a formidable paramilitary infantry division with up to 5,500 troops in 2018. Until 2016-2017, the group’s military operations concentrated on the immediate vicinity of the Al-Nayrab camp, the city of Aleppo and the surrounding rural areas of Aleppo province. Thereafter, Liwa al-Quds was deployed on nearly all active fronts across the country.

From the beginning and throughout the conflict, the group functioned as a so-called proxy of the Syrian regime, to which the regime outsourced its state monopoly on violence.

Involvement of Liwa al-Quds in crimes committed by the AFID

During the early stages of the Syrian uprising, the AFID used lethal force to suppress demonstrations taking place in various Syrian cities. United Nations estimates indicate that by September 2011, already 2,600 civilian casualties had occurred. Not only participants in the anti-regime demonstrations were targeted by the AFID. Any expression of sympathy for the protests or other forms of opposition could lead to arrest. Even residing in a particular area of neighbourhood where demonstrations took place could be grounds for arrest by the AFID.

Various Syrian human rights organisations, authors and eyewitnesses mentioned the shabiha groups – which later merged in Liwa al-Quds – for their role in the violent suppression of these peaceful demonstrations in Aleppo between 2012 and 2013. In a report on the Al-Nayrab camp, the Lebanese pro-regime newspaper Al-Akhbar described how some twenty men from the camp attacked demonstrators inside mosques in Aleppo with clubs in the spring of 2012. According to multiple eyewitnesses, members of shabiha groups, including those of [shabiha leader 1], [shabiha leader 2] and [shabiha leader 5], recounted how they suppressed demonstrations after they returned to the Al-Nayrab camp at the end of the day each week.

Between 2011 and 2013, two anti-regime demonstrations took place in the Al-Nayrab camp. Liwa al-Quds allegedly responded with violence. Violence and intimidation by members of the group against dissenters in the Al-Nayrab camp also took other forms. Especially when calls for a neutral position in the conflict arose, these were suppressed. According to the Action Group for Palestinians of Syria, Liwa al-Quds established checkpoints within the camp and arrested those who were suspected of participating in the demonstrations in Aleppo.

According to a report by Pro Justice, Liwa al-Quds was instructed by the AFID to hand over individuals suspected of sympathizing with the opposition or of participating in demonstrations, and they contributed to the arrest of more than 4,000 civilians since 2011.

Many of those arrested were allegedly tortured and/or killed or succumbed to the deplorable conditions of their detention.

One only had to criticize the regime to become the subject of a report. Liwa al-Quds arrested people on behalf of the security service. Reports were written about individuals who might be politically active, after which this person was arrested and handed over to the security service at the airport.

[Victim] also stated that Liwa al-Quds arrested people on behalf of the regime. He knew this because he was a member of the committee for improving relations with the surrounding area. People from the village of Al-Nayrab approached him to complain about the arrest of a number of villagers by Liwa al-Quds. Liwa al-Quds handed these people over to the AFID. During his detention, [victim] was also confronted by the AFID with a report drawn up by Liwa al-Quds.

The case file shows that detainees were transferred to one of the AFID prisons, with those in Damascus, Harasta, Dar’a, Homs, Aleppo, Hama, Latakia, Deir ez-Zor and Raqqa most frequently mentioned. The treatment of the prisoners was so cruel that the AFID has been held responsible by the United Nations and human rights organisations for the worst forms of torture in Syria since the outbreak of the uprising.

In these prisons, various forms of severe torture were applied, including the Falaka method, where beatings are administered to the feet with a stick.

Witness accounts also indicate that the administration of electric shocks, the pulling out of nails, the gouging out of eyes, mutilations, stabbings and the carrying out of mock executions were common methods of torture. Sexual violence occurred as well. The purpose of employing such extreme violence was to obtain (false) confessions and to punish the prisoners. The use of such extreme violence very often resulted in the death of the prisoners.

The reputation of the AFID

It follows from the reports, the witness statements and the statements made by the defendant (see the section below on the factual findings and the conclusion regarding the defendant) that the activities of the AFID were widely known. The civilian population was aware of the fact that the AFID arrested – or ordered the arrest of – opposition members as well as ordinary citizens, subjecting detainees to extreme and systematic violence. It was also commonly known that many did not survive the AFID’s torture practices. This awareness was reinforced by survivors who reported the torture to family and acquaintances. Footage was also disseminated via social media showing the manner in which prisoners were tortured. Within a (relatively) small and close-knit community such as the Al-Nayrab camp, the reputation of the LID was widely known.

Other activities by Liwa al-Quds

The case file further shows that Liwa al-Quds and its leaders took advantage of opportunities offered by the Syrian war economy to enrich themselves in various way. They did so by appropriating goods in the areas under their control. In the Al-Nayrab camp, the group used its position of power to confiscate property, especially the homes of opponents and refugees. Various sources confirm that Liwa al-Quds played a major role in the pillaging that accompanied the conquest of territory by armed groups during the Syrian war. Reports of pillaging emerged as early as March 2013, when Palestinian shabiha groups assisted the Syrian regular army in a military operation against rebels in Tal Shaghib, a village near the Al-Nayrab camp. The Lebanese pro-regime newspaper al-Akhbar also indicated in a report on the Al-Nayrab camp that various shabiha groups had seized goods from the village and subsequently offered them for sale at a market within the camp. Pillaging by members of Liwa al-Quds also took place on a large scale in Aleppo during and after the military offensive that drove the rebels out of the city. Eyewitness accounts also described systematic pillaging by Liwa al-Quds in Deir ez-Zor at the end of 2017, sometimes accompanied by deadly violence against residents and rival pro-regime militias.

The 2019 Fata/Integration report by the Syrian Centre for Legal Studies and Research and the Democratic Studies Center states that Liwa al-Quds had seized several various houses belonging to opposition members in the camp. Specifically mentioned were the houses of [the uncle of the defendant] and a person named [person 1]. The appropriation of these properties was allegedly part of a campaign by Liwa al-Quds to confiscate the homes of opposition members and persons who supported the opposition’s ideology and had fled to Europe. [Shabiha leader 2], the deputy commander of Liwa al-Quds, reportedly confirmed the seizure of houses belonging to people who had left for Europe on his personal Facebook page.

Several witnesses also testified about the activities of Liwa al-Quds, stating that Liwa al-Quds engaged in organised pillaging and theft in the villages. The leadership was aware of these practices and condoned them. Liwa al-Quds attacked villages and had its members strip them bare. After payment of 10,000 Syrian lira, each member of Liwa al-Quds was permitted to pillage a house.

Members of the shabiha groups were initially paid per task. However, individuals who became official members received substantial salaries and stopped any other work they had. The work for the shabiha groups then became their main occupation. When the fighting began, they had additional income alongside their salaries, derived from pillaging areas they brought under their control. During a certain period, the defendant collected the pillaged goods on the roof of his parents’ house.

Initially, Liwa al-Quds suppressed demonstrators. Later, as Liwa al-Quds became better armed, it participated in fighting and supported the Syrian army, occupied and controlled certain areas and engaged in extensive pillaging. For instance, Liwa al-Quds was seen bringing many pillaged goods into the Al-Nayrab camp. Liwa al-Quds took the goods to the warehouse of [shabiha leader 3]. On one occasion, it was a truck full of new car tires; on another, a truck full of olive oil. It was also observed that members of Liwa al-Quds often drove pillaged cars. Once, they had placed a very large generator on a car. Their warehouse was located outside the camp. The group itself admitted to confiscating these goods.

In a town about 4-5 kilometres from the camp, the group of [shabiha leader 3] pillaged everything movable and immovable: motorcycles, tv’s, cars, even women’s clothing. From the beginning, the group of [shabiha leader 3], consisting of seven to eight men, kept the proceeds of the pillaging exclusively for themselves. Later, other shabiha groups also engaged in pillaging.

Interim conclusion regarding Liwa al-Quds

Liwa al-Quds was a militia affiliated with the Syrian regime that held a position of de facto authority inside and outside the Al-Nayrab camp as a proxy of the AFID and later the Syrian and Russian armed forces. The leadership and the members abused this position for their own gain.

Factual findings and (interim) conclusions regarding the position of the defendant

The defendant himself has stated that he joined Liwa al-Quds.

The defendant had been a member of Liwa al-Quds from the beginning of the uprising in 2011.

Initially, the defendant was a member of the group of [shabiha leader 5], the defendant’s neighbour. He started as a regular member, but later progressed. When the demonstrations in Aleppo began, this group was formed to suppress the protests. The defendant was, for instance, seen travelling to, or returning from, Aleppo in a car with the group of [shabiha leader 5].

After the death of [shabiha leader 5], the defendant became one of the trusted confidants of [shabiha leader 3], the military commander of Liwa al-Quds. There were two types of confidants: persons who were close to [shabiha leader 3] and persons who were in a more distant relationship. The defendant, together with seven or eight other persons, was part of the inner circle of [shabiha leader 3].

The defendant was the right-hand man of [shabiha leader 3], a confidant. The defendant wore military clothing and carried weapons in the camp; for instance, he was seen dozens of times with a Kalashnikov and was involved in an incident in which members of Liwa al-Quds drove through the streets with a corpse behind a car. At the time, the defendant was standing in the truck bed of the car to which the corpse was attached. The body was reportedly dumped near a garbage container.

In addition, two men and a woman were arrested near a checkpoint in 2012, in which the group of [shabiha leader 3] was involved. They were apprehended at the checkpoint and subsequently beaten and taken away by [shabiha leader 3] and members of his group, including the defendant, after which they handed them over to the AFID.

It was primarily the group of [shabiha leader 3], including the defendant, that engaged in pillaging. The defendant had his own storage for pillaged goods.

Within the camp, the defendant was involved in arrests. The defendant received orders from the leadership of Liwa al-Quds to arrest someone and he subsequently carried out these orders with a number of people. It has been reported that that the defendant instructed other members of Liwa al-Quds to arrest, handcuff and place a particular person into a vehicle during such arrests. The defendant also manned the checkpoints at the entrances and exits of the camp. When present, he would usually stay inside, while ordinary members performed the tasks. If Liwa al-Quds received combat orders to be carried out outside the camp, the defendant was the leader of the group.

The defendant’s position was (at least in 2012) so high that manning a checkpoint fell beneath his rank. From 2012 onward, the defendant also became the leader of a faction within Liwa al-Quds.

Regarding the pillaging, Liwa al-Quds entered houses outside the camp, making false accusations, for example, claiming there were weapons inside the premises. Subsequently, the house was then raided and pillaged, targeting money, jewellery and gold. The defendant and others also set up checkpoints along roads, forcing cars to stop and pillage them.

The position of the defendant set out above is supported by photos in the case file that show the defendant as well as the posts on social media in which his name is mentioned.

The defendant’s earlier statement that he had joined Liwa al-Quds merely to protect his family and the residents of the camp is, in the Court of Appeal’s opinion, implausible in light of the findings listed above.

Knowledge of the defendant regarding the reputation and conduct of the AFID

As previously noted, the AFID’s notorious reputation was widely known among the residents of the camp. The defendant himself stated that the AFID had a bad reputation in every respect. He was particularly aware of this because his uncle [the uncle of the defendant] was detained and tortured by the AFID. After his uncle’s release, the defendant noticed during a visit that his uncle had lost a great deal of weight and that his health had deteriorated significantly. Mentally his uncle was broken, the defendant stated.

The Court of Appeal, in agreement with the District Court, therefore, concludes that the defendant was aware of the cruel reputation of the AFID as well as the detention and torture of (alleged) opponents.

Under Count 7, the defendant is charged with having participated (as leader) in a criminal organisation whose objective was to commit international crimes.

The Defence argued that a different legal framework should be applied than the usual Dutch framework under Article 140 DCC. According to the Defence, a higher international bar applies for a conviction under Article 140 DCC, at least for crimes committed in an organised (group) context. In the Defence’s view, the orientation towards international criminal law is not limited to the crimes mentioned in the ICA, but also extends to modes of criminal liability.

The Court of Appeal agrees with the District Court as follows and rejects this submission.

Article 1(4) ICA stipulates that Article 140 of the Dutch Criminal Code is equated to the offences set out in the International Crimes Act, if Article 140 DCC relates to the commission of international crimes.

In the Explanatory Memorandum to the International Crimes Act, the following was considered with regard to Article 2(2) ICA (old):

“The second paragraph (partly derived from Article 3(3) of the Wartime Offences Act) expands jurisdiction to a number of offences committed abroad, that are closely related to an offence set out in paragraph 2 (incitement to commit such an offence, offer of complicity, handling of stolen goods). Article 140 DCC has now been added to this list. Participation in an organisation whose objective is the commission of offences as described in paragraph 2. For example, if a crime against humanity committed abroad by any person can be prosecuted in the Netherlands, the government is of the opinion that the same should apply to contributing to such a crime through a criminal organisation”.

As is apparent from the Explanatory Memorandum to the ICA, when interpreting the international crimes included in the Act, the Court of Appeal should be guided by the interpretation given to the definition of these crimes in international criminal law. This means that the Dutch Court must take account the case-law of the international criminal tribunals and the International Criminal Court.

In the Explanatory Memorandum to the Act of 8 December 2011, which introduced the current Article 1(4) ICA, it is explained that the equating of certain domestic offences with international crimes is required to implement Article 25 of the Rome Statute:

“It follows from the Rome Statute that criminal law principles such as the responsibility of commanders and other superiors (Article 28), the non-applicability of statute of limitations (Article 29) and immunities (Article 27) apply to both the international crimes and closely related domestic offences. These general principles of criminal law have been implemented in paragraph 3 and 4 of the ICA. Partly in view of the provisions of the Rome Statute, it was logically the intention of the national legislator that aforementioned general principles should also apply to the related domestic offences. This was done by equating the relevant domestic criminal offences in Article 2(2) with the (international) crimes described in the ICA. Now that the equating of domestic offences with international crimes has been placed in the context of jurisdiction (Article 2 ICA), this may potentially create ambiguity as to the applicability of the general principles of criminal law set out in paragraphs 3 and 4 of the International Crimes Act to these domestic offences. By stipulating in Article 1 ICA– instead of in Article 2 on jurisdiction – that these domestic offences, insofar as they are related to an international crime, are equated with an international crime described in the International Crimes Act, it is clarified that wherever the ICA refers to “crimes listed in this act”, this also includes the aforementioned offences under ordinary criminal law.

Article 1(4) ICA equates the domestic offences mentioned therein with the crimes included in Articles 3 through 8b. Consequently, this provision was not intended to introduce new, independent criminal offences: after all, it speaks of equivalence, not of new criminal offences. This means that, when interpreting Article 140 of the Dutch Criminal Code as an offence equated with the offences in the ICA, only the interpretation given by the Dutch criminal Courts in ordinary domestic cases is decisive. If international case law were to be taken into account when interpreting Article 140 of the Criminal Code in the context of international crimes, this would mean that a different meaning would be attributed to the domestic offence of participation in a criminal organization in cases where jurisdiction is based on the principle of universality. Article 140 of the Criminal Code would then be interpreted differently depending on the basis for jurisdiction and on whether the criminal organisation relates to the commission of international crimes or to the commission of ordinary offences. In that case, there would no longer be a coherent and consistent interpretation of the conditions for criminal liability regarding membership of a criminal organisation.

Contrary to the Defence’s submission, the Court of Appeal, like the District Court, understands the Explanatory Memorandum to mean that the orientation towards international criminal law relates to the interpretation of the crimes to which the purpose element of Article 140 of the Dutch Criminal Code refers, and not the interpretation of the other elements of Article 140 DCC. The Court of Appeal will therefore assess the alleged participation in a criminal organisation according to Dutch standards.

Is there an organisation within the meaning of Article 140 DCC?

The defendant is charged with having participated in an organisation in Syria, namely a shabiha group and/or Liwa al-Quds.

The first question that therefore arises in this context is whether, during the period charged, there was an organisation within the meaning of Article 140 DCC. existed during the period covered by the charge. In summary, the facts and circumstances set out above show the following.

From the beginning of the uprising against the Syrian regime in 2011, shabiha groups were deployed to supress the rebellion. These shabiha groups collaborated with one another, but each was directed by its own leader. Witnesses have referred to three groups consisting of residents of the Al-Nayrab and Handarat camps, which were led by [shabiha leader 5], [shabiha leader 2] and [shabiha leader 3]. These groups were provided with weapons and resources by the regime. Various shabiha groups, including in any event the groups of [shabiha leader 5], [shabiha leader 2] and [shabiha leader 3], subsequently continued their activities under the name Liwa al-Quds.

It has previously been considered that the actions carried out by the shabiha group from the Al-Nayrab camp and the Handarat camp prior to the actual formation of Liwa al-Quds should be attributed to Liwa al-Quds. After all, the formation of Liwa al-Quds was in fact a restructuring of the shabiha groups. The individuals who were members of the shabiha groups became members of Liwa al-Quds as a result of the restructuring. Furthermore, virtually all leaders of the shabiha group from before the formation of Liwa al-Quds continued to play a prominent role after the formation. For example, [shabiha leader 3] became the military commander of Liwa al-Quds, and [shabiha leader 2] became the head of security affairs of Liwa al-Quds and was also the right-hand man of [shabiha leader 1], the founder of Liwa al-Quds. Liwa al-Quds had various leaders, with [shabiha leader 1] at the head. In addition, Liwa al-Quds was divided into various groups within which hierarchical relationships existed. The members of Liwa al-Quds received a salary for their participation, even before the official founding of Liwa al-Quds when it still consisted of shabiha groups.

The defendant was initially a member of the shabiha group of [shabiha leader 5], but after his death and as a result of the restructuring of the shabiha groups into Liwa al-Quds, the defendant became a member of the group of [shabiha leader 3] within Liwa al-Quds. The defendant was known as his right-hand man and therefore held a higher position than other members within that group. Until his departure from the Al-Nayrab camp in 2019, the defendant operated as a member of Liwa al-Quds in groups of varying compositions. The defendant also led a unit until his departure. In light of this, it has been proven that the defendant was a member of Liwa al-Quds at least up to and including 31 December 2017 (the end of the period charged).

Interim conclusion: a lasting and structured form of cooperation

The Court of Appeal agrees with the Public Prosecution Service that it follows from the forgoing that, from 1 January 2012 up to and including 31 December 2017, there was a lasting and structured form of cooperation between the defendant and other members of the shabiha groups/Liwa al-Quds, and therefore qualifies the shabiha groups/Liwa al-Quds as organisations within the meaning of Article 140 of the Dutch Criminal Code.

The role of the defendant as a leader in the organisation and his acts of participation

The Defence has argued that the defendant cannot be regarded as a leader within the meaning of Article 140 DCC and that he therefore should be acquitted of this charge. According to the Defence, the District Court set the legal bar too low. The defendant’s role was limited to carrying out operational tasks; he did not take any initiatives himself, the Defence argues. This is not altered by the fact that the defendant may have been a confidant of the highest leaders of Liwa al-Quds, according to the Defence.

The Court of Appeal considers as follows.

The facts and circumstances set out above show that [shabiha leader 1], [shabiha leader 2] and [shabiha leader 3] (and after his death [shabiha leader 4]) were the highest-ranking leaders of Liwa al-Quds. On the basis of witness statements and other documents in the case-file set out above, the Court of Appeal concludes, like the District Court, that the defendant interacted with them as if they were equals. He is regularly seen in photographs standing directly next to or behind the top leaders. He was involved in arrests within the camp and held a leading position at the checkpoints in the camp.

He also mentioned as a division commander, a commander of the assault company and as a colonel. He is one of the five senior leaders of Liwa al-Quds who received a Russian decoration in the autumn of 2016. He is also one of the leaders of Liwa al-Quds who celebrated Eid-al Fitr with the children of the Al-Nayrab camp on 15 June 2018. As a commander, he was involved in combat operations in, among other places, Khanassar, the Handarat offensive, Zarzour and Deir ez-Zor. He also participated in pillaging and kept part of the spoils on the roof of his parents’ house.

In view of his position within the organisation as a close confidant of the leadership, his leading position in Liwa al-Quds activities, both within the camp when manning the checkpoints and outside the camp during combat operations and pillaging, and his own sharing in the spoils of such pillaging, as well as his giving orders and/or instructions to others, as is evident from the evidence, the Court of Appeal is of the opinion that the defendant is to be regarded within Liwa al-Quds as a leader within the meaning of Article 140 DCC. The evidence shows that he possessed authority and a degree of power.

The Defence’s submission is rejected.

The Court of Appeal concluded that the position of the defendant within Liwa al-Quds was such that he can be regarded a leader, and therefore, by definition, as a participant. Moreover, within this group, the defendant was personally involved in the violent arrest of [victim], who was subsequently handed over to the AFID, with all the consequences thereof, as discussed further below in the judgment.

As a leader, the defendant’s intent was directed towards participating in the organisation, as is evident from the evidence. The evidence further shows that the defendant performed an act contributing to or supporting the realisation of the organisation’s objective, such that his knowledge regarding that objective is implicitly contained therein.

Non-international armed conflict

The Court of Appeal starts from the premise that, during the period charged, there was prolonged armed violence in Syria involving both government authorities as well as a multitude of armed groups. The armed conflict at issue in the present case concerns that between the government forces of President Assad, supported inter alia by Liwa al-Quds, on the one hand, and the Free Syrian Army (FSA) on the other.

Based on the development outlined above, the Court of Appeal is of the view that the armed confrontations between the Syrian government forces and the FSA can be classified as a non-international armed conflict from at least 1 January 2012 onwards.

Intensity of the armed conflict

By that time, government forces were operating far outside the law enforcement paradigm and were using force associated with an armed conflict. This is reflected, inter alia, in the deployment of army units and tactical decisions of the Syrian government, as well as in the nature of the operations carried out by government forces against the FSA, which by late December 2011 regularly involved large numbers of troops and heavy weapons and resulted in numerous casualties and significant material damage. Although there is some evidence that the military confrontations between the Syrian government and the FSA were already frequent and widespread prior to that time, the evidence is clear from late December 2011 onwards. Finally, the intensity of the violence is further reflected in the significant attention it attracted from the international community in the second half of 2011, which did not diminish thereafter.

When taken together, these circumstances lead the Court of Appeal to conclude that the violence between the armed forces of Syrian government and the FSA reached the required intensity threshold no later than 1 January 2012.

Level of organisation of the belligerent parties

The Court of Appeal is also of the opinion that – based on the aforementioned facts and circumstances – the FSA was sufficiently organised as of 1 January 2012. By the end of December, the FSA controlled large parts of the territory, developed and operated logistical supply routes, provided medical and transport services to the local population, offered resistance to a large-scale military offensive by the Syrian government and carried out attacks on government positions. Although there are indications that the FSA already possessed many of these capacities prior to December 2011, the evidence is strongest in late December and early 2012, when the FSA’s territorial control over certain areas was strengthened and it offered increasing resistance to a series of large-scale government offensives involving heavy artillery fire and , at times, siege tactics. These circumstances show that the FSA displayed a certain degree of organisation at the beginning of 2012. Evidence of an internal structure within the FSA, including the existence of a leadership body, the role played by local commanders and the emergence of structures to coordinate units at the local level, also support the argument that the FSA was an organised armed group.

Interim conclusion: non-international armed conflict as of 1 January 2012

From 1 January 2012, the Court of Appeal finds that a non-international armed conflict existed in Syria between the opposition groups operating as the FSA on the one hand and the Syrian regime with its affiliated people’s committees/militias on the other. This conflict was still ongoing on 31 December 2017. Accordingly, international humanitarian law applied from that moment onwards and throughout the entire period charged.

Crimes against humanity: a widespread or systematic attack against the civilian population pursuant to the policy of the Syrian regime

It follows from the factual findings set out above that, from March 2011 onwards, the Syrian regime, in cooperation with groups such as the people’s committees, brutally supressed peaceful demonstrations by violently dispersing and arresting demonstrators. The regime’s Crisis Cell directed the various security services and the army and ordered a heavy-handed approach against the opposition. As peaceful demonstrations increased, the Syrian regime resorted to more violence. The regime supplied groups with weapons and other resources and deployed the army, the security services and these groups to kill, arrest, torture and detain civilians under deplorable conditions, resulting in the death of tens of thousands of civilians. Given the nature and the scale, these acts can be characterized as an attack against a civilian population.

According to the Crisis Cell, the mass arrest and detention of civilians was the main component of the regime’s repression arsenal used to combat the demonstrations. This violence was used to instil fear and also served to supress the population for the purpose of protecting the Al-Assad regime. The targets of the violence were (alleged) opposition members, demonstrators and activists, but also civilians (including children) who were no way involved in the demonstrations. The civilian population that was the object of the attack consisted primarily of Syrian civilians. Any possible involvement in protests or critical statements about the regime, or even knowing someone suspected of such involvement, was sufficient to become a target of repression and violence.

According to the Crisis Cell, these large-scale and systematic arrests and (unlimited) detention of civilians was the main component of the repressive arsenal used by the regime to combat the demonstrations. Furthermore, the unlimited use of violence was deliberately deployed by the Crisis Cell as a means of instilling fear in the population and also served to supress the population for the purpose of keeping the Al-Assad regime in power.

Thus, the Court of Appeal agrees with the District Court that, given their nature and scale, these acts must be regarded as an attack against a civilian population. The Court of Appeal also agrees with the District Court that this attack was both widespread and systematic in nature, given its large-scale and its structural and planned character.

Interim conclusion: widespread or systematic attack against the civilian population pursuant to a policy of the Syrian regime

From 1 January 2012 onwards, the arrest of and the use of violence against civilians can, in the Court of Appeal’s view, be characterized as an evolving attack against a civilian population. From April 2011, the decisions of the Crisis Cell were implemented, and the Court of Appeal considers that there was a widespread and systematic attack against a civilian population, given the number of victims and the systematic nature of the conduct. The Syrian regime and its Crisis Cell directed the violent repression of civilians. Accordingly, the systematic and widespread attack against the civilian population took place pursuant to the policy of the Syrian State.

War crimes: intent to commit war crimes

Position of the Public Prosecution Service

The Advocates General have requested a finding that the intent of Liwa al-Quds also included the commission of the war crime of violence to person as criminalised under Article 6(1)(a) ICA. This provision gives a number of specific examples of conduct that are covered by this provision, which means that when interpreting “violence to person” one should primarily think of intentional killing, mutilation, cruel treatment or torture. However, in the Prosecution’s view, the phrase “in particular” indicates that other forms of violence to person may also fall under the provision. Examples include arbitrary deprivation of liberty or the commission of physical violence.

Position of the Defence

The Defence argued that the defendant should be discharged from all legal proceedings on the ground that the offence charged cannot be classified as a war crime.

Assessment by the Court of Appeal

Under Count 7, the defendant is charged with having participated in an organisation whose objective included, inter alia, the commission of violence to person as a war crime.

Article 6(1)(a) ICA criminalizes, in case of a non-international armed conflict, the following as a war crime:

“Violence to life an person, in particular murder of all kinds, mutilation, cruel treatment or torture;”

The Court of Appeal has already established that a non-international armed conflict existed in Syria from 1 January 2012 onwards. The Court of Appeal has also established facts and circumstances from which it appears – in summary – that the various security services, in cooperation with proxy groups such as Liwa al-Quds, on a large scale and part of their modus operandi, unlawfully deprived civilians of their liberty, tortured them and imprisoned them under highly deplorable conditions, often resulting in death.

As noted earlier, these acts were committed against civilians for the purpose of supressing any form of opposition to the regime, enforcing submission to the Syrian regime, and for purposes of retaliation. Accordingly, in the Court of Appeal’s view, and contrary to the Defence’s assertion, the conduct took place in the context of the non-international armed conflict, and the defendant was aware of the factual circumstances of the armed conflict.

The Court of Appeal is therefore of the opinion, contrary to the Defence’s position, that it has been sufficiently established that Liwa al-Quds, during the conflict and at the time of the period charged – had the intent to commit violence to person, punishable as a war crime under Article 6(1)(a) of the International Crimes Act.

The Court of Appeal further refers to what was considered in chapter 9 regarding the validity of the summons with respect to the interpretation of the phrase “the commission of violence to person as a war crime”.

The Defence’s submission, asserting that the alleged offence cannot be classified as a war crime, is therefore rejected by the Court of Appeal.

Legal framework

Article 6(1) of the International Crimes Act reads, insofar as relevant, as follows:

“Any person who, in the case of a non-international armed conflict, is guilty of a violation of Article 3 common to the four Geneva Conventions, namely by committing any of the following acts against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms, and those placed hors de combat by sickness, wounds, detention or any other cause.”

The second paragraph contains a list of punishable acts which, in conjunction with Article 6 ICA, may constitute a war crime.

Article 7 ICA reads as follows:

a. If, as a result of an act as referred to in paragraph 1, the death or serious bodily injury to another person is to be feared;

b. if an act as referred to in paragraph 1 involves one or more outrages upon personal dignity, in particular humiliating and degrading treatment;

c. if an act as referred to in paragraph 1 involves compelling another person to do, not to do, or tolerate something; or

d. if an act as referred to in paragraph 1 involves pillaging a town or place, even when taken by assault.

Position of the Public Prosecution Service

The Advocates General have taken the position that it can be declared proven that the intent of the organisation, Liwa al-Quds, was partly directed at arbitrary detention as a war crime.

Position of the Defence

The Defence has taken the position the case file contains insufficient evidence regarding the charge of arbitrary deprivation of liberty as a war crime. It cannot be established with sufficient certainty which group carried out the arrests, who belonged to that group, or whether the arrests were in violation of fundamental principles of international law.

Assessment by the Court of Appeal

With regard to the question of whether it can be established that the intent of Liwa al-Quds was (partly) directed at arbitrary detention, the Court of Appeal considers as follows.

In this context, the Court of Appeal is faced with the question whether arbitrary detention as a war crime is criminalised under Dutch law in Article 6 of the International Crimes Act.

Article 6 ICA contains, in paragraph 1 to 4, various lists of punishable acts which, together with the other (contextual) requirements set out in Article 6, constitute the criminal offence of a war crime.

These lists are, by their wording, exhaustive in nature. In principle, no other war crimes than those listed in Article 5 (for an international armed conflict) and Article 6 (for a non-international armed conflict) ICA are criminalised. Arbitrary detention is not included therein.

Article 7 International Crimes Act offers the possibility, in addition to Article 5 and Article 6 ICA, to criminalise other violations of the laws and customs of war other than those listed in those provisions.

Article 7 ICA is therefore referred to as a “catch-all provision”. It supplements the aforementioned criminal offences in Articles 5 and 6 ICA. The Explanatory Memorandum states the following in this regard: “Finally, it should be noted here that, in addition to Articles 5 and 6, which contain more or less detailed definitions of criminal offences, Article 7 includes as a closing component the “catch-all provision” that was already included in the Wartime Offences Act (WOS), including the grounds for aggravating punishment, also adopted from the WOS. This catch-all provision relates to war crimes not further specified here, but which may still develop under international law, committed in an conflict whether international or not. (…) By means of the wording of the “catch-all provision”, it is possible (…) to prosecute conduct criminalised in future treaties as well, without major amendments to the present Act.”

As to the manner in which such an expansion should take place, the Explanatory Memorandum concerning Article 7 ICA notes the following: "The Public Prosecutor shall always first ascertain whether the act in question falls within the terms of one the definitions in Articles 5 or 6 before charging a violation of Article 7. If in doubt, he may primarily charge an offence as set out in Article 5 or 6 and, alternatively, a violation of the laws and customs of war.”

The Court of Appeal further establishes that the Public Prosecution Service has not charged the defendant, via Article 7 ICA, with an expansion of the criminal offences in Article 6 ICA in the form of the crime of arbitrary detention, nor was this addressed in that sense in the prosecution’s closing argument.

Therefore, even if there were a rule of customary international law – as the Public Prosecution Service has argued – under which arbitrary detention is punishable as a war crime, the statutory system of Article 6 and Article 7 of the International Crimes Act precludes criminal liabity in the present case.

Unlike the Advocates General, the Court of Appeal therefore concludes that, in the present state of affairs, arbitrary detention as a war crime cannot be proven.

The Court of Appeal therefore partially acquits the defendant of Count 7 on this point.

Position of the Public Prosecution Service

Furthermore, the Advocates General have taken the position that it can be declared proven that the intent of Liwa al-Quds was to commit the war crime of pillaging as criminalised in Article 6(3)(e) ICA. In this respect, the Public Prosecution Service aligns itself with the legal framework as outlined by the District Court in its judgment.

Position of the Defence

The Defence has taken the position that the case file offers insufficient grounds to assume that pillaging within the meaning of Article 6(3)(e) ICA occurred. Article 25(3)(d) of the Rome Statute requires in this respect not only that these war crimes were actually committed, but also that the defendant made a significant contribution to them. This has not been established.

With regard to the specific pillaging in the al-Nayrab camp, the Defence argued that the involvement of Liwa al-Quds has not been sufficiently proven, given that witness [witness] stated that her neighbours – [neighbours of the witness] – had taken her house. Furthermore, it has not been established that the pillaged goods belonged to persons with protected status, as it has not been shown that the residents of the al-Nayrab camp were allied with the opposing party to the conflict.

The Defence conceded that the case file provides sufficient grounds to establish that shabiha groups pillaged in March 2013. However, Liwa al-Quds had not yet been formed at that time, and it has not been shown that the defendant made a personal contribution to these acts of pillaging.

Finally, the Defence argued that it has not been proven that the pillaging took place on a large scale following the military operation that drove the rebels out of the city, or that the defendant had any personal role in it.

Assessment by the Court of Appeal

Under Count 7, the defendant is charged with having participated in an organisation whose intent was, inter alia, the commission of pillaging as a war crime.

For the definition of the offence under Article 6(3)(e) ICA, reference was made to Article 8(2)(e)(v) of the Rome Statute. According to Elements of Crimes, in assessing this war crime it must be established that the defendant appropriated certain property for private or personal use with the special intent of depriving the owner of the property without the consent of the owner. The appropriation must also have taken place within the context of a non-international armed conflict of which the defendant was aware.

The Court of Appeal finds that it is not required that the appropriation concerned property belonging to persons of the opposing party. The ICC Pre-Trial Chamber determined in the Abd-Al-Rahman case that the status of victims is irrelevant in this regard. What matters is only that the goods were taken without the consent of the lawful owner and that there was no military justification for seizing the goods.

The Court of Appeal agrees with the District Court that the evidence shows that Liwa al-Quds and its leaders enriched themselves in various ways by seizing the opportunities offered to them by the Syrian war economy. They did so by means of theft in the areas under their control. In Aleppo and the Al-Nayrab camp, Liwa al-Quds abused its position of power to appropriate property, particularly the homes of opponents and refugees.

Contrary to the Defence’s argument, it is not required that the defendant personally made a substantial contribution to the pillaging committed by Liwa al-Quds. Nevertheless, the Court of Appeal did find that the defendant himself also contributed to the pillaging.

Finally, the Court of Appeal is of the opinion that there is sufficient evidence in this case that the pillaging by members of Liwa al-Quds took place on a large scale. The criminal organisation also had the intent to commit the war crime of pillaging.

Position of the Public Prosecution Service

The Advocates General have requested a finding of proof that the intent of Liwa al-Quds also included the commission of the unlawful deprivation of liberty as a crime against humanity, criminalised in Article 4(1)(a) ICA.

Position of the Defence

The Defence has taken the position that the case file does not contain sufficient grounds to conclude that the intent of Liwa al-Quds included the commission of unlawful deprivation of liberty as a crime against humanity. According to Defence Counsel, it cannot be established with sufficient certainty which group carried out the arrests, whether the defendant was part of this group, or whether the arrests were in violation of the fundamental principles of international law. In any event, the arrests that took place outside the al-Nayrab camp cannot be qualified as a crime against humanity, since the intent of Liwa al-Quds was to pursue personal financial gain, not to further the attack on the civilian population.

Assessment by the Court of Appeal

The Court of Appeal agrees with the District Court that, since 2011, Liwa al-Quds was directed by the AFID to arrest, on a large scale and systematically, persons suspected of sympathising with the opposition or of participating in demonstrations and transfer them to the AFID. These persons were detained without any legal basis, due to the exercise of fundamental rights and freedoms as a result of which they must be considered political prisoners, and without being able in any way to make use of the right to fair trial to which they were entitled. Consequently, their deprivation of liberty was unequivocally arbitrary in nature.

Thus, in the judgment of the Court of Appeal, it has been sufficiently established that the intent of Liwa al-Quds was partly directed towards the commission of the crime against humanity of unlawful deprivation of liberty. The deprivation of liberty of [victim] to be discussed below (Count1) was part of this and formed part of the widespread and systematic attack directed against the civilian population.

Contrary to the Defence’s argument, it is not required that the members of Liwa al-Quds intended to promote or even endorse the attack against the civilian population. The only requirement is that they were aware of the context in which the attack took place. Their personal, opportunistic motives for contributing to this are irrelevant.

For the foregoing reasons, the Defence’s submission is therefore rejected.

Violation of the right to cross-examine?

According to the Defence, the finding that the defendant was criminal involved in the organisation of Liwa al-Quds after December 2013 was to a decisive extent based on the statements of two anonymous witnesses GT08175 and GT202650. The use of these statements would constitute a violation of Article 6 ECHR in that respect, because the Defence was unable to cross-examine these witnesses itself. The Defence requested the Court of Appeal to reconsider the status decision regarding these two witnesses, but this request was rejected. There are insufficient counterbalancing factors for the restrictions on the right to cross-examine, because the Defence was only permitted to submit written questions to the witnesses. In that sense, no fair trial took place, so their statements may t not be used as evidence, with the result that the defendant must be acquitted of Count 7 for the period from December 2013 to 2017.

The Court of Appeal considers as follows.

The case file contains statements from two persons who were heard by the examining magistrate as anonymous witnesses pursuant to Article 226a of the Dutch Code of Criminal Procedure (DCCP). These are witnesses GT089175 and GT202650. They were granted that status in the examining magistrate’s order of 25 August 2023 and the examining magistrate’s order of 12 October 2022. The appeal against those orders was dismissed by the appellate chamber of the District Court in closed session.

The orders of the examining magistrate are reasoned, and account has been given therein for the well-founded reason why the identity of the witnesses had to be kept concealed. The Court of Appeal can and may proceed on this assumption. After all, whether a witness can be qualified as a threatened witness within the meaning of Article 226a DCCP is assessed by the examining magistrate and not by the trial judge. The trial judge assesses whether, if he uses for evidentiary purposes the results of the hearing of the threatened witness referred to in Article 226d DCCP, whether such use is incompatible with the right to a fair trial, as safeguarded inter alia in Article 6 ECHR. In that assessment, regard is also had to whether the manner in which the order of the examining magistrate, or of the judge referred to in Article 226b of the Code of Criminal Procedure, was reached, or the content of that order, suffers from fundamental defects insofar as it directs that the identity of the witness be kept concealed during their examination, and, if so, whether, in whole or in part as a result of those fundamental defects, the use of the results of the examination would be contrary to the right to a fair trial. (Supreme Court 27 June 2023, ECLI:NL:HR:2023:982 and in somewhat different wording, Supreme Court 28 March 2006, ECLI:NL:HR:2006:AU5471, paragraph 4.8.1.).

In accordance with Article 226e DCCP, the examining magistrate has assessed the reliability of the statements made by the witnesses in question. This has been extensively substantiated in records of findings and actions concerning the investigation into the reliability of the witnesses dated 6 July 2023 and 14 November 2023.

In the Court of Appeal’s view, there are no fundamental defects in the content of the order issued by the examining magistrate, having regard to the content of the order granting the status to the contents of the records concerning reliability. Nor is the use of the results of the examinations contrary to the right to a fair trial. In this regard, the Court of Appeal takes the following into account.

The Court of Appeal emphasizes that caution is required in the evaluation and use of an anonymous witness’ statement as evidence; a duty which the Court of Appeal has also observed.

Furthermore, the Court of Appeal finds that the evidence that the defendant committed the charge under Count 7 (the criminal organisation) is not based solely or to a decisive extent on the statements of the anonymous witnesses concerned (Article 344a(1) DCCP). The Court of Appeal has set out above which other pieces of evidence underlie the conviction for this charge, including for example the reports provided by Dr L. Leenders and the IIIM report, the defendant’s own statement (that he had joined Liwa al-Quds), statements of other witnesses, and photos, videos and messages on Facebook. Contrary to the Defence’s submission, the Court of Appeal considered the charge under Count 7 as a whole, and not just one part of it, namely the involvement of the defendant in the period from December 2013 onwards.

Furthermore, the statements in question can also contribute to the evidence, because the witnesses were heard by the examining magistrate as threatened witnesses and because the offence charged under Count 7 (Article 140 DCC with the intent to commit international crimes) is an offence as referred to Article 67 (1) DCCP and – given its nature, the organised context in which it was committed, viewed in conjunction with the other proven offences - undoubtedly constitutes a serious breach of the legal order (Article 344a(2) DCCP).

Thirdly, the Defence was given the opportunity to submit written questions to the witnesses in question, so that the right to cross-examine these anonymous witnesses could have been exercised in some form.

As noted above, the examining magistrate examined the reliability of the witness and accounted for this in the aforementioned records of findings. The Court of Appeal concurs with that assessment of reliability by the examining magistrate; the statements are largely based on personal observations, are consistent and are supported by other evidence.

Finally, it is also relevant that the Defence was able to exercise its right to question other (incriminating) witnesses, such as [son of the victim] and [victim] before an examining magistrate.

Consequently, the proceedings as a whole comply with the right to a fair trial as guaranteed by Article 6 ECHR, including the use of the statements of the anonymous witnesses for evidentiary purposes.

[victim] (hereinafter: [victim]) lived in the Al-Nayrab (refugee) camp near Aleppo, Syria.

In 2013, he was a teacher at a school in the Al-Nayrab camp. He was an outspoken opponent of arming residents of the camp, in particular young people, for the armed struggle between the opposition and the Assad regime, and of involving (the residents of) the camp in that struggle. He voiced his opposition together with others from a committee they established, called the Neighbourhood Improvement Committee. According to [victim], this caused problems, in the sense of differing ideologies, between this committee, the security services and the shabiha groups.

On the night of 28 January 2013, a group of men took [victim] from his home in the Al-Nayrab camp against his will, by use of severe violence and after making threats.

The group consisted inter alia of [the defendant], [head of security], [person 2], [person 3] ([name 1]); [shabiha leader 4] ([name 2]), [shabiha leader 3], [person 4], [person 5] ([name 3]), and an agent of the military security service.

This group was armed with Kalashnikovs. Several of them wore scarfs as a mask and camouflage suits.

In addition to the persons who entered the home, there were also armed men standing in front of the house and outside on the main street near a car parked in front of the narrow alley leading to [victim]’s home.

Shots were fired inside the home, and the men fought with [victim] – who initially resisted arrest. During this struggle, he was struck in the face and hit on the back with the butt of a rifle. His son was also struck on the head and lost consciousness as a result.

[Victim] was dragged by a number of men to the waiting car on the nearby main street in his pyjamas and barefoot, with a t-shirt partially pulled over his head. Some members of the group stood outside in a ring around the car, so that other members of the group could place [victim] into the car – without interference from some 50 bystanders. [Victim] was subsequently placed on the back seat with two of the men on either side of him and two men in the front.

In view of these established facts and circumstances, taking [victim] from his home and placing him in the car did not take very long. [Victim] speaks of half an hour.

Initially, the defendant stood at the door of the house, while other members of the group entered the residence. Later, he stood against the car. The defendant was wearing camouflage clothing, a tactical vest filled with magazines, and a Kalashnikov.

The group was led by a first warrant officer of the AFID, named [head of security], who worked at Aleppo airport. He gave the order to take [victim] away, initially ordering that both the defendant and his son be taken along.

[Victim] was subsequently taken away in the car to the airport. He was not told why he was being taken, nor was he shown an arrest warrant.

After having been detained for eight days at the military section of the airport, [victim] was transferred by helicopter to the Assad military academy, from where he was taken by van to the AFID office in Aleppo and was detained there. This AFID office held an underground prison. [Victim] was placed there in a cell measuring four by five metres (cell number 4), occupied by between 87 and 100 detainees. There was insufficient room to stretch out one’s legs, and detainees were forced to sit or sleep continuously with their legs drawn up. Toilet visits were permitted only twice a day, during which detainees were beaten with a stick or whip. Some detainees urinated in a bottle. There were only small ventilation openings in the cell, and it was hot inside. The detainees were given little and poor food and drink, and drank water from the central heating system that was mixed with oil. Before his deprivation of liberty, [victim] weighed 80 kilogrammes; upon his release, 35.

The cell was located next to an interrogation room, and [victim] could hear the interrogations taking place there, the torture and the screams of the detainees. Five days after his arrival at the prison, [victim] was taken to a room where an officer was standing. This officer referred to a report which allegedly showed that he had demonstrated against armed fighters and that he was in contact with members of the armed opposition. When he denied this, the officer said to another man: “Take him away and make sure he confesses”.

This man – an executioner, as [victim] calls him – took him to an interrogation room, pressed him to the ground and began beating and kicking him on the head, his back and flanks. [Victim], lying on his back, was beaten on his bare feet with a stick 30 or 40 times, during which time he was forced to stand, jump and hop in between, so that blood would flow back to his feet and he would regain feeling in them. At the same time, they shouted that he had to confess. After initially remaining silent, [victim] at some point started shouting that he had nothing to do with the suspicion. Thereupon the man who was beating him said: “You will be tried summarily”.

Upon returning to his cell - [victim] could no longer stand and crawled on his stomach – the other detainees fell silent when he told what he had been told. For it meant that [victim] was going to be executed. When he saw how his fellow detainees reacted in shock, he also became frightened. [Victim] was detained for approximately 20 days before being released on the night of 28 February 2013. He was picked up by family members at the gates of the AFID prison and immediately taken to hospital where he lay in a coma in the intensive care unit for seven days. A toe of his right foot and a toe of his left foot were amputated. A doctor told [victim] that his feet had been electrocuted and burned.

Position of the Public Prosecution Service

The Advocates General have taken the position that the defendant co-perpetrated the offence charged under Count 1.

Position of the Defence

The primary position taken by the Defence is that the arrest did not form part of a widespread and systematic attack against the civilian population.

In the alternative, the Defence has argued that the defendant did not know (in the sense of direct intent) that the detention charged took place as a part of a widespread and systematic attack against the civilian population. The Defence disputes that, in this context, dolus eventualis would suffice with respect to knowledge that the acts formed part of the attack.

Furthermore, the Defence took the position that the circumstances under which the arrest of [victim] took place were not “of such gravity” as to constitute a violation of fundamental rules of international law. After all, the deprivation of liberty charged was of such short duration – a few minutes, or half an hour at most – that is does not reach the threshold of an international crime. In addition, no other circumstances have emerged under which this short-term deprivation of liberty would nevertheless amount to an international crime. For instance, the violence used during the arrest was not of such severity that, despite the short duration, it could still be classified as a crime against humanity.

Furthermore, the Defence has argued that the deprivation of liberty was not arbitrary, since there may have been a legal basis for the deprivation of liberty, as the security situation in the camp could justify such a measure. Indeed, the security situation in the Al-Nayrab camp was highly precarious, and under those circumstances, the regime enjoyed a relatively broad margin of discretion to assess who should be detained. Given the contacts [victim] maintained with the opposition to bring the necessary goods into the camp and his resistance to the arming of camp residents, it was not surprising that he would be arrested by the regime.

The Defence further took the position that any role the defendant may have played in the arrest of [victim] should be qualified at most as aiding and abetting, rather than co-perpetration. In this context, the Defence refers to the wording of the indictment (“standing guard in front of [victim]’s house and thereby preventing possible assistance from third parties”) and the statement of [victim] concerning the role of the defendant.

Assessment by the Court of Appeal

In its assessment, the Court of Appeal starts from the premise that – while Dutch courts must indeed look to international law and have regard to the case-law of international criminal tribunals and the International Criminal Court, when defining the boundaries of criminal liability – Dutch law serves as the legal framework. The Court of Appeal previously held this to be the case in the proceedings concerning Tamil Tigers Organisation (English abbreviation: LTTE), but this principle equally applies to the present case, in which the defendant is not a Dutch but Syrian national, and the offences charged did not (primarily) take place in the Netherlands but in Syria.

Further considerations and discussion of the submissions regarding Article 4 ICA

With reference to the legal framework concerning Article 4 of the International Crimes Act as set out above, the Court of Appeal will discuss below whether, in view of the factual findings, Count 1 of the Indictment can be proven and classified as a crime against humanity. The Roman numerals refer to the numbering of the elements within the legal framework.

As peaceful demonstrations intensified, the Syrian regime responded with increasing violence. The regime supplied pro-regime groups – such as Liwa al-Quds – with weapons and other resources, and deployed the army, the security services and these groups to arrest, detain in appalling conditions, torture, and/or kill civilians.

The target of the violence were (alleged) opposition members, demonstrators and activists, but also civilians (including children) who were in no way involved in the demonstrations. Syrian civilians were the primary object of the attack.

According to the Crisis Cell, this large-scale and systematic arrest and (unlimited) detention of civilians was the main component of the repression arsenal used by the regime to combat the demonstrations. Furthermore, the unlimited use of violence was deliberately deployed by the Crisis Cell as a means to instil fear in the population and also served to suppress the population, with the aim of keeping Al-Assad regime in power.

Accordingly, the Court of Appeal concurs with the District Court that these acts, given their nature and scale, must be classified as an attack against a civilian population. The Court of Appeal also agrees with the District Court that this attack was both widespread and systematic in nature, given its large scale and structural and planned character.

(ii) policy of the State or organisation

The Court of Appeal agrees with the District Court that the Syrian regime and the Crisis Cell directed and controlled the violent suppression of civilians. The decisions of the Crisis Cell were forwarded to the local branches of the security services and the army for implementation. Thus, the systematic and widespread attack against the civilian population took place in implementation of the policy of the Syrian State.

(iv) close link (nexus) between the conduct of the defendant and the attack

The Court of Appeal established the following in this regard. Since 2011, Liwa al-Quds and its shabiha predecessors were directed by the AFID. On a large scale, in significant numbers, and systematically, civilians suspected of sympathizing with the opposition or participating in demonstrations were unlawfully deprived of their liberty and handed over to the AFID, which detained them indefinitely, tortured them, and – in some instances – killed them or caused them to die under deplorable detention conditions. The aim was to instil fear in these civilians so that they would not turn (or continue to turn) against the Al-Assad regime.

[Victim] was part of a committee within the Al-Nayrab camp that propagated views perceived as contrary to the regime’s interests. He was forcibly removed from his home by a group of individuals including members of Liwa al-Quds, led by an AFID officer, and subsequently taken to an AFID detention facility where he – as will later be established – was subjected to torture, for the purpose of instilling such fear in him that he would cease his (alleged) opposition to the regime.

In light of the foregoing, the Court of Appeal holds, contrary to the Defence’s argument, that this unlawful deprivation of liberty of [victim] was closely linked to the widespread and systematic attack against the civilian population. In agreement with the District Court, the Court of Appeal finds that this crime fits seamlessly into the pattern of crimes that, inter alia, constitute the attack against the civilian population in this case.

The AFID’s brutal reputation was widely known; as was the fact that these arrested persons were brought in large numbers to AFID facilities where they were held indefinitely, subjected to torture, and, in some instances, killed or left to die in appalling detention conditions.

It has also been established that one of the tasks of Liwa al-Quds was to assist the AFID in apprehending, arresting and imprisoning (alleged) opponents of the Syrian regime, including people from the Al-Nayrab camp. The defendant was a member of Liwa al-Quds and, in that capacity, part of the group that forcibly removed [victim] from his home in the aforementioned camp, forced him into a car and took him away. This operation was led by an AFID officer who was also present at the scene.

Under these circumstances, the defendant must have known that the unlawful deprivation of liberty of [victim] formed part of a widespread and systematic attack against the civilian population. In this regard, the Court of Appeal took into account that the defendant was uniquely aware of this situation through his own family, given that an uncle of his, had been taken to the AFID under circumstances bearing strong similarities to the manner in which [victim] was taken.

In view of the foregoing, considered in conjunction, the Court of Appeal agrees with the District Court – and contrary to the Defence’s argument – that the defendant had knowledge of the widespread and systematic attack against the civilian population and knew that the unlawful deprivation of liberty of [victim] in which he was involved formed part of that attack.

Specific requirements concerning the prohibited act under e: other severe forms of deprivation of physical liberty in violation of fundamental rules of international law

The indictment narrows the deprivation of [victim]’s physical liberty to his removal from the home and forced entry into the vehicle.

The Court of Appeal has established that [victim] was deprived of his liberty for some time. After all, he was forcibly removed from his home against his will, dragged outside and forced onto the back seat of a car, flanked by individuals on either side who prevented him from leaving.

In light of the established facts and circumstances, these acts were limited in duration. The Court of Appeal concurs with the District Court that the limited duration of the deprivation of liberty is not, in itself, of decisive importance. In the present case, greater weight is attached to the circumstances in which the deprivation of liberty took place. In this regard, the Court of Appeal attributes particular importance to the unlawful nature of [victim]’s arrest, the excessive violence used against him and his son during this incident, the threat to take his son along as well, and the purpose for which he was arrested and taken away.

In assessing the severity of the unlawful deprivation of liberty, the Court of Appeal took account the fact that [victim] was taken from his bed in the middle of the night by a group of armed and partly masked men, including members of an irregular militia holding no official position within the Syrian State apparatus, led by an AFID officer. Shots were fired inside the home, [victim] and his son were severely assaulted, and [victim] was ordered to come along, with threats made to take his son as well. [Victim] was punched in the face and struck on the back with a rifle butt, while his son was hit so hard on the head that he lost consciousness.

The Court of Appealfurther took into account that the group that took him away was led by an officer of the AFID – one of the most feared agencies within the Syrian State apparatus, of which it was widely known that people who fell into their power generally suffered a terrible fate. Given the presence of this AFID officer, [victim] must have known what awaited him. Despite this terrifying prospect, [victim] felt compelled to cooperate with his assailants in order to spare his son the same fate.

With regard to the unlawful nature of the deprivation of liberty, the Court of Appeal finds that [victim] was not shown an arrest warrant, was at no point not informed of the reasons for his arrest and/or the charges brought against him, and was not informed of the procedural rights to which he was entitled. Each of these constitutes a violation of fundamental human rights – enshrined, inter alia, in Article 9 ICCPR – which also apply in the context of the internment of civilians for imperative security reasons under international humanitarian law, had such a situation actually existed.

The scenario outlined by the Defence, under which the deprivation of liberty would not be considered arbitrary – has not been substantiated in light of the circumstances established above.

In light of the foregoing, the Court of Appeal holds – contrary to the position of the Defence – that there was a sufficiently severe form of deprivation of [victim]’s physical liberty in violation of fundamental rules of international law to qualify as a crime against humanity pursuant to Article 4(1)(e) ICA.

Defence’s argument with respect to co-perpetration/aiding and abetting

The Court of Appeal starts from the premise that, according to established case-law – involvement in a criminal offence can be proven as co-perpetration where it has been established that, in committing the offence, there was sufficiently close and conscious cooperation with one or more other persons.

In this context, the defendant’s intellectual and/or material contribution to the offence must be of sufficient significance.

Even where the charged co-perpetration does not essentially consist of joint execution during the commission of the criminal offence, but rather of conduct generally associated with aiding and abetting (such as providing information, acting as lookout, or assisting in the escape), the close and conscious cooperation required for co-perpetration may still be present.

In determining whether the close and conscious cooperation required for co-perpetration existed, the Court of Appeal may take, inter alia, the following factors into account: the intensity of the collaboration; the mutual division of tasks; the role played in the preparation, the execution or aftermath of the offence; the importance of the defendant’s role, his presence at important moments and his failure to withdraw at an appropriate time.

Based on the case file and the examination in court, the Court of Appeal draws the following conclusions with regard to the defendant’s involvement in the offence charged.

A group of armed men in camouflage clothing went to [victim]’s home and – using violence against him and his son – forced their way into the house to take him away in a waiting car to a location elsewhere. The defendant was undeniably part of this group.

The group was led by an AFID officer. The group also included a member of the military security service and members of Liwa al-Quds. There was a division of tasks and cooperation in which an AFID officer was in charge of [victim]’s arrest. He also gave the order to take [victim] – and initially his son as well – into custody.

Some members of the group were inside the home to carry out the violent arrest; others stood outside the house or in the adjacent street – near the car in which [victim] was ultimately driven away – to keep people at a distance.

The defendant, dressed in camouflage clothing and armed with an automatic firearm, was present at two key moments. He stood by the door of [victim]’s home when members of the group forced their way inside, and also near the car to which [victim] was dragged from his house. His task was to keep bystanders at a distance, together with others, at both the house and the car. When [victim] was put into the car, three individuals – including the defendant and [shabiha leader 3] – stood by the vehicle, while others formed a perimeter around them to keep bystanders away.

The foregoing indicates a form of preparation to go to [victim]’s house armed, with the aim of removing [victim] from his home and to cooperate to that end by dividing tasks inside and outside the house in order ultimately to take him away in the waiting car, with the necessary security around it to facilitate that process.

On the basis of the foregoing, the Court of Appeal holds that there was sufficiently close and conscious cooperation between the accused and the other members of the group, which essentially consisted of a joint execution in which the defendant’s individual contribution was of sufficient weight. The Court of Appeal therefore finds the co-perpetration charged proven.

The remaining evidentiary defences are refuted by the content of the evidence relied upon. The Court of Appeal rejects these submissions.

Torture as a crime against humanity

The Court of Appeal is of the opinion that the conduct described above and the circumstances under which [victim] was detained undoubtedly constitute the intentional infliction of severe physical or mental pain and suffering, while he was held in an AFID prison.

The Court of Appeal therefore considers it proven that [victim] was subjected to torture as a crime against humanity.

It has already been established that torture was employed in a widespread and systematic manner as part of an attack directed against the civilian population. Just like the deprivation of liberty of [victim], the subsequent torture fits seamlessly into the general pattern of systematic violent repression of the civilian population. The defendant was also aware that torture formed part of that widespread and systematic attack against the civilian population, as previously set out.

Torture as an isolated crime

The Court of Appeal further finds that the torture of [victim] was committed for the purpose of obtaining from him a confession that he had contacts with the armed opposition and for the purpose of instilling fear in him. This is evident from the statements made by the AFID officer – who indicated that [victim] was to be taken away to make him confess – and by the torturer in the interrogation room who told [victim] that he had to confess; as well as from the torturer’s statement that he would be tried summarily, that is to say: executed.

It is also established that the torture was committed by or on behalf of the government, and by a public official or other person acting in an official capacity. After all, [victim] was detained in an AFID prison – an agency of the Syrian government – while his torture was ordered by an officer of that state agency and carried out by someone who was, at the very least, employed in the service of the State. Both acted in the exercise of their official duties, as the AFID considered the persecution of alleged opponents to be part of its mandate regarding state security. The officer and the man whom [victim] identified as his torturer coopered closely and consciously in this regard.

Consequently, the acts in question can also be qualified as torture within the meaning of Article 8 ICA.

Aiding and abetting torture, both as a crime against humanity and as an isolated crime

The Court of Appeal reiterates that, for a conviction for aiding and abetting an offence, it must be established not only that the defendant’s intent was directed at his acts of assistance within the meaning of Article 48, introductory clause and under paragraph 1 or 2, of the Dutch Criminal Code, but also that his intent, whether or not in the form of dolus eventualis, was directed at the crime committed by the perpetrator (principal offence). In proving and classifying aiding and abetting, the acts performed by the principal offender must be taken as the starting point, even if the aider and abettor’s intent was directed only at part of those acts. The aider and abettor’s intent need not have been directed at the precise manner in which the principal offence is committed. This precise manner in which the principal offence is committed also includes whether or not it is committed jointly with others; therefore, the aider and abettor’s intent need not be directed at that specific mode of liability.

The Court of Appeal infers from the evidence that the defendant knew that an AFID officer was in charge of the arrest of [victim]. The defendant stood next to the door of [victim]’s house. From there, [victim] was dragged to the waiting car. The AFID officer was inside the house and gave orders there.

Following the outbreak of the uprising in Syria, the AFID maintained a prominent presence in the camp. This AFID officer patrolled the camp on a daily basis. Everyone knew he was an officer in the AFID. The defendant lived in the camp, and Liwa al-Quds and the shabiha group to which the defendant belonged had a good relationship with this AFID officer. His presence meant that the arrest of [victim] was not an "ordinary" arrest. The AFID officer carried it out on behalf of the AFID. It was common knowledge that anyone arrested by the AFID would be tortured and would rarely survive their imprisonment. The AFID was notorious throughout Syria. Moreover, the defendant witnessed the dire condition of his uncle [the uncle of the defendant] after he had been detained and tortured by the AFID in August 2012. The defendant was aware of the fate awaiting [victim] in the AFID prison in Aleppo.

Contrary to the Defence’s position, the Court of Appeal holds that [victim] came directly into the custody of the AFID upon his arrest – after all, the AFID officer present had issued the order “take him away” at or near [victim]’s home – and rejects the argument that he was only handed over to the AFID after an eight-day stay at the airport. In this respect, the Court of Appeal also takes into account that the temporary stay at the airport had a logistical background and [victim] was transported by helicopter to the AFID prison as soon this became possible again.

The Court of Appeal concludes that the defendant – in light of the foregoing and based on the evidence – was aware of the substantial likelihood that he provided the opportunity for the torture of [victim]. This conclusion is not altered by the fact, that following his arrest, [victim] was first taken to the airport and subsequently to the AFID prison in Aleppo. The defendant must have known that [victim] – like virtually any Syrian national falling into the hands of the AFID – would sooner or later be subjected to torture. In reaching this conclusion, the Court of Appeal also took account that the defendant was a leader of a unit of Liwa al-Quds, an organisation that collaborated closely with the AFID.

The defendant acted with intent in relation to his own act of participation. He stood near the house, in uniform and armed, when [victim] was arrested, and he kept the public at a distance near the waiting car when [victim] was taken away, as was already established above under Count 1. [Victim] was subjected to torture by AFID personnel acting in close and conscious cooperation.

2.

one or more employee(s) of the (prison of the intelligence service of the Syrian Air Force, or alternatively one or more person(s) acting on behalf of the Syrian government, acting in the exercise of his/their duties, at one or more times in or about the period from 28 January 2013 up to and including 1 March 2013, or alternatively the period from 28 January 2012 up to and including 1 March 2012, in Aleppo, or at any rate in Syria, together and in concert with another or others, or at any rate alone, tortured a person, namely [victim], on multiple occasions, or at least once, which torture, as an isolated crime, consisted of the aforementioned person(s) inflicting (each time) severe pain or severe suffering upon [victim], whether physically and/or mentally, while [victim] was in the custody and/or under the control of the aforementioned person(s), (each time) for the purpose of punishing [victim] for an act had he committed and/or to obtain (a) confession(s) from him and/or to intimidate him, committed by or on behalf of a government authority, by, then and there, striking [victim] with a stick, or at any rate a hard object, on his bare feet and/or his head, and/or repeatedly, or at least once, kicking him in the side and/or back, and/or committing (an)other act(s) of violence, and/or threatening him with death by saying the following words: “You will go back home in pieces, we will chop you into pieces” and/or “You will be summarily tried”, or at any rate words to that effect, and/or committing (an)other act(s) that intentionally inflicting severe pain or severe suffering,

for the purpose of and/or during the commission of this crime/these crimes, he, the defendant, on or about 28 January 2013, at any rate in or about the month of January 2013, or alternatively in or about the month of January 2012, in Al-Nayrab and/or Aleppo, at any rate in Syria, intentionally provided the opportunity and/or means and/or information and/or intentionally assisted, by transferring this [victim], after having deprived him of his physical liberty in violation of fundamental rules of international law, together and in concert with (an)other(s) to the intelligence service of the Syrian Air Force, or alternatively to one more person(s) working in the service of the Syrian government, while he knew or was aware of the substantial likelihood that this [victim] would thereby be exposed to torture within the meaning of Article 8 ICA;

3.

one or more employee(s) of the (prison of the) intelligence service of the Syrian Air Force, and/or one or more member(s) of Liwa al-Quds and/or one or more member(s) of (a) shabiha group(s) from the Al-Nayrab camp and/or (an)other person(s) acting on behalf of the Syrian government, at one or more times in or about the period from 28 January 2013 up to and including 1 March 2013, or alternatively the period from 28 January 2012 up to and including 1 March 2012, in Aleppo, at any rate in Syria, together and in concert with (an)other(s), at any rate alone, tortured a person, namely [victim], which torture consisted in that the aforementioned person(s) repeatedly at least once, striking [victim] with a stick, or at any rate a hard object, on his bare feet and/or his head, and/or repeatedly, or at least once, kicking him in the side and/or back, and/or committing (an)other act(s) of violence, and/or threatening him with death by saying the following words: “You will go back home in pieces, we will chop you into pieces” and/or “You will be summarily tried”, or at any rate words to that effect,

for the purpose of and/or during the commission of this crime/these crimes, he, the defendant, on or about 28 January 2013, or alternatively in or about the month of January 2012, in Al-Nayrab and/or Aleppo, at any rate in Syria, intentionally provided the opportunity and/or means and/or information and/or intentionally assisted, by transferring this [victim], after having deprived him of his physical liberty in violation of fundamental rules of international law, to the intelligence service of the Syrian Air Force, while he, the defendant, knew or was aware of the substantial likelihood that this [victim] would thereby be exposed to torture, while this torture was part of a widespread and/or systematic attack directed against a civilian population, while he, the defendant, knew that these acts were part of a widespread and/or systematic attack carried out by the Syrian intelligence apparatus and/or the Syrian army and/or pro-regime militias against the Syrian civilian population;

7.

he, on one or more occasions in or about the period from 1 January 2012 up to and including 31 December 2017, in Al-Nayrab and/or Aleppo and/or Khanassar and/or Eastern Ghouta, or at any rate in Syria, participated in (an) organisation(s), namely (a) shabiha group(s) from the Al-Nayrab camp and/or the pro-regime militia Liwa al-Quds, to which in any event the defendant and/or (an)other person(s) belonged, which organisation(s) (each) had the objective of committing international crimes, namely:

and/or

while he, the defendant, was the leader and/or founder and/or administrator.

Any matters charged beyond or different from the foregoing have not been proven. The defendant must be acquitted thereof.

Insofar as the indictment contains linguistic and/or typographical errors, these have been corrected in the judicial finding of fact. As is apparent from the proceedings in court, the defendant has not been prejudiced in his defence as a result.

The Court of Appeal bases its conviction that the defendant committed the proven offences on the facts and circumstances contained in the evidence and which provide ground for the finding of guilt.

In those cases where the law requires the judgment to be supplemented with evidentiary items or – insofar as Article 359, paragraph 3, second sentence, of the Dutch Code of Criminal Procedure is applied – with a list thereof, this will be done in an annex attached to this judgment.

Co-perpetration of the crime against humanity of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.

The offences proven under Counts 2 and 3 constitute:

the concurrence of one act of

complicity in the co-perpetration of torture within the meaning of Article 8 of the International Crimes Act committed by a public official or other person acting in an official capacity

and

complicity in the co-perpetration of the crime against humanity of the torture.

The offence proven under Count 7 constitutes:

participation as a leader in an organisation that has the commission of crimes as its objective.

Position of the Defence

The Defence argued that the prosecution for Count 7 was not foreseeable for the defendant if the Court of Appeal were to apply the Dutch legal framework of Article 140 DCC. In that regard, the Defence submitted that the defendant has not connection whatsoever with the Netherlands, that he grew up in a refugee camp and did not attend higher education. According to the Defence, it has also not been established that Syrian law criminalised participation in such an organisation. For this reason, the Defence argued that of the principle of legality has been violated and the defendant should be discharged from all legal proceedings.

Position of the Public Prosecution Service

The Advocates General argued that the Defence’s argument should be rejected and have aligned themselves with the reasoning of the District Court, pointing out that Syria, like the Netherlands, does indeed recognise the concept of joint criminal responsibility for crimes, and that prosecution based on joint criminal responsibility for international crimes has been a foreseeable possibility since Nuremburg.

Assessment by the Court of Appeal

The Court of Appeal rejects the Defence’s argument and considers as follows, largely concurring with the District Court.

The principle of legality in criminal law, as enshrined inter alia in Article 1(1) of the Dutch Criminal Code, encompasses the requirements that it must be foreseeable and accessible which conduct has been criminalised by the legislator. It follows that criminal provisions must clearly define what conduct, under which circumstances, constitutes a criminal offence. The requirement of foreseeability is also reflected in the case-law of the European Court of Human Rights regarding the interpretation of Article 7 of the ECHR. That provision stipulates that no conviction may be imposed if the defendant’s acts (or omissions) did not constitute a criminal offence under national or international law at the time when the acts (or omissions) were committed.

The Court of Appeal first notes that the criminalisation under Article 140 DCC in conjunction with Article 1(4) ICA is based on an Act of Parliament. This satisfies the requirement regarding the accessibility of statutory penal provisions, which is also inherent in the principle of legality.

The question is whether, at the time when the acts were committed, the defendant could reasonably have foreseen that his conduct was punishable by law. The Court of Appeal holds that this was indeed the case and reasons as follows.

The defendant participated in the organisation Liwa al-Quds. The objective of this organisation was the commission of international crimes, in particular the international crimes included in the facts proven under Count 7. It is not in dispute that such crimes were punishable at the time they were committed and that it was also foreseeable that such conduct constituted a criminal offence. By participating in Liwa al-Quds and with knowledge of the criminal objective of that organisation, the defendant could also have foreseen that such conduct in a group setting would, as such, entail criminal liability. The fact that participation in a criminal organisation under Syrian law, as argued, does not constitute a criminal offence in and of itself, or that the defendant, who did not receive higher education, had no connection with the Netherlands, does not alter this conclusion. Furthermore, it is relevant that criminal liability for conduct committed with one or more others, or within an (organised) group context, exists in numerous legal systems. Prosecution based on a form of joint criminal responsibility for international crimes has also frequently taken place before various tribunals, making it a foreseeable possibility for this reason as well. While the criminalisation and precise scope of such criminal liability differ per national legal system, this does not mean the defendant can successfully invoke a violation of the principle of legality.

Moreover, no grounds have been established that would exclude the criminal responsibility of the defendant. The defendant is therefore criminally liable.

The Court of Appeal has determined the sentence to be imposed based on the gravity of the offences and circumstances under which they were committed, as well as on the person and personal circumstances of the defendant, as revealed by the examination in court.

In doing so, the Court of Appeal has taken the following in particular into account.

The Court of Appeal has found four criminal offences proven. In determining the sentence, the Court of Appeal will consider not only the gravity of the offences – as evidenced by the maximum penalties prescribed for them - but also the severity of the consequences caused by those offences. Subsequently, the Court of Appeal will assess whether there are factors that warrant either aggravating or mitigating the sentence to be imposed. These factors include the defendant’s intent, personal circumstances, and specific role and (hierarchical) position at the time the offences were committed.

Penalty prescribed for the offences

Count 1 concerns the crime against humanity of unlawful deprivation of liberty. Article 4(1)(e) of the International Crimes Act provides that a temporary term of 30 years imprisonment or a life sentence may be imposed for this offence.

Counts 2 and 3 concern torture as an isolated crime and the crime against humanity of the torture. Article 8 ICA and Article 4(1)(f) ICA provide that a temporary term of 30 years imprisonment or a life sentence may be imposed for both offences. Given the concurrence of the two proven offences in a single act, the maximum sentence to be imposed for these offences is a temporary term of 30 years imprisonment or a life sentence. The maximum of the principal temporary sentences prescribed for those offences is reduced by one third, because the case involves complicity.

Count 7 concerns participation in criminal organisation with the objective of committing crimes. During the proven period, a maximum prison sentence of 6 years applied pursuant to Article 140(1) (old) of the Dutch Criminal Code. For leaders, the term of imprisonment could be increased by one third pursuant to Article 140(3) (old) DCC, resulting in a maximum term of imprisonment of 8 years for this offence.

The consequences

[Victim] was dragged from his home in the middle of the night by masked, armed men and placed inside a car, flanked by one of the men on either side. His son was present during this incident. [Victim] sustained bruises and loose teeth as a result. There was no arrest warrant, and no reason for the arrest was given. Those involved in the arrest were aware of [victim]’s political views, which were opposed to arming the residents of the al-Nayrab camp.

After his arrest, [victim] was beaten in the car, and cigarettes were extinguished on his head. One of the members of Liwa al-Quds told [victim]: “We are going to chop you into pieces”. After a stay at the civilian airport of Aleppo, he was transferred to the AFID prison. There he was confined in a 6-by-4 meter cell with approximately 80 to 100 other detainees. They stood pressed against each other and could not lie down. The cell had no windows, only an air vent. After several days, he was tortured using the Falaka method. [Victim] had to hold his legs up and was subsequently beaten for a prolonged period with a wooden stick on the soles of his feet, causing him to lose feeling in them. He was then made to stand up and hop in order to regain sensation, after which he was beaten again on the soles of his feet. After the interrogator had stopped beating him, he told [victim] that he would be summarily tried, which meant execution. During his imprisonment, [victim] received hardly any food. When he was brought in, he weighed 80 kilograms, and upon departure, only 35 kilograms. Due to the lack of water, he drank water mixed with oil from the central heating system. Following his release, [victim] spent 7 or 8 days in the hospital’s intensive care unit. Two of his toes, which had been burned by electrocution, were amputated there.

The defendant did not personally torture [victim]. He was complicit in these heinous crimes.

The defendant also made an essential contribution to the arrest of [victim] by the AFID. He must have known that, in doing so, he was contributing to the inhuman treatment [victim] would later endure while in the custody of the AFID. He accepted the substantial likelihood that others would subject [victim] to horrific torture with grave and long-lasting consequences. During his interview by the examining magistrate on 12 January 2023 – approximately ten years after his arrest – [victim] explained that he still suffers pain at the site of the amputated toe on his left foot.

Furthermore, the defendant participated in the organisation Liwa al-Quds. He actively contributed to the realisation of that organisation’s objective, namely the commission of war crimes and crimes against humanity. This organisation contributed to the oppression of the Syrian civilians, including by actively collaborating with the AFID, which was known as the cruellest of the Syrian intelligence services. To the detriment of the defendant, the Court of Appeal takes into account his leading position within Liwa al-Quds.

The foregoing justifies the imposition of a lengthy term of imprisonment. The Court of Appeal acknowledges that imposing this sentence cannot undo [victim]’s suffering but hopes that it may offer some measure of redress. By way of illustration, the Court of Appeal cites part of [victim]’s statement to the examining magistrate: “I have nothing against the defendant personally. I want justice to prevail. I want to avail myself of the justice system in Europe so that I can make my voice heard on behalf of all victims.”

Furthermore, the imposition of this sentence should have a deterrent effect. Those who have committed the most serious crimes elsewhere in the world must realise that the Netherlands does not provide a safe haven, but is committed to the prosecution, which may result in lengthy prison sentences.

The personal circumstances of the defendant

On the basis of an extract from the criminal records relating to the defendant dated 27 May 2025, the Court of Appeal establishes that the defendant has not previously come into contact with the Dutch judicial authorities.

The defendant came to the Netherlands from Syria as a refugee. He applied for asylum on 10 October 2020. He was granted a fixed-term asylum residence permit, valid from 10 October 2020 until 10 October 2025. His file was subjected to further investigation pursuant to Article 1F of the Refugee Convention. By decision of 23 May 2025, his asylum residence permit was revoked. He is under no obligation to return to Syria, given the recent change of power in Syria and the fact that the defendant is considered to be an active supporter of the former Syrian regime. As a Palestinian, he is in all likelihood stateless.

Counsel for the defendant argued that, given the aforementioned circumstances, the defendant would be unable to benefit from potential conditional release and – due to the danger in Syria – would be unable to leave the correctional facility under Article 40a of the Regulation on Temporary Leave from the Correctional Facility (interruption of sentence). Although it cannot be stated with certainty at this stage that the outlined developments will actually occur, the Court of Appeal takes this into account as a mitigating factor. The Court of Appeal also takes account, to some extent in the defendant’s favour, the circumstance that he is separated from his wife, does not see his children, has no other family in the Netherlands and he must serve his prison sentence in a Dutch facility while he is not proficient in the Dutch language.

Otherwise, the proceedings in court have not revealed any personal facts and/or circumstances that the Court of Appeal must take into account when imposing the sentence – either to the benefit or detriment of the defendant. The defendant largely exercised his right to remain silent. Consequently, only limited insight has been gained into the defendant’s personal circumstances and motives.

Concurrence

In determining the sentence, the Court of Appeal took into account that there was concurrence of a single act with respect to the torture of [victim] and the crime against humanity of torture. In the Court of Appeal’s view, there was no concurrence of acts between Counts 2 and 3 and Count 1, as argued by the Defence. Count 1 concerns – briefly stated – the deprivation of [victim]’s physical liberty at a specific moment in and around the Al-Nayrab refugee camp, whereas counts 2 and 3 concern – also briefly stated – complicity in the torture of [victim] as a crime against humanity and as an isolated crime during the subsequent 20 days in the AFID prison in Aleppo. The defendant cannot be held accountable for these three counts as essentially a single act.

Conclusion

Torture and crimes against humanity are among the most serious crimes, namely international crimes that are of concern to the international community as a whole and must not go unpunished. The maximum penalties prescribed for such offences reflect this. The Court of Appeal weighs the large-scale repression and acts of violence against civilians by Liwa al-Quds, to which the defendant, as a leader, made an significant contribution and which caused much irreparable suffering, heavily against the defendant. The sentence imposed by the District Court does insufficient justice to the seriousness of the criminal offences committed by the defendant.

The Court of Appeal is therefore of the view that a fully unconditional term of imprisonment of 14 years would, in principle, be justified. However, the circumstances weighing in the defendant’s favour, as set out above, lead to a reduction of the sentence by 9 months, so that the imposition of a term of imprisonment of 13 years and 3 months is, in principle, deemed appropriate and warranted.

The Court of Appeal finds, however, that the reasonable time referred to in Article 6(1) ECHR has been exceeded during the proceedings at first instance and on appeal.

The prosecution of the defendant commenced with his placement in police custody on 24 May 2022 and the District Court did not deliver its judgment until 22 January 2024, at which time the defendant remained in pre-trial detention. Consequently, the reasonable time for adjudication in the first instance was exceeded by approximately 4 months.

Given that the defendant lodged an appeal on 1 February 2024, the Court of Appeal is delivering its judgment on 27 August 2025, and the defendant is currently still in pre-trial detention, the reasonable time for the appellate proceedings was exceeded by approximately 3 months.

The Court of Appeal will take this delay into account when determining the sentence, in the sense that instead of the previously mentioned sentence which was in principle appropriate and warranted, a term of imprisonment of 13 years will be imposed.

The imposed prison sentence is to be served entirely within a penitentiary institution, until such time as the convicted person becomes eligible to participate in a penitentiary programme as referred to in Article 4 of the Custodial Institutions (Framework) Act, or until the conditional release scheme, as referred to in Article 6:2:10 of the Dutch Code of Criminal Procedure, becomes applicable.

In the present criminal proceedings, [victim] joined as an injured party and filed a claim for compensation of non-pecuniary damage suffered in the amount of €10,000.00 as a result of the offence charged against the defendant under Count 1, and in the amount of €30,000.00 as a result of the offences charged against the defendant under Counts 2 and 3.

On appeal, this claim is at issue up to the total amount of €40,000.00 claimed at first instance and maintained on appeal.

Position of the Advocates General

The Advocates General have concluded that the claim of the injured party should be awarded on a joint and several basis, with the compensation order pursuant to Article 36f of the Dutch Criminal Code being imposed.

The position of the Defence

The claim of the injured party was contested on behalf of the defendant. The Defence has taken the position that the injured party should be declared inadmissible in its claim. The primary argument put forward in this regard is that the defendant should be acquitted of the offences charged under Counts 1, 2 and 3.

In the alternative, it was argued that the claim places a disproportionate burden on the criminal proceedings and that the Defence has not been given sufficient opportunity to present its arguments against the claim. In this regard, reference was made to the volume of documents submitted and it was asserted that, under Syrian civil law, it is unclear whether a causal link exists, whether the claim is subject to statutory limitations, or whether the defendant can invoke any form of immunity. The Defence also noted the lack of a legal basis for submitting reports commissioned by the injured party.

More in the alternative, the Defence requested that the damages be reduced and that the defendant not be held jointly and severally liable in view of this role. Furthermore, a request was made not to impose a compensation order.

Judgement of the Court of Appeal

Applicability of Syrian law

The first question that must be answered is which (substantive) civil law governs the assessment of the claim.

The question regarding the law applicable to the claim of the injured party (concerning the tort) must be answered on the basis of the rules of the so-called Rome II Regulation (Regulation (EC) no. 864/2007). The Rome II Regulation has been applicable since 11 January 2009 in all EU Member States (except Demark) and therefore also in the Netherlands.

Pursuant to Article 3, Rome II has a universal scope of application, which means that this Regulation also applies to cases brought before Dutch courts involving a tort committed outside the EU.

Article 4(1) of the Rome II Regulation lays down the general rule for determining the applicable law, namely that the law applicable to a tort is the law of the country in which the damage occurs (lex loci damni), irrespective of the country in which the event giving rise to the damage occurred and irrespective of the countries in which the indirect consequences of that event occur.

In the present case, this general rule leads to the application of Syrian law, because the tort was committed there and the damage occurred there as well.

The Court of Appeal will therefore, also having regard to the position of all the parties to the proceedings, assess the claim of the injured party in accordance with Syrian law.

Course of the proceedings and admissibility of the claim

With regard to the relevant Syrian provisions and their interpretation, the injured party submitted documents in the proceedings at an earlier stage, namely a document entitled “legal opinion regarding compensation for a criminal offence” by A. Majni (submitted on 21 September 2023) and a document entitled “Personal Legal Claim (Compensation), reparation of damage in accordance with Syrian law by R. Ali (submitted on 30 December 2024), which address the legal framework for compensation on the basis of a tort under Syrian law.

At the pro forma hearing of 7 October 2024, the Court of Appeal ordered a round of written submissions regarding the claim of the injured party. Following that written round, the Court of Appeal referred the case at the pro forma hearing of 5 March 2025 to the examining magistrate to obtain further information on the application of Syrian (civil) law, which resulted in the “Expert report on claims for damages under Syrian civil law” by the International Legal Institute Foundation (hereinafter: IJI). The English version of the expert report was provided to the parties on 20 May 2025, and the Dutch translation on 4 June 2025. By letter dated 20 May 2025 with annexes – which were addressed during the pro forma hearing of 26 May 2025 – counsel for the injured party submitted the answers given by R. Alito three additional questions. One of the questions concerned whether statutory interest could be awarded on the compensation. In his response, he referred to a number of precedents of Syrian courts included in an annex.

In the Court of Appeal’s view, all parties have had timely opportunity to examine all the documents submitted as mentioned above.

In light of this course of the proceedings and the available documents, the Court of Appeal considers itself, unlike the District Court, sufficiently informed to give a substantive ruling on the claim.

Furthermore, the Court of Appeal is of the opinion that, having regard to the nature of the claim of the injured party, which is clear and simple in itself (concerning only a claim for non-pecuniary damages), and given that, in addition to the documents submitted in 2023 and 2024, the appeal proceedings included a round of written submissions, followed by an expert report from the IJI and a hearing on a claim, the Defence must be deemed to have had sufficient opportunity to present any arguments it wished to raise against the claim.

Accordingly, in the Court of Appeal’s opinion, the handling of the injured party’s claim at the appeal hearing does not constitute a disproportionate burden on the criminal proceedings.

Quality of the translation of the IJI expert report

In the Court of Appeal’s view, it has not been shown that the quality of the translation of the IJI expert report is deficient or contains flaws or inaccuracies. In this regard, the Court of Appeal takes into account that the content of the IJI report contains no contradictions with the documents previously submitted by the parties and that the conclusions in those reports regarding the issues of statutory limitations, causation, and the power to estimate damages largely correspond on the relevant points.

Submissions concerning the expert reports submitted by the injured party

In assessing the claim, the Court of Appeal will also take into account the documents that were prepared at the request of the injured party and submitted to the proceedings.

Given their content and notwithstanding the arguments raised by the Defence, the Court of Appeal considers these reports as evidence of the damage suffered as a result of the criminal offence, as referred to in Article 334(1) of the Dutch Code of Criminal Procedure.

In addition, the Defence has pointed out that it was not granted access to the Syrian rulings cited in the document by R. Ali, which was submitted by the injured party.

In the Court of Appeal’s opinion, the inability to consult the Syrian case-law cited in R. Ali’s report does not preclude its use for the purpose of elucidating Syrian law in this regard. In this context, the Court of Appeal notes that it appointed an expert – supplementing the documents previously submitted – to prepare an expert report on the application of Syrian civil law on a number of specified points, against the background of the question to be answered by the Court of Appeal regarding the civil liability of the defendant. The Court of Appeal has determined that, with regard to the relevant parts, there are no discrepancies concerning the interpretation of Syrian law in the three documents mentioned.

Submissions concerning the claim of the injured party

a. Statute of limitations

The IJI expert report and the two documents submitted on behalf of the injured party indicate that, under Syrian law, the limitation period for a tort resulting from a criminal offence follows the limitation period of the criminal offence itself prescription of a wrongful act that is the result of a criminal offence follows the prescription period of the criminal offence (cf. Article 173(2) of the Syrian Civil Code). For felonies, Syrian law provides a limitation period of 10 years, as appears from Article 437 of the Syrian Code of Criminal Procedure.

The injured party, [victim], was unlawfully deprived of his liberty on 28 January 2013 by the defendant, among others. The investigation into the defendant commenced on 2 October 2020, and the defendant was arrested and placed in police custody on 24 May 2022. This means that the limitation period under Syrian law was interrupted when the defendant was taken into police custody on 24 May 2022, given that less than 10 years had elapsed since the date the criminal offence was committed. The claim is therefore not time-barred under Syrian law. Thus, contrary to the Defence’s argument, this does not constitute grounds for declaring the claim of the injured party inadmissible either.

Immunity

The Court of Appeal further notes that it has neither been asserted nor shown that the defendant enjoys immunity under Syrian law, so that the claim brought by the injured party is admissible in that respect as well.

Causality

Article 164 of the Syrian Civil Code stipulates that any fault causing damage to third parties must be compensated by the perpetrator. Article 138 of the Syrian Civil Code further stipulates that any person who commits an offence resulting in material or immaterial damage is obliged to compensate such damage.

The Court of Appeal has established – insofar as relevant to the claim – that the defendant is guilty of three criminal offences.

Under Syrian law, it must be established that the victim suffered the claimed damage and that the damage was caused by the defendant (the causal link).

According to the IJI report, the question whether a causal link exists must be answered on the basis of the “theory of the productive cause”. Under this theory, a distinction must be made between the productive cause, which is sufficient in itself to cause damage, and the contributing cause, which is not sufficient in itself to cause damage. To establish a link between fault and damage, that causal link must be direct and established.

In light of the proven facts, the Court of Appeal is of the opinion that the defendant can be held responsible for the damage resulting from his conduct on the basis the theory of the productive cause. The defendant’s awareness of the reputation of the AFID, and thus of the impending torture that [victim] would be subjected to in detention, leads to the conclusion that the torture in AFID detention had a sufficient direct link with the defendant’s contribution to the arrest of [victim].

Type of compensation

Under Syrian law, both pecuniary and non-pecuniary damage are eligible for compensation.

Estimation of the compensation

Under Syrian law, the injured party is entitled to compensation for damages from the moment they arise. Article 171 of the Syrian Civil Code stipulates that the court is required to estimate the amount of compensation, taking the circumstances into account. These include both the circumstances of the injured party as well as the circumstances of the liable party, including the severity of the fault and the financial situation of the liable party.

Manner of compensation

Article 172 of the Syrian Civil Code stipulates that the court determines the manner of compensation, whether in kind or otherwise.

Joint and several liability

Article 170 of the Syrian Civil Code stipulates that damages may be awarded jointly and severally.

Order for costs

Article 318 of the Syrian Code of Criminal Procedure stipulates that the convicted person is ordered to pay the costs of the proceedings.

Regarding the charge proven under Count 1

The Court of Appeal finds it plausible that the injured party suffered no-pecuniary damage within the meaning of Article 223 of the Syrian Civil Code in the amount of €10,000.

The Court of Appeal finds that the offence proved under Count 1, in its primary form, constitutes a fault within the meaning of Article 164 of the Syrian Civil Code. The Court of Appeal further finds that this damage is a direct consequence of the offence proven under Count 1 primary, since this damage must be regarded as a natural consequence within the meaning of Article 222 of the Syrian Civil Code.

In view of the foregoing, the claim in respect of the non-pecuniary damage suffered is eligible for an award on a joint and several basis for the amount claimed, having regard to the provisions of Articles 170, 171 and 172(2) of the Syrian Civil Code. In doing so, the Court of Appeal takes into account the gravity of the fault, the circumstances under which it occurred, and the consequences for the injured party, as apparent from the evidence, the sentencing considerations and the explanation supporting the injured party’s claim. Little is known about the exact financial situation of the liable party, the defendant; the liable party is currently detained and has no income, and no information is available regarding assets or debts. In the Court of Appeal’s view, the financial situation of the liable party does not warrant the estimate compensation being lower than the amount claimed.

The Court of Appeal will reject the claim for statutory interest. The IJI report does not provide a legal basis for such an award under Syrian law. The Court of Appeal considers the reference by Riad Ali, who was consulted by the injured party, to certain Syrian precedents allegedly supporting entitlement to statutory interest to be a too narrow basis for awarding that part of the claim.

Regarding the charges proven under Counts 2 and 3

The Court of Appeal finds it plausible that the injured party suffered non-pecuniary damage within the meaning f Article 223 of the Syrian Civil Code in the amount of €30,000.

The Court of Appeal finds that the acts proven under Counts 2 and 3 constitute a fault within the meaning of Article 164 of the Syrian Civil Code. Furthermore, the Court of Appeal finds that this damage is a direct consequence of the acts proven under counts 2 and 3, as this damage must be regarded as a natural consequence within the meaning of Article 222 of the Syrian Civil Code. In that regard, the takes into account that, at the time of the defendant’s conduct, it was foreseeable that the injured party would ultimately be transferred to the AFID, and that as a result, he would be exposed to torture and would suffer additional damage, which apparent from the evidence presented.

In view of the foregoing, the claim in respect of the non-pecuniary damage suffered is eligible for an award on a joint and several basis for the amount claimed, pursuant to the provisions of Articles 170, 171 and 172(2) of the Syrian Civil Code. In this regard, the Court of Appeal takes into account the gravity of the faults, the circumstances in which these occurred and the consequences for the injured party, as these apparent from the evidence, the sentencing considerations and the explanation supporting the injured party’s claim. Little is known about the exact financial situation of the liable party, the defendant; the liable party is currently detained and has no income, and there is no information available regarding assets or debts. According to the Court of Appeal, the financial situation of the liable party does not warrant the estimate compensation being lower than claimed.

Statutory interest is not awardable. The Court of Appeal refers in this regard to the considerations set out above.

In view of the foregoing, the defendant must be ordered, pursuant to Article 318 of the Syrian Code of Criminal Procedure, to pay the costs incurred by the injured party in connection with the claim up to the time of this judgment, which costs the Court of Appeal provisionally assesses at nil, and the costs the injured party may yet incur for the enforcement of this judgment.

Payment to the State for the benefit of the victim [victim]

Now that it has been established that the defendant is liable for the damage caused by the proven offences up to an amount of €40,000.00, the Court of Appeal will impose on the defendant the joint and several obligation to pay that amount to the State for the benefit of victim [victim].

The Court of Appeal has had regard to Articles 9, 36f, 47, 48, 55, 57 and 140 of the Dutch Criminal Code as well as Articles 1, 2 (old), 4 and 8 of the International Crimes Act, as they currently apply or previously applied, as the case may be.

The Court of Appeal:

Declares the defendant inadmissible in the appeal, insofar as it is directed against the decision concerning the offences charged under Counts 4, 5 and 6.

Declares the Public Prosecutor inadmissible in the appeal, insofar as it is directed against the decision concerning the offences charged under Counts 4, 5 and 6.

Sets aside the judgment under appeal insofar as it is subject to the Court of Appeal’s review and, and to that extent, renders a new judgement;

Declares the Indictment partially void in respect of the offence charged under Count 7, as considered above.

Declares, as set out above, that the defendant committed the offences charged under Count 1 in its primary form, and under Counts 2, 3 and 7.

Declares not proven what more or otherwise has been charged against the defendant than has been proven above and acquits the defendant thereof.

Declares the offences proven under Counts 1 in its primary form, 2, 3, and 7 to be punishable offences, qualifies them as stated above and declares the defendant criminally responsible.

Sentences the defendant to a term of imprisonment of 13 (thirteen) years.

Orders that the time spent by the defendant in any form of pre-trial detention referred to in Article 27(1) of the Dutch Criminal Code prior to the enforcement of this judgment, be deducted from the imposed sentence, insofar as that time has not already been deducted from another sentence.

Claim by injured party [victim]

Awards the claim for compensation by the injured party [victim] regarding the offences proven under Counts 1 in its primary form, 2 and 3, in the amount of €40,000.00 (forty thousand euros) for non-pecuniary damage, for which the defendant is jointly and severally liable with the co-perpetrator(s) for the entire amount.

Orders the defendant to pay the costs incurred by the injured party and any costs yet to be incurred for the enforcement of this judgment, assessed at nil up to the date of this judgment.

Imposes on the defendant the obligation to pay to the State, for the benefit of the victim, named [victim], the amount of €40,000.00 (forty thousand euros) as compensation for non-pecuniary damage in respect of the offences proven under count 1 in its primary form, 2 and 3.

Determines that the duration of detention in lieu of payment shall not exceed 235 (two hundred thirty-five) days. Application of such detention does not extinguish the obligation to pay compensation to the State for the benefit of the victim.

Determines that if, and insofar as, the defendant or his co-perpetrator(s) have satisfied either of the two payment obligations, the other shall lapse.

This judgment was rendered by

D.M. Thierry, LLM, as Presiding Judge,

M.I. Veldt-Foglia, LLM, and W.S. Korteling, LLM, Judges,

in the presence of the Court Clerks T.A. van den Berg, LLM, and R. de Geus, LLM.

It was pronounced at the public hearing of the Court of Appeal of 27 August 2025.