Prosecutor v. Aria Ladjedvardi

Court	Higher Regional Court, Frankfurt am Main, Germany
Case number	5-3 StE 2/16 - 4 - 1/16
Decision title	Judgment
Decision date	12 July 2016
Parties	Prosecutor Aria Ladjedvardi
Categories	War crimes
Keywords	Foreign fighters, Jabhat al-Nusra, Non-international armed conflict, Syria, Terrorism, war crimes
Links	http://www.lareda.hessenrecht.hessen.de/lexsoft/default/hessenrecht_lareda.html#docid:7661851

Summary

The case involved a 21-year-old man of German nationality with Iranian roots. He became a radicalised individual of Salafist Islam while living in Germany and eventually decided to travel to Syria. During his time, there were three photographs taken of him posing with the severed heads of enemy combatants impaled on metal rods, together with another man, known to be involved with jihadists groups in Syria.

After his return to Germany, these photos were uploaded by Vedat V. onto a Facebook page, with limited privacy settings. Additionally the accused had stored these photos on a computer belonging to the sister of a deceased foreign fighter and on his mother’s phone. The accused was arrested and charged with war crimes under the German International Criminal Code, for gravely humiliating and degrading treatment of protected persons, in this instance the bodies of deceased soldiers.

The trophy like treatment of the severed heads and knowledge of the fact that viewing such photos would horrify and shock a reasonable person demonstrated the intent of the accused to mock the dead.

He was sentenced to two years’ imprisonment for war crimes consisting of the degrading and humiliating treatment of protected persons.

Procedural history

The accused was arrested on 14 October 2015 in connection with war crimes charges.

Hearings on the case commenced in May 2016 in the Higher Regional Court of Frankfurt am Main. The judgment was delivered on 12 July 2016.

Legally relevant facts

The case arose in the context of the conflict in Syria, which involves various actors including the Syrian government and a number of armed groups such as the Free Syrian Army, Islamic State in Iraq and Syria (ISIS), Kurdish groups and Jabat al-Nusra. Jabat al-Nusra, the Maroof-troop and Ahrar al-Sham were in control of the Syrian province of Idlib at the time of the accused’s presence in Syria from March until April/May 2014.

(Tatgeschehen – the Situation in Syria)

The accused is German with Iranian roots and he travelled to Syria for a period of time from March–April/May 2014. This case deals with photos taken of the accused with the impaled heads of opposition combatants from the State’s armed forces. These photos were later uploaded onto a Facebook page upon the accused’s return to Germany by an individual, identified as Vedat V., with whom he had lived while in Syria. Copies of these photos were also found on a phone belonging to the accused’s mother and on a computer of the accused’s deceased friend’s sister.

Core legal questions

Does the German International Criminal Code (VStGB) apply to potential crimes committed by the accused in Syria?
Are deceased people protected persons under international humanitarian law (IHL)?
Did posing with the heads of deceased enemy combatants consist of gravely degrading and humiliating treatment for the purposes of Section 8(1)(9) and Section 8(6)(2) of the VStGB?

Specific legal rules and provisions

Section 8(1)(9) in conjunction with Section 8(6)(2) of the VStGB

Court's holding and analysis

Applicable Law

The Court found that the VStGB applied in the case due to the ongoing non-international armed conflict (NIAC) in Syria, including in the province of Idlib where the accused was present. The VStGB establishes universal jurisdiction under Section 1 of the Code for specific offences, such as war crimes. The Court held that, due to the actions and level of organisation of the various groups involved, the conflict had met the thresholds of duration and intensity of violence, thus giving rise to the application of IHL. Given that the victims were members of the State’s armed forces, the offence had a sufficient connection to the conflict so as to be considered a war crime.

(C. Rechte Würdigung)

Intent

The Court examined the accused’s intent and his claim that he was forced to pose for the photos and was only in Syria to provide humanitarian assistance. First, the claim that he was forced was rejected by the Court based on his relaxed position in the photos, the fact that he had been a radicalised Muslim prior to traveling to Syria, and from various recorded conversations and exchanges in which he had expressed his views towards non-believers. For example, he had said he wanted to fight the non-believers and told his mother that she would go to hell because of her lack of religious practice, as well as trying to force a strict Islamic lifestyle on his girlfriend.

Second, the Court further examined his claim that he had intended to travel to Syria to provide humanitarian assistance. They considered the large number of purchases, valuing €3000, which he made before going to Syria. However, when asked repeatedly for further information on what assistance he had intended to provide, he simply replied that he had brought “stuff” with him. His claim was made more tenuous as a result of his contact with Vedat V., who is also a German national with known links to groups such as ISIS and Jabat al-Nusra. The Court found that the accused was aware and wanted to be photographed, that he knew the heads belonged to members of the opposition, and that he intended to mock the dead and their honour. Additionally, he was aware of the fact that the photos were likely to be posted online, where they could potentially be viewed by an unlimited group of people.

(C. Rechte Würdigung – VI. Subjektiver Tatbestand)

Protected Persons

Of importance to the case was whether or not the deceased persons fell under the “protected persons” definition as per Section 8(6)(2) of the VStGB. The Court found that the victims could be classified as “protected persons” for the purposes of the provision as they were both enemy combatants and the provision provided protection to combatants who are hors de combat. As the soldiers had been captured prior to being killed and decapitated by an unknown individual, it was considered consistent with the legislative intent that their bodies should also be treated with respect after death and afforded a protected status. This protection did not cease upon their death due to the dignity of human beings. Although deceased individuals are not explicitly referred to under the relevant provision, affording protection to deceased individuals falls within the scope of the text. The Court went on to consider the generally accepted use of “people” for both living and dead, as well as the Rome Statute, upon which the VStGB is based, and the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Furthermore, it referred to the International Committee of the Red Cross’ study of Customary International Humanitarian Law under which Rule 113 prohibits the mutilation of dead bodies.

(C. Rechte Würdigung – III Geschützte Personen)

Gravely degrading and humiliating treatment

In addition to the protected persons, it was necessary for the Court to determine whether the acts consisted of “gravely degrading and humiliating treatment”. The Court defined “treatment” for the war crimes provision to include any conduct, omission or acquiescence and noted that even mere insults could be sufficient.

In considering whether the act amounted to gravely humiliating and degrading treatment, the Court considered the reactions which such photographs would provoke, stating that “any reasonable person confronted with these photographs would likely feel revulsion, disgust and be horrified”. Additionally, it considered the cultural nature of the acts and the trophy-like treatment of the victims’ heads by the accused.

(C. Rechte Würdigung – IV Tathandlung)

Verdict and Sentencing

The Court found the accused guilty and sentenced him to two years’ imprisonment for committing the war crime of treating protected persons under IHL in a gravely degrading and humiliating manner and refused to grant him parole due to his continuing extremist Islamic views and assaults on his ex- and current girlfriends.

(D. Rechtsfolgen – II Strafzumessung)