Prosecutor v. Mouhannad Droubi

Court	Södertörn District Court, Sweden
Case number	B 13656-14
Decision title	Judgment
Decision date	26 February 2015
Parties	Prosecutor Mouhannad Droubi
Categories	War crimes
Keywords	outrages upon personal dignity, Syria, assault, extraterritorial jurisdiction
Other countries involved	Syria Turkey

Summary

On 26 February 2015, Syrian citizen Mouhannad Droubi was sentenced by the Södertörn District Court in Sweden to five years in prison for crimes against international law (war crime) and gross assault. Droubi, who fought for the Free Syrian Army against the pro-government forces in the Syrian conflict, had taken refuge in Sweden and was granted residency in 2013. In July 2014, the Swedish police discovered a video of him, along with at least five other FSA fighters, violently assaulting a man who appeared to be a pro-regime fighter with a truncheon and a whip. The decision was overturned several times on appeal, leading to the final judgment of 5 August 2016 in which the accused was sentenced to 8 years’ imprisonment.

Procedural history

In July 2014, the Swedish police discovered an incriminating video filmed by Mouhannad Droubi. A friend of the accused had alerted the police after she found the video in Droubi’s email as he had left his account open on her computer. He had also initially uploaded the video on Facebook.

He was arrested on 4 October 2014 and indicted on 2 February 2015 on charges of committing a war crime (“crimes against international law”) and gross assault by the Södertörn District Court.

Related developments

On 26 February 2016 the decision was overturned by the Svea Court of Appeal as the previously unknown victim, Enes Abi Ahmed, had been tracked down in Turkey by a Swedish journalist. In light of the new evidence provided by the victim, the Court ordered a new trial.

On 11 May 2016, the Södertörn District Court sentenced Droubi to 7 years under Swedish law for gross assault, but dismissed the war crime conviction. It emerged that Ahmed was a defected regime soldier who had joined the Free Syrian Army (FSA). The attack took place after a

fight between the victim and fellow FSA rebels. The Court thus concluded that there was no demonstrated link between the beatings and the Syrian armed conflict. It also ordered that the victim receive 268,000 kronor ($32,900) in damages.

In a final judgment on 5 August 2016, the Svea Court of Appeal overturned the 11 May decision by sentencing Droubi to 8 years for gross assault and crimes against international law. The Appeals Court found that the beatings were in direct connection with the Syrian armed conflict which was already taking place in the summer of 2012. As such, it justified the war crime conviction.

Legally relevant facts

Mouhannad Droubi is a Syrian citizen who fought for the FSA against the forces loyal to Syrian President Bashar al-Assad.

In the summer of 2012, between 1 March 2012 and 31 July 2012, the accused along with at least five FSA rebels assaulted an unidentified man affiliated with the pro-regime forces. The victim, who was already injured, was tied to a chair with his hands and feet bound. He was then violently beaten with a truncheon and a whip, and also punched in the face and body by the FSA fighters. In addition, the fighters threatened to cut off his tongue.

Droubi filmed the assault and uploaded the video on Facebook soon after, seemingly to prove his FSA credentials.

After suffering of injuries, the accused fled to Turkey and then travelled to Sweden in September 2013 as a refugee. He was granted permanent residency as well as an asylum status in December 2013.

Core legal questions

Does the Södertörn District Court have jurisdiction over the crimes committed by the accused, a Syrian citizen, in Syria?

Did Mouhannad Droubi, through his 2012 actions in Syria, commit the following crimes:

Crimes against international law (war crimes) as defined by Section 6 of Chapter 22 of the Swedish penal Code?

Gross assault as provided by Section 6 of Chapter 3 of the Swedish Penal Code?

Specific legal rules and provisions

Swedish Penal Code:

Chapter 2, section 2: applicability of Swedish Law and jurisdiction of the Swedish Court.
Chapter 3, Section 6(2): gross assault.
Chapter 22, section 6(1): crimes against international law.

Common Article 3 of the Geneva Convention: rules governing non-international armed conflicts.

Court's holding and analysis

First, the Court had to decide whether it had jurisdiction over Droubi’s actions in Syria. Chapter 2, section 2 of the Swedish Penal Code states that crimes committed abroad can be adjudged by a Swedish Court under Swedish law if committed by an alien who, after having committed the crime, has acquired domicile in the country. Mouhannad Droubi had obtained a Swedish permanent resident status in December 2013, the Court therefore concluded it could adjudge the case.

Second, the Court determined whether the accused had committed crimes against international law, which are defined by Chapter 22, section 6 of the Swedish Penal Code as “serious violation of a treaty or agreement … or an infraction of a generally recognized principle or tenet relating to international humanitarian law” (IHL).

An expert witness testified that in the summer of 2012 there was a non-international armed conflict in Syria.
The Court ruled that the victim was hors de combat and should have been treated as a protected person under IHL.
In the video, Droubi had taken part in “acts of violence of torture-like character” and was therefore convicted of violating Common Article 3 of the Geneva Conventions as well as customary IHL.
Additionally, Droubi was convicted for extremely gross assault under Chapter 3, Section 6(2) of the Swedish Penal Code.

The Court rejected Droubi’s defence – that he was forced to perform the acts– and found that the accused had clearly acted of his own free will. The accused was sentenced to a 5 years jail term but was not deported because of the situation in Syria.