Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

Astrid Reisinger Coracini: 00:00  So we have a structural problem, and this is mainly due to the fact that we have no specialised prosecution unit in Austria that deals with crimes under international law. And here in Austria, we really had a prosecutor who dug himself into the substance, but still it was a lot.

[INTRO TUNE] 

Narrator: 00:19  No one can act with impunity. These are crimes that are beyond the pale. We are talking about human beings, we’re not talking about numbers. We need a court, that’s as simple as that. This is Asymmetrical Haircuts, your international justice podcast with Janet Anderson and Stephanie van den Berg. This episode was produced in partnership with justiceinfo.net. All rise.

Janet: 00:43  Hi, Steph.

Stephanie: 00:44  Hi, Janet. 

Janet: 00:45  Here we are back again exploring universal jurisdiction dun-da-da!

Stephanie: 00:50  da-da, but tell me, Janet, where has your extended search into universal jurisdiction landed us today?

Janet: 00:57  Well, this time it’s Austria. That wasn’t originally on my main list as one of the places that we really had to get into, but there was a bit of an extraordinary trial earlier this year. A case which was full of twists and turns, which I’m sure we’ll get into, and I am going to do the very typical: it’s just like an Orson Welles noir movie with spies, torture, escape, capture. It’s got it all.

Stephanie: 01:24  Ooh, a very Third Man indeed. Luckily, we have a friend of the pod, Astrid Reisinger Coracini, to help us. She is an international criminal law expert and senior scientist at the University of Salzburg. Hi, Astrid.

Astrid Reisinger Coracini: 01:38  Hi, Stephanie. Hi, Janet. It’s really a pleasure to be back on the pod.

Janet: 01:42  Great. Thank you so much, Astrid, for making time for this. In the pod, we really want to focus in on the detail of how Austria actually does universal jurisdiction because that’s the whole series, but the lens through which we’re examining it is, as I’ve indicated, this incredibly highly coloured story. So we are relying on you to bring in all of the specific facts and to make sure that we are centred on how it actually works in Austria. But of course, we’re going to ask you to tell the story. Maybe just to start with, we can get the Stephapedia on the background of what’s actually happened.

Stephanie: 02:19  To look at the Stephapedia part, I had to dive into this, and it is really amazing. So what we have is there are two Syrian men, Khaled al-Halabi, the former Brigadier General and the head of the General Intelligence Directorate in Raqqa, and Musab Abu Rukhba, a former senior criminal police officer. They were charged with systematic torture, aggravated coercion and sexual violence against civilian opponents of the regime of former Syrian President Bashar al-Assad between 2011 and 2013. Now, in court, 20 Syrian survivors testified against these two former Assad-era officials and they described in harrowing details the lasting physical and psychological trauma of the treatment they received. As is usual in these cases, the suspects denied all of it. But Mr. al-Halabi was convicted of torture and other crimes and Mr. Abu Rukhba was convicted of the charges that included aggravated coercion and sexual coercion. Both men were sentenced to eight years in prison and they both lodged appeals.

Janet: 03:27  Okay, I’m sure Astrid will correct us if we’ve got any of that wrong. So far for me, so kind of normal in inverted commas. And we can get back to some of those trial details which sound interesting. And Astrid’s already got her finger up. So Astrid, tell us, what, what didn’t we get right?

Astrid Reisinger Coracini: 03:45  No, just a very small point on the appeals. So both accused announced that they would file an appeal, and you need to do this within three days of the judgement, but they haven’t yet actually filed their written appeals. And we will see whether this will be done or not.

Janet: 04:03  Why don’t you take us back to these guys themselves and their connection with Austria? Because again, it’s universal jurisdiction. It’s something that happened in Syria. It’s Syrian people. It’s Syrian victims. It’s, it’s all to do with Syria. Are we again in the world of people who’ve claimed asylum, that they used to be with the regime and then they’re against the regime? How, how is Austria the space where this trial was happening?

Astrid Reisinger Coracini: 04:30  Well, I would say mainly by coincidence, because our universal jurisdiction is conditional and Austria would not be the top destination when you would want to file a universal jurisdiction case. But the fact that both men ended up in Austria and were present here, that triggered jurisdiction in this case. So we have these two men arriving in Austria separately. Mr. Halabi, he left Raqqa in February, March, the end of February, beginning of March of 2013, just a few days before the Free Syrian Army entered the city. And then he travelled via Turkey, Jordan to France, where he first applied for asylum. But even before this decision, he kind of made his way to Austria in a what is being called Operation White Milk. And I think this has gone through the international media already, that he was actually brought into Austria by the Austrian security services at the time.

Janet: 05:39  Operation White Milk, first France, then Austria. I mean, really, Steph, I mean, how on earth do we go into this?

Stephanie: 05:48  Well, first of all, of course, it’s a huge missed opportunity to call this Operation Milka, I have to say. But I’m wondering, why would, why would the Austrian intelligence services want this guy here? Is Austria trying to kind of make a name for itself with universal jurisdiction cases? Because we haven’t seen so many of them before. So, you know, why on earth is the Austrian government or intelligence services trying to get that guy on their territory?

Astrid Reisinger Coracini: 06:18  I don’t have any inside insights. What I know is, of course, also from news reports, but also a trial in court against a few former staff of the Austrian security services that were involved in this operation. So what is known in accordance with news articles is that probably there was a cooperation of the Austrian security services with probably the Mossad to welcome Mr. Halabi in Austria and also, to some extent, protect him as a person of interest. So this is one chapter of the meanwhile former Austrian security services that is not the brightest one. And it was also the reason why the whole structure was built up new from scratch. And as I’ve already mentioned, there have been court proceedings against some of the staff.

Janet: 07:23  I can feel you picking your way very carefully around what’s known and what’s not known. Just to say from what I’ve read about it, then great, isn’t it, that Austria has now got a new security service being built up from scratch. But the thing from the outside to say is, we’re talking about essentially a nine-year delay between when Austrian authorities were told this guy who you apparently are helping can be connected to these specific crimes, and when they finally decided to put him and, in the end, one of his colleagues on trial. I mean, how do you see that that nine-year delay?

Astrid Reisinger Coracini: 08:08  Well, I think it’s two proceedings that need to be separated from each other that also don’t have, at least in my understanding, not anything to do with each other. So on the one hand, we have this cooperation of security services, that a person is being brought into Austrian territory, helped to gain asylum status. When the prosecution proceeded with their investigation, this asylum status was also revoked due to the allegations. So one process, and the other process being the prosecution services that received information on the alleged commission of crimes started the investigation. And yes, you’re certainly right to criticise the length of the proceedings, which almost amount to 10 years from the first information that was received. But I don’t see them connected to each other. So there are some very reasonable grounds for that delay. Certainly the case is extremely complex. We have survivors, victims that are spread all over the place. Europe, some witnesses came from Sweden, the Netherlands, France, Germany, but also Turkey and Saudi Arabia. So you have a lot of mutual legal assistance that is involved that is very cumbersome. We had delays with medical expert witnesses that also needed to see the survivors in order to examine them. And then we also had COVID-19 happening in between. So I think there is a rationale why this took so long. Still, hearing about 10 years puts us quite in unease, I think. 

Janet: 10:04  Can you say whether this is indicative of whether there’s, theres enough staffing? I think it’s the public prosecutor’s office who’s behind this, how that actually works if we get into the nitty-gritty of how universal jurisdiction actually works in Austria, is this an indication that it’s not particularly well practised there? Or what would you say?

Astrid Reisinger Coracini: 10:26  So we have a structural problem. And this is mainly due to the fact that we have no specialised prosecution unit in Austria that deals with crimes under international law, the way you have it in Germany or Sweden or the Netherlands, where you really see that competence is being centralised, that there’s an institutional knowledge that can be used in cases to follow. And here in Austria, we really had a prosecutor who dug himself into the substance, but still it was a lot and there was nothing he could rely on to understand the structure of Syrian secret services, to understand the events in Syria and in Raqqa in the timeframe of 2011-2013. And this is a single prosecutor that is handling the entire case next to his general workload. This is certainly a structural issue, one that hopefully might be revisited in the future.

Stephanie: 11:28  We’re going to come to the trial, but first, keeping in this idea with 1950s film noir, Third Man, I’m going to foreshadow that we’re going to get a big twist at the end of talking about the trial. But we had a long run-up to the trial for the reasons you just talked about, just general difficulties and structural issues. But the trial itself, which you monitored, seems to have been fairly straightforward, even with victims coming in from other countries. When we look at other cases that are covered in universal jurisdiction, there’s also a big question of how is it going with translation for the victims? Are there video links? How is Austria doing this?

Astrid Reisinger Coracini: 12:07  Yes, I must agree that the trial proceedings as such went very smoothly. We had involvement of lay judges. Those cases in Austria come before a mixed jury of two professional judges and three lay judges. And you could see how the presiding judge always looked whether the lay judges are following the proceedings, are abreast of the developments and what they mean for the proceedings. That went extremely well. Of course, there’s translation. The official language in court in Austria is German. So everything needs to be presented in German. On the other hand, of course, the accused must understand what is going on in the courtroom. So there was a permanent translation into Arabic. And then we had a few witnesses, one in any case, that spoke English. So there was also a translation into English.

Janet: 13:02  Can you do a quick sidebar for me? And then maybe Steph has another one on these lay judges. What? I don’t understand. Lay judges? I mean, how? Where? Who are they? How on earth does that work? 

Stephanie: 13:15  Is it like the jurors in American systems, or do you have to have some kind of-

Astrid Reisinger Coracini: 13:19  It’s-it’s like a jury system. It’s foreseen in the Code of Criminal Procedure that some types of proceedings go either before a jury or before a mixed panel. So it’s a presence from the general public that are being called for duty.

Stephanie: 13:40  The jury, to me, evokes people who don’t necessarily know anything about law, but lay judges suggest some kind of legal training. But that’s not it. These are just jury members who are on the judges’ panel, essentially.

Astrid Reisinger Coracini: 13:51  Yes, it would be persons from the general public. Yeah, we can also call them lay persons. But since they’re sitting on the bench, I refer to them as lay judges, but they don’t have a formal legal training.

Janet: 14:04  I mean, just on that specifically, is this the first universal jurisdiction case, you know, that Austria has had? I’m assuming not. And is this therefore kind of standard practice? Is that how it works?

Astrid Reisinger Coracini: 14:18  Well, the question of which type of court is competent to hear the case is, of course, standard practice because it’s foreseen by law. So about universal jurisdiction cases, this is not the first case that relates events in Syria. We have had another case a few years ago, which eventually was charged on terrorism charges. But this was certainly the first universal jurisdiction case in the situation in Syria that we had that involved former members of the Assad regime, so public officials that were put on trial.

Stephanie: 14:54  Before I turn to twist after trial, which I promise our listeners is still coming, I have another geek law question, because I see what they’re convicted of is something that I haven’t really seen in other war crimes and crimes against humanity charges, this aggravated coercion and sexual coercion. So I wonder in Austrian law, is there a difference there with the things that can be charged in an Austrian war crime slash crimes against humanity trial?

Astrid Reisinger Coracini: 15:19  Well, not generally, but I think one of the takeaways that I have from this trial is that I was very pleasantly surprised how the investigation and the actual trial worked from a very difficult starting point. And the starting point is that Austria took quite a lot of time in implementing crimes under international law. And that includes also torture. So the crime of torture, in accordance with the UN Anti-Torture Convention, was implemented at the end of 2012 and entered into force in 2013. Then we have crimes against humanity and war crimes entering into force a year later at the beginning of 2014. And then the crime of aggression follows again one year later at the beginning of 2015. And Austria has always argued, at least before 2012, so the official position was that it’s not necessary to implement those crimes because the conduct that would also fulfil the definition of such a crime, torture, crimes against humanity, war crimes, that conduct is already punishable under Austrian law, under what is very often referred to in the literature as ordinary crimes. Of course, one can critique this. And I have been part of this critique, that you do not catch the structural evil wrongdoing that is also involved in the commission of crimes under international law. And therefore one should implement those crimes, including the international element. And one should have a crime of torture that actually uses the term torture in accordance with the international definition. And also Austria has been criticised in that regard by the Anti-Torture Committee in Geneva and this was also one of the reasons why the position was thought over and eventually those crimes were being implemented. But the events that we are talking about in this particular case are events between 2011 and 2013. So it’s broadly even before the entry into force of torture. So that’s why the accused were charged of counts of aggravated assaults, aggravated coercion, sexual coercion. And only with regards to one of the accused, that’s Mr. Halabi, there was one count of torture, which actually happened after the 1st of January 2013. So the new law on torture, the definition of the crime, was applicable. So in other words, for past crimes, past atrocities, we- to a large extent, we need to rely on the ordinary crimes. With the implementation of those crimes in the Austrian Criminal Code, this will change. And we have now all the crimes that you find in the Rome Statute also under Austrian criminal law. And, for instance, the situation in Ukraine fully falls within the application of what is Section 25 of our Criminal Code where you find those crimes.

Janet: 18:34  It sounds like this case was marked by a number of specific things that you could look at, Astrid, and say, look, this is how things are now working in in Austria. Apart from seeing these, you know, finally one of the counts being this new law being put to action, what else was there that you thought was interesting for us to note about the trial itself?

Astrid Reisinger Coracini: 18:57  Well, one of the points where I think that this case is really a landmark case is the question of jurisdiction. The charges that were brought were ordinary crimes. Still, jurisdiction was based directly on the Torture Convention, on the UN Anti-Torture Convention. So we have a provision in the UN Anti-Torture Convention that says that if an accused is present on the territory of a state, that state must either extradite or prosecute. And in the Austrian Criminal Code, we have kind of a blanket provision that allows for jurisdiction when there is an international obligation for Austria to exercise jurisdiction. And at least to my knowledge, this was the first time ever that this blanket provision was being used. And the second point, and this is even more remarkable, is that it was used not for the nomination of torture, but for the conduct that also amounts to torture. So we have ordinary crimes on the national level, but since this is conduct that amounts to torture under the definition of torture in the UN Anti-Torture Convention, Austria is under an obligation to prosecute and has directly linked jurisdiction via this blanket provision in the Criminal Code to the international obligation in the Anti-Torture Convention. And this was actually one of the arguments that has been persistently brought to the authorities by CERI, the Centre for the Enforcement of Human Rights International, which was the main NGO, civil society organisation, that was also responsible for bringing the case to the attention of the authorities.

Stephanie: 20:40  How does that work? Because we’ve seen in other universal jurisdiction cases in France that these NGOs can become even parties to the case, which is rare. But in the Netherlands, with universal jurisdiction cases, we see often that it is NGOs that kind of push the prosecutors and provide some assistance with finding victims and people willing to testify. Is that how it goes in Austria, or do they have a particular role they can play in court?

Astrid Reisinger Coracini: 21:08  Well, information on crimes can be submitted to the authorities by anyone, by individuals, by organisations. And in this case, it was particularly civil society organisations. I’ve mentioned CERI already. Those were the two leading trial lawyers, Tatjana Udanita-Wittek and Julia Kolda, who represented the survivors of torture also in court. So we don’t have a system like in France or Belgium that we have a partie civile, but victims can participate in trials and also have a voice in there. And this case was particularly driven by the survivors and the victims who wanted to be recognised and seek at least some form of justice, even if it was not titled torture as a crime against humanity. But still, it was important for them to be recognised as victims of the Assad regime. And then a number of NGOs next to CERI, there was also the Open Society Justice Initiative, but also CESIA and the European Centre for Constitutional and Human Rights, Human Rights Watch, who brought information to inform the authorities, but then also were the driving forces that this case could go along.

Janet: 22:20  We have the twist now, which is after the trial, as you’ve explained, the people convicted had a few days to indicate whether they would appeal. But then Abu Rukhba, one of them, actually left Austria, went to Syria, apparently not breaking any Austrian laws by doing so because he wasn’t actually in custody during the trial and there were no specific restrictions on him. But like, what? You know, he just left Austria. But then also, he’s been detained by the Syrian authorities. And they said that he actually entered Syria illegally. So what? Again, I’m in a what mode?

Astrid Reisinger Coracini: 23:04  Yes, the two men were treated differently as regards pre-trial detention. Mr. Halabi was detained and was also detained during the trial and was brought from detention every day and brought back. And Mr. Rukhba attended the trial as a free person. You could also go around and would leave the court after the proceedings. The reason was, and the prosecution had appealed that decision not to have pre-trial detention for both of the accused, the argument was that Mr. Rukhba had strong ties in Austria because his family was here. He had also worked with the prosecution services and cooperated in the proceedings. And if the risk of escape is the only reason for detention, there must be more than an abstract assumption that a person might leave the country. And this was not the case. That’s why he was free. And obviously, he left Austria in the days immediately after the judgement, which is not yet a final one. And I don’t think that anybody would have thought that he would go back to Syria, given also the developments that we have seen now.

Stephanie: 24:20  The thing we saw in one New York Times story, that one of the victim’s witnesses who testified against Mr. Rukhba said before the announcement of his arrest in Syria that they would now have to build a whole new case in Syria, and that they were essentially starting from zero and he would face another few years of agonising judicial process. Now, I saw in the Reuters reports about this arrest that Syrian authorities say that he has been, quote, referred to the relevant authorities to complete legal procedures ahead of prosecution. But it’s unclear if Austria has asked for his extradition and whether Syria will actually extradite him if they are asked.

Astrid Reisinger Coracini: 25:01  Yes, there has been some public discussion as to whether or not asking Syria for extradition. As far as I know, extradition has not yet been requested. Also, as far as I know, Syria does not usually extradite their own nationals. So I’m not sure whether this would have any any form of success. Yes, for the survivors, for the victims, it’s certainly a very difficult situation. And they have already shown a lot of resilience in participating in the proceedings, you know, all the interviews, sitting one or two metres away from the accused and retelling the story, very personal and painful stories that they have to share. And this was really a moving part, very moving for me. I don’t know what the plans in Syria are. I also only know it from the media, whether there will be a new trial, whether the trial would involve the same acts and survivors, or maybe in Syria there is also different evidence material and the trial would be broader or cover other acts. So we don’t know that yet.

Stephanie: 26:21  Yeah, we should mention also that as background to this, Syria have just started trials of Assad-era officials, some in absentia. And earlier this month, they have sentenced Assad and his brother to death in absentia. So Syrian authorities are trying to tackle Assad-era regime crimes. So maybe this is a case that they want to pick up because a lot of things have already been kind of laid out for them in Austria. And if they don’t usually extradite people, then maybe this is a solution. Is there any way in Austria for this case to continue? Could there be appeals and convictions in absentia under Austrian law?

Astrid Reisinger Coracini: 26:58  Well, first of all, it’s unclear whether an appeal will be filed, in particular with regard to the second accused who has fled to Syria, whether he still has a lawyer that is working for him here in Austria and whether there will be a fight for appeals. I’m not really an expert in Austrian procedural criminal procedure. But as far as I know, under certain circumstances, it’s possible to have appeals proceedings even without the presence of the accused, but whether this situation would be one that would fulfil the parameters I’m, I’m not sure.

Janet: 27:32  Astrid, I want to move on to our kind of final questions. And I’d actually put a question right at the beginning and then scrubbed it. And I wanted to maybe ask you that now at the end as a way of summing up. How do you feel about this whole procedure? I mean, I’ve noted you’re actually on the advisory board for one of the organisations that you mentioned, CERI, who were involved in court and represented people. You did monitoring of the whole thing. I mean, do you kind of have a warm glow at the end of all of this? Like, I’m pleased that Austria’s doing this stuff, or do you have more of a sense of, hmm, could have been better? How do you feel?

Astrid Reisinger Coracini: 28:08  Well, I think cases in Austria are only starting because we had this delay in the implementing legislation. We have a type of universal jurisdiction, but a restricted one. So it’s really also by way of coincidence whether or not proceedings can take place in Austria when it concerns universal jurisdiction, meaning conduct abroad, not by Austrians, not against Austrian victims. So I was very impressed by the participating survivors, their stand and their courage and how they moved the case along with the help of civil society. And at the same time, and I think I’ve mentioned this before, I was positively surprised because I thought that the situation with ordinary crimes, first case against the members of the Assad regime, would pose difficulties. I mean, this case started out originally as a crimes against humanity case with command responsibility, and now it was prosecuted in Austria on the basis of ordinary crimes and ordinary modes of participations, participation, that we have in Austria. So crimes of omission and also responsibility of persons in a higher hierarchical position, but as individual perpetrators. So it was interesting to me how international criminal law could be translated into this traditional Austrian law setting. And this certainly surprised me positively. Still, I’m glad that future cases, or most future cases probably, will be able to be based on actual crimes under international law. And this was also one of the points that you put here from survivors and victims that participated, that they would have liked to be recognised under a different title of what has happened to them as torture, as crimes against humanity, and so on. But it was also interesting to see that the possibility to be recognised, the recognition of what has happened to them, and being able to bring this trial to an actual end, to a conviction, even if it’s not yet the final one, was a very important experience also for the participating victims.

Stephanie: 30:49  Thank you so much for explaining this case and Austrian universal jurisdiction, or the beginnings of Austrian universal jurisdiction, we should say, to us in relation to the case. And we’re kind of curious where it will go from here. But I think for now we’re going to wrap this podcast up with our normal Asymmetrical Haircuts questions. And the one that you have already had, but now maybe have something else to tell our listeners, is: what are you reading, watching, listening to that you would recommend to our listeners?

Astrid Reisinger Coracini: 31:25  I have watched recently, stumbled over a Netflix series, actually, that is related to our topics. There’s a new Netflix series on the Lockerbie trial, or the Lockerbie incident, and I thought it was actually quite well done, in particular how it shows how the surviving families were treated differently in Scotland and the US in terms of information sharing and appreciating their position. And then you have the full last episode that only deals with the trial proceedings, and where you can also see very clearly how difficult it can be for family members that have lost people in the attacks to understand or to channel their grief through a very formal court system, in that case a common law system with cross-examination of, of witnesses and so on. And I think those are aspects that at least I, concentrating on public international law, do not always deal with in my everyday work. So for me this was really a very good way how these aspects were shown in, in terms of, of a TV show.

Stephanie: 32:46  Well, this is definitely on my Netflix to-watch queue because, as a baby journalist just starting out, I just got the kind of tail end of the Lockerbie case because it was, it was a Scottish court, but it was sitting in the Netherlands in this abandoned military camp. It was very odd. And I did the appeals ruling and had a crash course in Scots law, which doesn’t just have guilty and innocent, but also non-proven, which was one of the things that they said on appeal. And so it was one of the very first big cases I did outside of the Yugoslav tribunal. So I’m definitely going to watch that. And then, of course, we also have this American case with Lockerbie that was about to start and now it’s delayed again, but that’s something also I’m very interested in covering on Asymmetrical Haircuts this year.

Janet: 33:34  Astrid, thank you so much for making time today, squeezing us into your busy schedule. And I’m sure we will call on you again as Austria gets busy in this field and you and some of the NGOs keep pushing things for the Austrian prosecution service to get on with it. So thank you.

Astrid Reisinger Coracini: 34:53  Thank you for having me.

Stephanie: 34:55  Thank you.

[OUTRO MUSIC]

Narrator: 34:01  That’s it for this episode of Asymmetrical Haircuts, the international justice podcast created and presented by Janet Anderson and Stephanie van den Berg in partnership with The Hague Humanity Hub. This episode was also produced with justiceinfo.net, an independent site covering justice efforts for mass violence. If you want show notes, past episodes or just to dig deeper into what we’ve covered today, head to asymmetricalhaircuts.com. And if you enjoyed this one, subscribe wherever you listen, leave us a rating and tell a friend.

Stay safe and enjoy your day.