Enab Baladi – Saleh Malas

After the Syrian opposition forces took control of the city of Raqqa in northeastern Syria in March 2013, Khaled. H., the chief of Branch 355 of the Syrian General Intelligence Directorate (GID), left Raqqa and headed to Turkey on foot. 

In April of the same year, Khaled. H, who worked in the GID from 2009 to 2013, went to Jordan. There, he asked the French embassy to grant him a visa, with which he was able to travel to France by plane.

Khaled H. stayed in France for a year. After undergoing preliminary interrogation, the French asylum authorities suspected that he committed human rights violations while working in Syria. 

According to the chronology of Khaled H.’s escape published by the Austrian newspaper Kurier, Khaled H. appeared in Austria in 2015 after he was given a fast-track asylum and a traditional passport. This passport, which can be requested by those who obtain asylum in Austria, allows individuals to travel internationally. 

The escape of Khaled H. was allegedly orchestrated by Austria’s national intelligence service (BVT -the Austrian Office for the Protection of the Constitution and Fight against Terrorism) in coordination with high-ranking representatives of “the Israeli Mossad,” according to Kurier’s investigation.

The Austrian-Israeli smuggling operation was called ” Operation White Milk,” which is the codename given to “Khaled. H” within both parties’ correspondence throughout the process. The reasoning behind Operation White Milk’s name is unknown. 

In January 2016, the Austrian Ministry of Justice received a letter from the Commission for International Justice and Accountability (CIJA) informing its concerns about Khaled H.’s involvement in committing “war crimes” in Syria. At that time, the Austrian intelligence revealed the issue surrounding “Operation White Milk” to General Security.

In July of 2017, the French authorities issued a request on “Khaled H.” via EUROPOL” regarding documented allegations of “crimes against humanity and war crimes.”

In October 2018, the BVT ended its cooperation with the Israeli partner authorities regarding Operation White Milk. At the same time, the Federal Criminal Police (BKA) in Austria issued a confidential request for an investigation into Khaled H’s whereabouts. One month later, the Austrian BKA broke into the intelligence officer Khaled H.’s flat in Vienna. He was not there.

 His turn will come

Syrian and international human rights organizations, including the Syrian Center for Media and Freedom of Expression (SCM) and the Syrian Center for Legal Studies and Research, work to apply the basic principles of justice for the victims of the Syrian regime’s violations against human rights and its breaches of international humanitarian law. They work within European courts, especially in Germany, Sweden, and France.

In April of 2020, the Syrian and international media outlets, as well as human rights organizations, were buzzing with the start of the trial of two Syrian officials in Koblenz, western Germany, on charges of having committed crimes against humanity inside the Assad government’s detention centers in Damascus.

However, Operation White Milk’s case did not receive the same great media momentum that accompanied the “Koblenz” case, even though Khaled H. is the highest-ranking Syrian regime official known to be within the Schengen Zone. In addition, he enjoys a wider scope of responsibility than the two accused persons who are currently being tried.

However, a comparison between the two cases is difficult at present, given the poor availability of evidence in the case of Khaled H., according to the executive director of the Syrian Center for Legal Studies and Research, Anwar al-Bunni, who spoke with Enab Baladi.

The media adequately covered the “Koblenz” case because it was the first trial of its kind in the world against human rights violations in Syria.

“Khaled H. has not been arrested yet. Therefore, Operation White Milk did not reach the Austrian judiciary to be discussed in detail, clearly and openly to the media, as happened in April 2020 regarding the “Koblenz case.”

Al-Bunni emphasized that the Syrian human rights organizations in Europe will “follow up with the case ( Operation White Milk), and Khaled H., who will be held accountable for his involvement in human rights violations, but it takes a long time to collect the evidence and verify the witness testimony to the Prosecutor General.”

Different circumstances surrounding the two cases

The Koblenz case raised great interest due to the German judicial authorities’ actions, as well as the joint German-French investigation that led to the arrest of the accused later, the director of strategic litigation at the SCM, Mutassim al-Kilani, told Enab Baladi. In contrast, the Austrian judiciary did not take action in Operation White Milk.

The presence of victims and witnesses in Germany and France also played an important role in filing a lawsuit before the German judiciary to convict the accused. Moreover, “Branch 251 is relatively known to Syrians more” compared to Khaled H.’s work in Raqqa, and his presence later in Turkey, according to al-Kilani.

Although the two cases refer to “war crimes” perpetrators, the circumstances are different. The conditions for applying the principle of “universal jurisdiction” and the level of cooperation of the Austrian authorities in this regard are also different, according to al-Kilani. The temporal context for the presence of suspects on the national territory of the country of the court examining the case, an important element in determining the legal evidence for each case, also differs.

After “Khaled H.” disappeared in Austria, “the last information we received was that he was in an Arab country,” al-Kilani said.

According to al-Kilani, efforts to hold perpetrators of war crimes accountable in Syria developed between 2015 and 2019, with Syrian human rights organizations’ efforts. “This development includes the temporal context, the capacity of human rights organizations, and their experience in calling the war criminals to account in Europe in particular.”

For any case to reach the judiciary doors in Europe, first preliminary judicial investigations are undertaken to identify alleged perpetrators of human rights violations and abuses, al-Kilani explained. 

An integrated legal file is then built based on judicial value evidence, including visual and photographic materials and testimonies. After that, a structured investigation led by judges is conducted, followed by the issuance of arrest warrants and referral of the file from the investigating judge to the trial judge. In the end, a trial against the perpetrators of human rights violations is carried out to convict him finally. 

Many factors can play a decisive role in this context concerning individual complaints. The first factor is that a third party interferes in a lawsuit between the perpetrator and his victims, including civil parties in complaints and cases. Moreover, it matters whether the suspects are on the national territory of the judge’s state. Questions that human rights organizations face during their work include whether or not the complaint is admissible before the judiciary in a particular country and if these organizations meet all the judicial and legal conditions for looking into the case.

Presumptions used in trials

Every case that European courts have jurisdiction over related to the human rights file in Syria carries a large amount of legal evidence. This legal evidence paves the way for initiating prosecution by filing a lawsuit against a suspect who has committed “war crimes” inside Syria.

These legal presumptions and evidence are presented to the public prosecutor in the court in the form of indisputable evidence. Furthermore, reports are issued by functionally, professionally, and legally authorized bodies, under the rules of procedure and evidence of the international criminal court, which confirm that these crimes have been actually committed by persons affiliated with the Syrian government or other perpetrators of violations on the Syrian territory.

Among the evidence, the public prosecutor relies on:

1- The press and information agencies, including a recorded audio file of actual evidence, official documents issued by the accused actor, eyewitness testimonies, as well as leaked “Caesar” photos. 

– Identifying the perpetrators of the crime, if possible, and whether or not they were members of the Syrian regime. The goal is to bring the evidence to the point of certainty in the crimes of arrest, murders under torture, and the security services’ underground practices.

2- The evidentiary rules submitted to the court must be legally admissible, credible, and substantiated.

3- Reports of United Nations personnel who enjoy credibility and immunity, which are submitted to the United Nations in accordance with the 1946 Agreement relating to the privileges and immunity of United Nations personnel, as well as those related to providing the court with the information it needs to complete the investigation procedures and collect evidence.

4- Confirming the facts mentioned in the United Nations reports and documenting them through the court’s Attorney General. 

The Attorney General has to be provided with documents and clear information for the accusation, and the documentation of the facts must not tolerate any procedural errors in the files by the Secretary-General of the United Nations and its affiliated organizations.

War crimes

War crimes are unlawful acts committed by persons with the authorization, support, or acquiescence of a state. These acts include those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. 

Under Article No. 6 of the Charter of the Nuremberg International Military Tribunal (IMT) established to bring to justice “the major Nazi war criminals,” “war crimes” are “acts that constitute a violation of the laws and customs of international war.” These violations include, but not limited to, murder (intentional killing), ill-treatment or deportation to slave labor or for any other purposes of the civilian population of or in occupied territory, murder or ill-treatment of prisoners, killing of hostages, the plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. 

These actions that contravene the provisions of Article 147 of the Fourth Geneva Agreement of 1949 and fall under the grave breaches of international law include acts of torture, intentional inhuman treatment, and harm to detainees’ health.

According to the statement of the Syrian Center for Justice and Accountability, Khaled H. is involved in “crimes against humanity, torture, sexual and gender-based violence (SGBV), and war crimes.”

According to witnesses, as Brigadier General, Khaled H. was not only aware of these crimes being committed–he even encouraged subordinates to use violence and torture the detainees,” according to the center’s statement.

Is Austria drying out publicly spilled “white milk”?

Obviously, the warring parties were not deterred by the law during the armed conflict in Syria, but this does not necessarily mean that the perpetrators of human rights violations, which have accumulated over the ten years since the beginning of the protests in Syria in 2011, will not be held accountable. 

The details of Operation White Milk were made available to the Austrian public. This occurred after the Commission for International Justice and Accountability (CIJA) reports in 2016, which informed the Austrian judiciary of Khaled H.’s involvement in crimes against humanity during his work in Syria. After that, right-wing populist parliamentarians in Austria issued an official inquiry to the Minister of the Interior of their country on Operation White Milk. The inquiry mainly focuses on “who knew what, the costs of the whole operation, and the possible threats to the Austrian population by the presence of people like Khaled H. on their land.

Operation White Milk may also pose potential damage to Austria’s international reputation in the area of ​​human rights protection, especially if granting asylum in Austria could potentially lead to secret deals that violate international law.

In a statement, the Open Society Justice Initiative and the Centre for the Enforcement of Human Rights International (CEHRI) called on the Austrian government to accelerate its efforts to investigate and prosecute suspects of “war crimes” on its territory in order not to turn Austria into a safe haven for Syrian intelligence officers.

In its statement published on its official website, the initiative urged the Austrian Ministry of Justice to provide adequate support for these investigations by supplying the necessary resources and sufficient personnel to complete a prompt and effective investigation. The CEHRI established a specialized prosecution unit to investigate and prosecute crime perpetrators under international law to facilitate the investigation and prosecution of those suspected to have committed grave crimes.

In the statement, Tatiana Urdaneta Wittek, a board member at the European Center for Constitutional and Human Rights (ECCHR), said, “The Austrian justice system remains slow to join the global fight to hold perpetrators accountable for crimes under international law, even though it has the legal tools to do so.”

 According to the statement, the slow pace of Austrian investigations into suspected human rights violations undermines the hopes of the Syrians that their efforts would achieve justice for their case.

Austria’s protection of “Khaled H. “is a violation of its government’s obligations under international law, including the Convention Against Torture, to which Austria is a state party.

The Austrian authorities know well that state parties are required to prosecute or extradite alleged perpetrators of torture when they are found in any territory under their jurisdiction. Article-No. 14 of the Convention requires state parties to ensure redress for those subjected to an act of torture through their legal system. They also have the right to fair and adequate compensation from the state and to set up programs for victims’ physical and psychological rehabilitation. 

In addition to legal responsibilities and law violations, Operation White Milk raises fear and distrust between Syrian refugees and Austrian government institutions, human rights activists, and Syrian lawyers working for justice and accountability in Europe.

The prosecutions and investigations conducted by the units specialized in monitoring “war crimes” in the Syrian and European human rights organizations are considered an opportunity to provide integrated legal frameworks to regulate asylum policies within the European continent. This is because they contribute to the judicial and media highlighting of the violations in Syria and spur Europeans to develop and implement asylum policies through legal presumptions and clues.

The trials in Europe that look into the crimes committed in Syria are also an important factor in reassuring refugee victims and their families. Through cases submitted before European courts, evidence has emerged that some suspects of human rights violations in Syria have been hidden among the real asylum seekers.