Introduction

On February 16, 2017, the Stockholm District Court (Stockholms Tingsrätt) delivered a judgment in B 3787-16, convicting Haisam Omar Sakhanh of war crimes (folkrättsbrott, grovt brott) under Chapter 22, Section 6 of the Swedish Penal Code. The case involved the extrajudicial execution of seven captured Syrian soldiers in 2012. Sakhanh was sentenced to life imprisonment and deportation from Sweden. The ruling applies international humanitarian law, Swedish criminal law, and the limitations on judicial authority exercised by non-state actors.

Background of the Case

The case arose from events during the Syrian conflict, which began in 2011 as part of the Arab Spring uprisings. The widespread protests against the Syrian government escalated into a non-international armed conflict by 2012, with various opposition groups taking control of territories. In May 2012, Sakhanh, a former member of the opposition group Suleiman’s Fighting Company, was accused of participating in the execution of seven unarmed prisoners, who were kneeling and restrained. The execution was recorded and later surfaced as evidence. A key issue in the case was whether a non-state armed group had the authority to establish courts and carry out sentences.

Legal Principles Applied

1. War Crimes under Swedish Law

• The court applied Chapter 22, Section 6 of the Swedish Penal Code, which criminalizes grave breaches of international humanitarian law.
• A war crime occurs when an individual commits a serious violation of the Geneva Conventions during an armed conflict.
• Common Article 3 of the Geneva Conventions prohibits the execution of prisoners who are hors de combat (out of combat).

Application in the Case:

• The victims were detained combatants, meaning they were entitled to protection under international humanitarian law.
• The court ruled that the summary execution of unarmed detainees constitutes a grave breach.

2. Authority of Non-State Armed Groups to Establish Courts

• The court addressed whether non-state actors can lawfully establish courts in an armed conflict.
• It ruled that a non-state actor may establish courts for maintaining internal discipline and law enforcement within its controlled territory.
• However, such courts must adhere to fundamental due process standards, including judicial independence, impartiality, and adherence to pre-existing legal norms.

Application in the Case:

• The court found that the executions were carried out without a legitimate judicial process, violating international humanitarian law.
• The non-state actor’s court lacked judicial independence and did not adhere to recognized legal norms, making its actions unlawful.

3. Application of Humanitarian Law to the Syrian Conflict

• The court had to determine whether the Syrian conflict in 2012 met the legal definition of an armed conflict under international humanitarian law (IHL).
• According to Common Article 3 of the Geneva Conventions and Additional Protocol II, a non-international armed conflict (NIAC) exists when there is protracted armed violence between government forces and organized armed groups.
• The court examined criteria such as:
  • The intensity of the conflict, including the number of casualties and the use of military force.
  • The level of organization of opposition groups, including their command structure and ability to carry out military operations.
  • International recognition of the conflict, including reports from the International Committee of the Red Cross (ICRC) and the United Nations.

Application in the Case:

• The court ruled that hostilities in Syria met the threshold for a NIAC, making the Geneva Conventions applicable.
• This determination was essential in establishing that Sakhanh’s actions constituted war crimes rather than ordinary murder under Swedish law.

4. Deportation and Human Rights Considerations

• Under Swedish immigration law, a person convicted of serious crimes can be expelled if it does not violate non-refoulement principles under the European Convention on Human Rights (ECHR).
• The court ruled that Sakhanh should be deported and barred from returning to Sweden.

Legal Implications

• Precedent for War Crimes Trials in Sweden: The case reinforces Sweden’s commitment to universal jurisdiction in prosecuting war crimes.
• Limits on Non-State Judicial Authority: The ruling clarifies that non-state armed groups cannot impose arbitrary legal systems without due process guarantees.
• Application of International Law in Domestic Courts: The judgment highlights how domestic courts apply Geneva Conventions and customary international law.
• Clarification on Armed Conflict Classification: The decision establishes how courts determine whether a conflict meets the threshold of a NIAC, influencing future cases of war crimes prosecution.

Conclusion

The Stockholms TR B 3787-16 ruling affirms Sweden’s role in prosecuting war crimes under universal jurisdiction. By applying international humanitarian law and Swedish penal provisions, the court upheld accountability for crimes committed in armed conflicts while clarifying the limits of judicial authority exercised by non-state actors. The decision also highlights the criteria for recognizing an armed conflict under international law, ensuring that international humanitarian protections apply in non-international armed conflicts.

Case: Stockholm District Court, Case No.: B 3787-16 (Stockholms-TR-B-3787-16-Dom-2017-02-16.pdf)