Why is Germany expanding its reach in “universal jurisdiction” trials

Since the 1960s, Israel has argued for universal jurisdiction when it prosecutes the president The Nazi official Adolf EichmannHe was executed in 1962 for his role in the Holocaust. Another historic moment came in 1998 when the Spanish courts ordered the British police Arrest of former Chilean dictator Augusto Pinochet He faces trial for crimes committed during his military rule. Britain released Pinochet later on health grounds.

Germany has more than a dozen active cases related to crimes committed in Syria, he says Last year’s report From the human rights group Redress.

“Right now, it’s the right place to turn to globally,” said Andreas Scholler, director of the International Crimes Program at the European Center for Constitutional and Human Rights.

There are a number of reasons, according to Schuller. The first is Germany’s expanded views on the legal scope, the German Code of Crimes Against International Law, which came into effect in 2002. It allows criminal cases even if the alleged crimes are not committed in Germany, and potentially opens the door to claims from all over the world. .

“German law is very open, so theoretically any case could end in the courts,” Schuller said.

However, this was not the way things worked in practice. It remained largely up to the prosecutor’s discretion to open a case if there was no direct link with Germany.

Almost a million refugees were admitted from conflict zones in the world.

When Germany Opening its doors to refugees In 2015, many of those who arrived were newborns from the horrors of war in Syria. They included witnesses and victims who facilitate prosecution – as well as some of the perpetrators.

“It’s a big issue here,” Schuller said. “There are a lot of people who are demanding justice.”

This was the case with the Syrian human rights lawyer Anwar al-Bunni. In 2014, he said he realized that a man he had seen in his asylum center in Berlin was the one he had arrested many years earlier in Damascus.

Anwar Raslan, 57, who was allegedly head of investigations at the Syrian General Intelligence Directorate, is accused of crimes against humanity, 58 murders, rape and sexual assault. He is being tried in the German city of Koblenz. A lower-ranking Syrian intelligence officer was sentenced to four and a half years in prison late last month.

Germany was slow to start with prosecutions based on universal jurisdiction.

“Everyone in Germany was proud that we had this very recent and far-reaching legislation, but it was not implemented in the beginning,” said Florian Geisberger, head of international criminal law at Humboldt University in Berlin.

At first there appeared to be some reluctance on the part of the Federal Prosecutor to open cases, some of which targeted high-ranking officials like the previous Defense Secretary Donald Rumsfeld. That complaint, which was lodged on behalf of four Iraqis and also appointed former CIA Director George Tenet and senior military personnel, regarding violations of the United Nations Convention against Torture in Guantánamo Bay and Abu Ghraib prison in Iraq, has not been considered. By the plaintiffs.

But more lower-level cases were brought to court as Germany poured resources into war crimes investigation units. Other countries in Europe have similar expansionary laws, such as Sweden, but experts say Germany has been particularly proactive in recent years.

In September 2011, just months after the Syrian uprising, German authorities began what is known as a “structural investigation” into state-sponsored war crimes in Syria. A similar investigation is under way into crimes against the Yazidi minority in Iraq and Syria.

“This is a new invention in terms of criminal procedure law,” Jesberger said.

The renewed investigations meant that authorities in Germany were constantly gathering evidence during the war, including open source videos and testimonies. This allows for an evidence base that can be used in individual prosecutions or to assist investigations elsewhere.

The scope of the International Criminal Court is more limited. It can only prosecute crimes in countries that have agreed to its jurisdiction, unless referred by the United Nations Security Council. Countries including the United States, Israel, Syria, and Saudi Arabia have not.

In 2014, Russia and China blocked the referral of the Syrian conflict to the Hague Tribunal.

“Then the search for justice falls on the shoulders of other systems,” said Steve Costas, chief attorney at the Open Society Justice Initiative, which has represented victims in such cases in Germany.

But legal systems like the German one still suffer from significant restrictions.

While the German public prosecutor can legally open a case that has nothing to do with Germany, there is no obligation to do so. Experts say this is when foreign policy considerations may come into play. In Germany, the Ministry of Justice can compel the public prosecutor to stop the investigation.

Trials that implicated ISIS militants in a genocide or the Syrian government for torture are weak or politically futile. This is not the case with Saudi Arabia, the world’s largest oil exporter and Western ally.

“The simple fact that there is freedom of discretion also opens the door to placing some political cost in this decision,” said Geisberger.

Syrian victims welcomed the first conviction in Germany in a case of torture sponsored by the Syrian state, but it was considered a small step.

We went to America and told them the full story. We went to Germany and told them the full story. We went to the Netherlands, France and even Italy. And people did not listen. “The whole world did not listen,” Mazen Hamada, the Syrian activist who spread the horrors of Syrian prisons, told a friend. Before it disappeared last year.

But legal scholars see the recent cases in Germany as a possible sign of things to come.

“There are definitely more cases to come,” Schuller said. “We will see what happens in the coming years. There is no statute of limitations for these crimes.”