The following is a guest post by Lena Fleischmann, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress. It is part of our Frequently Asked Legal Questions series.
This FALQ examines how Germany is fighting impunity by exercising universal jurisdiction under its Code of Crimes Against International Law, demonstrating why this principle is considered such an important and effective tool in the fight against impunity. Universal jurisdiction is a way of holding the perpetrators of human rights violations accountable irrespective of where the crime was committed and whether the act has any relation to the country in question. Germany has been in the spotlight due to its efforts to pursue accountability for crimes against international law in its national courts.
1. What is Universal Jurisdiction?
Universal jurisdiction provides a state with the authority to prosecute individuals for atrocities, such as crimes against humanity, war crimes, genocide, and torture, based on the idea of the responsibility to protect the international community. It allows for prosecution without any reference to the place of perpetration, the nationality of the suspect or the victim, or any other basis to exercise jurisdiction – potentially opening the door to lawsuits from all over the world, which is why the exercise of universal jurisdiction has been quite controversial in some instances.
2. Where is Universal Jurisdiction Codified?
Universal jurisdiction is one of the key principles codified in the German Code of Crimes Against International Law (CCAIL) (Völkerstrafgesetzbuch, VStGB). The CCAIL regulates crimes against public international law, including the criminal offenses of genocide, crimes against humanity, war crimes, and the crime of aggression. It came into force in Germany on June 30, 2002, to bring the German criminal law into accordance with the Rome Statute of the International Criminal Court. It supplements the German Criminal Code (Strafgesetzbuch, StGB) (CCAIL, art. 2). Universal jurisdiction was broadened by the Geneva Conventions and underlies other human rights treaties, such as the 1984 Convention against Torture (CAT).
3. What Other Principles Provide a Basis to Exercise Extraterritorial Jurisdiction?
Besides the principle of universal jurisdiction, there are four more key principles that provide Germany with jurisdiction to prosecute crimes. The territoriality principle provides states with jurisdiction for crimes committed on their own soil (StGB, § 3). The active personality principle provides states with jurisdiction for crimes committed by their nationals abroad, for example when the perpetrator is a German citizen (id. § 7, para. 2). The passive personality principle provides states with jurisdiction for crimes committed against their nationals while they are abroad (id. § 7, para. 1). Lastly, the protection principle provides states with jurisdiction for crimes that involve extraterritorial activities that threaten national security, among other reasons (id. § 5).
4. What Are the Jurisdictional Requirements for Exercising Universal Jurisdiction?
Germany has genuine universal jurisdiction, meaning that its laws do not require any connection between grave international crimes committed abroad and Germany before prosecutors can investigate and prosecute (CCAIL, art. 1). However, the prosecutor has discretion whether to open a case if there is no direct connection to Germany. While prosecutorial discretion is intended to be a safeguard against overly burdensome complaints, it has led to significant criticism, because the prosecutor is part of the executive branch and there is a risk that the exercise of universal jurisdiction could be abused by the nation’s highest officials. Delegates at the UN General Assembly’s Sixth Committee meeting highlighted the potential for misuse due to the lack of a universal clear definition.
5. For What Crimes Can Universal Jurisdiction Be Invoked?
The crime of genocide is set forth in section 6 of the CCAIL and is punishable with life imprisonment. A person can be found guilty of genocide if he or she
with the intention of destroying all or part of a national, racial, religious or ethnic group as such, (1) kills a member of the group, (2) causes serious bodily or mental harm to a member of the group, […], (3) inflicts on the group conditions of life calculated to bring about their physical destruction in whole or in part, (4) imposes measures intended to prevent births within the group, or (5) forcibly transfers a child of the group to another group.
The language differs slightly from the relevant provision in the Rome Statute, because it refers to any single member of any of the relevant groups rather than to the group as such.
Crimes against humanity are set forth in section 7 of the CCAIL and punish “anyone who commits (the crimes listed in section 7) in the context of an extensive or systematic attack against a civilian population.” Crimes against humanity include crimes such as willful killing, extermination, enslavement, deportation or forced transfer of persons, torture, sexual violence, enforced disappearance, and persecution. They are punishable with a minimum sentence of three years in prison and up to life in prison.
War crimes are set forth in sections 8-12 of the CCAIL. Section 8 lists war crimes against persons. Section 9 contains war crimes against property and other rights. Section 10 lists crimes against humanitarian operations and emblems. Section 11 lists war crimes in connection with the use of prohibited methods of warfare, whereas section 12 lists war crimes with regard to using prohibited means of warfare. The crimes listed in section 8, paragraph 3, section 9, paragraph 2, and section 11, paragraph 3 only apply in the context of an international armed conflict.
The crime of aggression is set forth in section 13 of the CCAIL and punishes “anyone who wages a war of aggression or commits any other act of aggression that, by its nature, gravity, and extent, constitutes a manifest violation of the Charter of the United Nations […].” On the other hand, article 8 bis, paragraph 1 of the Rome Statute defines it as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State.”
6. What are Some Recent Cases in Germany?
The universal jurisdiction cases in German courts have attracted a lot of international media attention and have been well documented. I would like to highlight the following:
In 2015, two Rwandan leaders of the Hutu militia group “Forces Démocratiques de Libération du Rwanda” (FDLR) were on trial at the Higher Regional Court (OLG) in Stuttgart for committing crimes against humanity in the Eastern Democratic Republic of Congo from 2008 to 2009. The FDLR had enjoyed impunity for widespread atrocities and this trial marked the first time anyone had been held accountable. President of the FDLR Ignace Murwanashyaka was accused of being responsible for crimes against humanity, in particular for killing and sexual coercion or rape. He also faced accusations of war crimes, in particular the killing, cruel or inhumane treatment, sexual coercion, or rape of a person protected under international humanitarian law, as well as forcibly recruiting child soldiers and perpetrating war crimes against property. Even though he did not commit these acts himself, he was held liable under the principle of command responsibility for failing to take action to prevent his subordinates from carrying out the acts in question. Murwanyashaka was found guilty of leading a terrorist organization but acquitted of war crimes and crimes against humanity. Ultimately, the OLG Stuttgart sentenced Ignace Murwanyashaka to 13 years and Straton Musoni, his vice president, to eight years in prison in September 2015.
In 2020, the Higher Regional Court Frankfurt (OLG Frankfurt) started proceedings against 29-year-old ISIS fighter Taha Al-J. for crimes against humanity and war crimes for causing the death of a five-year-old girl he had bought as a slave. His wife, Jennifer W., who left Germany for Iraq and joined ISIS there, was prosecuted in Munich and was sentenced to 10 years in prison. The couple was accused of beating the child and ultimately killing her by chaining her outdoors in the backyard in the heat. This was the first genocide conviction of an ISIS soldier. Ultimately, the OLG Frankfurt sentenced Taha Al-J. to life in prison and ordered him to pay roughly $57,000 in compensation to the girl’s mother.
For almost two years, the Higher Regional Court Koblenz (OLG Koblenz) held court proceedings for two Syrians who worked for the Syrian secret service. They were on trial for committing crimes against humanity and torture on more than 4,000 counts under the Assad regime in Syria from 2011 to 2012. Anwar R. was accused of being responsible for the torture of more than 4,000 prisoners in Damascus during the civil war, having aided and abetted crimes against humanity in arresting and transporting protestors to an interrogation center known for torture. The victims were hanging from the ceiling from their hands, hit, and electrocuted when they were about to fall asleep. To prove the accusations, the court relied on the so-called “Caesar files,” which are pictures taken by a Syrian military photographer, documenting the crimes. Eyad A. arrested more than 30 people who were fleeing after a protest came to a violent end in 2011 and was accused of beating them on the way to the prison and being responsible for the torture they had to endure during their confinement. The defendants tried to raise a defense under section 35 of the German Criminal Code, arguing that they and their families would have been killed if they had not followed the orders they had been given. Ultimately, the OLG Koblenz sentenced 58-year-old Anwar R. to life in prison and 43-year-old Eyad A. to four years and six months in prison. This was a historic trial because it was the first ever criminal trial for governmental torture in Syria.
7. Why is Germany Exercising Universal Jurisdiction?
The German delegation at a meeting of the Sixth Committee of the United Nations General Assembly (Legal Committee) in October 2021 stated that “[t]he message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany.” The trials in Germany have symbolic power and the “pioneering work” of the judiciary might set an example for other states all over the world. The trial at the OLG Koblenz mentioned above, for example, was the first criminal trial worldwide on state torture in Syria.
Furthermore, a new legal framework on international arrest warrants against high-ranking government officials could have a deterrent effect. The United Nations has established ad hoc international criminal tribunals for former Yugoslavia and Rwanda to prosecute those responsible for genocide, war crimes, and other atrocities and serious humanitarian violations in those particular conflicts. A mechanism for investigating and prosecuting serious crimes has been set up for Syria, but its work is being blocked over concerns regarding the basis for its creation.
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Very sorry to be pedantic, but I feel like it is important to note that the above is incorrect as far as it suggests, that Germany has (de lege lata) codified universal jurisdiction for the crime of aggression.
Sentence 2 of Art. 1 of the CCAIL requires an additional link to german jurisdiction in the form of either protective or active personality jurisdiction for the crime of aggression under § 13 CCAIL.