Why Germany is becoming a go-to destination for trials on the world’s crimes
By Loveday Morris,
Sarah Silbiger Reuters
BERLIN — From the genocide of Iraq’s Yazidis to Syrian state-sponsored torture and the killing of Saudi journalist Jamal Khashoggi in Istanbul, the German legal system is increasingly a place to seek justice for crimes committed far outside Germany’s borders.
Germany is one of scores of countries with laws that include aspects of universal jurisdiction, a legal principle that some crimes are so grave — such as genocide and war crimes — that impunity and normal territorial restraints on prosecutions should not apply.
The latest case came Tuesday as the media protection group Reporters Without Borders filed a complaint with the federal public prosecutor’s office in Karlsruhe accusing Saudi Crown Prince Mohammed bin Salman of crimes against humanity in the 2018 murder of Khashoggi — a Washington Post contributor — and the detentions of dozens of other journalists.
As far back as the 1960s, Israel argued universal jurisdiction when it tried the senior Nazi official Adolf Eichmann, who was hanged in 1962 for his role in the Holocaust. Another landmark moment came in 1998 when Spanish courts requested British police arrest former Chilean dictator Augusto Pinochet to face trial for crimes committed during his military rule. Pinochet was later released by Britain on health grounds.
Germany has more than a dozen active cases on crimes committed in Syria, according to a report last year from the human rights group Redress.
“At the moment it’s the place to go globally,” said Andreas Schüller, program director for international crimes at the European Center for Constitutional and Human Rights.
There are a number of reasons, according to Schüller. The first is Germany’s expansive views on legal reach, the German Code of Crimes Against International Law, which came into force in 2002. It allows for criminal cases even if alleged crimes were not committed in Germany, potentially opening up to suits from all over the world.
“The German law is pretty open, so in theory any case could end up in the courts,” said Schüller.
That, however, was not how things worked in practice. It remained largely down to the prosecutor’s discretion whether to open a case if there was no direct connection to Germany.
Enter nearly 1 million refugees from the world’s conflict zones.
When Germany threw open its doors to refugees in 2015, many who arrived were fresh from the horrors of the war in Syria. Among them were witnesses and victims that make it easier to prosecute cases — as well as some perpetrators.
“It’s a big topic here, there are a lot of people who demand justice,” said Schüller.
That was the case with Syrian human rights lawyer Anwar al-Bunni. In 2014, he said he recognized that a man he saw in his asylum center in Berlin was the person who had arrested him many years earlier in Damascus.
Anwar Raslan, 57, who is alleged to have been head of investigations at a branch of Syria’s General Intelligence Directorate, has been charged with crimes against humanity, 58 murders, rape and sexual assault. He is on trial in the German city of Koblenz. A lower-ranking former Syrian intelligence officer was sentenced to 4½ years in jail late last month.
A courtroom in Koblenz, Germany, before a trial last year against two defendants accused of state-sponsored torture in Syria.
Germany has invested resources
Germany initially had a slow start to prosecutions based on universal jurisdiction.
“Everyone was superproud in Germany that we have this very modern and far-reaching legislation, but it wasn’t applied in the beginning,” said Florian Jessberger, professor of international criminal law at Berlin’s Humboldt University.
Initially there seemed to be some reluctance on the part of the federal prosecutor to open cases, some of which targeted high-ranking officials such as former defense secretary Donald H. Rumsfeld. That complaint, which was filed on behalf of four Iraqis and also named former CIA director George Tenet and high-ranking military personnel in relation to breaches of the U.N. Convention Against Torture at Guantánamo Bay and the Abu Ghraib prison in Iraq, was not taken up by prosecutors.
But more lower-level cases have made it to the courts as Germany has poured resources into its war crimes investigation units. There are other countries in Europe that have similarly expansive laws, such as Sweden, but experts say Germany has been particularly proactive in recent years.
In September 2011, only months into the Syrian uprising, German authorities began what is known as a “structural investigation” into state-sponsored war crimes in Syria. There is a similar investigation into crimes against the Yazidi minority in Iraq and Syria.
“This is a novel invention in terms of criminal procedure law,” Jessberger said.
The rolling investigations mean that authorities in Germany have constantly been collecting evidence during the war, including open-source videos and testimony. That allows a base of evidence that can be used in individual prosecutions or to assist in investigations elsewhere.
Mourners gather around graves during a mass funeral for Yazidi victims of the Islamic State in the northern Iraqi village of Kojo on Feb. 6.
What about the International Criminal Court?
The International Criminal Court is more limited in its scope. It can prosecute crimes only in countries that have consented to its jurisdiction unless they are referred by the U.N. 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 court in The Hague.
“That’s when the search for justice falls to other systems,” said Steve Kostas, senior lawyer for the Open Society Justice Initiative, which has represented victims in such cases in Germany.
But legal systems such as Germany’s still have significant constraints.
While legally Germany’s prosecutor can open a case that has no link to Germany, there is no obligation to do so. Experts say that’s when foreign policy considerations may come into play. In Germany, the Justice Ministry can force a prosecutor to stop an investigation.
Trials implicating Islamic State militants for genocide or the Syrian government for torture are low or no stakes politically. That’s not the case with Saudi Arabia, the world’s biggest oil exporter and a Western ally.
“The simple fact that there is a discretion opens the door toward also putting some of the political cost into that determination,” Jessberger said.
Syrian victims welcomed the first conviction in Germany in a case involving Syrian state-sponsored torture, but it was seen as a small step.
“We went to America and told them the whole story. We went to Germany and told them the whole story. We went to the Netherlands, France and even Italy. And people didn’t listen. The whole world didn’t listen,” Mazen al-Hamada, a Syrian activist who publicized the horrors of Syria’s jails told a friend before disappearing last year.
But legal scholars see the recent Germany cases as a possible sign of things to come.
“There are definitely more cases coming,” Schüller. “We’ll see what happens in the coming years. There’s no statute of limitations for those crimes.”