In legal proceedings in Germany, certain categories of persons are entitled to request access to the case files (Akteneinsicht). This right flows from the fundamental right to informational self-determination. The files are kept with the court overseeing the proceedings and can, on request, be viewed, copied or transcribed. The right to access files can be limited by considerations around the protection of the data of others or for strategic reasons relating to the functioning of the investigation.
An administrative action is a legal action concerning the conduct of a public administrative body. This kind of action can for example lead to the reversal of certain decisions by public bodies or compel an authority to take a certain action.
In Germany an administrative court (Verwaltungsgericht) is the forum for disputes between private individuals and public agencies or authorities.
Administrative law regulates the executive branch of government as regards the administration and governance of the state. It regulates legal relations (other than criminal law matters) between the state and its citizens.
The Alien Tort Claims Act is a US law on the jurisdiction of US courts in cases concerning violations of public international law. It allows for non-US citizens to bring civil actions before US courts in certain situations. This applies even if the events in question occurred outside the United States.
An amicus curiae brief is a written submission to a court in which an amicus curiae (literally a “friend of the court:” a person or organization who/which is not party to the proceedings) can set out legal arguments and recommendations in a given case.
A civil action is a lawsuit brought by an individual against another private individual or entity. Such cases are heard in civil courts.
Civil law, also known as private law, regulates disputes between private individuals or entities (e.g. companies). It is thus different to cases dealing with matters between individuals and the state, i.e. public law and criminal law. Civil law deals with issues such as personal injury, contracts, property, inheritance and family law.
In international criminal law, the principle of command responsibility allows for commanders to be held criminally liable for crimes committed by their subordinates. This will apply if the commander was in a position to prevent crimes committed by forces under their effective control and knew or should have known that the crime would be committed.
A communication to the International Criminal Court is the equivalent of a criminal complaint to the court on an alleged crime falling under the court’s jurisdiction. A preliminary examination is carried out before any formal investigation is opened. The court will consider, among other things, if any genuine investigations or prosecutions are underway in the country in question and whether the potential crimes meets the gravity threshold for the ICC to intervene.
The ICC has jurisdiction over crimes of genocide, crimes against humanity and, as of July 2018, the crime of aggression. The ICC has received more than 10,000 communications since its establishment in 2002.
The principle of complementarity is the basis of the relationship between the International Criminal Court and national courts in relation to the application of international criminal law. It means that the ICC has secondary jurisdiction after national courts, and can only act in a given situation if the relevant states are unwilling or unable to prosecute the crimes within their jurisdiction.
A constitutional complaint can be brought by individuals whose fundamental rights have been violated through an act of a state authority. In Germany a constitutional complaint (Verfassungsbeschwerde) can be brought on a federal or a federal state level.
Corporate criminal law regulates the liability of legal persons (e.g. companies, associations, organizations). This area of law is concerned with crimes that are tolerated, facilitated or provoked in the course of the work of a company, association or organization.
Crimes against humanity are grave violations of international law committed as part of a widespread or systematic attack on a civilian population. Crimes against humanity are part of the core crimes against international law and are subject to universal jurisdiction. Crimes against humanity can include acts such as murder, extermination, enslavement and deportation.
In Germany a criminal complaint provides German authorities (public prosecutors, police, or the district court) with information on a potential crime, allowing them to take further investigatory steps. If there are sufficient indications that a crime has been committed, prosecutory authorities are obliged to pursue the matter and undertake comprehensive investigations.
Customary international law is based not on written laws but on consistent state practice along with states’ belief that they are acting in accordance with a binding norm. Treaty-based international law and customary international law can exist in parallel and may be in conflict with one another; treaty-based international law will not necessarily override customary international law.
A dossier is collection of documents and information, generally relating to a specific person or event, that can submitted to a court or other authority.
Due diligence is a common concept in corporate risk management systems. The idea of corporate human rights due diligence (HRDD) is set out in the UN Guiding Principles for Business and Human Rights. HRDD obligations refer to a company’s duty to carry out ongoing risk management to determine if its business practices could potentially adversely affect human rights. This includes risks to all those who could be negatively affected by a corporation's actions (e.g. employees, consumers, and persons who could be affected by environmental harm).
Enforced disappearance is a tool of state repression used predominantly in authoritarian states. It occurs when state forces bring a person within their control, and refuse to give any information about the person’s whereabouts.
In many cases a disappearance leads to torture and/or murder. Family members have no way of finding out the fate of their relative and the “disappeared” person is denied any possibility of legal protection. Enforced disappearance can constitute a crime against humanity.
The European Asylum Support Office is an EU agency initially established in 2010 to support EU Member States at their request in assessing and providing international protection. EASO may be involved when Member States are considered to be facing exceptional difficulties in maintaining their asylum systems. As an EU agency, EASO can be investigated for maladministration by the European Ombudsperson.
The European Convention on Human Rights and Fundamental Freedoms came into force in 1953. The Convention can only be ratified by member states of the Council of Europe. The European Court of Human Rights in Strasbourg oversees the enforcement of the obligations set out in the Convention.
The European Court of Human Rights was set up in Strasbourg in 1959 to enforce states’ obligations under the European Convention on Human Rights. The ECtHR adjudicates on complaints brought by individuals against a state party or parties (individual applications) and complaints brought by a state party against another state party (inter-state applications) concerning alleged violations of a right or rights set out in the European Convention on Human Rights.
The European Ombudsperson investigates complaints about maladministration in European Union institutions and bodies (e.g. the European Commission, the European Parliament, the European Court of Justice). Complaints can be submitted by EU citizens and by people resident in or companies/entities registered in the EU.
The Freedom of Information laws set out the citizens’ right to access documents held by state authorities. This aims to uphold the transparency of the state.
Gender-based violence refers to a violent act in which the affected person or perpetrator’s sex and gender play a role. The term also refers to systemic violence, i.e. societal heteronormative gender hierarchies. Gender-based violence is understood to be any act of violence directed against an individual or group due to their sex, socially assigned gender, and/or socially constructed gender role.
Gender-based violence includes but is not limited to crimes of a sexual nature, such as so-called honor killings and intimate partner violence. Racism, classism, xenophobia and Islamophobia often play a role in gender-based violence’s patterns and forms.
A gender analysis of a particular conflict or crime site enhances the understanding of underlying social inequalities behind the violence. It shines a light on which experiences were reported on, by whom as well as gaps within investigations with respect to for example gender, religion or ethnicity.
The four Geneva Conventions of 1949 form the basis of international humanitarian law. These laws protect persons who are not or no longer involved in hostilities. This includes civilians, prisoners of war and wounded and sick soldiers. 196 states have signed up to the Geneva Conventions to date.
In December 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in order to internationally prohibit genocide. The convention defines genocide as any act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Such acts can include the killing of or causing of physical/mental harm to members of a group; inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part, the imposition of measures intended to prevent births within the group, and the forcible transfer of children of the group to another group.
In international law, genocide is considered an international crime that concerns the global community as a whole and must therefore be prosecuted across country borders. Today, generally acknowledged genocides include, among others, the German genocide of the Ovaherero and Nama in Namibia (1904-1908), the Armenian genocide in the Ottoman Empire (1915-1916), the crimes against the Jewish population in Europe during the Holocaust (1941-1945) and the genocide of the Tutsi in Rwanda (April-July 1994).
The Office of the German Federal Public Prosecutor (Generalbundesanwaltschaft, GBA) is Germany’s highest prosecutory authority. The GBA is responsible for prosecutions in serious cases relating to crimes against international law and crimes concerning state security.
The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere. UN General Assembly resolutions are an example of soft law. Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court.
An individual complaint mechanism allows individuals, groups and in some cases NGOs to seek enforcement of their rights. Various individual complaint mechanisms exist for the enforcement of rights guaranteed under international law. Individual complaints can be brought before certain regional courts, such as the European Court of Human Rights, when all domestic remedies have been exhausted.
The International Criminal Court in The Hague is a permanent international criminal court. The court deals with what are known as core crimes under international criminal law: genocide, crimes against humanity, war crimes, and – as of July 2018 – also the crime of aggression.
The ICC’s jurisdiction is far-reaching but not universal. The ICC can only act if: the accused is a national of a state party, the incident(s) occurred on the territory of a state party, or if a non-state party accepts the jurisdiction of the court in relation to a specific crime or situation. While many countries have ratified the ICC’s statute, there are notable exceptions such as China, the United States and Russia. The ICC is not part of the United Nations.
International criminal law is a body of rules prohibiting grave human rights violations such as genocide, war crimes, crimes against humanity and the crime of aggression. These are crimes which are so serious they are seen as concerning the international community as a whole. This body of law makes the perpetrators of these crimes criminally liable for their actions. Prosecutions for these crimes can – depending on the case – be carried out on a national level or at an international tribunal such as the International Criminal Court.
The International Labour Organization is a United Nations agency with headquarters in Geneva. It is responsible for formulating and enforcing international standards on labor and social protection. These globally applicable minimum standards are designed to guarantee rights at work and promote humane and decent work for everyone.
According to the principle of intertemporality, a legal question has to be assessed on the basis of the laws in effect at the relevant time. This is aimed at ensuring legal certainty and is thus in many cases desirable. However, the application of this principle can sometimes mean, for example, that crimes committed during the colonization of Africa and South America are assessed not in line with today's legal standards but rather in accordance with the racist and discriminating laws of the colonizing powers of the time.
German courts recognize exceptions to the application of this principle in some constellations, specifically to avoid the application of certain Nazi-era laws or the laws of the German Democratic Republic (East Germany). In other areas, including when it comes to the legal classification of colonial crimes, historical injustices continue to be concealed or legitimized through the application of the principle of intertemporality.
Corporate investments in a foreign country are regulated by a global web of international investment agreements. These agreements – which are made between states – offer legal protection to investments in one state by individuals or companies of a foreign state, particularly against measures that negatively impact property such as expropriation without compensation.
The agreements furthermore allow for arbitration tribunals to be convened in case of disputes concerning foreign investments. The International Centre for Settlement of Investment Disputes at the World Bank facilitates dispute resolution between states and companies. The decisions made by these arbitration tribunals are legally binding and can for example oblige a state to pay compensation to a company. In bilateral agreements, the adherence to human rights and environmental standards often only plays a minor role.
The monitoring process is a preliminary investigation undertaken by the German Federal Prosecutor. It allows German authorities to gather and assess information that can be used to subsequently open formal investigation proceedings and gather evidence.
Monitoring reports are a kind of written submission that can be filed with certain oversight bodies. They are sometimes used by NGOs to highlight problems.
The German government adopted a national action plan for business and human rights in December 2016. It aims to implement the UN Guiding Principles on Business and Human Rights and protect human rights along the entire supply and production chain.
Any natural or legal person can lodge a complaint at one of the OECD’s National Contact Points (NCPs) regarding the breach of the Guidelines for Multinational Enterprises, regardless of whether the complainant has been personally affected.
The OECD guidelines oblige companies from signatory states to respect human rights in the course of foreign business operations. A complaint can be made to the NCP in the country where the company is based or where it conducts business. The NCP does not have the power to impose sanctions, but it can arrange mediation between the complainants/victims and the company. If no agreement is reached, the NCP may issue a final report assessing the company’s conduct.
The OECD Guidelines for multinational enterprises are recommendations for corporations and governments to promote responsible and sustainable corporate behavior.
The guidelines include recommendations on transparency, labor relations, the environment, corruption, consumer protection, transfer of technology, competition and tax. States adopting the guidelines are obliged to implement them to the best of their ability. They must set up a National Contact Point (NCP) to coordinate the implementation of the guidelines. A complaint may be brought before an NCP in cases of a suspected breach of the guidelines.
The Pinochet Effect refers to the example set by the arrest of and extradition proceedings against Chilean dictator General Augusto Pinochet, a precedent which puts pressure on other perpetrators of serious human rights violations. The Pinochet case also inspired survivors of other violent regimes to challenge impunity.
The academic field of postcolonial legal criticism looks at the repercussions of colonialism and imperialism today. In this context, law is seen as a social and cultural construct which changes over time. During the period of colonialization by European states, national and international law developed in a way that made it possible to legitimize for example slavery and genocide. European law, with its often racist elements, spread to many parts of the world in the course of colonialization.
Postcolonial theoreticians show how imperial laws served to cover up colonial violence and how injustice was legitimized through the fig leaf of law. The law was used, for example, to deny indigenous populations in the colonies their status as legal persons. The development of international law was also closely interwoven with colonialization. Postcolonial legal criticism today tries to uncover and challenge colonial continuities in both national and international law.
A preliminary examination is the process by which the International Criminal Court’s Office of the Prosecutor (OTP) decides whether or not to open an investigation into a situation. At this stage, the OTP examines jurisdiction, admissibility (complementarity and gravity), and the interests of justice. Under the Rome Statute of the ICC, the Prosecutor shall initiate an investigation unless he or she determines that there is no reasonable basis to proceed.
Public interest litigation (PIL) is a kind of legal action that is well established in the legal systems of India and Pakistan. PIL is designed to serve a broader public interest, for example in cases where those affected by a wrong cannot afford to bring legal action themselves or for who for other reasons do not have access to the legal system. PIL is unique in that these legal actions can be brought by third parties, including NGOs, on behalf of a large group of affected persons or on behalf of the general public.
Public international law is the system of laws governing relations between states and other subjects of international law. Unlike national law, there is no central legislative organ. Sources of public international law include general principles of law, treaties, and customary law.
Pushbacks entail a variety of state measures aimed at forcing refugees and migrants out of their territory while obstructing access to applicable legal and procedural frameworks. In doing so, States circumvent safeguards governing international protection (including minors), detention or custody, expulsion, and the use of force.
In Germany, regional courts (Landgericht) are the court of first instance in cases of crimes and serious misdemeanors which are liable to involve a sentence of over four years’ imprisonment (though cases of homicide are dealt with by another court known as the Schwurgericht). In civil law cases, regional courts are responsible for all cases involving claims of over 5,000 euro which are not referred on to a district court known as the Amtsgericht. Regional courts are also courts of second instance for appeals against decisions of the Amtsgericht in criminal and civil cases (apart from family court issues).
Sexual violence is defined as a violent act of a sexual nature, carried out without consent or the capacity to consent. Such acts are not limited to physical violence, and may not involve any physical contact. It is the deliberate exertion of power over another person, not an act of lust. Sexual violence is often used as a tool to systematically humiliate individuals or groups.
Sexual violence results from social inequality and oppressive patriarchal power structures. It constitutes a political crime, employed to pursue political or military goals. Sexual crimes include rape, sexual assault, forced pregnancy, forced sterilization, forced abortion, forced prostitution, sexual slavery, forced circumcision, genital mutilation or forced nudity.
A special tribunal is a criminal court set up on an ad-hoc basis by the United Nations. It is generally set up to investigate core international crimes – war crimes, crimes against humanity and genocide – in a specific conflict. To date special tribunals have been set up to prosecute crimes in the former Yugoslavia (1993), in Rwanda (1994), in Cambodia (2003) and in Lebanon (2005).
Strategic litigation aims to bring about broad societal changes beyond the scope of the individual case at hand. It aims to use legal means to tackle injustices that have not been adequately addressed in law or politics.
It gives a platform for people affected by rights violations to be seen and heard, triggers discussion of these violations, and highlights weaknesses and gaps in the law.
Successful strategic litigation brings about lasting political, economic or social changes and develops the existing law. Public outreach materials accompanying the case can help to explain the context of the proceedings. This increases the progressive and precedent-setting impact of the legal action.
In Germany, a structural investigation (Strukturermittlungsverfahren) is opened where there is evidence that a crime has taken place but potential perpetrators have not yet been definitively identified. The investigation focuses on structures related to the potential crime and groupings of potential perpetrators.
Transitional justice efforts seek to make it possible for a society to address and redress injustices that occurred during a violent conflict or regime. These efforts, which can include criminal law proceedings, are designed to build lasting peace and security in the aftermath of a conflict. Legal proceedings undertaken as part of transitional justice efforts can by conducted by international, hybrid or national tribunals.
The UN Committee on the Rights of the Child has since 1991 monitored states’ compliance with the provisions set out in the UN Convention on the Rights of the Child. The third Optional Protocol to that convention established a procedure allowing individual complaints to be brought to the committee.
The UN Convention against Torture aims to prevent torture and other cruel, inhuman or degrading treatment or punishment. It was adopted in 1984 and supplements the Universal Declaration on Human Rights and the Geneva Conventions. Under the convention states are obliged to prevent and punish acts of torture.
The UN Convention on the Rights of the Child sets out fundamental standards for the protection of children around the world. The basic principles underpinning the convention include: survival (right to life), development, non-discrimination, upholding the best interests of the child and respect for the views of the child. The convention also underlines the importance and value of the child. The convention came into force in 1990 and is the most-ratified UN convention; it has been ratified by every country except the United States.
The United Nations Declaration on the Rights of Indigenous Peoples from September 2007 affirms that indigenous peoples are equal to all other peoples. The resolution also affirms that indigenous peoples contribute to the diversity of cultures and that they must not to be discriminated against due to their traditions and the exercise thereof.
The declaration furthermore notes that indigenous peoples were subjected to historic injustices for example as a result of colonialization. The declaration acknowledges indigenous peoples’ right to self-determination, the right to the resources in their territories and the right to restitution or compensation for stolen lands, territories and resources.
Today, key sections of the declaration have the status of customary international law and are therefore binding. This includes for example indigenous peoples’ right to consultation and cooperation. This means that the free and informed consent of indigenous peoples must be sought in advance of any administrative and legislative measures that might directly affect them.
The UN Guiding Principles on Business and Human Rights, also known as the Ruggie Principles, are among the most important internationally recognized standards on corporate responsibility for human rights.
In 31 principles they set out states’ duty to protect human rights, corporate responsibility to protect human rights, and access to remedy when violations occur. The unanimous endorsement of the principles by the UN Human Rights Council in 2011 represented an important step forward towards corporate liability for human rights.
UN Special Rapporteurs are appointed by the UN with a mandate to work on a voluntary basis on a specific topic (e.g. torture, freedom of expression, or the right to water) or on a geographical region (e.g. Iraq, Syria, Myanmar).
The Universal Declaration of Human Rights was proclaimed on 10 December 1948 by the General Assembly of the United Nations. The declaration sets out a comprehensive common standard for the rights that every person should enjoy, regardless of sex, religion, nationality or other status.
The declaration was made in the form of a General Assembly resolution and is thus not legally binding or enforceable, but some of its provisions are considered to be part of customary international law. The declaration reinforces the underlying principles of human rights and has since its proclamation influenced the writing of constitutions of most democracies.
The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state's territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.
War crimes are serious violations of international humanitarian law provisions applicable in international and non-international armed conflict. War crimes are part of the core crimes of international criminal law and are subject to universal jurisdiction. War crimes include e.g. intentional attacks on the civilian population or civilian objects such as hospitals and the use of chemical weapons.
A whistleblower is a person who reveals confidential information about a crime or misdeed (e.g. human rights violations, corruption, misuse of data). Whistleblowers often seek to introduce more transparency to the dealings of politics, state authorties or corporations.
The European Asylum Support Office is an EU agency initially established in 2010 to support EU Member States at their request in assessing and providing international protection. EASO may be involved when Member States are considered to be facing exceptional difficulties in maintaining their asylum systems. As an EU agency, EASO can be investigated for maladministration by the European Ombudsperson.
