Not just against the weak
Discussions often get heated when the topic of international criminal law comes up. This is especially true, of course, in places such as the former Yugoslavia, Argentina or Colombia, where the focus is on crimes committed close to home, but it is also true in places where courts have had to look at international crimes committed elsewhere – as happened last year in South Africa during a visit by Sudanese President Omar Al Bashir, who is the subject of two outstanding arrest warrants issued by the International Criminal Court. A similar debate has played out over the past few years in Spain, where the conservative government passed a number of laws to limit the Spanish courts’ jurisdiction over murders in Tibet or torture in Guantánamo or in Latin America. In so doing, the government in Madrid has effectively ended the practice of universal jurisdiction, which had until then been quite successful. The principle of universal jurisdiction allows law enforcement authorities in third states to take action in cases of torture, war crimes or crimes against humanity even if there is no connection to the investigating state, e.g. where none of the victims or suspects are nationals of that state.
In light of all this, it is encouraging to note that in Germany, the Code of Crimes against International Law, which is based on the principle of universal jurisdiction, has been in force since 2002 and its continued existence is never really questioned. It was no great surprise that an expert hearing held last week before the Bundestag’s Legal Affairs Committee proved unspectacular. Lawmakers and legal experts looked at the current status of international criminal law practice. The focus was on the multi-year trials, before the Higher Regional Court in Stuttgart, of two German-based leaders of the Rwandan exile FDLR militia. The trials ended in September 2015 with the convictions of both men for their involvement in crimes committed in eastern Democratic Republic of Congo.
Even though the experts who spoke at the hearing – I was among them – were invited by different parliamentary parties, they were all more or less in agreement. This is remarkable in light of the situation in other countries, but also given the disputes that arose at a similar hearing at the Bundestag in 2007. Representatives of human rights organizations, myself included, criticized the German Code of Crimes against International Law as a law that was never applied. What was missing then was a department specializing in these crimes within the federal prosecution authority. The prosecutors felt they should only take action when a suspect was present in Germany for an extended period of time. Today there is a unit – albeit one that is too small – of prosecutors and investigators at the federal criminal police office and, like at the International Criminal Court, this unit works proactively to lay the groundwork for potential future cases, e.g. by securing evidence such as witness statements.
So for those of us who work with those affected by grave crimes, what’s left to criticize?
Injured parties should have access to more support from lawyers and at an earlier stage in the process, as a kind of witness support. And they should have better legal options for challenging the closing of proceedings or a prosecutor’s decision not to open an investigation.
The most important step is to ensure that criminal proceedings in Germany are not pursued only against suspects from weaker nations but also against perpetrators of human rights violations in more powerful states like Russia and the USA. The practice of double standards in international criminal law must come to an end. It’s also vital to look at the role of transnational companies when they are involved in crimes e.g. in Africa or Latin America. Trials held to date in Europe have predominantly been against citizens of weaker states, and never against senior military figures from Western countries or against managers of global corporations. Until this changes, universal jurisdiction will not be able to fulfill its role as a means of enforcing universally applicable human rights.
While this approach might lead to political conflicts in some cases, it would reflect progressive, human rights-oriented foreign policy to which Germany currently lays claim.