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Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis
Published online by Cambridge University Press: 07 February 2022
Abstract
Should Germany be prosecuting crimes committed in Syria pursuant to universal jurisdiction (UJ)? This article revisits the normative questions raised by UJ—the principle that a state can prosecute serious international crimes such as genocide, crimes against humanity, and war crimes committed by foreigners outside of its territories—against the backdrop of increasing European UJ proceedings regarding Syrian conflict–related crimes, focusing on Germany as an illustrative example. While existing literature justifies UJ on the basis of universal prohibition of certain atrocities, this creates residual normative issues. Alternatively, this article applies the “two-tiered test” derived from the “dual foundation” thesis of the Eichmann judgment, in which the normative appropriateness of UJ is evaluated against both accounts of universal prohibition and the specific politics surrounding the prosecution. It contends that the large number of Syrian refugees in Germany means that Germany, in particular, should initiate Syrian conflict–related UJ proceedings to prevent continued harm and recognize the political agency of refugees. Ultimately, the article suggests UJ should normatively be thought of as a domestic, rather than international, political event.
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs
References
NOTES
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2 Cathrin Schaer, “Prosecuting Syrian War-Crimes Suspects from Berlin,” Atlantic, July 31, 2019, www.theatlantic.com/international/archive/2019/07/can-germany-convict-syrian-war-criminals/595054/.
3 Ibid.
4 Emma Graham-Harrison, “‘My Goal Is Justice for All Syrians’: One Man's Journey from Jail to Witness for the Prosecution,” Guardian, December 12, 2020, www.theguardian.com/world/2020/dec/12/my-goal-is-justice-for-all-syrians-one-mans-journey-from-jail-to-witness-for-the-prosecution.
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29 The countries holding these trials include Austria, France, Germany, Hungary, the Netherlands, Norway, Sweden, and Switzerland. The number of cases includes cases involving nationals of the prosecuting countries if the nationals were linked to a broader investigation of a UJ case. Compiled from TRIAL International, Universal Jurisdiction Annual Review 2021: A Year like No Other? The Impact of Coronavirus on Universal Jurisdiction (Geneva: TRIAL International, n.d.), trialinternational.org/wp-content/uploads/2021/04/TRIAL_International_UJAR-2021.pdf.
30 Ibid.
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33 Ibid.
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37 Langer, “The Diplomacy of Universal Jurisdiction,” p. 11.
38 The German legal system, while highly receptive to international law, is not, strictly speaking, a monist state, in which international law is seen as superior to municipal law, is considered within the same legal corpus, and requires customary international law to be incorporated into this domestic legal system through Article 25 of the Basic Law for the Federal Republic of Germany (Grundgesetz). Consequently, the crimes listed in the Rome Statute of the International Criminal Court can be considered part of customary international law, but they require domestic legislation to be applicable in Germany. Although the Rome Statute does enumerate individual crimes, because it does not meet German constitutional principles of legality, and because the primary aim of the statute was understood as providing the ICC jurisdiction over the crimes, not its member states, a separate piece of legislation was necessary to introduce the international crimes in the Rome Statute in the German legal order. For further explanation of CCAIL, see Helmut Satzger, “German Criminal Law and the Rome Statute: A Critical Analysis of the New German Code of Crimes against International Law,” International Criminal Law Review 2, no. 3 (2002), pp. 261–82; and on Germany's dualist legal system, see George Slyz, “International Law in National Courts,” NYU Journal of International Law & Politics 28, nos. 1/2 (Fall/Winter 1995), pp. 65–114.
39 Helmut Gropengießer, “The Criminal Law of Genocide: The German Perspective,” International Criminal Law Review 5 (2005), pp. 329–42, at 329–31.
40 Kaleck and Kroker, “Syrian Torture Investigations in Germany and Beyond,” p. 178.
41 Ibid., p. 179.
42 Langer and Eason, “The Quiet Expansion of Universal Jurisdiction.” For example, the so-called Caesar Report, named after a Syrian military defector with the code name “Caesar,” was based on tens and thousands of images smuggled out of Syria. United Nations Security Council, A Report into the Credibility of Certain Evidence with Regard to Torture and Execution of Persons Incarcerated by the Current Syrian Regime (the “Caesar Report”), S/2014/244, April 4, 2014, undocs.org/en/S/2014/244.
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91 Hovell, “The Authority of Universal Jurisdiction,” p. 449.
92 Mégret, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction,” p. 99.
93 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 486.
94 Ibid.
95 Reydams, Universal Jurisdiction, p. 158.
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97 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 497.
98 Langer, “Universal Jurisdiction Is Not Disappearing.”
99 Attorney General of the Government of Israel v. Adolf Eichmann, para. 11.
100 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 503.
101 Attorney General of the Government of Israel v. Adolf Eichmann, para. 29 (emphasis added).
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103 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 515.
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105 Tom Segev, The Seventh Million: The Israelis and the Holocaust (New York: Picador, 2000).
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107 “Central Unit for the Fight against War Crimes and Further Offences.”
108 See Principle 8, “Resolution of Competing National Jurisdictions,” in Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction, p. 32.
109 Eugene Kontorovich, “The Parochial Uses of Universal Jurisdiction,” Notre Dame Law Review 94, no. 3 (2019), pp. 1417–52.
110 Janina Dill, Legitimate Targets? Social Construction, International Law and US Bombing (Cambridge, U.K.: Cambridge University Press, 2014), p. 63.
111 Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (Oxford: Oxford University Press, 2020), pp. 391–416.
112 Kontorovich, “The Parochial Uses of Universal Jurisdiction,” p. 1448.
113 Langer, “Universal Jurisdiction Is Not Disappearing,” pp. 249–50.
114 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 519.
115 Ibid., p. 518.
116 See, for example, United Nations General Assembly, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” A/Res 60/147, March 21, 2006; and Hovell, “The Authority of Universal Jurisdiction,” p. 453. See also Francesco Francioni, Access to Justice as a Human Right (Oxford: Oxford University Press, 2007).
117 Mégret, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction,” p. 100.
118 Ibid., p. 106.
119 Ibid., p. 102.
120 Mark Mackinnon, “Anwar and Anwar: How a Chance Encounter Helped Lead to a Watershed Trial Linked to Syrian Conflict,” Globe and Mail, April 24, 2020, www.theglobeandmail.com/world/article-anwar-and-anwar-how-a-chance-encounter-helped-lead-to-a-watershed/.
121 United Nations General Assembly, Convention Relating to the Status of Refugees, July 28, 1951.
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125 Mégret, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction,” p. 107.
126 Arendt, The Origins of Totalitarianism, p. 375.
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135 Langer and Eason, “The Quiet Expansion of Universal Jurisdiction.”
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137 See, for example, Langer, “The Diplomacy of Universal Jurisdiction.”
138 See, for example, Cassese, “Is the Bell Tolling for Universality?”
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