As far back as the 1960s, Israel debated universal jurisdiction when it tried seniors Nazi official Adolf Eichmann, who was hanged in 1962 for his role in the Holocaust. Another important moment occurred in 1998 when a Spanish court asked the British police arrested former Chilean dictator Augusto Pinochet to face trial for crimes committed during his military rule. Pinochet was later released by the British on medical grounds.
Germany has more than a dozen active cases of crimes committed in Syria, according to last year’s report from the human rights group Redress.
“Right now is the place to go globally,” said Andreas Schüller, director of the international crime program at the European Center for Constitution and Human Rights.
There are a number of reasons, according to Schüller. The first is Germany’s broad view of the scope of the law, the German Penal Code against International Law, which entered into force in 2002. This allows for criminal cases even if the alleged crime is not committed in Germany, potentially opening lawsuits from all corners of Germany. world.
“German law is quite open, so in theory any case could end up in court,” Schüller said.
However, that is not how things work out in practice. It largely depends on the prosecutor’s discretion whether to open a case if there is no direct connection with Germany.
Include nearly 1 million refugees from world conflict zones.
Currently Germany open its doors to refugees in 2015, many arrived fresh from the horrors of the war in Syria. Among them are witnesses and victims who facilitate the prosecution of cases – as well as several perpetrators.
“This is a big topic here, there are a lot of people demanding justice,” said Schüller.
That’s the case with Syrian human rights lawyer Anwar al-Bunni. In 2014, she admitted that the man she saw at the asylum center in Berlin was the one who had arrested her years earlier in Damascus.
Anwar Raslan, 57, who is suspected of being the head of investigations at the Syrian branch of the General Intelligence Directorate, has been charged with crimes against humanity, 58 murders, rape and sexual assault. He was tried in the city of Koblenz, Germany. A former lower ranking Syrian intelligence officer was sentenced to 4½ years in prison late last month.
Germany has invested resources
Germany has a slow start to prosecutions under universal jurisdiction at first.
“Everyone is very proud in Germany that we have this very modern and extensive law, but it was not implemented in the first place,” said Florian Jessberger, chair of international criminal law at Humboldt University Berlin.
Initially there appeared to be a reluctance on the part of federal prosecutors to open cases, some of which targeted high-ranking officials like the former Donald H. Rumsfeld’s secretary of defense. The complaint, filed on behalf of four Iraqis as well as former CIA director George Tenet and high-ranking military personnel relating to violations of the United Nations Convention against Torture in Guantánamo Bay and Iraq’s Abu Ghraib prison, went unanswered. by the prosecutor.
But more low-level cases have reached the courts as Germany has poured resources into its war crimes investigation unit. There are other countries in Europe that have as broad a law as Sweden, but experts say Germany has been very proactive in recent years.
In September 2011, just months after the Syrian uprising, German authorities initiated what is known as a “structural investigation” into state-sponsored war crimes in Syria. There have been similar investigations into crimes against the Yazidi minority in Iraq and Syria.
“This is a new discovery in terms of criminal procedural law,” said Jessberger.
The rolling investigation means that the authorities in Germany are constantly gathering evidence during the war, including videos and open source testimony. It allows for an evidence base that can be used in individual prosecutions or to aid investigations elsewhere.
What about the International Criminal Court?
The International Criminal Court is more limited in scope. It can prosecute crimes only in countries that have agreed to its jurisdiction unless they are referred by the UN 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 a court in The Hague.
“That’s when the quest for justice falls into another system,” said Steve Kostas, a senior lawyer for the Open Society Justice Initiative, who has represented victims in similar cases in Germany.
However, a legal system such as Germany still has significant obstacles.
While German prosecutors can legally open cases unrelated to Germany, there is no obligation to do so. Experts say that’s when foreign policy considerations may come into play. In Germany, the Ministry of Justice can force prosecutors to stop investigations.
Trials involving ISIS militants for genocide or torture by the Syrian government are low or politically non-existent. Not so with Saudi Arabia, the world’s biggest oil exporter and Western ally.
“The simple fact that there is wisdom opens the door to also incorporating some of the political costs of that determination,” said Jessberger.
Syrian victims welcome Germany’s first conviction in a case involving Syrian state-sponsored torture, but it is seen as a small step.
“We went to America and told them the whole story. We went to Germany and told them everything. We went to Holland, France and even Italy. And people don’t listen. The whole world is not listening, “Mazen al-Hamada, a Syrian activist who publicized the horrors of Syrian prisons told a friend. before disappearing last year.
But legal experts see Germany’s recent cases as a possible sign of things to come.
“There must be more cases coming,” Schüller. “We will see what happens in the coming years. There is no statute of limitations for these crimes. “
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