Ms Fien Vandepitte
Fien Vandepitte holds a master’s degree in law (magna cum laude) from Ghent University (Belgium) and specialises in European Law at the Université libre de Bruxelles (Belgium). She is passionate about human rights, migration law, and European law.
Introduction
For years, Anwar Raslan supervised a brutal regime of physical and psychological torture in the al-Khatib detention centre in Syria, where he was head of the investigations unit. Although these crimes were committed outside Germany, and the perpetrator nor the victims had German nationality, Germany stepped in to ensure accountability. In 2018, Raslan was arrested in Germany, and on 13 January 2022, he received a life sentence from the Higher Regional Court of Koblenz for his complicity in 58 murders, 4.000 instances of torture and severe deprivation of liberty, and 3 cases of sexual violence. The investigation and prosecution were based on the principle of universal jurisdiction, which allows any state in the world to prosecute the most serious international crimes, regardless of where, by whom and against whom they were committed.
In recent years, Germany has demonstrated a notable commitment to employing this principle to hold perpetrators of international crimes in Syria accountable, with the case of Anwar Raslan being just one example among many. But why would a state invest its time and resources in the prosecution of international crimes that were committed outside its territory and do not involve any of its citizens?
Many answer this question with ‘politics’, and this is exactly the reason why the scope and desirability of the concept of universal jurisdiction are still subject to debate. As this concept is very broad and merely allows states to prosecute, the assertion is often made that universal jurisdiction leaves too much room for political influence, causing justice to become ‘selective’.
In order to move this decade-long normative debate forward, one needs to understand the causal mechanisms in the relationship between politics and the prevalence of universal jurisdiction cases. This blog post therefore shares the findings of exploratory research into the political factors that could explain why universal jurisdiction cases regarding Syria are extremely prevalent in Germany. Is it overly optimistic to perceive this as an act of selfless altruism? Alternatively, does Germany have specific political motives underlying its actions?
While various elements could partly explain the high number of German universal jurisdiction cases regarding Syria, this contribution underscores the crucial influence of politics. The factors that will be discussed below – being (1) Germany’s national role conceptions, (2) diplomatic considerations and (3) migration policy – can serve as a basis for further research seeking to extend this theory to different cases. It is however important to recognize that political factors inherently vary from one country to another, which could lead to different influential political factors.
National role conceptions
An analysis of statements by German state officials makes clear that ‘national role conceptions’ are an important influential political factor to explain why the country is so active in the field of universal jurisdiction. National role conceptions are the convictions of foreign policymakers regarding their state's proper role and position within the international community. In the case of Germany, the ‘normative power’ and ‘global enforcer’ role conceptions seem to shape the state conduct.
Germany as a normative power
Following the aftermath of the Second World War, Germany found itself in a severely weakened international position, compelling the nation to redefine its role on the global stage. In order to regain trust from the Allied Forces and acquire reliable partners, it chose to present itself as a faithful ally, by inter alia attaching great value to international obligations and the principle of multilateralism.
Over time, and especially since its reunification, Germany has been winning back trust and significant power. While it was expected that this would cause Germany to ‘normalize’ its foreign policy by focusing more on its national political interests, the opposite happened: Germany even started using its power to more actively pursue the norms it already adhered to. This can be explained by the fact that Germany has taken on – and still holds – the national role conception of a normative power.
The ‘normative’ element of this national role conception underscores Germany’s commitment to values such as common responsibility and the protection of human rights, leading to particularly norm-compliant conduct. Prosecuting crimes that occurred in Syria on the basis of universal jurisdiction, is one way in which Germany fulfils its international obligations. For example, Germany in this way meets its responsibility to protect and “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”, as prescribed in the Rome Statute of the International Criminal Court. As numerous statements by German state officials indicate, this norm-compliant and responsible behaviour is closely linked to the nation's unique historical context:
“It is our responsibility to stop or punish crimes; and it is – as we Germans have seen it ever since, against the background of our historical crimes under National Socialism – precisely our German responsibility.” German Federal Minister of Justice Marco Buschmann, 2022
“My country, Germany, has waged inhuman wars of aggression and committed the most atrocious genocide, killing millions of people. Therefore, we have a special responsibility to do our part so that such crimes will never happen again – to help bring justice to the victims and ensure accountability for the perpetrators.” German Foreign Minister Annalena Baerbock, 2023
The ‘power’ element of Germany’s role as a normative power indicates that within this normative field, the country takes up a leading role in the international community, trying to set an example for other states. Over the past years, this power has drastically grown in comparison to the aftermath of the Second World War, allowing Germany to go beyond its norm-compliant behaviour and use this power to actively pursue its normative values. Indications of this power role are reflected in the following statement:
“Here in Germany, our courts and public prosecution offices are (…) leading by example.” Former German Foreign Minister Heiko Maas, 2020
This was followed by a referral to the German universal jurisdiction cases regarding Syria and the assertion that:
“[t]hese proceedings reinforce the principle of universal jurisdiction and encourage other states to prosecute crimes against international law at the national level.” Former German Foreign Minister Heiko Maas, 2020
Germany as a global enforcer
In the field of universal jurisdiction, states can take two approaches: the ‘no safe haven’ approach or the ‘global enforcer’ approach. Most states tend to adhere to the ‘no safe haven’ approach, which involves preventing their territory from becoming a refuge for those accused of international crimes. Universal jurisdiction is then only applied when the alleged perpetrator is physically present within the state's borders. In contrast, Germany appears to be embracing a more proactive role as a ‘global enforcer’, going further than the ‘no safe haven’ approach.
An illustrative case highlighting Germany's adoption of the ‘global enforcer’ role is the Jamil Hassan case. Jamil Hassan, who was the head of Syrian Air Force Intelligence until June 2019, faces multiple international crime allegations. To facilitate his prosecution, Germany issued an international arrest warrant in June 2018 and even requested Lebanon, where Jamil Hassan was residing at the time, to extradite him to Germany. Germany's determined pursuit of Hassan conveyed a clear message that there is no refuge for him beyond Syria, surpassing the ‘no safe haven’ approach and aligning with the ‘global enforcer’ role.
Furthermore, as part of a broader prosecutorial strategy, Germany conducts structural investigations based on universal jurisdiction. These are investigations that are initiated without having first identified a potential perpetrator. Since it is therefore uncertain whether the alleged perpetrator is located within Germany, this investigative approach aligns Germany more closely with the role of a 'global enforcer.'
Diplomatic considerations
Many elements indicate that diplomatic considerations influence Germany's decision-making process on whether to initiate a universal jurisdiction case. For example, in line with the country’s adherence to the principle of multilateralism, the 2016 White Paper on German Security and the Future of the Bundeswehr states that “pursuing German interests (...) always means taking into account the interests of [its] allies and those of other friendly nations”.
In the past, these diplomatic considerations led Germany to only open universal jurisdiction cases in situations where the United Nations Security Council (UNSC) or the International Criminal Court (ICC) had advocated for or initiated a criminal procedure. This could be criticised as an imperfect way to gauge the will of the international community, as the five permanent members of the UNSC can veto actions if they have geopolitical interests, and the ICC only has limited jurisdiction. In the case of Syria however, Germany seems to have stepped away from this tradition, as it exercises universal jurisdiction even though Russia and China have consistently blocked initiatives of the UNSC, and the ICC does not have the jurisdiction to open a case and has not yet advocated to do so.
Germany’s activism can be partially explained by the widespread consensus within the international community regarding the need to prosecute those responsible for international crimes in Syria (apart from the two UNSC vetoes of Russia and China). This is crucial, as it explains Germany’s initiation of universal jurisdiction cases in three ways.
Firstly, the general consensus enables Germany to exercise universal jurisdiction while maintaining and even fostering its positive relations with the international community. For Germany, this is essential, as multilateralism is at the core of its foreign policy strategy.
Secondly, Máximo Langer argues that by focusing on defendants with whom the international community has reached a broad agreement that they can be prosecuted, the likelihood of opposition by the state of nationality diminishes. Thus, the consensus mitigates the risk of political repercussions from Syria, which in turn allows Germany to take riskier actions such as prosecuting (high-ranking) Syrian state officials. This can explain Germany’s prosecution of for example Eyad al-Gharib, a former member of the Syrian intelligence services; Anwar Raslan, former head of the Investigations Division at Branch 251 of the General Intelligence Directorate in Damascus; Alaa M., former military doctor and alleged employee of the Syrian Military Intelligence; and Jamil Hassan, former head of the Syrian Air Force Intelligence Service. With the case against Anwar Raslan and Eyad al-Gharib, Germany was the first to prosecute state-sponsored torture in Syria. Even in general, it was the first time charges of crimes against humanity were brought against officials from a government that remains in power.
Thirdly, the broad agreement by the international community strengthens Germany’s capacity to take on the role of a global enforcer, as Germany is dependent on the cooperation of other countries when the alleged perpetrator is not present on its territory.
Migration policy
The third influential political factor revolves around Germany's migration policy, which has resulted in a significant influx of Syrian refugees into the country. In 2021, the United Nations Refugee Agency reported that out of the one million Syrian asylum seekers hosted across European countries, a staggering 59% found refuge in Germany. This strongly correlates with the significant number of German universal jurisdiction cases concerning Syria.
First, the migration flow from Syria to Germany has as an effect that Syrians who are motivated to pursue justice, including victims, witnesses, activists and lawyers, are united in a country that has the economic and legal resources necessary to start a trial on the basis of universal jurisdiction.
Second, the presence of Syrian refugees in Germany also motivates the country to take action. Indeed, by fighting impunity, these universal jurisdiction cases tackle the root cause of the migration flow. Besides, they are essential for upholding peace and stability within Germany. Refugees in a way ‘bring the crimes’ to their host state, as the consequences of atrocities live on in their minds and bodies. By prosecuting the perpetrators, Germany avoids the risk that social peace is disrupted.
Third, migrants also facilitate the opening of universal jurisdiction cases, as they bring along essential information that could serve as evidence. This information often arises during the asylum application process, as Syrian asylum seekers in Germany are asked specific questions regarding international crimes. Besides, the presence of both victims and perpetrators in the same country can lead to the opening of a universal jurisdiction case. The case against Anwar Raslan for example, started after alleged victims of his actions recognized him in Berlin and reported this to the authorities.
Conclusion
Understanding the causal mechanisms between politics and the prevalence of universal jurisdiction cases is essential to move discussions on this topic forward. This contribution identified three influential political factors that can explain why Germany is remarkably active in prosecuting perpetrators of crimes in Syria based on universal jurisdiction.
First, Germany’s national role conceptions as a normative power and global enforcer positively influence the country’s stance towards universal jurisdiction in general. Second, the fact that the international community agrees with Germany’s actions and even applauds them, allows for a broad prosecutorial strategy including the prosecution of perpetrators who are located outside Germany. Third, Germany’s migration policy has led to the presence of many Syrian refugees on its territory, which serves both as a motivating and facilitating factor for universal jurisdiction cases. The presence of victims and perpetrators creates a moral imperative for Germany to prosecute, and at the same time facilitates the initiation of cases by providing essential information and evidence.
Reflecting on these conclusions, some questions come to mind. For example, should the flexibility provided by universal jurisdiction for political considerations be considered inherently negative? The case of Germany and Syria seems to challenge this assertion, as the country seeks to uphold human rights worldwide while also carefully considering diplomatic factors to prevent adverse repercussions in geopolitics. Moreover, should the significance of diaspora communities be integrated into the universal jurisdiction theory, perhaps by considering the presence of victims within the prosecuting state's territory as a justification for exercising universal jurisdiction?
Further exploring the link between politics and universal jurisdiction will invite us to reevaluate the boundaries and possibilities of this concept, ultimately guiding us towards a more robust theory.
The Human Rights in Context Blog is a platform which provides an academic space for discussion for those interested in human rights, democracy, and the rule of law. We are always interested in well-written and thoughtful comments and analyses on topical events or developments. Scholars from all disciplines, students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges are welcome to participate in the discussions. We warmly invite those interested in writing a post to send us an e-mail explaining briefly the relevance of the topic and your background as an expert. We will get back to you as quickly as we can. All contributors post in their individual capacity, and their opinions do not necessarily reflect the official position of Human Rights in Context, or any organisation with which the author is affiliated.