Are the German courts actually fighting for (in)justice?!
German courts have been on the news a lot lately and for good reasons: From siding with young environmental activists fighting against climate change to prosecuting war criminals and terrorists that other jurisdictions have failed to prosecute, the German courts are actively trying to fight injustice, even when such wrongs have been committed outside of its sovereign territory.
For the purposes of this short piece, I want to focus solely on the issue of German courts actively exercising universal jurisdiction to prosecute international criminals. While the coverage of German courts prosecuting foreign nationals for serious crimes committed abroad has generally been positive, this piece will ask you to reflect on whether or not the German courts are actually making the world a better place by prosecuting criminals with no real connection to Germany by relying on a domestic law with extraterritorial impact and universal reach.
While we can all agree – hopefully – that gross and aggressive violations of international law (e.g. genocide, war crimes, systematic torture, etc.) should be prosecuted, should one nation really be exercising universal jurisdiction so routinely to accomplish this task? In order to answer this question, this piece will first attempt to offer a very basic overview of extraterritoriality by differentiating what the German courts are doing from the courts in other jurisdictions (e.g. the United States, the Netherlands, Sweden) and the International Criminal Court. It will subsequently present arguments for and against the German approach and assess whether their actions have harmful, unintended consequences that may potentially overshadow its perceived benefits or whether this is a legal system unapologetically doing the right thing.
Presumption Against Extraterritoriality
Back in 2013, when the United States Supreme Court decided on Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts wrote that in order for claimants to establish jurisdiction in US courts, the case had to “touch and concern the territory of the United States” and that “it must do so with sufficient force to displace the presumption against extraterritorial application.” To provide a bit of context, in law, there is a general presumption against laws of one nation having extraterritorial reach to impact foreign nationals in foreign jurisdictions. For example, for a US court to apply US law (the Alien Tort Statute in the Kiobel case) against foreign defendants for torts or offences that took place outside of the US territories would not only be frowned upon by the international legal community, but it may very well be an overreach of the Court’s authority.
This reverence towards avoiding extraterritorial reach of national laws is a principle generally respected across most jurisdictions, where the courts of a sovereign nation generally refuse to prosecute offences that have occurred outside of their territories by and against foreign nationals. This is to say that in order for courts to have jurisdiction over a case, there must be some link or connection to the jurisdiction (or in Chief Justice Roberts’ terms the case mush “touch and concern” the jurisdiction). This is done in order to respect the notion of comity (i.e. respecting the sovereignty of other nations, their courts, and their citizens) and to avoid any judicial entanglements in foreign policy.
What I recall distinctly from Kiobel was Justice Stephen Breyer’s remark during the oral arguments when he noted that the United States Supreme Court is not the “United States Supreme Court of the World”. At the time, I remember thinking that this was a good thing. As an American living in Europe, I was already self-conscious of how some people resented the US for their American-centric global perspectives (e.g. the whole “we are the world’s police” rhetoric) and those incessant “U.S.A.” chats always made me quiver with awkwardness. Mixing my personal emotions with the justifications provided by the Court in its Kiobel decision, I thought there was no need for America to comport themselves as the world’s police, judge, and executioner, especially for a glamorized tort case (as Kiobel was about environmental harm caused by an oil spill that ruined the livelihood of the people living near the pipelines). While I was not necessarily happy about the Kiobel ruling – which failed to provide any relief for the victims – I understood that the presumption against extraterritorial application of national law, especially for civil or private law matters, was something necessary in order to preserve international comity and legal order, even if that meant creating obstacles for victims seeking access to justice in foreign courts.
International Criminal Court and the International Court of Justice
Part of the reason why I was able abandon my belief that something had to be done about these lingering injustices was the existence of international institutions like the International Criminal Court (ICC) or the International Court of Justice (ICJ) that were supposedly tasked with adjudicating instances of hideous, international crimes or cross-border/international instances (by individuals or by states respectively) making the need for any one jurisdiction exerting universal jurisdiction to prosecute atrocities around the world redundant. If the alleged offence was serious enough – I naively hoped –these institutions would adjudicate such criminal offences, but of course I was wrong.
While these institutions are indeed perceived as the more appropriate venues to adjudicating cases of gross injustices and the violation of international norms (see e.g. the Netherlands attempting to hold the Syrian government liable for the violation of the UN Convention against Torture through the ICJ), there are legal, political and bureaucratic red tapes that prevent them from operating as effectively and efficiently as possible. For example, the problem with relying on the ICC is that the Court only has a limited scope and lacks universal jurisdiction. In other words, they often do not – and cannot – prosecute crimes that we believe they ought to because the ICC only has jurisdiction over countries that have consented to its jurisdiction (meaning those that signed on to the Rome Statute). This means that the ICC does not have jurisdiction over states like the United States, China, Saudi Arabia, Israel, Syria, and so on. While it is technically possible for the UN Security Council to also refer a case to the ICC, the political sensitivities of the Security Council often prevent meaningful actions from taking place (e.g. Security Council Members like Russia or China often block these referrals, thus preventing the ICC from actually taking on cases).
So herein lies the problem: atrocities like war crimes, genocide and other crimes against humanity take place around the world with alarming frequency; however, the perpetrators to these offences are not always prosecuted, or at least not as efficiently as we would like, by the institutions tasked with that objective. Even if they did, they are only tasked with prosecuting serious international crimes or jus cogen, meaning that “less serious” offences like governments and private actors perpetuating labor law violations in the global supply chain or being complicit in environmental degradation – as the case was in Kiobel – will never be addressed by institutions like the ICC as they lack the jurisdiction and competence to hear such cases.
Germany’s (Uncomfortable) Embrace of Universal Jurisdiction
To fill the void of justice and to provide some much needed (symbolic) relief to the victims of these aggravated crimes, the German Federal Public Prosecutors have been stepping up their efforts to at least prosecute perpetrators of international crimes like genocide, who have – up until now – gone unprosecuted for one reason or another. The legal basis that enables the German prosecutors to do so is a domestic law, originally implemented back in 2002 (and amended in 2016) called the Völkerstrafgesetzbuch (Code for Crimes against International Law). Under the authority of the Völkerstrafgesetzbuch, the German courts are permitted to exercise universal jurisdiction for prosecuting atrocities like genocide (§6 VStGB) and crimes against humanity (§7 VStGB) regardless of where the alleged crime took place or by whom. This means that the German courts, unlike their American counterparts, can prosecute crimes that were committed outside of Germany by a non-German against a non-German (§1 VStGB).
To be clear, there are other jurisdictions (e.g. Sweden, the Netherlands, France and a handful of other jurisdictions) that have also enacted legislations relating to international crimes with supposed universal jurisdiction. By incorporating international criminal law into their domestic law, some of these countries have even prosecuted cases involving foreign nationals for crimes they committed against other foreign nationals abroad (see e.g. Sweden, the Netherlands and others). However, in these cases, the defendants were at least physically present within the jurisdiction of the courts (e.g. the defendant had moved to the Netherlands/Sweden as refugees). So in other words, the defendants in the Dutch and the Swedish cases had some territorial/national link to the jurisdiction. On the other hand, Germany’s Völkerstrafgesetzbuch enables German courts to prosecute international crimes that have nothing to do with Germany and go after anyone, anywhere so long as the prosecutors believe in the feasibility and the merits of the case. This is what separates Germany – head and shoulders above the rest – because not only are they prosecuting and successfully convicting international criminals with noticeable rigor, but unlike the other jurisdictions, they have done away with the prerequisite for a case to touch and concern Germany at all. This is why Germany is quickly becoming the “go-to destination for trials on the world’s crimes.”
Just to offer some examples, the German prosecutors have relied on Völkerstrafgesetzbuch to prosecute several prominent cases involving foreign nationals with the first successful conviction coming in 2015, when a court in Stuttgart convicted two Rwandans for committing massacres against civilians in the Democratic Republic of Congo. Things have kicked into high gear more recently with prosecution of prominent cases seemingly mushrooming: For example, since 2020, German prosecutors have charged an Iraqi IS member for a murder related to the genocide of the Yazidis in a court in Frankfurt. Prosecutors just convicted Syrian intelligence officers for their part in the state-sponsored torture of Syrian dissidents during the 2011 uprising in a court in Koblenz. Most sensationally, the German prosecutors are currently assessing the merits of a complaint, which has been filed with a federal court in Karlsruhe against Saudi Arabia’s crown prince, Mohammed bin Salman and other Saudi officials for crimes against humanity, including but not limited to the murder of Jamal Khashoggi, the Saudi journalist who was assassinated in the Saudi consulate in Turkey.
While the German prosecutors also seem to prefer taking on cases with some territorial connections to Germany in practice, it must be reiterated that as the law is written, this is not a prerequisite. In short, the Völkerstrafgesetzbuch gives the German prosecutors the authority to make very politically sensitive decisions that can – and has – impacted Germany’s relationship with the rest of the world as they are quickly becoming the “German Courts of the World.” On this point, Andreas Schüller, the Program Director for International Crimes at the European Center for Constitutional and Human Rights has noted that “[t]he German law is pretty open, so in theory any case could end up in the courts” and he believes that “there are definitely more cases coming.”
The German Courts are Playing with Fire
Although my personal brand of politics aligns with – if not admires – the recent actions taken by the German judiciary, I am nevertheless hesitant about giving it a wholehearted endorsement. While I acknowledge that criminals should indeed be prosecuted, I am not entirely sure if one country exercising universal jurisdiction to get the job done is really the right course of action. My lingering concern stems from the fundamental question of whether the ends justify the means in these cases. For those victims seeking justice for crimes that went unpunished, the answer probably is a resounding yes. However, from the perspective of a paranoid legal academic that understands the need for the presumption against extraterritoriality (even in cases where jus cogens has been violated), I am not sure if the ends do indeed justify the means.
I wonder instead, whether there will be a backlash for the precedent the German courts are setting here. First of all, the notion of international comity and civil diplomacy could be compromised if one country can simply choose to implement a law that would allow their national courts to exercise universal jurisdiction over foreign nationals for crimes that occurred outside of their sovereign territories without any adherence to due process of the alleged criminal’s home state. Such a dangerous precedent could even trigger a slippery slope scenario where other nations end up implementing laws with universal reach of their own to start retaliatory or even arbitrary prosecutions to further their political agenda. So while the German courts’ decision to prosecute bad guys may feel like justice (or sweet vengeance), we might be tickling open the Pandora’s box here with some serious consequences to come down the line.
The German Courts are Doing the “Right” Thing
On the other hand, it must be noted that the German courts have been demonstrating some restraint in their use of the Völkerstrafgesetzbuch, at least historically. This is in part due to the fact that as it relates to these international crimes, the prosecutors have discretion on whether or not to pursue a case in accordance with §153f of the German Code of Criminal Procedure. To evidence this point, for some time after the law went into effect in 2002, the Völkerstrafgesetzbuch was never really utilized and the prosecutors showed sensible moderation, if not caution. For example, the German prosecutors contemplated back in 2005-2006 whether or not to prosecute the then-US Secretary of Defense, Donald Rumsfeld, and the then-CIA Director, George Tenet, for violations of the UN Convention Against Torture in light of the atrocities that took place in Guantánamo Bay and Abu Ghraib. The German prosecutors, ultimately decided not to prosecute, arguing that they rely on Völkerstrafgesetzbuch only to the extent that a foreign courts are unable to or refuse to act and that they generally try not prosecute cases with “no links to Germany”. While one could argue, therefore, that there is no real tangible threat that the German courts are risking the breakdown of international comity, it must also be noted that this default stance has somewhat changed since 2006. This can be evidenced by the fact that since 2017, the German prosecutors have opened up over 105 investigations based on Völkerstrafgesetzbuch. Some believe that this shift is in part due to the influx of over a million refugees that survived atrocities abroad now living in Germany shifting the sentiments of the German public and the Federal Prosecutor’s office.
Even with their newfound exuberance, however, the German prosecutors will likely be “sensible” in not pursuing the case against Crown Prince Mohammed bin Salman, much like they did with Rumsfeld or Tenet, thus reducing the chances of an international political and diplomatic nightmare. There is also a fail-safe mechanism where even if the prosecutors do decide to prosecute heads of state or citizens from “friendly” nations, the German Ministry of Justice can shut down any prosecutions. So if there is no real risk of a breakdown in international diplomacy, then perhaps we must acknowledge that what the German prosecutors and their courts are doing as something much more positive (i.e. they are taking their commitment to international law obligations very seriously). After all, violations of jus cogens do justify rebutting the presumption against extraterritoriality of national laws (at least in theory) so perhaps the German courts are simply doing what the courts in all the other jurisdictions ought to be doing.
So if what the German prosecutors and courts are doing is indeed the “right” thing, then my mind starts to wonder about other possibilities. I acknowledge in advance that this is more a wishful thought rather than a conclusion, but if we are indeed seeing the emergence of “the German Court of the World”, then I would like to see these righteous prosecutors, equipped with their universal reach, prosecute not only war criminals, but also multinational corporate criminals for committing (or being complicit in) human rights violations across the global supply chains or for profiting from polluting our earth, ruining the livelihood of millions of people and contributing to catastrophic and extreme disasters. Yes, I know. It’s a stretch. And yes, of course, Shell and Coca-Cola are not the new Eichmann and Pinochet, but still, if Germany is really committed to fighting injustices all over the world, maybe this is something that they could consider giving a shot? After all, Andreas Schüller, did say that “any case could end up in the courts” right?
 To be fair, there are a lot of interesting issues to unpack from the German Federal Constitutional Court case about the constitutionality of the Bundes-Klimaschutzgesetz, the country’s 2019 Climate Change Act, but this has already been written about to some extent.
 A civil case about Nigerian plaintiffs seeking redress in US courts against a Dutch/British company and its Nigerian subsidiary for damages related to an oil spill that took place in Nigeria.
 For example, the a court in The Netherlands has given standing to Nigerian plaintiffs against Royal Dutch Shell and its Nigerian subsidiary (see Akpan v. Royal Dutch Shell) and provided some relief to the victims. It is important to note that this was a civil case like Kiobel (i.e. no allegation of international crimes) relating to environmental damage (i.e. pollution caused by oil spills). This was possible because the District Court in The Hague ruled that there was a territorial connection between the case and the Dutch Courts given that the Royal Dutch Shell is headquartered in the Netherlands.
 The law explicitly states that “[t]his law applies to all criminal offenses against international law specified in it… even if the offense was committed abroad and has no relation to Germany” (emphasis added).
 According to the human rights group, Redress, these cases deal with crimes that were committed in places like: Syria, Ivory Coast, The Gambia, South Sudan, the Democratic Republic of the Congo, Iraq, Nigeria, Afghanistan, Mali, Sri Lanka, Cameroon, Somalia, Armenia, the Russian Federation (Chechnya), Pakistan, Ukraine, Central African Republic and Sudan.
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