Arguably, more than any other global actor, Germany is at the forefront of issuing arrest warrants for atrocity crimes committed by the Syrian government in the wake of the Arab Spring. Three important observations can be made from Germany’s experience. First, it highlights the uniqueness of Germany’s universal jurisdiction as one based on a legal ‘responsibility to prosecute’. Second, it challenges prevailing preconceptions that accountability for core international crimes rests with one or two inter-state actors, such as the United Nations Security Council and the International Criminal Court. Rather, recent arrest warrants issued by the German Federal Criminal Police Office (Bundeskriminalamt) reiterate the universality of international criminal law, as per customary international law; and therefore a multiplicity of actors – including state and non-state – can work together to extend the ‘system’ of international criminal law. Lastly, state actors, such as German federal authorities, and non-state actors, such as the Commission for International Justice and Accountability (CIJA), not only work together to solve the problem of de facto impunity, they also reflect a continued effort to innovate and to fill the gap in the ‘system’ of international law.
Why can’t the UNSC and the ICC investigate?
After eight years of armed conflict and described as the worst man-made disaster since the Second World War, Syria has grown to represent the failure of the United Nations to effect a responsibility to protect, and to hold those most responsible for core international crimes in Syria to account. Indeed, in 2017, Zeid Ra’ad Al Hussein, then United Nations High Commissioner for Human Rights, reminded the international community that the Syrian war started when fifteen school boys from Daraa were tortured by the Syrian government for anti-government graffiti, unleashing a wave of democratic protest across the country. Since then, Hussein maintained, ‘the entire country had become a torture-chamber: a place of savage horror and absolute injustice.’
Despite these allegations, an international criminal court responsible for the investigation and prosecution of atrocity crimes committed in Syria is yet to be established. As Syria is not a State Party to the Rome Statute, the International Criminal Court (ICC) does not have the requisite jurisdiction, and despite attempts to refer Syria to the ICC at the UN Security Council, Russia and China blocked such efforts. Although the International, Impartial and Independent Mechanism (IIIM) for Syria, established by the UN General Assembly, is an important innovation, it does not have the authority to establish an international criminal tribunal, and therefore cannot prosecute.
Germany’s ‘Responsibility to Prosecute’
Aside from Norway, Germany has the broadest universal jurisdiction in the world. Although the ICC was never adopted as a universal project, Germany continued to view international criminal law as a global ‘standard’ (or rule of law) and introduced several changes to their domestic jurisdiction, including the adoption of the Code of Crimes against International Law (Völkerstrafgesetzbuch, VStGB) by the German Parliament; and inter alia subsequently amended the German Basic Law (Grundgesetz für die Bundesrepublik Deutschland) and the German Code of Criminal Procedure (Strafprozessordnung, StPO). Collectively, the effect of these changes was to establish a legal obligation with the German Federal Public Prosecutors General (Generalbundesanwalt, GBA) and the respective States (Länder) to investigate and prosecute core international crimes at the international and domestic level.
Furthermore, compared to many other states, German investigators and prosecutors are unconstrained in several key ways: a suspect or victim of core international crimes is not required to be a German citizen or within German jurisdiction for German authorities to investigate or issue an arrest warrant, nor need the respective crime be perpetrated in Germany. German law also stipulates that aside from direct threats to Germany’s security, as in the case of terrorism, the German government is not permitted to interfere in the judiciary, which means unlike in states such as Australia the German government is unable to provide immunity to foreign heads of state.
Germany and CIJA as filling a gap
Notwithstanding legal obligations, those in the German Federal Public Prosecutor General’s Office are keen to highlight they never intended to be a global Office of the Prosecutor (OTP) or to replace the ICC. Rather, they attempted to fill the gap as it became apparent that the establishment of an international criminal tribunal to address atrocity crimes in Syria was not forthcoming. To date, these attempts have resulted in Germany leading the international community in two ways:
First, in June 2018, investigations by the German Federal Public Prosecutor General’s Office led to Germany being the first to issue an arrest warrant against a senior member of the Syrian government, Jamil Hassan, the director of the Air Force Intelligence Directorate, for crimes against humanity. Local German non-state actors, such as the European Center for Constitutional and Human Rights (ECCHR), along with other Syrian civil society actors based in Europe, worked closely with the German Federal Public Prosecutors to inter alia identify potential witnesses.
Second, in February 2019, Germany was first to arrest a senior member of the Syrian government. Anwar R. was arrested on suspicion of committing acts of torture against detainees while working for Syria’s General Intelligence Directorate during the early days of the Arab Spring. It is alleged that Anwar R. headed the investigations section at two notorious detention centres in Damascus between 2011 and 2012 – Branch 251 and Branch 285 – before leaving Syria and arriving in Germany. German authorities also arrested another Syrian man for related crimes, and a third man was arrested by French authorities as a part of a joint investigation.
What is less written about is the role of the Commission for International Justice and Accountability (CIJA) in the recent arrests. As non-state actors, CIJA’s investigators have been located in Syria since 2011, and trained to collect material that will be admissible to a future international criminal prosecution. Furthermore, CIJA have adopted many of the tasks of an Office of the Prosecutor (OTP), and are staffed by analysts and prosecutors with previous experience of international criminal courts, such as ICTY, ICTR and the ICC. Despite the risks inherent to armed conflict and war, CIJA’s investigators have remained in the field and allege to have collected over 800,000 ‘security-intelligence, military, and political (Baath party) documents‘. Moreover, CIJA’s analysts and prosecutors claim to have prepared ten case briefs against the top fifty people in the Syrian government, including the President. CIJA’s material relating to the suspect known as ‘Anwar R.’ included written documentation smuggled out of Syria and witness testimony provided to the Federal Criminal Police Office. Nevertheless, like German federal authorities, CIJA are keen to emphasise that their aim was to ‘fill a gap’, with the intention of working with national authorities, such as the case in Germany, but also to submit their material and case briefs to a future international criminal prosecution.
The recent efforts of both the German authorities and CIJA represent innovations in the ‘system’ of international criminal law. While state actors, such as Germany, and non-state actors, such as CIJA, have attempted to fill the gap, it remains to be seen if other states, such as Australia and the US, as well as other non-state actors, may draw upon lessons learned by Germany and CIJA to further extend the ‘system’ of international criminal law.
 Christian Ritscher, Panel discussion ‘Universal Jurisdiction Revisited: German Prosecutions of International Crimes Committed in Syria.’ at the Current Debates in International Criminal Justice Conference. Humboldt University, 21-22 June 2018; Christian Ritscher (Head of the War Crimes Unit S4, Federal Public Prosecutor, the Office of the German Federal Public Prosecutor General), Communication with author, 18 August 2018. See Melinda Rankin: “Negotiating Accountability with Assad and the ‘Responsibility to Prosecute'”. PeaceLab (18 December 2018).↩
This article is, in part, an excerpt from Melinda Rankin (forthcoming): “The ‘responsibility to prosecute’ core international crimes? The case of German universal jurisdiction and the Syrian government”. In: Global Responsibility to Protect (in press).