Skip to main content Accessibility help
×
Home
Hostname: page-component-7f7b94f6bd-82ts8 Total loading time: 0.333 Render date: 2022-06-30T04:33:12.029Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true } hasContentIssue true

Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis

Published online by Cambridge University Press:  07 February 2022

Yuna Han*
Affiliation:
University of Oxford, Oxford, England, United Kingdom (yuna.han@politics.ox.ac.uk)

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.

Type
Feature
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Riham Alkousaa, “Three Syrians Arrested in Germany and France for Suspected Crimes against Humanity,” Reuters, February 13, 2019, www.reuters.com/article/uk-germany-syria-idUKKCN1Q21GV.

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/.

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.

5 Whether states have the right to exercise universal jurisdiction for the crime of aggression under customary international law is debated. See Scharf, Michael P., “Universal Jurisdiction and the Crime of Aggression,” Harvard International Law Journal 43, no. 2 (Summer 2012), pp. 357–89Google Scholar.

6 Mann, Itamar, “The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the ‘Court of Critique,’Transnational Legal Theory 1, no. 4 (December 2010), pp. 485521CrossRefGoogle Scholar.

7 Hovell, Devika, “The Authority of Universal Jurisdiction,” European Journal of International Law 29, no. 2 (May 2018), pp. 427–56CrossRefGoogle Scholar; and Mégret, Frédéric, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction: Diasporas, Duties of Hospitality, and the Constitution of the Political,” Transnational Legal Theory 6, no. 1 (2015), pp. 89116CrossRefGoogle Scholar.

8 O'Keefe, Roger, “Universal Jurisdiction: Clarifying the Basic Concept,” Journal of International Criminal Justice 2, no. 3 (2004), pp. 735–60, at p. 745CrossRefGoogle Scholar; and Reydams, Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford University Press, 2004), p. 5CrossRefGoogle Scholar.

9 Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction (Princeton, N.J.: Program in Law and Public Affairs, Princeton University, 2001), p. 17.

10 Hovell, “The Authority of Universal Jurisdiction,” p. 431. See, for example, Article 5, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984. The principle of “prosecute or extradite” (aut dedere aut judicare) is not, in the strictest sense, conceptually equivalent to the idea that jurisdiction over certain crimes is universal. Nevertheless, it has been interpreted to support UJ. For further discussion, see Bassiouni, M. Cherif, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law 42, no. 1 (January 2001), p. 123Google Scholar.

11 While in the Arrest Warrant case of 2000, judges at the International Court of Justice argued that an assessment of national legislation suggests that the only clear consensus in UJ is over the crime of piracy, not the “core” international crimes, scholarly discourse on UJ has pointed out that state practice has evolved greatly in favor of UJ's existence over the subsequent decades. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. (Feb. 14) (joint separate opinions of Judges Higgins, Kooijmans, and Buergenthal), paras. 44, 45, 50; and Kreß, Claus, “Universal Jurisdiction over International Crimes and the Institut de Droit International,” Journal of International Criminal Justice 4, no. 3 (July 2006)CrossRefGoogle Scholar; and Langer, Máximo and Eason, Mackenzie, “The Quiet Expansion of Universal Jurisdiction,” European Journal of International Law 30, no. 3 (August 2019), pp. 779817CrossRefGoogle Scholar.

12 The 2012 survey is the most comprehensive survey of domestic UJ legislation available to date. See Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislations around the World—2012 Update, IOR 53/019/2012 (London: Amnesty International Publications, October 9, 2012), p. 2.

13 Reydams, Luc, “Key Issues in International Criminal Law: The Rise and Fall of Universal Jurisdiction,” in William A. Schabas and Nadia Bernaz, eds., Routledge Handbook of International Criminal Law (Abingdon, U.K.: Routledge, 2011)Google Scholar.

14 Roht-Arriaza, Naomi, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2005), p. 170CrossRefGoogle Scholar.

15 Ibid, p. 387; and Richard Bernstein, “Belgium Rethinks Its Prosecutorial Zeal,” New York Times, April 1, 2003, www.nytimes.com/2003/04/01/world/belgium-rethinks-its-prosecutorial-zeal.html.

16 Roht-Arriaza, Naomi, “Universal Jurisdiction: Steps Forward, Steps Back,” Leiden Journal of International Law 17, no. 2 (June 2004), pp. 375–89, at pp. 387–88CrossRefGoogle Scholar.

17 See, for example, Cassese, Antonio, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction,” Journal of International Criminal Justice 1, no. 3 (December 2003), pp. 589–95CrossRefGoogle Scholar.

18 Langer and Eason, “The Quiet Expansion of Universal Jurisdiction.”

19 Ibid., p. 782; and Langer, Máximo, “The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes,” American Journal of International Law 105, no. 1 (January 2011), pp. 149, at p. 1CrossRefGoogle Scholar.

20 Langer and Eason, “The Quiet Expansion of Universal Jurisdiction.”

21 Máximo Langer, “Universal Jurisdiction Is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction,” Journal of International Criminal Justice 13, no. 2 (May 2015), pp. 245–56; and Yuna Han, “Rebirth of Universal Jurisdiction?,” Ethics & International Affairs blog, May 2017, www.ethicsandinternationalaffairs.org/2017/rebirth-universal-jurisdiction/.

22 Amnesty International, “Syria,” in Amnesty International Report 2020/2021: The State of the World's Human Rights, POL 10/3202/2021 (London: Amnesty International, 2021), pp. 345–49, at p. 345.

23 “UN Commission of Inquiry on Syria: ISIS Is Committing Genocide against the Yazidis,” United Nations Human Rights Council, June 16, 2016, www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=20113&LangID=E.

24 “Total Registered Syrian Refugees,” Operational Data Portal: United Nations High Commissioner for Refugees, last updated November 28, 2021, data2.unhcr.org/en/situations/syria.

25 For a general overview of the politics of peace and justice in the Syrian conflict, see Schaack, Beth Van, Imagining Justice for Syria: Water Always Finds Its Way (New York: Oxford University Press, 2020)CrossRefGoogle Scholar.

26 Ibid., pp. 55–56.

27 Elliott, Ingrid, ‘“A Meaningful Step towards Accountability? A View from the Field on the United Nations International, Impartial and Independent Mechanism for Syria,” Journal of International Criminal Justice 15, no. 2 (May 2017), pp. 239–56CrossRefGoogle Scholar.

28 There are currently two forms of UJ— “pure” UJ does not require the presence of victim or suspect in the territory; “conditional” UJ generally requires either one or both parties to be present. See Alexandre Skander Galand, Accountability for International Crimes Committed in Syria (policy brief, Individualization of War project, Brussels: European Research Council, 2019), iow.eui.eu/wp-content/uploads/sites/20/2019/04/IOW-Policy-Brief-Galand_160419.pdf.

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.

31 Van Schaak, Imagining Justice for Syria, p. 288.

32 “Central Unit for the Fight against War Crimes and further Offences Pursuant to the Code of Crimes against International Law (ZBKV),” Bundeskriminalamt, www.bka.de/EN/OurTasks/Remit/CentralAgency/ZBKV/zbkv_node.html.

34 Kaleck, Wolfgang and Kroker, Patrick, “Syrian Torture Investigations in Germany and Beyond: Breathing New Life into Universal Jurisdiction in Europe?,” Journal of International Criminal Justice 16, no. 1 (March 2018), pp. 165–91, at p. 176CrossRefGoogle Scholar.

35 Ibid., p. 171.

36 The Federal Republic of Germany (as Berlin [West] prior to reunification with the German Democratic Republic) adopted the Convention against Torture in 1984 and ratified it in 1990. The Genocide Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948 and ratified in 1954.

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.

43 Jeßberger, Florian and Geneuss, Julia, “‘Litigating Universal Jurisdiction’—Introduction,” Journal of International Criminal Justice 13, no. 2 (May 2015), pp. 205–8CrossRefGoogle Scholar.

44 Rankin, Melinda, “Investigating Crimes against Humanity in Syria and Iraq: The Commission for International Justice and Accountability,” Global Responsibility to Protect 9, no. 4 (2017), pp, 395–421, at p. 401CrossRefGoogle Scholar. Since 2012, CIJA has reportedly amassed eight hundred thousand pages of Syrian government documents as well as 469,000 videos or other digital files. Hannah el-Hitami, “Syrian Trial in Germany: The Orders That Came from the Very Top,” JusticeInfo.net, November 26, 2020, www.justiceinfo.net/en/tribunals/national-tribunals/46100-syrian-trial-germany-orders-came-from-very-top.html.

45 El-Hitami, “Syrian Trial in Germany”; and Tom Miles, “German Arrest Is First Big Catch for Syria Investigators,” Reuters, February 13, 2019, www.reuters.com/article/us-germany-syria-investigators-idUSKCN1Q22G1.

46 European Center for Constitutional and Human Rights, Dossier—Human Rights Violations in Syria: Torture under Assad (Berlin: ECCHR, November 2020), www.ecchr.eu/fileadmin/Sondernewsletter_Dossiers/Dossier_Syria_2020November.pdf.

47 The Caesar Files became the impetus for the Caesar Files Group, an NGO formed in 2014 that includes activists inside and outside Syria who document human rights violations and identify victims. See “Background,” Caesar Files Group, caesar-fsg.org/about-the-organization/.

48 Philip Oltermann, “How Angela Merkel's Great Migrant Gamble Paid Off,” Guardian, August 30, 2020, www.theguardian.com/world/2020/aug/30/angela-merkel-great-migrant-gamble-paid-off.

49 United Nations High Commissioner for Refugees, Global Trends: Forced Displacement in 2019 (Geneva: UNHCR, June 18, 2020), www.unhcr.org/5ee200e37/.

50 Data compiled from Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees), Aktuelle zahlen (Current Figures) (Berlin, Germany: Federal Office for Migration and Refugees, December 2019), p. 3, www.bamf.de/SharedDocs/Anlagen/DE/Statistik/AsylinZahlen/aktuelle-zahlen-dezember-2019.pdf;jsessionid=E61EB8035C578C7D5856BC0DC38840F6.internet282?__blob=publicationFile&v=5.

52 Kaleck and Kroker, “Syrian Torture Investigations in Germany and Beyond,” p. 180.

53 Espen Stokke and Eric Wiebelhaus-Brahm, “Syrian Diaspora Mobilization: Vertical Coordination, Patronage Relations, and the Challenges of Fragmentation in the Pursuit of Transitional Justice,” in “Diaspora Mobilizations for Transitional Justice,” special issue, Ethnic and Racial Studies 42, no. 11 (2019), pp. 1931–32.

54 European Center for Constitutional and Human Rights, Dossier, p. 1.

55 Hannah El-Hitami, “Syria's Long Road to Justice and the Man Hoping to Walk it There,” Al Jazeera, April 30, 2020, www.aljazeera.com/features/2020/4/30/syrias-long-road-to-justice-and-the-man-hoping-to-walk-it-there.

56 Krasner, Stephen D., Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999), p. 20CrossRefGoogle Scholar.

57 Crawford, James and Brownlie, Ian, Brownlie's Principles of Public International Law 9th edition (Oxford: Oxford University Press, 2019), p. 457CrossRefGoogle Scholar.

58 Song, Jiewuh, “Pirates and Torturers: Universal Jurisdiction as Enforcement Gap-Filling,” Journal of Political Philosophy 23, no. 4 (December 2015), pp. 473–75CrossRefGoogle Scholar.

59 Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction, p. 23.

60 Song, “Pirates and Torturers,” pp. 473–75.

61 Hovell, “The Authority of Universal Jurisdiction,” pp. 443–44.

62 Mégret, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction,” p. 93.

63 Langer, “Universal Jurisdiction is Not Disappearing,” p. 247.

64 Janina Dill, “Do Attackers Have a Legal Duty of Care? Limits to the ‘Individualization of War,’” International Theory 11, no.1 (March 2019), pp. 1–25, at p. 4.

65 Parlett, Kate, The Individual in the International Legal System: State-Centrism, History and Change in International Law (Cambridge, U.K.: Cambridge University Press, 2011)CrossRefGoogle Scholar.

66 Teitel, Ruti G., Humanity's Law (Oxford: Oxford University Press, 2011), p. 7CrossRefGoogle Scholar.

67 Many thanks to one of the anonymous reviewers for this point.

68 Article 17(1)(a), Rome Statute of the International Criminal Court, A/CONF.183/9, July 17, 1998; See also, Preamble.

69 Kenneth W. Abbott, “International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts,” American Journal of International Law 93, no. 2 (April 1999), pp. 361–79.

70 Song's enforcement gap model of universal jurisdiction is in line with this observation. See Song, “Pirates and Torturers,” pp. 481–86.

71 Michelle Burgis-Kasthala, “Entrepreneurial Justice: Syria, the Commission for International Justice and Accountability and the Renewal of International Criminal Justice,” European Journal of International Law 30, no. 4 (November 2019), pp. 1165–85; and Melinda Rankin, “The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA),” Journal of Genocide Research 20, no. 3 (2018), pp. 392–411.

72 Roht-Arriaza, Pinochet Effect, p. 173.

73 Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999), p. 114CrossRefGoogle Scholar.

74 Müller, Luise K., “Universal Jurisdiction, Pirates and Vigilantes,” Critical Review of International Social and Political Philosophy 22, no. 4 (2019), pp. 390411, at pp. 394–95CrossRefGoogle Scholar.

75 David Luban, “A Theory of Crimes against Humanity,” Yale Journal of International Law 29, no. 1 (Winter 2004), pp. 85–168, at pp. 140–41.

76 Müller, “Universal Jurisdiction,” pp. 396–97.

77 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. (Feb. 14) (separate opinion of Gilbert Guillaume), p. 43, para.15.

78 Luban, “A Theory of Crimes Against Humanity,” pp. 141–42.

79 Müller, “Universal Jurisdiction,” pp. 400–401.

80 See, for example, United Nations General Assembly, Articles 8, 10, 11, Universal Declaration of Human Rights, December 10, 1948. See also Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (Oxford, UK: Oxford University Press, 2021).

81 Diane F. Orentlicher, “Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles,” Georgetown Law Journal 92, no. 6 (August 2004), pp. 1057–1132; and Sarah M. H. Nouwen and Wouter G. Werner, “Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity,” Journal of International Criminal Justice 13, no. 1 (March 2015), pp. 157–76.

82 Hovell, “The Authority of Universal Jurisdiction,” p. 446; the former president of ICJ, Gilbert Guillaume, argued that judicial chaos created by UJ would only benefit the powerful. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. (Feb. 14) (separate opinion of Gilbert Guillaume), p. 43.

83 Henry A. Kissinger, “The Pitfalls of Universal Jurisdiction,” Foreign Affairs 80, no. 4 (July/August 2001), pp. 86–96, at p. 93.

84 Luban, “A Theory of Crimes Against Humanity,” p. 144; and Immi Tallgren, “The Sense and Sensibility of International Criminal Law,” European Journal of International Law 13, no. 3 (April 2002), pp. 561–95, at pp. 565–66.

85 For the former position, see Shklar, Judith, Legalism: Law, Moral, and Political Trials (Cambridge, Mass.: Harvard University Press, 1964)Google Scholar; Osiel, Mark J., Making Sense of Mass Atrocity (Cambridge, U.K.: Cambridge University Press, 2009), p. 6CrossRefGoogle Scholar; and Simpson, Gerry, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law (Cambridge, U.K.: Polity, 2007), p. 13Google Scholar. For the latter position, see Arendt, Hannah, Eichmann in Jerusalem (London: Penguin Books, 2006)Google Scholar.

86 Mamdani, Mahmood, Saviors and Survivors: Darfur, Politics, and the War on Terror (New York: Pantheon Books, 2009), p. 284Google Scholar; and Mennecke, Martin, The African Union and Universal Jurisdiction (Oxford: Oxford University Press, 2017), pp. 1037CrossRefGoogle Scholar.

87 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. (Feb. 14) (separate opinion of Judge Sayeman Bula-Bula), pp. 100–37.

88 William A. Schabas, “The Banality of International Justice,” Journal of International Criminal Justice 11, no. 3 (July 2013), pp. 545–51, at p. 551.

89 Roht-Arriaza, Pinochet Effect, pp. 212, 8–16, 38–40.

90 Steven R. Ratner, “Belgium's War Crimes Statute: A Postmortem,” American Journal of International Law 97, no. 4 (October 2003), pp. 888–97, at pp. 889–90.

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.

95 Reydams, Universal Jurisdiction, p. 158.

96 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 496; and Attorney General of the Government of Israel v. Adolf Eichmann, Judgment, District Court of Jerusalem, Criminal Case No.40/61 (December 11, 1961), para. 12, www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Israel/Eichmann_Judgement_11-12-1961.pdf.

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).

102 Gary J. Bass, “The Adolf Eichmann Case: Universal and National Jurisdiction,” in Stephen Macedo, ed., Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2004), p. 78.

103 Mann, “The Dual Foundation of Universal Jurisdiction,” p. 515.

104 Adeno Addis, “Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction,” Human Rights Quarterly 31, no. 1 (February 2009), pp. 129–62.

105 Tom Segev, The Seventh Million: The Israelis and the Holocaust (New York: Picador, 2000).

106 Tom Segev, quoted in Gavin Esler, “How Nazi Adolf Eichmann's Holocaust Trial Unified Israel,” BBC News, April 6, 2011, www.bbc.com/news/world-12912527.

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.

122 Haddad, Emma, The Refugee in International Society: Between Sovereigns (Cambridge, U.K.: Cambridge University Press, 2008), pp. 5960Google Scholar.

123 Hannah Arendt, The Origins of Totalitarianism (1951; London: Penguin Classics, 2017), pp. 351, 381–82.

124 Serena Parekh, “Beyond the Ethics of Admission: Stateless People, Refugee Camps and Moral Obligations,” Philosophy of Social Criticism 40, no. 7 (September 2014), pp. 645–63, at p. 650.

125 Mégret, “The ‘Elephant in the Room’ in Debates about Universal Jurisdiction,” p. 107.

126 Arendt, The Origins of Totalitarianism, p. 375.

127 Parekh, “Beyond the Ethics of Admission,” p. 651. See also Parekh, Serena, No Refuge: Ethics and the Global Refugee Crisis (Oxford: Oxford University Press, 2020)CrossRefGoogle Scholar.

128 Parekh, “Beyond the Ethics of Admission,” p. 652.

129 Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life, trans. Heller-Roazen, Daniel (Stanford, Calif.: Stanford University Press, 1998)Google Scholar; and Agier, Michel, Managing the Undesirables: Refugee Camps and Humanitarian Government, trans. Fernbach, David (Malden, Mass.: Polity, 2011)Google Scholar.

130 Agier, Managing the Undesirables.

131 For example, the German Integration Act (Integrationsgesetz) focuses on language acquisition, skills acquisition, and removing barriers to labor market entry. Summary of the Act in English available at www.loc.gov/law/foreign-news/article/germany-act-to-integrate-refugees-enters-into-force/. Germany explicitly defines “integration potential” to mean economic self-reliance, measured by indicators such as “educational and vocational training” and “professional experience.” Welfens, Natalie and Bonjour, Saskia, “Families First? The Mobilization of Family Norms in Refugee Resettlement,” International Political Sociology 15, no. 2 (June 2021), p. 219CrossRefGoogle Scholar. See also Herbert Brücker, Philipp Jaschke, and Yuliya Kosyakova, Integrating Refugees and Asylum Seekers into the German Economy and Society (Washington, D.C.: Transatlantic Council on Migration, Migration Policy Institute, December 2019), www.migrationpolicy.org/sites/default/files/publications/TCM_2019_Germany-FINAL.pdf.

132 Lily Hindy, “Germany's Syrian Refugee Integration Experiment,” Century Foundation, September 6, 2018, tcf.org/content/report/germanys-syrian-refugee-integration-experiment/?session=1#easy-footnote-bottom-73.

133 Ibid. See also Funk, Nanette, “A Spectre in Germany: Refugees, a ‘Welcome Culture’ and an ‘Integration Politics,’Journal of Global Ethics 12, no. 3 (2016), pp. 289–99CrossRefGoogle Scholar.

134 Parekh, “Beyond the Ethics of Admission,” p. 656.

135 Langer and Eason, “The Quiet Expansion of Universal Jurisdiction.”

136 Lena Bjurström, “Syrian Trials in Europe: ‘They Give a Distorted Perception of the Crimes Perpetrated,’” JusticeInfo.net, www.justiceinfo.net/en/justiceinfo-comment-and-debate/in-depth-interviews/45525-syrian-trials-europe-distorted-perception-crimes-perpetrated.html.

137 See, for example, Langer, “The Diplomacy of Universal Jurisdiction.”

138 See, for example, Cassese, “Is the Bell Tolling for Universality?”

139 Kaleck and Kroker, “Syrian Torture Investigations in Germany and Beyond”; and Owens, Kaitlin, “Improving the Odds: Strengthening the Prospects for Accountability in the Syrian Conflict by Regulating the Marketplace for Information on Atrocity Crimes,” University of Miami International and Comparative Law Review 26, no. 2 (Spring 2019), pp. 369436Google Scholar.

Save article to Kindle

To save this article to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis
Available formats
×

Save article to Dropbox

To save this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about saving content to Dropbox.

Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis
Available formats
×

Save article to Google Drive

To save this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about saving content to Google Drive.

Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *