The purpose of this paper is to evaluate on whether the use of ‘structural investigations’ (in Syria) indicate a promising shift in the German practice of the CCAIL from a ‘no-safe-haven’ towards a ‘global-enforcer’ approach.
In order to do so, the following steps will be taken:
First, there will be an assessment of the two main legal provisions and their underlying ratio that are relevant for the practice of the CCAIL and their interplay, namely §1 CCAIL (providing genuine universal jurisdiction to German courts for International Crimes) and §153f CCP the prosecutorial discretion given in cases of pure foreign crimes traditionally frustrating §1 CCAIL.36 In a second step, cases that are exemplary for the previous approach will be examined on considerations made and reasons given by the FPG leading to decision to desist from proceeding and the restrictive ‘no-safe-haven’ practice – followed by an evaluation. In a third step, the current prosecutorial strategy – ‘structural investigations’ – and its theory as well as practice will be analysed to assess how the use of ‘structural investigations’ changes the evaluation of the reasons underlying the restrictive practice.
The aim is to answer the research question:
To what extent ‘structural investigations’ as the current German prosecutorial strategy used to investigate Crimes of International Law (in Syria) operate on the interplay between the prosecutorial discretion (§153f CCP) and the codified universal jurisdiction (§1 CCAIL) to be applied in a proactive – ‘global-enforcer’ – manner?
Table of Contents
1. Introduction
2. The German Legal Framework and Institutions for Prosecuting Crimes of International Law
2.1. The Codification of The Code of Crimes against International Law in light of the Rome Statute - Universal Jurisdiction pursuant to §1 CCAIL
2.2. Prosecutorial Framework and Discretion - §153f CCP
a. Classification and Aim
b. Specific Provisions
c. Judicial Review
2.3. Institutions
2.4. Analysis
3. ‘No-Safe-Haven’ – Prosecution Strategy and Practice
3.1. Aim and Classification
3.2. Initiation of an Individualized Investigation
3.3. Formal Individualized Investigations in Practice - Decisions to desist, Considerations and Legal Arguments
a. Missing Legitimate Link and Lack of Prospect
b. Subsidiarity
c. Anticipated Legal Assistance
d. Immunity
3.4. Evaluation
a. Missing Legitimate Link and Lack of Prospect
b. Subsidiarity
c. Anticipated Legal Assistance
d. Immunity
3.5. Analysis
4. ‘Structural Investigations’ as a Prosecution Strategy – Bridge to a ‘Global-Enforcer’ approach or Evidentiary Limbo?
4.1. Aim and Classification
4.2. Initiation of an Investigation against Unknown
a. Initial Suspicion
b. Relation to 153f CCP
4.3. ‘Structural Investigations’ in Practice – Investigations into International Crimes in Syria
a. Current Practice – Status Quo
b. Institutions and Cooperation
4.4. Evaluation
a. Missing Legitimate Link
b. Lack of Prospect
c. Subsidiarity
d. Anticipated Legal Assistance
e. Immunity
4.5. Analysis
5. Perspectives
5.1. Perspective in the Case of Syria
5.2. Germanys Role within the International Criminal Justice System
6. Conclusion
7. Bibliography
Objectives & Core Topics
The paper evaluates whether the implementation of "structural investigations" in Germany, specifically concerning crimes committed in the Syrian conflict, represents a fundamental shift in the application of the Code of Crimes against International Law (CCAIL) from a restrictive "no-safe-haven" approach toward a more proactive "global-enforcer" strategy.
- The interplay between prosecutorial discretion (§153f CCP) and universal jurisdiction (§1 CCAIL).
- Evaluation of past restrictive practices by the Federal Prosecutor General ("no-safe-haven").
- Analysis of the "structural investigation" strategy as a tool for systematic evidence collection and counteracting impunity.
- The impact of institutional collaboration (e.g., with the Federal Agency for Migration and Refugees) on evidence gathering.
- Germany's evolving role within the international criminal justice system.
Excerpt from the Book
3.3. Formal Individualized Investigations in Practice - Decisions to desist, Considerations and Legal Arguments
In this section, the existing underlying reasons and considerations that led the FPG to decide to dispense from proceeding pursuant to §153f CCP will be analysed in exemplary cases: Jiang Zemin et al. (Peoples Republic of China), Zakirjan Almatov and Rustam Raulovich Inoyatov et al. (Republic of Uzbekistan), Donald Rumsfeld et al. (involving allegations of mistreatment in the Abu Ghraib prison in the Republic of Iraq). The analysis serves to examine the underlying reasons and considerations of the decisions to dispense from proceeding, which then will be evaluated considering suspect-related investigations – and considering ‘structural investigations’ in Chapter 4.
a. Missing Legitimate Link and Lack of Prospect
In cases of a missing legitimate link, the FPG commonly decided to dispense from proceeding solely due to a lack of prospect of proceedings. In the Jiang Zemin et al. case a complaint was filed on 21st November 2003 against the former President Jiang Zemin as well as against 15 additional political leaders. The allegations related to torture, inhuman treatment in working camps, crimes against humanity, as well as killings potentially amounting to the crime of genocide. The FPG decided against opening a formal investigation and terminated the preliminary investigation, arguing that neither the crime scene nor the suspects feature a legitimate link. The presence of possible victims would not suffice as this would provoke a questionable extension of German prosecutions to pointless cases violating the principle of non-intervention.
Summary of Chapters
1. Introduction: Outlines the relevance of universal jurisdiction for global justice and the role of national courts in ending impunity when international tribunals are deadlocked.
2. The German Legal Framework and Institutions for Prosecuting Crimes of International Law: Examines the legal implementation of the CCAIL and the role of the Federal Prosecutor General as a "gatekeeper" of prosecutorial discretion.
3. ‘No-Safe-Haven’ – Prosecution Strategy and Practice: Analyzes historical restrictive practices where the FPG declined prosecutions based on lack of legitimate links, subsidiarity, and diplomatic immunity.
4. ‘Structural Investigations’ as a Prosecution Strategy – Bridge to a ‘Global-Enforcer’ approach or Evidentiary Limbo?: Investigates the new "structural" strategy, its mechanism for evidence collection regarding crimes in Syria, and how it challenges traditional restrictions.
5. Perspectives: Reflects on whether the Syrian case is an exceptional phenomenon or indicates a permanent shift in Germany’s proactive role in international criminal law.
6. Conclusion: Summarizes the findings, arguing that while challenges remain, structural investigations offer a viable path to upholding the spirit of the CCAIL and avoiding impunity.
7. Bibliography: Lists the legal cases, statutes, reports, and academic literature supporting the analysis.
Keywords
Universal Jurisdiction, German Criminal Procedure Code, Code of Crimes against International Law, Structural Investigations, Prosecutorial Discretion, International Crimes, Impunity, Syria, Legal Framework, Evidence Collection, Gatekeeper, Subsidiarity, Global-Enforcer, No-Safe-Haven, Accountability.
Frequently Asked Questions
What is the core subject of this research paper?
The paper examines how German authorities apply universal jurisdiction to international crimes, specifically investigating whether the strategy of "structural investigations" in the context of the Syrian war signifies a transition from a restrictive "no-safe-haven" policy to a proactive "global-enforcer" approach.
What are the primary thematic areas covered?
The primary areas include the analysis of the German legal framework (CCAIL and CCP), the history of prosecutorial discretion in declining international human rights cases, and the development of new investigative strategies for complex, large-scale atrocities.
What is the primary research goal?
The goal is to analyze the interplay between German prosecutorial discretion (§153f CCP) and codified universal jurisdiction (§1 CCAIL) and to predict whether the "structural investigation" approach represents a sustainable change in Germany's commitment to international justice.
Which scientific methods are employed?
The author performs an in-depth doctrinal legal analysis, examining statutes, judicial case law (such as the Rumsfeld and Almatov decisions), policy papers, and official government reports to assess current practice.
What is the focus of the main section of the paper?
The main part analyzes the transition from "individualized investigations" to "structural investigations," discussing how the latter enables the gathering of evidence in complex state-sponsored crimes while bypassing previous procedural roadblocks.
Which keywords best characterize this work?
Key terms include Universal Jurisdiction, Structural Investigations, CCAIL, Prosecutorial Discretion, and International Criminal Law.
Why did the German prosecutor historically decline investigations into cases like Jiang Zemin or Donald Rumsfeld?
The FPG often declined such cases based on a perceived lack of a "legitimate link" (e.g., no presence of the suspect in Germany), concerns regarding prosecutorial subsidiarity, and the invocation of sovereign immunity for high-ranking foreign officials.
How does the "Cesar-file" contribute to the current German prosecutorial strategy?
The Cesar-file provides extensive, verifiable evidence of mass atrocities in Syria, which serves as a foundation for structural investigations, enabling the potential identification of perpetrators and the construction of cases against high-level officials.
Can "structural investigations" lead to a conviction if they are directed against "unknown"?
Structural investigations against "unknown" perform the function of information gathering. If, during these investigations, reasonable suspicion against a specific individual emerges, the information is used to transition into an "individualized investigation," which can ultimately lead to an indictment and conviction.
Does this paper suggest that the German stance toward universal jurisdiction is purely for the Syrian conflict?
The paper discusses that while the Syrian conflict provides a favorable environment for this strategy due to a combination of high-value evidence and victim presence, it also underscores the potential for a more general, proactive future role for Germany in the global justice system.
- Arbeit zitieren
- Franca Langlet (Autor:in), 2019, Germany's efforts in prosecuting international crimes in Syria. A promising shift from a "No-Safe-Haven" towards a "Global-Enforcer" approach?, München, GRIN Verlag, https://www.grin.com/document/1333790
