Germany’s comments on the ILC’s first draft on crimes against humanity

Published: 04 April  2019 Author: Stefan Talmon  DOI: 10.17176/20220113-142327-0

At its sixty-ninth session in 2017, the International Law Commission (ILC) adopted the draft articles on crimes against humanity on first reading. In accordance with its statute, the ILC decided to transmit the draft articles through the Secretary-General to Governments, international organizations, and others for comments and observations. On 30 November 2018, Germany submitted written comments on both the ILC’s work on the crimes against humanity in general and on specific draft articles. The general comments read as follows:

“As a staunch supporter of international criminal law, Germany attaches great importance to the topic at hand. It acknowledges that there is no general multilateral framework governing the prosecution of crimes against humanity and is convinced of the usefulness of the adoption of a specialized Convention on Crimes against Humanity. The Convention would not only complement treaty law on core crimes, but would foster inter-state cooperation with regard to their investigation, prosecution and punishment. A future Convention on Crimes against Humanity ought to provide further impetus to end impunity for atrocity crimes.

The Rome Statute of the International Criminal Court regulates the relations between States and the International Criminal Court and addresses the prosecution of crimes falling under its jurisdiction. The Statute is not focused on steps that States should be taking to prevent and punish crimes against humanity. A Convention on Crimes against Humanity would in this respect close a gap in the existing international legal framework.

Germany believes that a Convention on Crimes against Humanity would contribute to the implementation of the complementarity provisions of the Rome Statute of the International Criminal Court by encouraging national prosecutions. Ultimately, the convention would serve to encourage the wider acceptance of the International Criminal Court’s jurisdiction and promote the universality of the Statute.

Germany sees the orientation towards the language of the Rome Statute of the International Criminal Court as a precondition for the success of the project. A Convention on Crimes against Humanity must avoid conflicts with the Statute and ensure consistency with existing rules and institutions of international criminal law, foremost the definitions of crimes against humanity contained in the Statute.

Germany welcomes the fact that the Commission as a result of the first reading does not propose any institutionalised mechanism under the draft Convention as this would bear the danger of creating space for different interpretations.”

Particularly in light of its own history, Germany has become a champion of the fight against impunity for international crimes, including crimes against humanity. For several years now, it has been calling on other States to prevent and punish crimes against humanity. The German Government is leading by example. Section 7 of the 2002 Code of Crimes against International Law (CCAIL) criminalized crimes against humanity. Germany is one of the few countries where the law provides for “pure” universal jurisdiction. Section 1 of the CCAIL allows German courts to exercise criminal jurisdiction over persons accused of committing crimes against humanity – regardless of where the crimes were committed, the nationality of the perpetrators or the victims, and whether the accused or the victims have any connection to Germany. However, pursuant to Section 153f of the German Code of Criminal Procedure, it is possible to dispense with prosecuting crimes against humanity if, inter alia, no German or German resident is involved and if the offence is already being prosecuted by an international or foreign court.

In December 2010, German prosecutors for the first time charged two Rwandan nationals with crimes against humanity committed in the Democratic Republic of Congo. In 2014, the Prosecutor General initiated an investigation into crimes against humanity committed by members of the Islamic State in Iraq and Syria. In June 2018, in another first, German prosecutors issued an international arrest warrant for the head of the Syrian Air Force Intelligence Directorate, who was accused of crimes against humanity. The warrant was followed-up in March 2019 with a request to the Lebanese Government to extradite the accused, who reportedly was present in Lebanon for medical treatment. In February 2019, German police also arrested two former Syrian intelligence officers on suspicion of crimes against humanity.

Category: International criminal law

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  • Stefan Talmon

    Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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