By Evan Schleicher
Germany’s top appeals court has partially overturned the convictions of two Rwandan men, Ignace Murwanashyaka and his deputy Straton Musoni, who were accused of aiding and abetting in the committing of war crimes in Rwanda. Their original trial, which was concluded in 2015, was a massive war crimes trial in which the Higher Regional Court in Stuttgart was in session for 320 days over a period of more than four years. The indictment, making use of the German Code of Crimes Against International Law (Völkerstrafgesetzbuch, CCAIL), which was introduced in 2002 to bring German criminal law in line with the provisions in the Rome Statute of the International Criminal Court (ICC), was the first major test of the principle of universal jurisdiction. While the case resulted in convictions, it highlighted the limits of universal jurisdiction in practice. The extremely limited sentencing of these two men initially, and the subsequent overturning of major segments of their convictions, reveal the degree to which a lack of domestic resources and overwhelming international friction to a loosely defined universal jurisdiction have made current efforts, such as those in Germany, largely ineffective.
On the topic of international friction, a lack of definitional cohesion of universal jurisdiction and the absence of international criminal courts have hindered efforts to try international criminals globally. According to M. Cherif Bassiouni in his Introduction to International Criminal Law at 713-714 (2003) and the International Committee of the Red Cross, universal jurisdiction is reserved for persons who have committed the jus cogens crimes of genocide, crimes against humanity, war crimes, torture, slavery, and slave-related practices regardless of where an alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity. In practice, this seemingly simple definition has caused significant controversy. Concerns over differing jurisdictional claims and infringements of state sovereignty have made the development of a common definition of universal jurisdiction impossible. Recently, the Kenyan representative to the Sixth Committee said that “Universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its spread and destructive of orderly legal processes”. This poetic turn of phrase hints at another potential harm of the principle: abuse and misuse by powerful states to attacks individuals or groups. Further, there is a danger that this principle will be used to attack the sovereignty of other nations. Many States differ in their position on universal jurisdiction when discussing the immunity of Heads of States and Governments, making it possible that a powerful nation could attempt to take and try other heads of state who oppose their interests. This may seem unlikely, but even short of such a dramatic scenario, the precedent set by universal jurisdiction claims could easily produce significant confusion and conflict between nations. There seems to be no end in sight, as talks have been ongoing since 2010 on how best to define the principle.
Further, partially because of inconsistencies across nations, domestic courts attempting to try international cases and even sometimes international criminal tribunals have received little international support. Judges in the initial trial in Germany went on the record multiple times to note the difficulty of hearing evidence from Germany and it seems that they received little outside support, even from other German courts. Further there were difficulties in the translation of documents, as well as the obtaining of evidence which met the standards of German criminal code. In sum, it was a process which was hugely time consuming and extremely difficult. This is very telling when it is noted that only two men were on trial and their initial combined sentences were only twenty-one years. International legal efforts have historically required far more resources than the courts of even an advanced country can hope to provide. The International Criminal Court at The Hague and the International Criminal Tribunal for former Yugoslavia both employed hundreds of court psychologists, legal experts and translators, resources which courts such as the Stuttgart Higher Regional Court lack.
The recent reduction of the sentences initially handed out in 2015 can thus be seen as an example of the limits of the principle of universal jurisdiction, especially when undertaken by national tribunals. In fact, because of perceived and actual limitations to the notion of universal jurisdiction, courts have begun to push for trials in the countries in which the crimes were committed when such adjudications are possible and can be fair. In 2017, the Higher Regional Court in Hamm referred a war crimes trial back to Rwanda. Further, within discussions about the notion of universal jurisdiction, there has been an extensive focus on accurately defining the jurisdictions of organizations such as the ICC considering the emerging principle. In light of these simultaneous realities, it is clear that despite the potential benefits of the principle, it will require significantly more institutional cohesion and support before it can hope to produce more effective or lasting verdicts than either existing international courts or courts within the countries in which the crimes were committed can.
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