Reform of the International Criminal Law Framework in Germany – Successful Changes and Missed Opportunities: Part II

[Isabelle Hassfurther is a legal advisor in the International Crimes and Accountability program at the European Center for Constitutional and Human Rights (ECCHR). The ECCHR submitted a statement on the draft bill and participated in the expert hearing in the parliament’s legal committee.]

[The text has also been published in German in a slightly shorter version on Verfassungsblog.]

One Step Forward, Half a Step Back: Strengthening the Rights of Survivors?

Besides these considerable amendments to close accountability gaps and make trials on international crimes more accessible (Part I), the introduction of joint plaintiffs’ rights represents another very significant step towards improving survivors’ opportunities to participate in international criminal proceedings. At the same time, unfortunately, some limitations have been introduced to this opportunity which do not coincide with the aim to improve their position:

1. A Right of (Some) Survivors of International Crimes to Become Joint Plaintiffs

According to Section 395(1) no. 2, no. 4a CCP as amended, persons who have been injured as a result of crimes under Sections 6 to 8 and 10 to 12 CCAIL can join criminal proceedings as joint plaintiff. This includes genocide, crimes against humanity and a large number of war crimes. The status of joint plaintiff gives rise to a right to legal assistance (Section 397a CCP) and to psychosocial trial support (Section 406g(3) sentence 1 CCP). This amendment has also long been called for and is urgently needed to give survivors of particularly severe macro-crimes the opportunity to actively contribute to clarifying the facts and to thereby counteract secondary victimization. The introduction of the status of a joint plaintiff can also avoid bizarre situations such as in the proceedings against a former IS member before the Munich Higher Regional Court, in which the charge of aiding genocide against the Yazidis was excluded because other charges were considered to be more severe (see Section 154a CCP). The joint plaintiff – the mother of a Yazidi girl who had been killed while she herself had been enslaved – could not comment on this decision despite the central importance of this charge for her interest in satisfaction, because she was not authorized to bring a joint action in relation to genocide.

Regrettably, however, the legislator has included a number of limitations with regard to joint plaintiffs concerning international crimes that are neither necessary nor understandable in terms of legal policy. Firstly, this applies to the fact that victims of war crimes against property (Section 9 CCAIL) are denied access to accessory prosecution, although this offense has already been charged several times in proceedings against IS members returning to Germany, illustrating its practical relevance. Moreover, the deprivation of homes – especially in an armed conflict – can endanger livelihoods.

Furthermore, it is incomprehensible why the entitlement to become a joint plaintiff in relation to international crimes has been additionally restricted. The right to join proceedings is made dependent on the fact that the victims’ rights have been violated in specific legal interests, namely their lives, “their rights to physical integrity, freedom or to religious, sexual or reproductive self-determination or, as a child, [their] right to undisturbed physical or mental development”. Such a requirement does not exist for other crimes. When comparing this list with the legal interests protected by the international criminal offences covered by Sections 6 to 8 and 10 to 12 CCAIL, considerable gaps become visible (in detail ECCHR, p. 10 et seq.). For example, the rights to freedom from racial or gender-based discrimination, which are protected by Sections 6(1) and 7(1) no. 10 CCAIL, are not covered. Also, with regard to adults, only physical but not psychological integrity is enumerated, which can lead to the exclusion of the right of accessory prosecution in cases of psychological torture, provided that no physical consequences result (cf. Explanatory Memorandum of the Legal Committee, p. 18).

Additionally, it has been added to Section 395(1) no. 2a, no. 4a CCP as amended that “here too” a “direct connection between the act that is the subject of the proceedings and the violation of legal interests” is required. In this respect, it is unclear at first glance when such a “direct connection” can be said to exist, which creates legal uncertainty. For other offenses eligible for accessory prosecution, the law already foresees a requirement of direct impairment or harm caused by the “unlawful act” (Sections 395 (1), 373b CCP). It is to be hoped that the courts will see the wording in the new provisions as a mere clarification echoing this restriction, not as a hurdle that goes beyond this.

Against the background of these interpretative questions, the extent to which the introduction of the right of accessory prosecution will ultimately lead to an improvement in participation opportunities for all survivors of international crimes is now up to the courts.

2. Restrictions to Choice of Representation and Rights to Participate in Trial

In one respect, the legal reform may even lead to a deterioration in the legal position of survivors of international crimes, namely with regard to their legal representation and exercise of procedural rights as joint plaintiffs: Courts can now regularly appoint a joint lawyer to multiple survivors of international crimes if the crimes by which they have been injured are based on the “same facts of life” (Section 397b(1) sentence 2 no. 2 CCP as amended). The provision clarifies that the court can take into account “additional relevant criteria on an individual basis” to determine if the survivors’ interests are similar and if joint representation thus appears appropriate. Courts could draw on criteria such as the extent to which different individual legal interests are affected, the degree of traumatization, or the gender/sex of survivors. In this respect too, however, it lies in the courts’ discretion to decide whether they actually make use of this possibility. Otherwise, survivors of international crimes would be at a blanket disadvantage compared to survivors in other major proceedings, in which pooling of legal representation is already possible under Section 397b CCP, but no comparable presumption for a joint legal representation exists.

Such a joint representation also results in an additional restriction of procedural rights. By contrast to other joint plaintiffs, these rights can generally only be exercised for all of them by the appointed counsel, not by the survivors themselves and also not by an elected counsel (Section 397b(4) CCP as amended). By way of derogation from this restriction, courts can allow joint plaintiffs in international criminal proceedings to make the closing statement themselves, even if they are jointly represented, as this is often a key means for those affected to express their own point of view outside of their role as a witness. However, allowing closing statements lies at the discretion of the court.

In summary, it remains to be seen how these possible restrictions will be dealt with. However, they certainly do not contribute to strengthening the rights of survivors.

The Forgotten Goal: Counteracting Selectivity and Double Standards

Finally, it is sobering that the reform has not addressed potential gateways for the politicization of decisions not to investigate international crimes.  Germany recognizes absolute universal jurisdiction – in principle not requiring a relation to Germany for the investigation and prosecution of international crimes (Section 1 CCAIL). The Federal Public Prosecutor General does, however, dispose of discretion to dismiss investigations into international crimes committed abroad for which “the accused is not resident in Germany and is not expected to so reside” (Section 153f CCP). Decisions based on this provision can only be reviewed by the courts in absolutely exceptional cases (see ECCHR, p. 16 et seq.). This has not changed. Moreover, the proposal to limit discretion at least for cases in which German nationals and persons living in Germany are injured by international crimes was not taken into account.

Furthermore, the German Federal Ministry of Justice disposes of a right to issue external instructions to the Federal Public Prosecutor General which also remains in place (Section 147 CCA). A draft bill has recently been presented to restrict this entitlement. However, while the draft stipulates that “non-judicial considerations” are to be inadmissible, it then explains that “overriding political considerations, the consideration of which is in accordance with the criminal and procedural provisions” as well as “instructions on disputed or unresolved legal issues” are to remain permissible.

The extent to which international criminal law is actually applied indiscriminately and free of political considerations is thus still not verifiable. This circumstance potentially jeopardizes the legitimacy of German efforts to uphold international (criminal) law standards in other areas. Further reform is therefore still needed.

Conclusion

The ‘Act on the Further Development of International Criminal Law’ represents an important and successful reform of the legal framework for the prosecution of international crimes in Germany, particularly in terms of substantive law. It is now up to the courts to interpret the new provisions, particularly when it comes to strengthening the participation of survivors and the documentation of these significant proceedings. They are called upon to actually give the survivors of these most serious crimes a voice, to guarantee their adequate legal representation, and to take into account the need for information of the civil societies of the countries where the crimes were committed.

Furthermore, it must remain a central concern to ensure the equal application of the law to all and to counteract double standards. Otherwise, the legitimacy of the international criminal proceedings that German courts will conduct in the future in application of the new law could be compromised. Currently, proceedings are being conducted primarily on Syria and on crimes committed by IS members returning to Germany, as well as on crimes committed as part of the war of aggression against Ukraine. These steps are to be strongly welcomed. The same attention should also be paid to other conflicts around the world that are currently not taken into account in the Federal Public Prosecutor’s Office’s investigative practice.