By Otto Spijkers

The European Court of Human Rights published its judgment in the case Jorgic vs. Germany on 12 July 2007. Nikola Jorgic, a Bosnian Serb with a permanent residence status in Germany from May 1969 until the beginning of 1992, was the leader of a paramilitary group that took part in acts of terror against the Muslim population in the war in Yugoslavia in the early nineties. He was tried and convicted for genocide by the German courts. He filed a complaint at the European Court of Human Rights. Jorgic argued that the German courts had not had jurisdiction to convict him of genocide. He further argued that he had not enjoyed a fair trial (Article 6 of the Convention), and he argued that his conviction for genocide was in breach the legality principle (Article 7.1) because the national courts’ wide interpretation of that crime had no basis in German or public international law. The last claim is interesting, perhaps even the most interesting of all, but I wish to focus on the issue of universal jurisdiction. But first the facts. The facts are summarized as follows on the website of Trial Watch:

Bosnian Serb Nikola Jorgic was the leader of a paramilitary group that took part in acts of terror against the Muslim population; the crimes were carried out with the backing of the Serb rulers and were designed to contribute to their policy of "ethnic cleansing". Jorgic arrested Muslims and put them in prison camps where they were tortured; the Court also found that in June 1992, he took part in the execution of 22 inhabitants of Grabska (among them disabled and elderly people), who had gathered in the open in order to escape fighting. Three other Muslims had to carry the dead to a mass grave. A few days later, Jorgic ordered the expulsion of their village and the brutal ill-treatment of 40-50 inhabitants from Sevarlije; six of them were shot dead. The seventh victim, who was not fatally wounded, died later when he was burned together with the six bodies. In September 1992, Jorgic put a tin bucket on the head of a prisoner in the central prison of Doboj and hit it with such force that the victim died as a consequence of the blow.

For these acts, Jorgic was convicted for genocide by the German courts. One of the questions in Strasbourg, at the European Court of Human Rights, was whether German courts could exercise jurisdiction over someone who was not a German citizen, who committed crimes outside Germany against non-German citizens. The answer was: yes. This is the relevant part of the Judgment of the European Court:

1. The parties’ submissions a. The applicant 58. The applicant took the view that there was a general rule of public international law, namely the duty of non-intervention, which, in principle, prohibited the German courts from prosecuting a foreigner living abroad for genocide purportedly committed by him in a foreign country against foreign victims. In his submission, the German courts were also debarred from exceptionally assuming jurisdiction in accordance with the international criminal law principle of universal jurisdiction enshrined in Article 6 no. 1 of the Criminal Code, as jurisdiction in accordance with that principle was not recognized internationally in the case of genocide. 59. The applicant argued in particular that, pursuant to Article VI of the Genocide Convention, only the tribunal of the State in the territory of which the act was committed or an international tribunal had jurisdiction to try persons charged with genocide. That Article therefore reflected the duty of non-intervention flowing from the principle of sovereignty and equality of all States, and the prohibition of an abuse of rights, which were general rules of public international law. He conceded that the principle of universal jurisdiction, as recognized in customary public international law, could, in theory, confer jurisdiction on a national court other than the one named in Article VI of the Genocide Convention. However, he maintained that jurisdiction in accordance with that principle, being an exception to the rule of the duty of non-intervention, was neither recognized in international treaty law nor in customary international law for the purpose of trying persons charged with genocide. The German courts had therefore arbitrarily assumed jurisdiction. b. The Government 60. In the Government’s submission, the German courts had been the "competent court[s]" within the meaning of Article 5 § 1 (a) of the Convention to convict the applicant and the "tribunal[s] established by law" within the meaning of Article 6 § 1 of the Convention. German criminal law had been applicable to the facts of the case so that, in accordance with German law, German courts had had jurisdiction over the offences the applicant had been charged with. They had been competent under Article 6 no. 1 of the Criminal Code (in its version then in force). There had also been a legitimate link between the prosecution of the offences the applicant had been charged with and Germany itself, as considered necessary by the German courts beyond the wording of Article 6 no. 1 of the Criminal Code in order to establish jurisdiction, thus respecting the principle of non-intervention. The applicant had lived in Germany for many years, was still registered with the authorities as living there and had been arrested on German territory. Moreover, Germany had participated in the military and humanitarian missions in Bosnia and Herzegovina. In addition to that, the requirements of Article 7 § 2 no. 2 of the Criminal Code, which incorporated the representation principle, had been met, particularly as neither the ICTY nor the criminal courts at the place of the crime in Bosnia and Herzegovina had requested the applicant’s extradition. 61. The Government further took the view that the provisions of German law on jurisdiction conformed to the principles of public international law. In particular, as had been convincingly shown by the German courts, Article VI of the Genocide Convention, which laid down minimum requirements in respect of the duty to prosecute genocide, did not prohibit the tribunal of a State other than the one in the territory of which the act was committed from prosecuting genocide. 62. Moreover, the principle of universal jurisdiction as recognised in customary public international law authorised all States to establish jurisdiction over crimes against international law such as acts of genocide, which were directed against the interests of the international community as a whole, irrespective of where or by whom those crimes had been committed. Likewise, jurisdiction under the representation principle as laid down in Article 7 § 2 no. 2 of the Criminal Code did not contravene public international law. The German courts had therefore been authorised to adjudicate on the applicant’s case. 63. The Government submitted that the legislation and case-law of numerous other Contracting States to the Convention and the case-law of the ICTY expressly authorised the prosecution of genocide in accordance with the principle of universal jurisdiction.

The European Court of Human Rights agrees with Germany:

66. The Court notes that the German courts based their jurisdiction on Article 6 no. 1 of the Criminal Code, taken in conjunction with Article 220a of that Code (in their versions then in force). These provisions provided that German criminal law was applicable and that, consequently, German courts had jurisdiction to try persons charged with genocide committed abroad, regardless of the defendant’s and the victims’ nationalities. The domestic courts had therefore established jurisdiction in accordance with the clear wording of the pertinent provisions of the Criminal Code. 67. In deciding whether the German courts had jurisdiction under the material provisions of domestic law, the Court must further ascertain whether the domestic courts’ decision that they had jurisdiction over the applicant’s case was in compliance with the provisions of public international law applicable in Germany. It notes that the national courts found that the public international law principle of universal jurisdiction, which was codified in Article 6 no. 1 of the Criminal Code, established their jurisdiction while complying with the public international law duty of non-intervention. In their view, their competence under the principle of universal jurisdiction was not excluded by the wording of Article VI of the Genocide Convention, as that Article was to be understood as establishing a duty for the courts named therein to try persons suspected of genocide, while not prohibiting the prosecution of genocide by other national courts. 68. In determining whether the domestic courts’ interpretation of the applicable rules and provisions of public international law on jurisdiction was reasonable, the Court is in particular required to examine their interpretation of Article VI of the Genocide Convention. It observes, as was also noted by the domestic courts [?] that the Contracting Parties to the Genocide Convention, despite proposals in earlier drafts to that effect, had not agreed to codify the principle of universal jurisdiction over genocide for the domestic courts of all Contracting States in that Article [?]. However, pursuant to Article I of the Genocide Convention, the Contracting Parties were under an erga omnes obligation to prevent and punish genocide, the prohibition of which forms part of the jus cogens. In view of this, the national courts’ reasoning that the purpose of the Genocide Convention, as expressed notably in that Article, did not exclude jurisdiction for the punishment of genocide by States whose laws establish extraterritoriality in this respect must be considered as reasonable (and indeed convincing). Having thus reached a reasonable and unequivocal interpretation of Article VI of the Genocide Convention in accordance with the aim of that Convention, there was no need, in interpreting the said Convention, to have recourse to the preparatory documents, which play only a subsidiary role in the interpretation of public international law (see Articles 31 § 1 and 32 of the Vienna Convention on the Law of Treaties of 23 May 1969). 69. The Court observes in this connection that the German courts’ interpretation of Article VI of the Genocide Convention in the light of Article I of that Convention and their establishment of jurisdiction to try the applicant on charges of genocide is widely confirmed by the statutory provisions and case-law of numerous other Contracting States to the Convention (for the Protection of Human Rights) and by the Statute and case-law of the ICTY. It notes, in particular, that the Spanish Audiencia Nacional has interpreted Article VI of the Genocide Convention in exactly the same way as the German courts (see paragraph 54 above). Furthermore, Article 9 § 1 of the ICTY Statute confirms the German courts’ view, providing for concurrent jurisdiction of the ICTY and national courts, without any restriction to domestic courts of particular countries. Indeed, the principle of universal jurisdiction for genocide has been expressly acknowledged by the ICTY [?] and numerous Convention States authorize the prosecution of genocide in accordance with that principle, or at least where, as in the applicant’s case, additional conditions – such as those required under the representation principle – are met [?]. 70. The Court concludes that the German courts’ interpretation of the applicable provisions and rules of public international law, in the light of which the provisions of the Criminal Code had to be construed, was not arbitrary. They therefore had reasonable grounds for establishing their jurisdiction to try the applicant on charges of genocide.

The references to the Genocide Convention in para. 68 of the court’s judgment are interesting, I think. The European Court concludes nothing from the lack of reference to the principle of universal jurisdiction in the Genocide Convention (in particular in Article 6), and refuses to look at the travaux préparatoires of that Convention, because "there was no need". But the travaux may show that the reason there was no reference to the principle of universal jurisdiction was precisely because this principle was not accepted at the time. After all, silence often has significance in international law/politics. That seems to be very relevant for the Jorgic case, especially since the principle of universal jurisdiction is still in weak condition (the evidence proposed e.g. in paras. 50-54 of the Court’s judgment is not that strong), as compared to the duty of non-intervention flowing from the principle of sovereignty and equality of all States. – Otto