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War crimes abroad can be tried in Germany

January 28, 2021

The Federal Court of Justice has ruled foreign soldiers are not protected from prosecution for war crimes in Germany. The ruling could have wide-ranging implications for ongoing war crimes trials in the country.

The accused standing trial in Koblenz
The ruling could have implications for ongoing war crimes trials, including one involving former Syrian secret policeImage: DW/M. von Hein

Judges from Germany's Federal Court of Justice (BGH) on Thursday ruled that courts in the country can continue to hear cases about abuses of international law committed outside of Germany.

In a landmark decision, the court ruled that foreign soldiers are not protected from prosecution for war crimes in Germany and that they cannot invoke a right to immunity.

The ruling could have an impact on other prosecutions of state officials in Germany, such as the trial of two ex-members of Syria's secret police — the first high-profile case worldwide against former officials in that country's long-running conflict.

What was the case about?

The decision stemmed from the trial of a former Afghan officer who was given a suspended sentence for dangerous bodily harm and a war crime at a higher regional court in Munich.

Certain crimes against international law committed abroad can be prosecuted in German courts.

The suspect is alleged to have mistreated three captured Taliban fighters during interrogation and threatened them with electric shocks. In addition, he allegedly had the body of a Taliban commander hung like a trophy on a defensive wall.

The Munich court gave the man a two-year suspended sentence for three counts of dangerous bodily injury, one count combined with coercion and two counts of attempted coercion. The verdict also included a conviction for war crimes.

How Germany could indict Syria's Assad

The defense appealed against the verdict of the Munich judges. The BGH was asked to decide whether the court could rule on acts "committed by a defendant in the exercise of foreign sovereign activity."

But the BGH judges ruled that the soldier's claim to immunity is no longer valid due to his alleged mistreatment and torture of prisoners — which constitutes a war crime.

In their decision, the BGH said the Higher Regional Court in Munich made a mistake by not taking the torture accusations into account, with the lower court now tasked with coming up a new sentence for the torture charges.

What are the wider consequences?

The case is likely to have far-reaching repercussions in other proceedings.

One of the cases considered most important is underway in the western German city of Koblenz against two ex-members of Syria's secret police who are accused of crimes against humanity.

One, a senior member of the security services who initially sought asylum in Germany, is accused of complicity in torture and murder.

The Syrian conflict has never been appraised by the International Criminal Court.

Syria is not a signatory to the Netherlands-based court, so any case needs to be referred there by the United Nations Security Council. But members of the Security Council include China and Russia, which have vetoed any attempt to do that. Russia, in particular, is an ally of the Syrian government.

rs,rc/sms (AFP, AP, Reuters)

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