Variation and the definition of genocide

The European Court of Human Rights (ECHR) recently considered the legality of a prosecution for genocide under a German statute providing for universal jurisdiction. Germany’s prosecution of Nicola Jorgic marked one of the first universal jurisdiction cases to be brought and the first German prosecution for genocide since ratification of the Genocide Convention in 1954. Jorgic had fled to Germany after the war in the former Yugoslavia. German officials later charged him with participating in assaults and massacres of Bosniak civilians in his home region of Doboj. National courts have jurisdiction that is concurrent with the International Criminal Tribunal for the Former Yugoslavia (ICTY), although the latter may assert its primacy by virtue of its Chapter VII pedigree. In this case, German prosecutors consulted with the Office of the Prosecutor of the ICTY, which concluded that deferral of jurisdiction was not warranted. So, the case proceeded in the German courts.

Jorgic (above) was convicted of genocide and sentenced to life imprisonment. The crime of genocide is defined in Article 220a of the German Criminal Code. Jurisdiction in Germany was premised on Article 6 of the Code, providing that: "German criminal law shall further apply, regardless of the law of the place of their commission, to the following acts committed abroad: 1. genocide (Section 220a); … 9. acts which, on the basis of an international agreement binding on the Federal Republic of Germany, shall also be prosecuted if they are committed abroad."

After exhausting his domestic remedies—an admissibility requirement for most regional and international human rights bodies—Jorgic challenged his prosecution and conviction before the ECHR (application no. 74613/01) on the ground that the German courts lacked jurisdiction to prosecute him for genocide. Jorgic claimed before the ECHR that his prosecution violated several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms: his right to a fair trial before a tribunal “established by law” (Article 6(1)), his right to liberty and security (Article 5(1)), and his right to be free from ex post facto prosecution (Article 7).

With regard to the latter claim, Jorgic argued that the German courts had expansively construed the genocide prohibition beyond the contours of positive law. In particular, Jorgic took issue with the German Constitutional Court’s reasoning that the intent to destroy the group “includes the annihilation of a group as a social unit with its special qualities, uniqueness and its feeling of togetherness, not exclusively their physical-biological annihilation.” Citing a General Assembly resolution equating ethnic cleansing in the former Yugoslavia with genocide (GA Res. 47/121), the Court had held that prohibited acts could include destroying or looting houses or buildings of importance to the group or the expulsion of members of the group. (See Nikolai Jorgic, BVerfG, 2 BvR 1290/99 of 12/12/2000, para. 5). The Court reasoned that the prohibition against genocide protects legal interests that “lie[] beyond the individual, namely the social existence of a group.” This, it noted, “has a broader meaning than physical-biological annihilation.” The Court concluded that this interpretation was “within the margins of the possible interpretation of the international law elements of the crime of genocide.” In so ruling, the Court rejected contrary language in the Krstić case before the ICTY.

The case presents two rulings of particular interest to international law enthusiasts:

First, the ECHR ruled that the exercise of jurisdiction by Germany was reasonable and not in violation of principles of public international law. Specifically, the ECHR interpreted Article VI of the Genocide Convention to oblige signatories to exercise territorial jurisdiction over acts of genocide but not to preclude the assertion of universal jurisdiction. For support, it canvassed the statutes of other signatories to the Genocide Convention and other sources (including the Eichmann case) indicating that genocide was subject to universal jurisdiction. In so ruling, the Court invoked the ancient Lotus principle that an exercise of domestic jurisdiction is permitted so long as there is no prohibitive international law rule.

Second, the ECHR ruled that the German courts’ interpretation was both in keeping with the “essence of the offense” and could reasonably have been foreseen by the applicant at the material time with the assistance of counsel. The ECHR determined that several aspects of the actus reus of genocide do not require the physical/biological destruction of the group, so the German court’s interpretation found support in the text of the law. In addition, the ECHR determined that Jorgic could have foreseen the more expansive interpretation of the provision, especially in light of the work of several German scholars advancing such an interpretation and a degree of uncertainty in the law on this point.

Thus, the ECHR determined that the German courts enjoyed discretion under the European Convention to adopt the interpretation of the genocide prohibition that they saw fit. The case suggests that defendants may have little recourse under international human rights principles if they are prosecuted under idiosyncratic definitions or interpretations of international crimes. So long as an interpretation is “foreseeable,” and an interpretation may be considered foreseeable if there is contested academic literature on the topic, than a defendant’s rights under the principle of legality are not infringed.

(post by Beth Van Schaack)