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Does Germany have criminal jurisdiction for actions against German nationals on the Mavi Marmara?

Left Party parliamentarians Annette Groth (l.) and Inge Höger (r.) together with human rights activist Norman Paech (c.).

Left Party parliamentarians Annette Groth (l.) and Inge Höger (r.) together with human rights activist Norman Paech (c.).

Der Spiegel Online is reporting:

Public prosecutors in Germany are looking into a war crimes complaint filed against Israel by two members of parliament with the far-left Left Party and a human rights activist who were on board the Mavi Marmara when Israeli troops stormed it 11 days ago.

Eleven days ago, the Israeli military stormed the Turkish ship Mavi Marmara, part of a flotilla carrying pro-Palestinian activists toward the Gaza Strip in an attempt to break the Israeli blockade. Now, it has become a case for German prosecutors.

Human rights activist Norman Paech and two German parliamentarians from the far-left Left Party, Annette Groth and Inge Höger, have filed criminal complaints for “numerous potential offences, including war crimes against individuals and command responsibility … as well as false imprisonment.”At 5:10 a.m. on May 31, the complaint reads, Höger, Groth and Paech heard from the captain of the Mavi Marmara via the ship’s loudspeaker that the Israeli soldiers who had boarded the ship as part of the commando operation were taking over control of the ship. An hour later, Israeli soldiers ordered the Germans on deck, where their backpacks and other belongings were searched. Their hands were temporarily bound.

German Jurisdiction?

It wasn’t until 9:10 p.m. that parliamentarian Annette Groth was given the possibility of contacting the German Embassy. At 2 a.m. on June 1, the Germans were brought to the airport in a prisoner transport vehicle for their flight back home.

According to international criminal law expert Florian Jessberger of Berlin’s Humboldt University, “there is cause to believe that false imprisonment was perpetrated as understood by German law.” He says that German criminal law would have jurisdiction “irrespective of the fact that the act was perpetrated on the high seas.”

German public prosecutors told SPIEGEL ONLINE that they were currently investigating whether there was enough evidence to warrant pursuing the case further.

Interesting question.

I don’t know German domestic law, but under international law, there might be two potential bases for prescriptive jurisdiction. First, if, in fact, the actions could be considered “war crimes,” the Universality Principle could apply. That principle provides that all states can exercise jurisdiction over certain actions that rise to the level of universal offenses. The Restatement (Third) of Foreign Relations Law of the United States explains:

A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in § 402 is present. [402 provides for more traditional principles of jurisdiction which are  based on some specific connection to the state asserting jurisdiction.]

Of course, for jurisdictional purposes, the German nationals would have to assert that what happen to them did, arguably, rise to the level of a war crime.  Under the Rome Statute of the International Criminal Court, which seems reasonably to restate customary international law on this issue, “unlawful confinement” is considered a war crime. Whether the actions in the case would fall into the category could certainly be debated, but it would make for an arguable basis for jurisdiction.

Another potential basis for German jurisdiction would be the Passive Personality Principle. Under this principle, a state asserts prescriptive jurisdiction based on the nationality of the victim. In other words, German could claim jurisdiction because those persons allegedly injured were German nationals.  As the DC Circuit Court of Appeals explained in US v. Fawaz-Yunis:

Under the passive personal principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime.

While the precise crimes for which the passive personality principle applies are some what unclear, it could provide an arguable basis under international law.

But there is one looming question that complicates the matter: Would the persons potentially responsible for these actions enjoy immunity from jurisdiction under international law? More about that question later.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.