THE GREAT REGROUPING OF THE WEST

War crimes have no statute of limitations

Together with Gerhart Baum, former Federal Minister of the Interior, Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice, has filed criminal charges against Vladimir Putin and his henchmen. Russian war crimes should not go unpunished.

TEXT: SABINE LEUTHEUSSER-SCHNARRENBERGER

THE GREAT REGROUPING OF THE WEST

War crimes have no statute of limitations

Together with Gerhart Baum, former Federal Minister of the Interior, Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice, has filed criminal charges against Vladimir Putin and his henchmen. Russian war crimes should not go unpunished.

TEXT: SABINE LEUTHEUSSER-SCHNARRENBERGER

With the entry into force of the Rome Statute of the International Criminal Court (ICC) on 1 July 2002, persons who participate in an armed conflict can be indicted before the ICC. This applies to members of government as well as commanders and soldiers. Since then, the ICC has mainly investigated warlords and militiamen, but also heads of state, and has handed down several custodial sentences. However, due to a lack of capacity, the ICC is also dependent on the support of the states parties. This makes additional national prosecutions for war crimes very important. Together, national prosecutors and the international chief prosecutor must act with the force of law against the injustices committed against civilians during war.

The principle of universal jurisdiction ("universality principle") legally entitles Germany to apply national criminal law, even to facts that have no specific connection to Germany, i.e. where neither the place of the offence is in Germany ("territorial principle") nor the perpetrator or the victim have the nationality of the state concerned ("principle of personality"). In Germany, the Federal Prosecutor can prosecute offences directly punishable under international criminal law, i.e. genocide, crimes against humanity and war crimes. And it does do that. In September 2015, for example, the Higher Regional Court of Stuttgart convicted the Rwandan rebel leader Ignace Murwanashyaka and his deputy Straton Musoni of crimes against humanity and war crimes. In January 2022, the Koblenz Higher Regional Court sentenced former Syrian intelligence service employee Anwar R. to life imprisonment for, among other things, crimes against humanity.

Gerhart Baum and I first named 32 men and one woman in our criminal charge, including Putin, the foreign, defence and interior ministers, commanders and commanding officers. They are followed by detailed names of divisions and brigades of the Russian airborne troops, army, air force and navy. This list may well grow.

Extracts from the criminal complaint against 33 persons – including President Putin:

Liability as an indirect perpetrator by virtue of “Organisationsherrschaft” (organisational control) pursuant to section 25 para. 1 Art. 2 of the German Criminal Code (StGB) is obvious. It applies when a person triggers regular processes within an organisational power structure that lead to the commission of a criminal offence. This form of perpetration can also comprise indirect co-perpetration or co-perpetration in indirect perpetration if exercised jointly by several persons. Case law (die Rechtsprechung) has extensively recognised and further developed indirect perpetration by virtue of organisational control and has also made it clear that mid-level decision-makers within a power structure or hierarchical system can be indirect perpetrators. In addition, the Federal Court of Justice has affirmed in its first case the criminal liability of so-called Hintermänner, i.e. people pulling the strings, who, through their voting behaviour in committees and decision-making bodies, have passed (unlawful) orders pertaining to affairs of state or politics. The indicted persons occupy various positions in the Russian state apparatus. Most of the accused are officially, i.e. de facto and de jure, integrated into the apparatus and hold high political and military offices there. Other accused persons are mid-level personnel of the Russian military. (...)

Following orders

With all defendants, it must be assumed that they are integrated into smoothly functioning governmental decision-making structures. Within these structures, the decisions made by the defendant Putin as head of state are accepted by the members of the Security Council of the Russian Federation and then passed down the state administrative and military hierarchy. In the process, the decisions are specified at subsequent levels and coordinated between the various branches of the state apparatus. The defendants below the level of members of the Security Council then assume independent decision-making positions within the power apparatus. (...) 

The overwhelming number of possible crimes against the civilian population goes far beyond the acts reported here. Many of these acts suggest a complete indifference on the part of the perpetrators to the persons and properties protected by international humanitarian law. In particular, the apparently targeted killing of civilians, the indiscriminate nature of these killings as well as the large-scale shelling of exclusively civilian neighbourhoods make it extremely likely that these acts were being committed in execution of plans and orders issued at the highest government level and specified at numerous following hierarchical levels. To that end, established standard procedures of the Russian state and its military machine were and continue to be used, thus assuring involvement at the highest state decision-making levels – normatively speaking – equating to control over (“Tatherrschaft”), or perpetration of, the acts committed. (...) 

For the Russian or Russian-controlled fighters directly involved in the conflict, as regards direct participation in the acts of aggression in the cases outlined, direct perpetrator liability should be considered in the first instance (§ 25 para. 1 Art. 1 German Criminal Code (StGB)). In addition, there is initial suspicion of aiding and abetting (section 3 of the Code of Crimes against International Law (Völkerstrafgesetzbuch (VStGB)) in conjunction with section 27, paragraph 1 (StGB)) the abovementioned offences. This is because both in the case of participation in the direct fighting in Ukraine and in the case of supporting activities within the military operations of the Russian and Russian-controlled troops, there is the possibility that fighters have at least contributed to the commission of the offences described above. There is also the possibility that the aiding and abetting of such possible war crimes and crimes against humanity was at least partially premeditated. (...) 

There is no immunity

There is no material or functional immunity (ratione materiae) for crimes against international law committed while holding a government office: "Crimes against international law are committed by people and not by abstract beings". Therefore, even the highest state officials who order crimes against international law in the exercise of their official functions can be individually criminally liable. (...) The personal immunity (ratione personae) under §§ 18 para. 1, 20 para. 2 Courts Constitution Act (GVG), which only applies temporally, is limited to heads of state, heads of government and ministers, so that it does not apply at all to many of the persons charged here, i.e. not even now (while they are still in office). For the defendants, Vladimir Vladimirovich Putin, Prime Minister Mikhail Vladimirovich Mishustin and the ministers of the Russian Federation, this immunity ends the moment they leave office. In the meantime, the war crimes and crimes against humanity planned, organised, ordered and executed by them are not subject to the statute of limitations under § 5 VStGB. (...)

Sabine Leutheusser-Schnarrenberger is a lawyer and former German Federal Minister of Justice. She has been honoured for her commitment with the Federal Cross of Merit, among other awards. She has been a member of the Bavarian Constitutional Court since January 2019.

Sabine Leutheusser-Schnarrenberger is a lawyer and former German Federal Minister of Justice. She has been honoured for her commitment with the Federal Cross of Merit, among other awards. She has been a member of the Bavarian Constitutional Court since January 2019.

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