Should German courts prosecute Syrian international crimes? Revisiting the 'dual foundation' thesis

Abstract

Should Germany be prosecuting crimes committed in Syria pursuant to universal jurisdiction (UJ)? This article revisits the normative questions raised by UJ -- the principle that serious international crimes such as genocide, crimes against humanity, and war crimes committed by foreigners outside its territories can be prosecuted by States -- against the backdrop of increasing European UJ proceedings regarding Syrian conflict-related crimes, focusing on Germany as an illustrative example. While existing literature justify UJ through universal prohibition of certain atrocities, this article applies the 'two-tiered' test derived from the 'dual foundation' thesis of the Eichmann judgement, in which the normative appropriateness of UJ is evaluated against both accounts of universal prohibition and the specific politics surrounding the prosecution. It contends that the large number of Syrian refugees in Germany mean that it in particular could initiate Syrian conflict-related UJ proceedings to prevent continued harm and recognize the political agency of refugees. Ultimately, the article suggests UJ should normatively be thought of as a domestic, rather than international, political event.