Mar 9, 2018

Is Germany building a case to charge Australian ministers for crimes against humanity?

With calls for the ICC to investigate the Australian government going unheard, some are looking to a far-reaching code that gives the German judiciary the ability to prosecute crimes against humanity, even if they have no relation to the country.

Greg Barns — Barrister and writer

Greg Barns

Barrister and writer

Germany is one of the few nations in the world to allow the prosecution of serious human rights abuses even where the accuser and the accused have no connection with Germany, a process called universal jurisdiction. Lawyers from the European Centre for Constitutional and Human Rights in Berlin are currently seeking to bring to justice members of the Assad regime who are alleged to have tortured Syrians.

Given the lack of interest that the International Criminal Court has shown in investigating possible crimes against humanity committed by members of the Abbott and Turnbull governments in respect to asylum seekers detained on Nauru and Manus Island, does the German legal system provide an alternative way forward to hold ministers such as Scott Morrison and Peter Dutton to account?

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22 thoughts on “Is Germany building a case to charge Australian ministers for crimes against humanity?

  1. Roger Clifton

    “Universal jurisdiction” would be useful for prosecuting carbon emitters in recalcitrant countries. Perhaps a lawyer reader could point to a law for the purpose.

  2. brian crooks

    I personally would love to see dutton and co. dragged to court on a crimes against humanity charge, and abbott and turnbull as well , maybe hang the bastards like the did eichmann.

  3. AR

    Perhaps a job for The Hague? If it is too involved in chasing down the losers in 3rd World civil wars then it would only have to wait a short while for this lot to meet that criterion.
    Also, the General Assembly of the UN, while not court, is nonetheless a forum for the airing of putrid government actions.

  4. old greybearded one

    That would be like trying to prosecute Israel for religious discrimination (or any other human rights abuse). I’d love to see the scum brought to book, but Rudd must be there too.

  5. Di Keller

    What a wonderful dream come true that would be 🙂

  6. Wade Smith

    This is an interesting article from a legal point of view, but seems strangely disconnected from reality. No Australian government minister would ever be held to account for anything without the consent of the Australian government, because anything else would be a breach of our sovereignty. It simply will not happen. Acknowledgement of this would make the story more digestible.

    1. Norm

      Hang on, the current Australian government is willing to sell out our sovereignty in ISDS provisions in preferential trade agreements. I’m so relieved you are convinced that such treason “simply will not happen”.

      1. Wade Smith

        Norm, that’s a dubious connection. My point is that no Australian Government minister will be prosecuted in any international court in the foreseeable future. The author should be stating this clearly upfront to give proper context to the article. This line is telling: “The next step would be to have the German Attorney-General issue arrest warrants and seek the extradition of those subject to the warrant, though the Turnbull government would resist those attempts.” Well, no shit!

        1. SW

          The German Federal Prosecutor in Karlsruhe can begin investigations without the consent of the Australian government. They may already have. Certainly the chances that Australia would extradite a current or former minister are zero but, comparable to the Pinochet arrest in London in 1998, a German prosecutor could put out a secret EU-wide arrest warrant so that the suspect or suspects would be detained the next time they visit the EU (though I suppose ministers travel on diplomatic passports? Non-ministerial lackeys may be an easier hit). There’d be a diplomatic stink, but you never know…

        2. [email protected]

          It would not matter if the Australian Govt resisted those attempts. As soon as the charged person is found crossing an International border they can be held pending arrest by Interpol on an ICC warrant. They would very quickly find themselves in a jail cell in the Hague prior to a Trial.

        3. AR

          It would have been interesting to see how the government of the day, Gillard, would have enforced a European arrest warrant on Assange had he been in the country.
          She had, already, said he was guilty of treason. To another country…

  7. [email protected]

    Perhaps failure of ICC to act against Dutton et al is a function of the cumbersome Rome Statute. True the Statute insists that the Prosecutor shall be independent, but what that means in practice is unclear

  8. Lizzie

    Let us hope that one day Dutton ,Morris and Turnbull will be held accountable for their despicable behaviour towards vulnerable refugees.

  9. Roger Clifton

    Readers may be curious about what is the Statute of Rome being referred to above. It appears to be the authority of the International Criminal Court. According to Wikipedia –

    “The Rome Statute of the International Criminal Court … is the treaty that established the International Criminal Court … entered into force on 1 July 2002…. Among other things, the statute establishes the court’s functions, jurisdiction and structure. The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.”

    Not being a lawyer, I can only guess that prosecution by the ICC of carbon emitters in recalcitrant nations would require adding another crime to the list, crimes against the environment.

  10. SW

    Reading the Völkerstrafgesetzbuch law, it seems to me (a non-lawyer) that there are a couple of clauses which could be applied to Australians involved in our very own concentration camp system:

    The introductory proviso stipulates “who in the context of a widespread or systematic attack against a civilian population…”

    – §8(1)3 treats a person protected under international humanitarian law cruelly or inhumanly, causing him or her significant bodily or mental harm or suffering, in particular torture or mutilation (minimum 3 years jail, if the person dies as a result, life imprisonment);

    – §8(1)9 severely humiliates… a person to be protected under international humanitarian law (minimum 1 year);

    – §8(3)1 who in connection with an international armed conflict … illegally detain(s) a protected person … or unjustifiably delay(s his/her) repatriation (minimum 2 years).

    Who a “protected person” is, is defined by the Geneva Conventions. To satisfy the introductory proviso you’d probably have to connect the Australian invasion of Iraq (not sanctioned by the UN) with one or more Iraqi refugees to have a fighting chance. The law can be used against anyone involved, including military, not just ministers of the crown.

    Carbon emission isn’t mentioned.

    See https://en.wikipedia.org/wiki/V%C3%B6lkerstrafgesetzbuch for an English overview of the law and http://www.gesetze-im-internet.de/vstgb/index.html for the German original.

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