Germany Judges the World: ‘Universal Jurisdiction,’ War Crimes and German Law

Last month, a coalition of self-styled human rights groups, including the New York-based Center for Constitutional Rights, announced that it had filed a war crimes complaint in Germany against Donald Rumsfeld and thirteen other present or former U.S. officials. Other sponsoring plaintiffs include Germany's Union of Republican Lawyers (RAV) and the French-based International Federation for Human Rights (FIDH). (The presence of the FIDH among the plaintiffs is particularly noteworthy, since the FIDH is a regular and substantial recipient of EU financing.) Whereas the announcement will undoubtedly have sent Rumsfeld-haters, Bush-bashers and anti-Iraq War activists the world over into raptures, those taking a more sober view of the matter as a strictly legal development may well have asked themselves "What war crimes did Donald Rumsfeld commit in Germany?"

After all, the principle of state sovereignty -- still at least nominally the cornerstone of the international system as reaffirmed in Article 2.1 of the U.N. Charter -- would appear to exclude any such prosecution of Rumsfeld by Germany if he had not. For one state to claim anything other than territorially based jurisdiction over acts of citizens of another state must, needless to say, be regarded as a hostile measure -- and all the more so if the latter are or were state officials and the acts in question were performed in official capacity. Were the other state to respond in kind -- say, in this instance, by charging German Defense Minister Franz Josef Jung for the real or imagined misdeeds of German troops -- its hostile nature would become especially plain and the potential for a perilous escalation, obvious. The raison d'être of the classical protections of sovereignty -- namely, the preservation of international peace -- is thus unmistakable.

But apparently it is not so well understood in Germany. For many years now, German philosophers, jurists and even state officials have been militating for the application of a so-called "principle of cosmopolitan law" or "Weltrechtsprinzip" that would transcend the classical restrictions in the case of war crimes and related charges. Defying ordinary logic in the manner of squared circles or the contradiction-laden "dialectical" logic of the 19th Century German philosopher Hegel, the Weltrechtsprinzip is supposed somehow to invest particular states with "universal jurisdiction."