I remember going to summer camp from my first summer break after grade one of elementary school to the summer break 1989 shortly before the breakdown of the GDR when I was 13. Our summer break lasted eight weeks alone, plus three weeks of winter break, Christmas break, spring break, autumn break… – no parents have so many leave days. And the participation in summer camps and ‘Ferienspielen’ (activities comparable to those in summer camp just that the kids slept at home) was desired by the government as it left much more room for pedagogical influence, read: agitation, than regular school.
There were summer camps with bungalows. But usually, we lived in tents of eight. Cleanness/ tidiness and discipline were made to a competitive game with daily tent checks and deduction of points for violations of the camp rules like the non-observance of curfew. The best tent crew would be awarded with a certificate or a little price at one of the obligatory flag ceremonies. It might sound rigid but surprisingly my summer camp memories are overall positive also because political ideas and educational measures were wrapped appropriately for children.
Apart from the group competition in the matters of tidiness and discipline and various flag ceremonies there were other standards belonging to a typical East German summer camp experience. Spooky midnight walks, sports meetings, visits of a nearby agricultural production cooperative or plant…
One day was always dedicated to the Neptune ceremony with maritime costumes we made ourselves from creped paper and a special baptism ceremony of about one of each group (usually the cheekiest, the loudspeaker, the pain in the neck of the group leader etc.). S/He was first caught by Neptune’s bloodhounds and was then forced to drink something nasty before s/he was dipped into the lake. It’s amazing but I’ve never been one of those picked for baptism. It’s not that I’ve changed so much since then – I’ve always been a lovely but insufferable know-it-all with a big mouth. I guess this is due to a gene defect suffered by all those born in Berlin. But I was always spared the honor as I was again and again chosen to impersonate Neptune’s daughter, the Princess. Something I personally think even more astonishing as I’ve never seen me as a beauty.
Anyway, I digress again and you still don’t know what this article will be about as it is not (only) about East German summer camps. But another must of any summer camp was the Day of Cheka (important military and security arm of the Bolshevik communist government that policed labor camps, ran the Gulag system, conducted requisitions of food, liquidated political opponents, put down peasant rebellions, riots by workers, and mutinies in the Red Army – activities any kid should be of course proud of [Can you see the sarcasm drip here?]) The day was observed with activities and competitions of paramilitary background like hikes through the woods with maps and compasses for orientation. We had to find hidden checkpoints and accomplish different tasks including quizzes, shooting with air rifles, first aid with materials available in nature and in our clothing and guessing of distances.
Last but not least no summer camp could end without a day dedicated to culture. Each group had to rehearse a program during camp with songs, poems, sketches, dances or the like. It was just another competition. And it was usually at the day we all had to present our results to the rest of the camp that a mock trial was held as well. The defendant was “Imperialism” – most of the times a potbellied Uncle Sam figure with top hat, greasy hair and smirk on his face. Witnesses for the prosecution were hungry, exploited, war-damaged children and mothers from all around the world while there were never any witnesses for the defense. It was a highly political spectacle with a predetermined denouement.
What made me think of my summer camp days these days? Definitely not the weather, as we once again experience a very changeable, but mostly rainy and cold period here in Berlin. Actually, my memories of the mock trials were sparked by a recent article in the German weekly ‘Der Spiegel’ filed under foreign affairs and called ‘Feldzug der Anwälte’ (Campaign of the Lawyers) by Juliane von Mittelstaedt.
In the article she tells the story of Ijad al-Alami. He is head of the legal department of Gaza City based Palestinian Center for Human Rights (PCHR). And he is the man who files the biggest flood of lawsuits against Israel ever be seen. He claims that he and his team have documented 936 cases of crimes against humanity or war crimes during the recent Gaza operation. Mittelstaedt reports that he dreams of the one perfect case he will win before he retires.
He sounds like a hard working man with a mission. And as it is, his work is completely legitimate. Israel warrants Palestinians the right to be heard as a constitutional state should do. And a constitutional state has to be able to live with the fact that it is held to its own laws as even the state authority is not above the law.
So far, so good. But the article goes on and Mittelstaedt states that al-Alami dreams of an international tribunal for Gaza that he will provide with his evidence and that his dream might soon come true, at least partly thanks to dozens of lawyers in Norway, UK, New Zealand, Spain and the Netherlands preparing Gaza lawsuits in their countries. They base their conviction to be right to do so on the principle of Universal Jurisdiction, a very questionable and problematic principle of international law.
Universal jurisdiction or universality principle is a doctrine whereby states claim criminal jurisdiction over persons whose alleged crimes were so horrible that they can be considered crimes committed against all, namely core crimes like war crimes, crimes against humanity, genocide (and aggressions). In these cases the state claims criminal jurisdiction over the indicted person even though the alleged crimes were committed outside the boundaries of the prosecuting state and regardless of nationality, country of residence, or any other relation of the indicted person with the prosecuting country.
The principle found its way into German law for example with the Völkerstrafgesetzbuch that was created in 2002 to bring German criminal law in accordance with the Rome Statute of the International Criminal Court that Germany had ratified. However, § 153c and f of the German Criminal Procedural Code limits the prosecution of crimes committed outside German jurisdiction, by implementation of a subsidiarity clause and by awarding the Federal Prosecutor a wide discretion of when to open a case via universal jurisdiction, if the offender is not of German nationality. Therefore so far, none of the cases brought to the attention of the Federal Prosecutor has made it to a German court room.
This is different in Spain e.g. where currently several cases based on universal jurisdiction are pending including one involving Israeli nationals. And this is where al-Alami places his hopes as well. As Spanish lawmakers just try to limit Spanish jurisdiction to cases involving at least a Spanish element the Palestinian lawyer even dug out a case of a client with relatives in Spain.
However, as legitimate as the efforts to bring core crimes to justice are, the legality of the application of the principle of universal jurisdiction as freely as e.g. Spain does is at least disputable. As H. Kissinger said in his 2001 article ‘The Pitfalls of Universal Jurisdiction’: “The danger lies in pushing the effort to the extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.”
The principle of universal jurisdiction stand in a diametrically opposed relationship to state sovereignty. State sovereignty is one of the basic principles of international law and one affirmed by the UN Charter. As it constitutes the beginning and the end of any self-conception of a state any application of a principle limiting state sovereignty needs to be well founded.
Supporters of universal jurisdiction argue therefore that the principle is erga omnes obligation, an obligation owed by states towards the community of states as a whole that exists because of the universal and undeniable interest in the perpetuation of critical rights and the prevention of their breach. That erga omnes obligations exist was recognized by the ICJ in the Barcelona Traction decision. Another argument brought up is that the principle is part of jus cogens, so to say another fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.
The problem here is that the states of the international community have used their state sovereignty to formulate a treaty that regulates the application of universal jurisdiction – the already mentioned Rome Statute of the International Criminal Court. The accession to the Statute is up to the decision of any country. And the Statute even includes a provision under which non-members, crimes on their territory or by their nationals can be prosecuted by the ICC (this involves the Security Council). The provision has been used to start an investigation of the genocide happening in Darfur. Before that ad hoc tribunals have been set up to deal with the mentioned crimes in Ex-Yugoslavia and Ruanda.
All these rules and actions have been put under the proviso that the state in question can’t provide for the due handling of the criminal prosecution of the crimes itself. This proviso is reflected in the subsidarity clause of § 153c and f of the German Criminal Procedural Code. It is expression of the recognition of the preponderance of state sovereignty.
In the consequence one has to admit that the arguments exhibited wont work anymore that well since the Rome Statute became effective. And so it is that the pending cases and already announced new cases rather sound like politically driven show cases to stigmatize an opponent or enemy. Those filing the actions, even though they might act with the best intentions, play on the firm belief of the majority in the constitutional institutions of the democratic world to the advantage of the few who think themselves outside and above of any legal system (in the case I am talking about I mean those of Hamas involved in terroristic acts and the utilization of the population of Gaza).
This is by far not in the range of the spirit and purpose of the Rome Statute, any national criminal law applying international law or the principle of universal jurisdiction. There political interests prevail, the system of global justice turns into a system of global revenge and any case conducted in this spirit is not any better than the mock trials of my summer camp time.
Tags: Der Spiegel, Feldzug der Anwaelte, former GDR, Gaza, Israel, Juliane von Mittelstaedt, law, mock trials, Palestine, political show cases, politics, Rome Statute of the International Criminal Court, Spain, summer camp, Universal Jurisdiction
