Why charge Saudi crown prince MBS in Germany?

Germany's Code of Crimes Against International Law (VStGB), which became law in 2002, includes in its definition of crimes against humanity acts committed "as part of a widespread or systematic attack directed against any civilian population."

After spending a year talking to witnesses and experts and collecting evidence, Reporters Without Borders (RSF) has filed a complaint of over 300 pages with the German Office of the Federal Prosecutor accusing Crown Prince Mohamed bin Salman (MBS) and several high-ranking members of the Saudi government of crimes against humanity.

The brutal murder of the journalist Jamal Khashoggi at the Saudi consulate in Istanbul in 2018 is just one of the more extreme examples in a country where the persecution of journalists is reported to be systematic.

RSF’s complaint cites the arbitrary detention of 34 journalists, including the blogger Raif Badawi, who had criticized the role of religion in Saudi Arabia and ultimately received a sentence of 10 years in prison and 1,000 lashes. In 2015, DW awarded him its Freedom of Speech Award.

Saudi Arabia ranked 170 out of 180 countries in RSF’s 2020 World Press Freedom Index.

‘Widespread or systematic’

Germany’s Code of Crimes Against International Law (VStGB), which became law in 2002, includes in its definition of crimes against humanity acts committed “as part of a widespread or systematic attack directed against any civilian population.” The principle of universal jurisdiction is enshrined in Article 1, allowing German prosecutors and courts to prosecute crimes that were not committed in Germany and were not committed by or against Germans.

The more common venue for trying crimes against humanity would be the International Criminal Court in The Hague. But Saudi Arabia has neither signed nor ratified the international agreement that would make it a part of the ICC.

In theory, the ICC could still play a role, but only if the UN Security Council were to refer the case. However, this might not be possible for political reasons. Russia, for example, has vetoed attempts for such referrals with regards to alleged war crimes in Syria.

“Far too often, these crimes remain unpunished,” German Foreign Minister Heiko Maas said in a speech in October. “This is partly because three permanent members of the Security Council — the US, China and Russia — still do not recognize the International Criminal Court.”

He noted that the US government had even “taken the step of imposing sanctions on representatives of the International Criminal Court.”

Will Germany prosecute?

Most of the cases before Germany’s Central Unit for the Fight against War Crimes concern the war in Syria and the so-called “Islamic State.” Last week, a German court convicted a former employee of the Syrian secret service of crimes against humanity.

But Wolfgang Kaleck, the director of the Berlin-based NGO European Center for Constitutional and Human Rights, said it remained to be seen what the Office of the Federal Prosecutor would do.

“It has repeatedly made clear that it cannot, of course, investigate all serious cases of human rights violations, where violations of international criminal law are in question,” Kaleck said.

Kaleck said the hurdles of international criminal law were high. Single crimes are not investigated, not even a murder as brutal as Jamal Khashoggi’s. It is only when “systematic and widespread” attacks on entire groups of people can be proven that the first hurdle is passed.

Reporters Without Borders’ argument is that Saudi journalists are being persecuted as a group for their work and that their persecution is systematic because it is part of government policy to stop the media from voicing any criticism. It is “widespread” because of the high number of detained journalists.

German-Saudi relations

Kaleck said diplomatic sensitivities would play a role.

“There are different standards when it’s a question of powerful perpetrators of human rights violations,” he said. “Saudi Arabia is, of course, one of the most powerful economies in the world. People walk on eggshells when it comes to the Saudi royal family.”

It is a coincidence that the RSF complaint was filed just after a CIA report on the murder of Khashoggi was published. But Kaleck said that the change of wind in Washington could have an impact in Germany too: “If the US is willing to speak so openly about this issue, then the Public Prosecutor General might get involved.”

The Office of the Federal Prosecutor has confirmed that the complaint was filed. Germany’s judiciary would send out a strong message by choosing to take the case.

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