The Prosecutor v. Nikola Jorgić

Court	Federal Constitutional Court, 4th Chamber of the Second Senate, Germany
Case number	2 BvR 1290/99
Decision title	Order
Decision date	12 December 2000
Parties	The Prosecutor Nikola Jorgić
Categories	Genocide
Keywords	Genocide; universal jurisdiction; fair trial; principle of legality; former Yugoslavia; Grabska; Sevarlije
Links	Urteil /Judgment (in German)
Other countries involved	Bosnia and Herzegovina

Summary

Nikola Jorgić was born in 1946 in the Doboj region in northern Bosnia and Herzegovina. He was leader of a Serb paramilitary group in the Doboj region that committed various crimes against the Muslim population residing there. Jorgić was allegedly responsible for the killing of 22 villagers in Grabska (involving elderly and disabled) and seven villagers in Sevarlije. In addition, he allegedly arrested Muslims, and subsequently detained and abused them in detention camps. Jorgić was found guilty of 14 counts of acting as accomplice to murder and attempted murder. Jorgić was sentenced to life imprisonment.

It was the first war crimes trial that took place in Germany since the final judgment issued by the Nuremberg tribunal that dealt with Nazi war criminals more than 50 years ago.

Procedural history

On 16 December 1995, Nikola Jorgić, Bosnian Serb and former leader of a Serb paramilitary group, was arrested when entering Germany.

On 26 September 1997, Jorgić was found guilty by the Düsseldorf Higher Regional Court (Oberlandesgericht) on eleven counts of genocide (pursuant to Section 220a(1), numbers 1 and 3 of the German Criminal Code) and sentenced to life imprisonment.

On 30 April 1999, the Federal Court of Justice (Bundesgerichtshof) upheld the conviction. It confirmed that German courts had jurisdiction on the basis of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and on account of the fact that Jorgić had been residing in Germany for a long time, meaning that there were sufficient links with the country.

Jorgić filed a constitutional complaint, asking for the interpretation of Articles 2 and 6 of the Genocide Convention and of Section 220a of the German Criminal Code (Strafgesetzbuch/StGB).

Related developments

On 23 May 2001, Jorgić brought a complaint before the European Court of Human Rights (ECtHR) in Strasbourg. He claimed that his right to a fair trial, liberty and security, and the principle of legality were violated by the German courts.

In particular, Jorgić claimed that the German courts lacked jurisdiction and that his conviction was in violation of the principle of legality because the German courts’ wide interpretation of the crime of genocide had no basis in German or public international law.

On 12 July 2007, the ECtHR unanimously declared that no violation had been committed.

Legally relevant facts

In 1992, Jorgić was a leader of a paramilitary group located in the Doboj region in the north of Bosnia and Herzegovina. In that capacity, Jorgić took part in the ‘ethnic cleansing’ campaign carried out by the Bosnian Serbs against the Muslim population. Jorgić, inter alia, took part in the massacre at the village of Grabska where 22 civilians (including elderly and disabled) were executed, and in the killing of seven inhabitants of the village of Sevarlije.

Jorgić was permanently residing in Germany from May 1969 until the beginning of 1992.

Core legal questions

Did the Higher Regional Court and the Federal Court of Justice incorrectly interpret the ‘intent to destroy’ requirement for the offence of genocide?

Specific legal rules and provisions

Basic Law for the Federal Republic of Germany (Grundgesetz, GG), 1949:

Article 20(3) - Basic institutional principles; defense of the constitutional order
Article 28(1) - Federal guarantee of Land constitutions and of local self-government
Article 103(2) - Hearing in accordance with law; ban on retroactive criminal laws and on multiple punishment

Convention on the Prevention and Punishment of the Crime of Genocide, 1948:

Article 2 - Definition of genocide
Article 6 - Competent tribunal

Federal Constitutional Court Act, 1951, Germany:

Section 93a(2) - Constitutional complaint

Draft Code of Crimes Against the Peace and Security of Mankind, 1966, International Law Commission:

Article 2 - Individual responsibility

International Covenant on Civil and Political Rights, 1966, UN General Assembly:

Article 15 - Principle of legality

Vienna Convention on the Law of Treaties, 1969, UN General Assembly:

Article 31 - General rule of interpretation
Article 32 - Supplementary means of interpretation

Statute of the International Criminal Tribunal for the former Yugoslavia, 1993, UN Security Council:

Article 4 - Genocide

German Criminal Code, 1998:

Section 6(1) - Acts Abroad Against Internationally Protected Legal Interests
Section 220a - Genocide

Court's holding and analysis

On 12 December 2000, the Constitutional Court (Bundesverfassungsgericht) rejected Jorgić’s final appeal against the judgment of the Federal Court of Justice. The Court held that the requirements for admission of such a complaint were not met (para. 3).

First, the Court dismissed Jorgić’s claim that the Higher Regional Court and the Federal Court of Justice incorrectly interpreted the concept of ‘intent to destroy’ (para. 4). It held that the courts correctly found that the concept had ‘a broader meaning than physical-biological annihilation’ and included ‘the annihilation of a group as a social unit with its special qualities, uniqueness and its feeling of togetherness, not exclusively their physical-biological annihilation’ (paras. 5 and 7). Furthermore, the Court confirmed that in order to prove the intent to destroy, the perpetrator must ‘above all personally or through others want to employ’ the actions (para. 5). Moreover, as regards Jorgić’s argument that the courts equated expulsion with annihilation, the Court held that ‘systematic expulsions can be a means of carrying out the intent to destroy a group and serves as an indication of this intent, but that expulsions alone do not establish the intent to destroy a group’ (para. 9).

The Court further stated that in interpreting the elements of the crime of genocide, the courts’ interpretations were appropriate because they took into account and conformed to the relevant jurisprudence and practice of the United Nations (para. 11).

Lastly, the Court declared that the principle of universal jurisdiction constituted a ‘sensible nexus with Germany’ necessary for the application of German law to acts committed in a foreign territory. Therefore, the German courts’ interpretation and application were legally justifiable (paras. 13-14).