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Home Posts tagged "Germany"

“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

Published on October 2, 2019        Author: 

“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

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Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

Published on August 13, 2018        Author:  and

In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint. Read the rest of this entry…