Professor Risse,  Students,  Ladies and gentlemen!

My grandfather was a soldier in the Second World War. He  endured the horrors of the Eastern Front, and was held in a  prisoner-of-war camp. But in the end he returned home. And for  years after that, he never set foot in a church again. He had  seen too many terrible things, and was tormented by the  question: How could God allow such hell on Earth? How could  He allow such war crimes to happen?

But in time, he understood that we cannot blame God when  people commit the worst crimes against their fellow man.  It is our responsibility to prevent crimes, or to punish them.

And in Germany, in light of our country’s historic crimes under  the Nazi regime, we feel we Germans have a particular  responsibility as a nation.

For me, that responsibility means in concrete terms: War  criminals must not feel safe anywhere in the world, least of all in  Germany.

Yet that gives neither me nor us Germans the right to lecture  anybody else. Especially not here in the USA. We Germans  have learnt crucial lessons about democracy, human rights and  the punishment of war crimes, from the USA.

I. The USA, Germany, and the development of  international law

I am sure you will be familiar with the following words:

“The privilege of opening the first trial in history for crimes  against the peace of the world imposes a grave responsibility.  The wrongs which we seek to condemn and punish have been  so calculated, so malignant, and so devastating, that civilization  cannot tolerate their being ignored, because it cannot survive  their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and  voluntarily submit their captive enemies to the judgment of the  law is one of the most significant tributes that Power has ever  paid to Reason.”

These were the moving and now famous first sentences of the  Opening Statement at the Nuremberg Trials by Robert H.  Jackson, Chief of Counsel for the United States, on November  21, 1945.

The first trial against the main war criminals made it clear, once  and for all, that one assumption was no longer valid:  Inter arma silent leges – In times of war, the law falls silent.

From that point onwards, all would see that: Even in times of  war, the law will still make itself heard.

The world owes a great deal to the USA for this advancement  of civilization.

Yet in the endeavours throughout history to civilize war through  the law, there was also an important contribution from a  German national, whom you may not be familiar with:

In 1827, a young German man emigrated to the United States.  As a soldier in the Prussian army, he had fought against  Napoleon and had been imprisoned several times for his liberal views, including an open hostility toward the Prussian crown.  He was an intellectual and a writer, and associated with the  likes of Jeremy Bentham, Alexis de Tocqueville and John Stuart  Mill. Franz Lieber, or Francis Lieber as he would become known here in the States, was the first American professor of  political science at Columbia University, a subject which he had  helped define and establish.

When the Civil War broke out, he was concerned primarily with  the question of how each side should treat the other. Though he  sided with the Union, he nevertheless made the bold argument  that Confederate prisoners should be treated not as traitors but  as combatants, and thus in accordance with the customary laws  of war.

And in 1862, he wrote to Henry Halleck, General-in-Chief of the  Union army, offering to draft a code of conduct that should  apply to Union soldiers. The resulting code, issued by President  Lincoln the following year as General Orders No. 100, was a  key document on the path to codifying modern martial law.  Much of what has been adopted since, such as the Geneva  Conventions, is based on this “Lieber Code”.

But it remained a long path, lined with countless millions of  deaths.

It remained a long path – from inter arma silent leges, to the  principle: Even in times of war, the law will still make itself  heard.

II. The international criminal courts since the 1990s

Great strides along this path of international criminal law have  been taken since in the form of: the United Nations Charter  after the Second World War, with its universal prohibition on the  use of force; then in the 1990s and subsequently, the  International Criminal Tribunals for the former Yugoslavia and  for Rwanda; and finally, in 2002, the establishment of the  International Criminal Court in The Hague.

In a trial before the International Criminal Tribunal for Rwanda  in 1998, the former Rwandan Prime Minister Jean Kambanda  was the first head of government to be found guilty since the  Nuremberg Trials. Other high-profile convictions would follow,  including that of the army chief at the time.

Still today, many victims of the crimes committed in Rwanda  continue to hope for justice.  Only three weeks ago [on September 29, 2022], one of the  masterminds and the alleged financial backer of the genocide,  Felicien Kabuga, was brought on trial in The Hague. 87-year-old Kabuga was for a long time one of the most wanted men in  the world, having managed to evade prosecution for 26 years.  He lived undetected in Germany, Belgium and Switzerland,  among other places. Two years ago, he was finally arrested  near Paris.

In Germany, we too are also still conducting trials today against  now very old perpetrators who aided crimes against humanity  under the Nazi regime, who assisted in the concentration  camps or in the bureaucracy of murder.

This is not uncontroversial, but we believe it is the right thing to  do, whenever we are able to track down these perpetrators.  We have to show that justice prevails, and that there are  institutions whose task it is to protect people's rights.

I would like to recall here the case of John Demjanjuk.  Demjanjuk was a member of the SS auxiliary forces, which  provided personnel to operate the concentration camps. In  1952, Demjanjuk moved permanently to the USA. From there,  he was extradited in 1986 to Israel, where he was first  sentenced to death – but then later acquitted due to mistaken  identity. He then returned to the USA. However, in 2009, he  was extradited once again, this time to Germany, and was tried  there for his role at the Sobibor death camp. He was sentenced  in 2011 to five years’ imprisonment for accessory to the murder  of 28,060 people. However, this judgment did not become final and binding: Demjanjuk died before a decision was made on  the appeals filed by him and by the prosecution.

Assisting in such crimes must not go unpunished.  This is vital for a fundamental trust in law and justice.  And effective prosecution can also contribute to a more  peaceful coexistence in future among the people affected by  these crimes.  But in a liberal order, this may only be done through means that  satisfy the strict principles of the rule of law. If not, we lower  ourselves to the level of the regimes in which these perpetrators  operated.

Instead, we try each case and adjudicate in accordance with  the law – the very law that these defendants hold in contempt.  We grant them their due rights – the same rights they  themselves systematically denied others.

In a state governed by the rule of law, they retain their dignity  as a person – the same dignity they deprived their victims of.

Indeed, this was already the case at the time of the Nuremberg  Trials; the prosecution made this commitment to the law very  clear.

The International Criminal Court in The Hague, which has  combined all these efforts to enforce international criminal law  since 2002, has jurisdiction over genocide, crimes against  humanity, war crimes and – for some years now – the crime of  aggression.

However, some large and important countries are yet to add  their signature to the Court's founding treaty – the United  States, China, Russia, and India too.

The Court's first ruling was handed down in 2012: against the  Congolese rebel leader, Thomas Lubanga.

All 31 cases since then, as listed by the Court, have involved  conflicts in Africa.

There is understandable criticism of this imbalance – as well as  of other deficits:  The Rwanda Tribunal, for example, is accused of having been  unwilling to prosecute war crimes and crimes against humanity  allegedly committed by the current ruling party, the Patriotic  Front of Rwanda.

If we consider certain standards to be universal – as I believe  we are right to do – then we must ensure we also apply them to  ourselves, and to all states no matter how strong, and even  when it is inconvenient or to our own disadvantage.

For he who divides human rights denies them altogether.

The founding idea of the International Criminal Court was "the  establishment of a permanent criminal court credibly oriented  toward universality, with the aim of affirming the validity of  elementary rules of international law in the event of their  violation, and of providing satisfaction worldwide to victims  affected by violations of those rules." (Claus Kreß)

That is the principle of universal jurisdiction under international  criminal law: It allows the prosecution of criminal offences  independently of the place of their commission and of the  nationality of both the perpetrator and the victim. Crimes  against humanity must not go unpunished: no matter where  they are committed, no matter who commits them.

However, the International Criminal Court or a third country  prosecution may only take action if the state with primary  jurisdiction – i.e. the state where the crime is committed or  where either the perpetrators or victims reside – does not take  action or does not address a problem in a serious manner.  Investigations are not conducted against states, rather against  individuals.

III. International war crimes on trial in Germany

In Germany, we now want to show that this principle of  universal jurisdiction is not just an empty promise.  War criminals must not feel safe anywhere in the world, least of  all in Germany.

We want to show that the principle of universal jurisdiction is  truly a powerful instrument.

Above all, we have managed to demonstrate this with regard to  the crimes against humanity committed by the regime in Syria,  and in respect of the genocide, crimes against humanity, and  war crimes committed in Syria and Iraq by the so-called "Islamic  State".

For these crimes, trials are being conducted in Germany on the  legal basis provided by the German Code of Crimes against  International Law. This Code has adapted German criminal law  to the rules of international criminal law, in particular to the  founding statute of the International Criminal Court.

In 2015, the first German trial of this kind came to an end at  Stuttgart Higher Regional Court, after more than four years of  proceedings. Long prison sentences were handed down against  former Rwandan militia leaders. Offenses under the Code of Crimes against International Law  are prosecuted by the German Prosecutor General at the  Federal Court of Justice. Ongoing proceedings there primarily  concern cases from Syria and Iraq, but also from Afghanistan,  the autonomous republic Chechnya, the Congo, Eritrea,  Gambia, Libya, Mali, Nigeria, Pakistan and Yemen – and now  also the war crimes committed on the territory of Ukraine.

Last year, members of the "Islamic State" were tried and  sentenced by the Higher Regional Courts of Munich, Frankfurt  and Düsseldorf for crimes under international law against the  Yazidis in Iraq. Investigation proceedings in further similar  cases are currently underway, and arrest warrants have been  obtained.

Two years ago, Koblenz Higher Regional Court initiated the  world's first proceedings against officials belonging to the Assad  regime for crimes against humanity, with the trial of two former  intelligence officers. The court sentenced the main defendant to  life in prison for his joint responsibility in the torture of more than  4,000 people and the deaths of at least 27 prisoners. Arabic  media have followed the trial with great interest. A similar trial is  currently underway at Frankfurt Higher Regional Court.

This makes Koblenz the first criminal court in the world to find,  after a detailed taking of evidence, that the systematic and widespread attack against sections of the civilian population in  Syria was the result of a plan by the government under  President Assad.

One of our supreme courts, the Federal Court of Justice, has  also recently clarified – to translate it as well as anyone possibly  can…:

“According to the general rules of international law, the  procedural obstacle of ‘functional immunity’ cannot prevent  German criminal courts from sanctioning war crimes where the  acts were committed by foreign officials of subordinate rank in  the exercise of their sovereign activity abroad to the detriment  of foreign nationals.”

To put it in a nutshell: A lieutenant in the Afghan army charged  with mistreating captured enemy combatants could not invoke  his functional immunity.

All of these proceedings are being closely observed by scholars  of international law and by the international criminal courts –  and are also having an impact in customary international law.

A further motivation for conducting these trials has come from  within society in Germany today: In the wake of the civil war in  Syria, many refugees fled to Germany.

Many of these were victims and witnesses – but in fact also  perpetrators of crimes in Syria, who were then recognized in  Germany by their victims. Refugees have also brought forms of  evidence with them. And then there have been individuals, on  the other hand, who have traveled from Germany to Syria in  order to commit crimes of the most serious nature there.

And in such cases, the same goes as I said before: War  criminals must not feel safe anywhere, least of all in Germany.

IV. Putin's War of Aggression against Ukraine and against  International Criminal Law

All that I have recounted so far was the situation up until  February 24, 2022. That date marked the beginning of Vladimir  Putin's criminal war of aggression against Ukraine – an attack  on everything that is important to us in Europe and the United  States: Freedom, justice, self-determination, and democracy.

And that is exactly what this war is designed to be – an attack  on liberal democracy itself.

This much I would like to say: I do not believe in an ‘End of  History’ – rather, I believe that in every new confrontation,  freedom will show its ability to endure, and to prevail!

In many ways, Putin has very quickly achieved precisely the  opposite of what he wanted. NATO is now as strong as he has tried to prevent it from  becoming. And as close to him as he has always claimed it  was.

Russia has violated the prohibition on the use of force, and the  condemnation has been almost universal: Firstly, in March this year, 141 states voted in favor of a corresponding UN General  Assembly resolution, with 5 votes against, and 31 abstentions.  And once again a week ago, two more states, 143, voted in favor of a further resolution.

In Germany and in Europe, the war is very close to us – you  can fly from Berlin to Kiev in a little over two hours. Since the  war began eight months ago, one million refugees from Ukraine  have registered in Germany. Of course, there is a strong public debate in Germany about  how we should help Ukraine – we wouldn’t be an open, liberal  democracy otherwise. What kind of weapons should we supply? And are we provoking an escalation in doing so?  And of course: we are now feeling the energy shortages that  Putin is using as a weapon of war against Europe, as well as  the growing economic consequences.

But overall, there is a broad consensus on supporting Ukraine;  as well as a clear understanding in society of who the  perpetrator is, and who the victim is.

In March, the Federal Prosecutor General promptly launched  investigations into crimes under international law on the territory  of Ukraine: These broad measures involve establishing facts, securing  evidentiary data, hearing witnesses, uncovering command  structures, and identifying persons involved in the war crimes.

We are currently setting up two new units at the Federal  Prosecutor General's Office in connection with the aggression  in Ukraine. After all, this is a task that will occupy us for a long  time yet. It will take many years to evaluate thousands of leads  and then make sure the evidence is available for use in court in  digital form – and for decades to come. There is no statute of  limitations for war crimes!

The Ukrainian Prosecutor General's Office itself lists on its  website more than 30,000 cases concerning war crimes in the broadest sense.

The justice system is hard at work!

The Office of the Prosecutor of the International Criminal Court  is also investigating, having been requested to do so by an  unprecedented number of States Parties.

Ukraine, although not a State Party, recognized the International Criminal Court's jurisdiction over acts committed  on Ukrainian soil in 2014.

The United States has also repeatedly welcomed these  investigations in The Hague.

I spoke this morning with my counterpart, Attorney General  Merrick B. Garland, about ways to strengthen our cooperation  in these exceptionally demanding investigations.

Yet investigations are not the only difficulty in implementing the  principle of universal jurisdiction. When it comes to the Russian  war of aggression itself, and President Putin as the person  responsible, the hands of the ICC’s Chief Prosecutor are tied.  This is because the conditions for exercising the Court's  jurisdiction over the crime of aggression are significantly stricter  than for the other three international crimes.

Prosecuting Putin for "aggression" is not an option because  Russia is not a party to the Statute of the ICC. In respect of a  state that is not a State Party to that Statute, the Court will not  exercise jurisdiction over the crime of aggression if the crime  was committed by nationals of that state, or on its territory.

A further limitation is that the Court may only exercise its  jurisdiction over the crime of aggression, even in respect of a  State Party, if the State concerned has expressly recognized  such jurisdiction.

However, what is possible would be to prosecute even Putin  himself for specific war crimes and crimes against humanity  committed in Ukraine!

V. The crimes in Ukraine will be atoned for

I am certain:  We will one day see trials for war crimes at the International  Criminal Court against the highest ranks of leadership in  Russia.

We will arrest perpetrators when they come to Europe. But we  will also call on a post-Putin Russia to extradite suspected war  criminals to The Hague.

If this war of aggression and the war crimes committed where to  go unpunished, it would be a terrible defeat for the basic idea  and validity of international law. We must do all we can to  prevent such impunity.