National Implementation of IHL
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Nikola Jorgic case, Higher Regional Court at Dusseldorf, 26 September 1997
Higher Regional Court at Dusseldorf (Oberlandesgericht Düsseldorf) (;ast accessed on 16.09.2013

The accused, a Bosnian Serb, was sentenced to life imprisonment. He was found guilty of genocide in eleven cases, in conjunction with several cases of dangerous bodily harm, deprivation of liberty and/or murder. He acted as an accessory to those crimes.

In respect of genocide, the Court refers to the possibility for German courts to judge non-German citizens for acts committed abroad on the basis of Article 6, No. 1 of the German Penal Code, and recalls the two additional requirements introduced by the investigating judge of the Federal Supreme Court in the Tadic case (13 February 1994)
. In the present case, the prosecution acted in line with the overall humanitarian and military involvement of Germany in Bosnia, together with other States and on behalf of the United Nations. Moreover, the link with Germany might also be established through the person of the accused. As his place of abode was in Germany from 1969 to at least the beginning of 1992, as he was still registered at Bochum when arrested and still had his wife and daughter living in Germany at that time, his permanent place of residence could still be considered as being on German territory. In addition, he was arrested in Germany. Referring to the generally accepted non-exclusive interpretation of Art. 6 of the 1948 Genocide Convention and to Article 9 (1) of the Statute of the International Criminal Tribunal for Former Yugoslavia, the Court also found that no prohibition to prosecute is to be derived from international law.

With regard to the concomitant crimes (murder, deprivation of liberty and dangerous bodily harm), the Court based its competence on Article 6, No. 9 of the German Penal Code. The obligation to prosecute, to which this provision refers, is here to be found in the Fourth Geneva Convention of 12 August 1949 and its provisions related to grave breaches (protection of civilians). Laying stress on the different links that existed between the Bosnian Serb Army, the paramilitary groups and the Yugoslav National Army, the Court considered the conflict to be an international one in June 1992 (with a reference to GCIV Art. 2). It then qualified the victims as "protected persons" in the sense of GCIV, Article 4.

Applying the relevant provisions of the German Penal Code to the facts, the Court concluded that the accused was guilty of having, with the intention to commit genocide, "killed members of the group" (Art. 220 a (1), No. 1) in three cases and, in the eight other cases, of having subjected members of this group to "conditions of life likely to bring about its physical destruction in whole or in part" (Art. 220 a (1), No. 3). Despite the clear common denominator of genocide, the Court ruled that the 11 cases should be considered as separate cases, as all of them implied separate determinations of intent and could be clearly distinguished from one another.

The Court also found the accused guilty of several concomitant crimes. Dangerous bodily harm (Penal Code, Art. 223) was recognized in six cases, deprivation of liberty (Art. 239) in five cases and murder (Art. 211) in three cases.

No elements of justification or exclusion of responsibility could be envisaged. According to Article 220 a, acts of genocide implying the killing of members of the group are to be sanctioned with life imprisonment. The penalty attributed to the commission of other acts of genocide can be reduced to a minimum of 5 years of imprisonment depending on the circumstances. In the present case, such other acts, taken individually, led to penalties ranging from 7 to 9 years of imprisonment, except for one case that was considered too serious to allow a reduction of the standard penalty of life imprisonment. The Court handed down an overall sentence of life imprisonment, adding a mention of gravity to the guilt.

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application/pdf 8,042 KB Jorgic case - Decision of 26 September 1997[in German].pdf