The Prosecutor v. Maksim Sokolovic

Court	Federal Supreme Court (Bundesgerichtshof), Germany, Germany
Case number	3 StR 372/00, 3 StR 244/00
Decision title	Beschluss & Urteil
Decision date	21 February 2001
Parties	Maksim Sokolovic The Prosecutor
Categories	Genocide, Torture, War crimes
Keywords	aiding and abetting, complicity, genocide, torture, universal jurisdiction, war crimes
Links	Urteil (Judgment) Beschluss (Decision)

Summary

During the armed conflict in the former Yugoslavia, Maksim Sokolovic was part of a paramilitary group that operated near Osmaci, northeast of Sarajevo. On 27 and 28 May 1992, Sokolovic participated in Serbian military actions against the Muslim population of Osmaci that were part of the Bosnian Serb joint policy of ethnic-cultural unification. Sokolovic, who knew and approved of this goal, personally oversaw the displacement of the inhabitants of Osmaci, and also severely physically abused five prisoners. Sokolovic had been a resident of Germany for twenty years and received a pension from the German government.

Higher Regional Court in Germany had sentenced Sokolovic to nine years’ imprisonment. The Federal Supreme Court rejected Sokolovic’s appeal to this sentence and held that the application of the principle of universal jurisdiction was justified in cases of genocide and grave war crimes, as German courts have the obligation to prosecute such crimes.

Regarding the issue whether it is necessary in such cases to demonstrate a link with Germany for legal action to be taken, the Court held that it is not necessary to demonstrate such a link in cases where the competence of the German courts is based on an international treaty Germany is bound by that makes it mandatory that Germany start legal proceedings. In this particular case, there was a domestic link, as Sokolovic had been living in Germany for 20 years and was receiving a German pension.

The court confirmed Sokolovic’ sentence of nine years in prison for aiding and abetting genocide together with aiding and abetting wrongful imprisonment in 56 cases and causing severe bodily harm in five cases.

Procedural history

On 29 November 1999, the Higher Regional Court at Düsseldorf convicted Maksim Sokolovic for five counts of inflicting physical injuries to Muslim civilians and 56 counts of unlawfully detaining Muslim civilians. It also held that this conduct qualified as aiding genocide. Sokolovic was sentenced to nine years in prison.

Legally relevant facts

During the armed conflict in the former Yugoslavia, Maksim Sokolovic was part of a paramilitary group that operated near Osmaci, 45 miles northeast of Sarajevo.

On 27 and 28 May 1992, Sokolovic participated in Serbian military actions against the Muslim population of Osmaci and its surroundings (Urteil, p. 4).

During these actions, houses of Muslims were ransacked, women and children forcibly transferred and men physically abused, killed or taken away to prison camps (Urteil, p. 4). These actions were part of the Bosnian Serb joint policy of ethnic-cultural unification. Sokolovic, who knew and approved of this goal, personally oversaw the displacement of the inhabitants of Osmaci, and also, personally severely physically abused five prisoners (Urteil, p.5).

Sokolovic had been a resident of Germany for twenty years and received a pension from the German government.

Core legal questions

Did the German Court have jurisdiction to try a non-national for war crimes and genocide that did not occur on its territory?

Specific legal rules and provisions

Articles 4, 146 and 147 of the Fourth Geneva Convention 1949.
Article VI of the Convention on the Prevention and Punishment of Genocide.
Articles 6 and Art. 220(a) of the German Penal Code (Strafgesetzbuch).

Court's holding and analysis

The Federal Supreme Court held that the application of the principle of universal jurisdiction was justified in cases of genocide and grave breaches of the Fourth Geneva Convention of 1949. According to the findings of the Court, the duty to prosecute unlawful detention derives from the Fourth Geneva Convention of 1949. German courts have the obligation to prosecute such crimes if an international armed conflict occurs and the relevant crimes constitute a grave breach in the meaning of Article 147 of the Fourth Geneva Convention. The court held that German courts had jurisdiction for genocide under Section 6 No. 1 of the Criminal Code and for the crime of deprivation of liberty in Section 6 No. 9 of the Criminal Code (Urteil, p. 8-9).

With regard to genocide, the Court recalled that the attempt to destroy a group or parts of a group need not be successful to be a crime of genocide (Urteil, p. 5-6). It also agreed with the characterisation of the conflict as international and the Düsseldorf Higher Regional Court's broad interpretation of the definition of "protected persons" contained in the Fourth Geneva Convention (Urteil, p. 13).

The question was posed whether it was necessary in such cases to demonstrate a link with Germany for legal action to be taken. The Federal Court of Justice tentatively held that it is not necessary to demonstrate such a link in cases where the competence of the German courts is based on an international treaty which is binding on Germany and which obliges it to start legal proceedings (Art. 6(9) of the German Penal Code).

In the case at hand, there was a domestic link, as Sokolovic had resided in Germany for 20 years and was drawing a German pension.