Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
Germany’s Military Manual (1992), referring to Article 91 of the 1977 Additional Protocol I and Article 3 of the 1907 Hague Convention (IV), provides: “A party to a conflict which does not comply with the provisions of international humanitarian law … shall be responsible for all acts committed by persons forming part of its armed forces.”
In its judgment in the Reparation Payments case
in 1963 relating to claims for compensation for slave labour during the Second World War, Germany’s Federal Supreme Court held that no decision could be reached on the merits of the claim until there was a final reparations agreement between the plaintiff’s government and Germany, as it found that the London Agreement on German External Debts of 27 February 1953 had postponed the question of indemnification of individuals to when the issue of reparations more generally had been settled.
In the Distomo case
in 2003, Germany’s Federal Court of Justice stated that the responsibility of States for internationally wrongful acts committed during hostilities “comprises liability for the acts of all persons belonging to the armed forces, and this not only in case these persons commit acts falling within their sphere of competence, but also in case they act without or against orders”.
In the Distomo case in 2006, Germany’s Federal Constitutional Court held:
The constitutional complaint is not accepted for decision.
The constitutional complaint concerns the question of the liability of the Federal Republic of Germany to pay damages and compensate for “reprisals” taken by members of the German armed forces during the occupation of Greece in World War II.
1. The complainants are Greek nationals. On 10 June 1944, their parents were shot in the course of a “reprisal action” against the inhabitants of the Greek locality Distomo by members of an SS unit incorporated in the German occupation forces, after previously an armed confrontation with partisans had taken place. The soldiers in total killed between 200 and 300 of the approximately 1800 inhabitants – not involved in the partisan fightings – of the village. Among the victims were mainly elderly persons, women, children and infants. The village was burnt down. The complainants, minors at the time, survived only due to the fortunate circumstance that a German soldier had signalled them to hide …
2. In September 1995, the complainants brought an action before the Regional Court. They sought the declaration that the Federal Republic of Germany was under the obligation to compensate them for the material damage they had suffered as a result of the operation of the SS unit in Distomo on 10 June 1944. The Regional Court, like the Higher Regional Court seized as court of appeal, dismissed the action. The complainants’ appeal on points of law [Revision] before the Federal Court of Justice, allowed by the Higher Regional Court, was also unsuccessful. By contrast, in parallel proceedings in Greece, in which, amongst others, the complainants participated, the competent Regional Court Levadeia had decided in October 1997 that the compensation claims based on the same facts were well founded.
2. The constitutional complaint has no prospect of success on the merits. The challenged decisions do not violate the claimants’ Basic Rights.
There are no objections under constitutional law to the Federal Court of Justice’s refusal to be bound by the judgement of the Greek Regional Court Livadeia of 30 October 1997. According to applicable international law, a State can demand exemption from another State’s jurisdiction if and to the extent that the assessment of its sovereign acts – so called acta iure imperii
– is concerned … Since the SS unit involved in the events in Distomo was incorporated into the armed forces of the German Reich, the assaults are to be classified as sovereign acts, irrespective of the question of their unlawfulness under international law. The Federal Court of Justice therefore correctly held that it was not bound by the judgement of the Greek Regional Court.
In 2004, in the East German Expropriation case, Germany’s Federal Constitutional Court held:
The state governed by the Basic Law has a duty to guarantee on its territory the integrity of the elementary principles of public international law, and, in the case of violations of public international law, to create a situation that is closer to the requirements of public international law in accordance with its responsibility and within the scope of its possibilities of action. However, this does not create a duty to return the property that was seized without compensation outside the state’s sphere of responsibility in the period between 1945 and 1949.
1. a) The German state bodies, under Article 20.3 of the Basic Law, are bound by public international law, which claims domestic validity as the law of international agreements under Article 59.2 of the Basic Law, and with its general rules, in particular as customary international law, under Article 25.1 of the Basic Law.
b) This duty to respect public international law, a duty that arises from the fact that the Basic Law is open to public international law, has three elements: firstly, the German state bodies have a duty to follow the provisions of public international law that bind the Federal Republic of Germany, and, if possible, to refrain from violating them. … Secondly, the legislature must guarantee for the German legal system that violations of public international law committed by its own state bodies can be corrected. Thirdly, the German state bodies – subject to conditions which will not be set out in more detail here – may also have a duty to assert public international law in their own area of responsibility if other states violate it.
2. In the cases to be decided, there is no violation of this duty of respect by German state bodies. The expropriations were the responsibility of the Soviet occupying power (a). On German unification, the Federal Republic of Germany attained the sovereign competence to decide on the reversal of the measures on the basis of sovereign acts by occupying powers. Public international law does not require the Federal Republic of Germany to make restitution. Nor did it have a duty to attach the legal consequence of voidness to the expropriations. The Federal Republic of Germany had merely a duty of cooperation with regard to the consequences (b). It fulfilled this duty by bringing about German unification peacefully by way of negotiations. Only by doing this did it achieve the de facto possibility to correct the situation, which was determined by history. The Federal Republic of Germany was allowed to come to the conclusion that dealing cooperatively with German unification would be incompatible with treating the expropriations as void (c).
(a) The expropriations on the territory of the Soviet occupation zone of Germany in the years 1945 to 1949, irrespective of whether they were occasioned directly by the Soviet occupying power or whether the German authorities installed by this occupying power had their own scope for decision in this respect, cannot be attributed to the sphere of responsibility of the state power of the Federal Republic of Germany, bound by the Basic Law (see BVerfGE 84, 90 (122–123)). Admittedly, since its foundation, the Federal Republic of Germany has seen itself as responsible for the whole of Germany in the meaning of the Preamble to the Basic Law (see BVerfGE 36, 1 (16); 77, 137 (149 ff.)). However, its state power was restricted not only in fact, but also under constitutional law, to the then territory of the Federal Republic of Germany (Article 23 sentence 1 of the Basic Law, original version). Under this Article, there was no responsibility of the Federal Republic of Germany in the sense of bearing responsibility for any measures it regarded as unlawful or unconstitutional in the Soviet-occupied zone, any more than with regard to measures taken by foreign state powers.
Instead, the Soviet occupying power, which carried out the expropriations on the basis of sovereign acts or was responsible for them by reason of the factual circumstances of control, claimed special authorisation, in order to restructure the property system in its occupation zone as planned.
There is more than one reason to suggest that the competence to structure the occupation regime is restricted by the minimum requirements of humanity laid down in the Hague Land Warfare Convention (on the application of the Land Warfare Convention as customary public international law as early as in the course of the Second World War, see International Military Court (Internationaler Militärgerichtshof), Prozess gegen die Hauptkriegsverbrecher, 14. November 1945 bis 1. October 1946, judgment, pp. 260 ff., 267 ff.; Greenwood, in: Fleck (ed.), Handbuch des humanitären Völkerrechts, 1994, no. 120). Under Articles 42 et seq. of the Land Warfare Convention, armed occupation creates a legal relationship between the occupying and the occupied state. The occupier has particular rights and duties in the occupied territory. It is true that the victorious powers, in the legal foundation documents for the exercise of government power with regard to Germany, agreed that it should be possible for the victorious power in question to intervene significantly in the political and economic life of Germany. They regarded it as their duty “to fundamentally restructure the political system, the basis of the constitution, indeed, the education system and the whole economic and social structure of Germany” (see Part III.a § 3, 7, 9 and 11 et seq. of the Potsdam Agreement …)
However, the humanitarian core of the Land Warfare Convention, which consists of the principles of humanity in the meaning of the Martens clause of the Preamble to the Hague Land Warfare Convention … was binding even at the time of the occupation. The Martens clause was confirmed as follows in Article 1.2 of Protocol I Additional to the Geneva Conventions:
In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
It cannot be excluded that – as the complainants believe – acts of the Soviet occupying power were inconsistent with elementary principles of law, because, without differentiation as to individual responsibility, they were directed against a group of persons called the “class enemy” and aimed at its economical or even physical destruction.
However, it is not necessary to decide here the precise position of the boundaries of competence to structure the occupation regime and whether in this specific case they were exceeded.
b) On German unification, the Federal Republic of Germany attained the sovereign competence to decide on the continuation of the measures on the basis of sovereign acts by occupying powers (aa). Public international law did not impose on the Federal Republic of Germany a duty to make restitution (bb). The Federal Republic of Germany was subject only to a duty of cooperation with regard to the consequences, in order to achieve a situation closer to public international law (cc).
aa) After the end of an armed occupation of its territory or of a part of its territory, the returning sovereign power may decide freely on the continuation of measures on the basis of sovereign acts by occupying powers and may in particular treat expropriations as void … In the case of the expropriations on the basis of sovereign acts by occupying powers in the Soviet occupation zone, this sovereign is the Federal Republic of Germany.
A measure undertaken before 7 October 1949 – the date of foundation of the German Democratic Republic – on the basis of sovereign acts by occupying powers did not lose its character as the result of an official or judicial confirmation that occurred after this date (see the official parliamentary background materials to the annexes to the Unification Treaty of 31 August 1990, Bundestag document 11/7831, pp. 3–4). The fact that the German Democratic Republic in turn accepted the expropriations as its own will does not alter this. On the foundation of the German Democratic Republic, another sovereign in the meaning of public international law had moved into the territory of the German Reich (legally) vacated by the Soviet occupying power (see BVerfGE 92, 277 (320)). From the point of view of public international law, the German Democratic Republic, as a third-party state, on the basis of its territorial sovereignty and under its contractual obligations, reverse measures of the occupying power, but it waived the right to do so. After the end of the German Democratic Republic, the Federal Republic of Germany as the following sovereign over this territory was able to make such a correction.
bb) The Federal Republic of Germany is subject to no duty derived from public international law to make restitution to the persons affected by the expropriations. In connection with the Two-Plus-Four Talks, it impliedly and admissibly waived the right to any claims it had to damages under public international law (1). There are no rules of mandatory public international law preventing this (2).
(1) Between the German Reich and the Soviet Union, the states that were succeeded by the Federal Republic of Germany and the Russian Federation, there was a state of war under international law … The Hague Land Warfare Convention may give rise to claims on an international level, that is, between the occupying power and the returning sovereign. A party to a conflict that does not observe the provisions of Hague law is, by Article 3 of the Land Warfare Convention (see Article 91 of Protocol I Additional to the Geneva Conventions, of 1977) obliged to pay damages. This provision corresponds to the principle under customary international law that the violation of its duties under public international law makes a state responsible (see too Article 1 of the ILC [A]rticle[s] on the [R]esponsibility of [S]tates). This right to damages under secondary law, however, exists only in the public-international-law relationship between the states involved and is subject to their disposition. In this respect, the claim to damages differs from the claim under primary law of the persons involved that the prohibitions of humanitarian public international law are observed; this claim exists in the public-international-law relationship between the state occupying a territory and the population living in this territory.
In the Two-Plus-Four Talks, the Federal Republic of Germany impliedly waived any claims under the Hague Land Warfare Convention. By the wording of the Land Warfare Convention and the practice of the states, the Federal Republic of Germany was not obliged to assert such claims towards the former occupying power.
It is not in contradiction to this that each of the four Geneva Conventions of the year 1949 contains a provision depriving the states that are parties the right to release themselves or another from the responsibility for “serious violations” of public international law (Article 51 of the First Geneva Convention, Article 52 of the Second Geneva Convention, Article 131 of the Third Geneva Convention and Article 148 of the Fourth Geneva Convention). When these provisions were created, the creators believed that they had found in them an efficient means of enforcing the Hague law. In the practice of the law of war, however, this principle has not yet succeeded in establishing itself. Instead, as a rule the victor demands the payment of compensation from the conquered (reparations), although there was no unambiguous agreement to base this on violations of the law of war, and above all without the victor paying damages for the violations of law committed by itself. It cannot be concluded from the provisions of the Geneva Convention that the states are forbidden to waive claims under the Hague Land Warfare Convention in connection with entering into a peace treaty.
Any claims of the individuals protected by the Land Warfare Convention are burdened in advance by this authorisation of the occupying power and the sovereign to legislate and to waive, and they are also restricted by it.
cc) Modern public international law is characterised by a continuous increase in the severity of the legal consequences which it attaches to the violation of particular central norms; the states are increasingly subjected to a duty to terminate and remove grave violations of peremptory international law.
The ILC Articles contain a Chapter III, dealing separately with a duty to act on the part of third-party states (Articles 40 et seq.), but this treats only serious violations of peremptory international law. A breach is serious if it is gross or systematic in nature (Article 40.2). The states must cooperate in order to bring an end to any such breach (Article 41.1). In addition, no state may recognise as lawful a situation created by such a breach or render aid or assistance in maintaining it (Article 41.2).
However, these provisions do not give rise to the legal consequence that the expropriations on the basis of sovereign acts by occupying powers – assuming they violated mandatory international law – are to be treated as void. Instead, the legal consequence of voidness is laid down only to the extent that duties under treaties are directed precisely to performance that is prohibited by a peremptory norm. Apart from this, however, and all the more so if a factually established situation and differing political interests are involved, the states have merely a duty to cooperate with regard to the consequences. Behind this duty of cooperation is the consideration that it is urgently necessary to create a situation that, while safeguarding the interests on both sides, does actually mitigate the breach of peremptory law as far as possible.
c) The Federal Republic of Germany satisfied this duty to cooperate with regard to the consequences by bringing about reunification by way of peaceful negotiations. Only in this way did it create the de facto possibility, if not of undoing the situation created from 1945 to 1949, yet of substantially correcting it, and at all events of softening its actual effects. In this connection, the Federal Government was permitted to come to the conclusion that managing reunification cooperatively would be incompatible with treating the expropriations as void.
The interpretation of the law expressed in the decisions challenged with regard to the dual nationality of the predecessor in title of the second complainant is unobjectionable from the point of view of constitutional law. In particular, there can be no objection, with regard to Article 3 of the Basic Law, to the opinion that the prohibition on expropriation of foreign assets pronounced by the Soviet occupying power does not apply to persons who had not only foreign but also German citizenship.
1. An expropriation on the basis of sovereign acts by occupying powers is a measure that was formally undertaken on the basis of statutes, delegated legislation and other acts of state by German agencies, but which was carried out at the suggestion or wish of the occupying power or with its consent. This applies above all to the expropriations in connection with the land reform and the expropriations carried out following SMAD Order no. 124 of 30 October 1945, which were expressly confirmed by SMAD Order no. 64 of 17 April 1948 – in which the highest chief of the SMAD ordered the termination of the sequestration proceedings in the Soviet Occupation Zone (see BVerfGE 84, 90 (113)).
It is not significant whether the expropriations were formally based on legal acts of the occupying power or of the German authorities established by that power. What is decisive, instead, is whether the measure was not merely accepted by the Soviet occupying power, but also coincided with its declared intention (see BVerfGE 84, 90 (114)), or whether the occupying power as a non-German state authority still had the highest sovereignty at the time of the expropriation (see BVerfGE 94, 12 (31)). In particular, expropriations in connection with the land reform are therefore to be regarded as being “on the basis of sovereign acts by occupying powers”. The only acts of expropriation that are to be regarded as German orders are those which lacked the decisive elements making them attributable to the occupying power, for example because the occupying power had expressly prohibited the expropriations by reason of their character or in the individual case. Only a distinction on this basis between Allied decisions – whether under occupation law or on the basis of sovereign acts by occupying powers – and German orders does justice to the legal reality in the Soviet occupation zone (see BVerfGE 94, 12 (32)).
2. This conclusion is also unobjectionable from the point of view of public international law. In the law of state responsibility, it is recognised that acts of the bodies of a state give rise to the responsibility of another state if they can be attributed to the latter (see Article 18 of the ILC Articles on [S]tate [R]esponsibility, loc. cit.). Accordingly there are no objections to attributing the expropriations under public international law to the Soviet Union, in view of its overall responsibility as occupying power and its formative influence on the events.