Practice Relating to Rule 157. Jurisdiction over War Crimes
Germany’s Criminal Procedure Code (2002), as amended, as foreseen by the Law Introducing the International Crimes Code, states with regard to acts committed outside the territorial field of application of this law:
(1) … The public prosecution office may dispense with prosecuting an offence punishable pursuant to [Article 1] paragraphs 6 to 14 of the [Law Introducing the International Crimes Code] [namely genocide, crimes against humanity and war crimes], if the accused is not present in Germany and such presence is not to be anticipated. If … the accused is a German, this shall however apply only where the offence is being prosecuted before an international court or by a state on whose territory the offence was committed or whose national was harmed by the offence.
(2) … The public prosecution office can, in particular, dispense with prosecuting an offence punishable pursuant to [Article 1] paragraphs 6 to 14 of the [Law Introducing the International Crimes Code], if
1. there is no suspicion of a German having committed such offence,
2. such offence was not committed against a German,
3. no suspect in respect of such offence is present in Germany and such presence is not to be anticipated, and
4. the offence is being prosecuted before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offence.
The same shall apply if a foreigner accused of an offence committed abroad is present in Germany but the requirements pursuant to the first sentence, numbers 2 and 4, have been fulfilled and transfer to an international court or extradition to the prosecuting state is permissible and intended.
According to Germany’s Penal Code (1998), German courts have jurisdiction to try persons accused of war crimes, even if committed on the territory of a foreign State, because of an international treaty binding on Germany.
Under the Code, German criminal law also applies to the crime of genocide when committed abroad.
Germany’s Law Introducing the International Crimes Code (2002) provides:
This Law shall apply to all criminal offences against international law designated under this Law, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.
In the Djajić case
in 1997, Germany’s Supreme Court of Bavaria based its jurisdiction on Article 6(9) of the German Penal Code, which extended the jurisdiction of German courts to acts committed abroad by non-nationals if this was provided for in an international treaty binding upon Germany. The Court referred to of the 1949 Geneva Convention IV and the grave breaches regime. It stated that Article 6(9) of the Penal Code contained an additional implicit requirement of a link to Germany. This necessary link with Germany, so as not to infringe the principle of non-intervention, was found in the fact that the accused had established his domicile in Germany and had lived in Germany for some time. The Court added that the prosecution of war criminals was “in the interest of the international community as a whole”, and not only in the particular interest of Germany. It further noted: “Article 146 [of the 1949 Geneva Convention IV], in its paragraph 2, obliges each State party to the Convention ‘to search for persons alleged to have committed … such grave breaches’. It had to ‘bring such persons, regardless of their nationality, before its own courts’.”
In the Jorgić case
in 1997, Germany’s Higher Regional Court of Düsseldorf based its jurisdiction on Article 6(1) and (9) of the German Penal Code, which provided for the prosecution by German authorities of genocide and other acts for which there is a compulsory prosecution under the terms of an international treaty. The Court stated that the 1949 Geneva Convention IV was a “basis for criminal prosecution” and held that the fact that the accused had lived for many years in Germany, was married to a German citizen and was voluntarily coming back to Germany met the requirement of a “specific link” with Germany. The Court considered the conflict to be an international conflict and the victims to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. It stated that Article VI of the 1948 Genocide Convention, “according to today’s predominant international opinion, does not contain a prohibition of [applying] the principle of universal jurisdiction to genocide”. According to the Court, its jurisdiction would also result from Article 9(1) of the 1993 ICTY Statute. Moreover, the Court referred to Article 146, second paragraph, of the 1949 Geneva Convention IV under which, as the Court confirmed, the States party to the 1949 Geneva Convention IV “have engaged to bring persons who are alleged to have committed, or to have ordered to be committed, such grave breaches, before their own courts, regardless of their nationality”. The accused was found guilty of complicity in genocide, in conjunction with dangerous bodily harm, deprivation of liberty and murder.
In 1999, the Federal Court of Justice upheld the conviction for the most part and confirmed that the relevant provision of the German Penal Code establishing jurisdiction for genocide was in conformity with the 1948 Genocide Convention. The Court agreed with the initial judgment in that there was a sufficient link with Germany.
In its decision in 2000, the Federal Constitutional Court stated:
A norm of international customary law prohibiting the extension of German competence to legislate in criminal matters … was at variance with Art. VI of the  Genocide Convention. With regard to the principle of non-interference recognized in international customary and international treaty law (Art. 2(1) of the United Nations Charter), the Federal Constitutional Court required that jurisdiction over events occurring in the territory of another State and therefore outside German territorial sovereignty be predicated on a meaningful link … Whether such a link exists depends on the subject matter. In criminal law, a meaningful link is constituted not only by the principles of territoriality, protection, active and passive personality, and criminal representation, but also by the principle of universal jurisdiction … The principle of universal jurisdiction applies to conduct deemed to constitute a threat to protected interests of the international community. It therefore differs from the principle of criminal representation, codified in Article 7, para. 2(2) of the German Penal Code, in that the conduct does not need to be punishable by the law of the place where it occurred and no failure to extradite is required.
In the Sokolović case
in 1999, Germany’s Higher Regional Court of Düsseldorf held that, according to Article 6(9) of the German Penal Code and in connection with the provisions of the 1949 Geneva Conventions, German domestic courts had jurisdiction over grave breaches of the 1949 Geneva Conventions committed during the conflict in the former Yugoslavia.
In its judgment in 2001, the Federal Court of Justice agreed with the qualification of “international armed conflict” given to the 1992 situation in the former Yugoslavia and upheld the initial judgment against the accused, stating:
A duty to prosecute arises from [the 1949 Geneva Convention IV] at least when an international armed conflict takes place and when the criminal offences fulfil the requirements of a “grave breach” in the meaning of Article 147 of [the 1949 Geneva Convention IV].
Referring to the requirement of a specific link to Germany which had been established in the judgment at first instance, the Court noted that the Higher Regional Court of Düsseldorf had correctly found such link to be established. However, it stated:
[The Federal Court of Justice] is nevertheless inclined not to require such additional link, in any case with regard to [Article 6 para. 9 of the German Penal Code] … Indeed, the prosecution and punishment in accordance with German penal law by the Federal Republic of Germany, acting in fulfilment of an internationally binding obligation accepted under agreement between States, of an act committed abroad by a foreigner against foreigners, can hardly be said to be an infringement of the principle of non-interference.
In the Kusljić case
in 1999, Germany’s Supreme Court of Bavaria tried a Bosnian national for crimes committed in 1992 in the territory of Bosnia and Herzegovina. The accused was sentenced to life imprisonment for, inter alia
, genocide in conjunction with six counts of murder. The Court found that a specific link to Germany, necessary for the prosecution under German penal law of acts committed abroad by a non-German actor and against non-German victims, was established.
In its revising decision in 2001, the Federal Court of Justice stated that the accused – the specific intentional element to commit genocide not being established – could however be convicted for homicide in six cases committed in 1992 in Bosnia and Herzegovina. Referring to its judgment of the same day in the
, the Court ruled that German courts, on the ground of Article 6(9) of the German Penal Code, had jurisdiction over grave breaches in the meaning of Articles 146 and 147 of the 1949 Geneva Convention IV.
In February 2005, in the Abu Ghraib case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 30 November 2004, attorney-at-law …, filed a criminal complaint, on behalf of the Center for Constitutional Rights, … New York, United States of America, as well as four Iraqi citizens.
The complaint, amended on 29 January 2005, is directed against Donald H. Rumsfeld, Secretary of Defense of the United States of America, and 10 named persons as well as further unnamed persons, who are alleged to have participated in criminal offences according to the [German] International Crimes Code …
The criminal complaint alleges that the persons reported therein rendered themselves liable to prosecution as civilian and military superiors of directly acting persons, according to Sections 4, 13, 14 of the International Crimes Code. They allegedly gave instructions to subordinates on the treatment of detainees, which contravene internationally applicable protective provisions, inter alia the UN Torture Convention. Despite knowledge of ill-treatment, they allegedly failed to take measures to prevent further assaults by their subordinates and to repress ill-treatment already committed.
The criminal complaint is not pursued.
It is not necessary to examine whether the matter raised by the initiators of the criminal complaint is capable of giving rise to an initial suspicion which would justify the initiation of criminal investigation proceedings. Likewise, it is not necessary to examine to what extent immunity provisions prevent the initiation of criminal investigation proceedings. The balancing assessment as required by Section 153(f) of the Criminal Procedure Code has the result that in view of the subsidiarity principle there is no room for the German criminal investigation authorities to become active.
It is true, the principle of universal jurisdiction does indeed apply to the crimes threatened with punishment in the International Crimes Code (Section 1 International Crimes Code). Accordingly, no link to [Germany] whatsoever is required for the application of the International Crimes Code. However, the principle of universal jurisdiction does not automatically legitimate an unrestricted criminal prosecution. It is the aim of the International Crimes Code to close gaps in criminal liability and criminal prosecution. This, however, has to take place against the background of non-interference in the affairs of foreign States. This also follows from Article 17 of the Statute of the International Criminal Court (ICC), which has to be seen in the regulation context of the International Crimes Code. Accordingly, the International Criminal Court’s jurisdiction is subsidiary to the competence of the State where the conduct in question occurred or of which the perpetrator is a national; the International Criminal Court can only act if the national States primarily competent to adjudicate are “unwilling or unable” to carry out the prosecution. For the same reasons, a third State may not review the legal practice of foreign States based on its own standards, correct it in the individual case, or even replace it.
The national legislator of the Federal Republic of Germany has taken subsidiarity into account not by revoking the basic decision for the principle of universal jurisdiction, but with the differentiated procedural regulation of Section 153(f) of the Criminal Procedure Code, which came into force at the same time as the International Crimes Code … The Statute of the International Criminal Court is the guideline in the interpretation and application of Section 153(f) of the Criminal Procedure Code. Accordingly, the obligation to prosecute criminal offences under the International Crimes Code is regulated in tiers:
Primarily, the State in which the conduct in question occurred and the home State of the perpetrator and victim, as well as a competent international court of justice, are competent to prosecute … In contrast, the competence of uninvolved third States is to be understood as a subsidiary competence, which is meant to avoid impunity, but, apart from that, not to push aside inappropriately the primarily competent jurisdictions … Only if criminal prosecution by primarily competent States or an international criminal court is not or cannot be ensured, for example because the perpetrator has absconded from criminal prosecution by fleeing abroad, the subsidiary competence of the German criminal prosecution authorities comes into action. This tiered approach is justified by the special interest in criminal prosecution of the home State of perpetrator and victim and because the primarily competent jurisdictions usually are closer to the evidence …
The conditions of Section 153(f) of the Criminal Procedure Code are fulfilled. Based on these principles, the United States of America as the home State of the persons reported is primarily competent for the criminal prosecution.
The reported acts were committed outside the territorial scope of the Criminal Procedure Code in the sense of Section 153(c) of the Criminal Procedure Code. Also taking into consideration the matters raised by the initiators of the criminal complaint, the Federal Republic of Germany is insofar neither the place where the perpetrator acted nor the place in which the result of the act occurred (Section 9 of the Criminal Code).
There is no indication that a German national participated in the commission of the reported offence as a perpetrator (Section 153(f), paragraph 1, sentence 2, paragraph 2, sentence 1, no. 1 of the Criminal Procedure Code) or that a German national was a victim of the reported offences (Section 153(f), paragraph 2, sentence 1, no. 2 of the Criminal Procedure Code).
The requirement of prosecution elsewhere (Section 153(f), paragraph 2, sentence 1, no. 4 of the Criminal Procedure Code) is fulfilled. The term prosecution of the offence must be interpreted in relation to the complex as a whole and not in relation to an individual suspect and his specific contribution to the offence. According to the wording of the provision, the offence as a whole is decisive. Such an interpretation of the term offence follows from the Rome Statute, which the International Crimes Code implements. Article 14, paragraph 1 of the Statute expressly mentions the term “situation in which one or more crimes within the jurisdiction of the Court appear to have been committed”. In which order and by which means the primarily competent State investigates against an individual within a complex as a whole, must, because of the subsidiarity principle, be left to that State. This is different only if investigations are merely in pretence or are carried out without a genuine will to prosecute …
Here, nothing indicates that the authorities and courts of the United States of America have dispensed with penal law measures regarding the assaults described in the criminal complaint, or will do so. Several proceedings regarding the incidents in Abu Ghraib against participants in the offence … have already been carried out. By what means and at what time investigations against further potential suspects in relation to the assaults described in the criminal complaint are carried out, must be left to the judicial authorities of the United States of America.
This means for the situation reported:
Insofar as the reported persons are not present in the area of application of the International Crimes Code and are not anticipated to be present there, the conditions of Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code are fulfilled.
With regard to the reported persons present in the Federal Republic of Germany or anticipated to be present there, the criminal complaint is not to be pursued in accordance with Section 153(f), paragraph 2, sentence 2 of the Criminal Procedure Code.
The reported persons who, according to the criminal complaint …, are present in Germany, are stationed in US army bases in Germany as members of the US army. They are subject to a special duty of obedience towards their employer, also as regards their presence. The United States of America as prosecuting State therefore has unrestricted access to these persons. Even though stationed in Germany, they are therefore at the American judiciary’s disposal just as if they were present in the United States. A gap of criminal responsibility, to be avoided in accordance with the principle of universal jurisdiction, does not exist, which is why there is no room for the subsidiary competence of the German criminal prosecution authorities. This also follows from Section 153(f), paragraph 2, sentence 2 of the Criminal Procedure Code, according to which prosecution can be dispensed with if extradition to the prosecuting State is admissible and intended. This must apply even more if the prosecuting State, like in the present case, has unrestricted access to a suspect, an extradition therefore not being necessary.
Similar considerations apply with regard to a temporarily limited presence to be anticipated in the area of application of the International Crimes Code, if investigations of the complex as a whole are carried out in the State which has priority rights. Also in that case, the reported persons would not be out of reach of a criminal prosecution by the judicial authorities of the United States.
There are no indications, which could justify the initiation of investigations despite the fulfillment of the conditions of Section 153(f) of the Criminal Procedure Code. At the most, due to the subsidiarity principle, only such measures could be considered which the US authorities, primarily competent to examine the incidents, could not take themselves due to factual or legal obstacles. Here, such obstacles are not apparent.
In September 2005, the Higher Regional Court of Stuttgart dismissed a motion for judicial decision against the Federal Prosecutor General’s decision of February 2005 not to initiate investigations concerning the reported incidents in Abu Ghraib/Iraq. The Higher Regional Court found the motion to be inadmissible, holding that, according to Section 172, paragraph 2, sentence 3 of the Criminal Procedure Code in conjunction with Section 153(f) of the Criminal Procedure Code, proceedings to force criminal prosecution were not admissible against decisions to dispense with prosecuting offences under the International Crimes Code. The conditions for the application of Section 153(f) of the Criminal Procedure Code had been fulfilled, and no legal fault could be found with the way the Federal Prosecutor General had exercised the discretion within the framework of Section 153(f) of the Criminal Procedure Code when deciding to dispense with prosecuting the reported incidents.
In 2007, in the Abu Ghraib/Iraq and Guantánamo Bay/Cuba case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
I. On 14 November 2006 – last amended on 28 March 2007 – attorney-at-law …, on behalf of altogether 44 organizations and individuals, filed a criminal complaint against the former Secretary of Defense of the United States of America, Donald H. Rumsfeld, 13 individually named and further unnamed citizens of the United States, based on the suspicion of violations against Sections 4, 8, 13 and 14 of the [German] International Crimes Code and against Sections 211 et seq., 223 et seq., 239 et seq. of the [German] Criminal Code in conjunction with Section 6, No. 9 of the Criminal Code in conjunction with the UN Torture Convention as well as Article 129 of Geneva Convention III on the treatment of prisoners of war.
Already on 30 November 2004, attorney-at-law …, on behalf of the Center for Constitutional Rights and four Iraqi citizens, had filed a criminal complaint against Donald H. Rumsfeld – at that time still the incumbent Secretary of Defense – and further persons, who were alleged to have participated in criminal offences based on the International Crimes Code … By decision of 10 February 2005, the Federal Prosecutor’s Office dispensed with prosecution in accordance with Section 153(f) of the [German] Criminal Procedure Code … An ensuing motion for judicial decision was dismissed by the Higher Regional Court of Stuttgart on 13 September 2005.
Object of the current criminal complaint are incidents in the prison complex Abu Ghraib/Iraq and in the detention camp in Guantánamo Bay/Cuba. Insofar as the report concerns incidents in the prison complex Abu Ghraib, the vast majority of them have already been reported on 30 November 2004. Beyond the incidents described at that time, the initiators of the criminal complaint have now additionally reported further incidents, in particular such which allegedly occurred after 8 January 2004. Furthermore, detainees in the US detention camp in Guantánamo Bay/Cuba were allegedly ill-treated.
The reason given for the filing of the criminal complaint in the Federal Republic of Germany is essentially that in the United States of America no criminal prosecution against the reported persons in view of the incidents in Iraq and Guantánamo Bay were taking place, from which one could conclude the unwillingness of the authorities there to carry out criminal law investigations against these persons. Only members of lower military ranks had been held criminally liable for the incidents in Iraq, and had been imposed with, in the view of the initiators of the report, far too “insignificant” sentences or even only with disciplinary punishments. On the other hand, those actually responsible, who had planned, ordered or at least knowingly tolerated und justified a “systematic” ill-treatment of detainees, had all gone unpunished. Prosecutions by the International Criminal Court were out of the question, because the United States of America had withdrawn its signature of the Rome Statute and had excluded a ratification. The legal provisions of the International Crimes Code, in particular the principle of universal jurisdiction enshrined in its Section 1, forced the competent German criminal prosecution authorities to initiate investigation proceedings against the reported persons. The Federal Republic of Germany therefore had to take on the criminal prosecution, acting for the international community of States, in order to prevent the reported acts from going unatoned.
II. The initiation of investigation proceedings is dispensed with in accordance with Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code. Insofar as incidents have been reported which allegedly occurred in Iraq between 15 September 2003 and 8 January 2004, the decision of 10 February 2005 remains applicable.
1. Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code allows to dispense with the initiation of investigation proceedings for offences committed abroad in the sense of Section 153(c), paragraph 1, no. 1 and 2 of the Criminal Procedure Code, if a suspect is neither present in Germany, nor is such a presence to be anticipated. This is the case here:
a) Due to a lack of a German place of result or place of action in the sense of Section 2 of the International Crimes Code in conjunction with Section 9 of the Criminal Code, the reported allegations are offences committed abroad.
In none of the reported cases have the acts of which the reported persons are accused caused results of crime elements in the sense of Sections 8 et seq. of the International Crimes Code in Germany. Nothing indicates that persons affected by the acts described in the criminal complaint were transferred from Iraq or Afghanistan via the Federal Republic of Germany to Cuba/Guantánamo – with the consequence of a potential “transit place” in Germany.
Furthermore, there are no facts-based indications of a place of action in Germany.
The mere stationing of US troops is – contrary to the view of the initiators of the criminal complaint – no more a preparation of the reported war crimes than is the guarding of US military installations in Germany by German soldiers with the consequence of US soldiers being available for a deployment in Iraq. The same applies to the training of soldiers for deployment in Iraq. Whether such training has actually taken place in Germany and has been “inadequate” with regard to international humanitarian law, as claimed by the initiators of the criminal complaint, need not be decided. Also an inadequate preparation for the care of prisoners of war is not part of a preparation of criminal actions in the sense of Section 8 of the International Crimes Code. There is no general rule of experience according to which soldiers who are inadequately prepared for military operations and informed of the content of the Geneva Conventions always or even only regularly commit the alleged war crimes. The claim of the initiators of the criminal complaint that it had been conveyed to the US soldiers in Germany later employed in Iraq that the Geneva Conventions could be disregarded is purely speculative. There are no facts indicating this. Granting overflight rights or allowing stopovers on German ground, to which the initiators of the criminal complaint also refer, is no criminal law-regulated preparation of the reported incidents – neither of those in Guantánamo Bay, nor of those in Iraq. The same applies to the employment of German nationals in the training of Iraqis abroad.
Finally, there is nothing concretely indicating that, from Germany, orders for the independent commission of acts contrary to the International Crimes Code were given or concepts on the application of methods of detainee treatment inconsistent with Geneva Convention [III] developed. In this respect, the factor alone that individual reported persons were temporarily stationed in US American facilities in the Federal Republic of Germany does not suffice.
b) Neither the reported persons nor other possible suspects according to the criminal complaint are currently present in the Federal Republic of Germany. Such a presence is also not to be anticipated.
None of the persons noted in the criminal complaint with a place of residence in Germany is still stationed in Germany or resident there. There are no concrete indications that the presence of a reported person or a possible suspect according to the criminal complaint is to be anticipated. Such indications can already be excluded if – like here – on the basis of the data available in Germany no links or relations of a professional, personal or family nature in Germany are known. Contrary to the view of the initiators of the criminal complaint, the merely theoretical possibility of an entry into Germany or a country in which the reported persons are sought on the basis of a European or international arrest warrant is not sufficient. If an obligation to prosecute were already presumed when such a future presence of a foreign suspect merely cannot be excluded, Section 153(f), paragraph 1, sentence 1 and paragraph 2, sentence 1, no. 3 of the Criminal Procedure Code would effectively be void in the majority of cases, because “preliminary investigations” on the current and future travel movements of people living abroad are not very promising. The purpose intended with Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code, namely to avoid fruitless investigation in cases which have no link to Germany and therefore do not expect a noteworthy investigation success, could not be realized.
2. The balancing assessment as required by Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code has the result that there is no room for the German criminal investigation authorities to become active.
a) It is the purpose of Section 153(f) of the Criminal Procedure Code to take into account the consequences which result for the German justice system from the application of the principle of universal jurisdiction. Speaking in favour of conducting investigations is, as a matter of principle, the consideration that a worldwide criminal prosecution of international law crimes, with as few gaps as possible, is to be ensured. On the other hand, the danger is to be countered that initiators of criminal complaints select certain States as places of prosecution, which have – like Germany here – no direct relation whatsoever with the reported actions, just because of their international law-friendly criminal law (so called “forum shopping”), thereby forcing investigation authorities to conduct extensive but ultimately unproductive investigations. Since, according to Section 1 of the International Crimes Code, every crime under the International Crimes Code falls (also) under German material jurisdiction, Section 153(f) of the Criminal Procedure Code, on a procedural level, provides a corrective for the prosecution authorities to counter overburdening caused by ineffective investigations. Consequently, Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code, in particular cases, allows to dispense with the prosecution of offences committed abroad, whether another jurisdiction is prepared to prosecute or not. This applies in particular if there are no prospects of an accused person actually being put to trial in Germany. This purpose must guide the exercise of discretion. The view of the initiators of the criminal complaint that the Federal Republic of Germany must become active in representation of the “world community” and therefore in any case initiate investigations does, in contrast, not hold.
b) Circumstances which could speak for the initiation of investigations, even though the conditions of Section 153(f), paragraph 1, sentence 1 of the Criminal Procedure Code are fulfilled, are not given. They would only be given if, with investigations of the German prosecution authorities, a noteworthy investigation success could be achieved, in order to prepare a criminal prosecution at a later point (be it in Germany or abroad). This is however lacking here.
In order to investigate possible allegations, investigations on-site and in the United States of America would be unavoidable. Since German investigation authorities do not have executive powers abroad, this could only take place by means of international legal assistance. Such requests, however, seem – especially when considering the legal and security situation in Iraq – obviously futile.
A loss of evidence in consequence of the non-action of the German criminal prosecution authorities need not be feared. This is not changed by the circumstance that according to the initiators of the criminal complaint witnesses from the United States of America are prepared to give information to the German investigation authorities. It is not apparent that they could give more information here than they could give through the attorney representing the initiators of the criminal complaint. The circumstance that, in the context of US investigations information by these persons, was not attached the importance wished for by the initiators of the complaint does not compel the initiation of investigation proceedings in Germany. The view that such information nevertheless had to be documented and systematically processed in a German investigation, even though due to the reasons given above neither successful investigation proceedings in Germany nor the reception of international legal assistance requests are to be expected, does not hold. This would in effect result in purely symbolic investigations which by necessity – due to the lack of comprehensive investigation facilities – would have to remain unilateral. Such investigations, however, were – also as regards international law crimes – expressly not wanted by the German legislator, the more so as this would unnecessarily claim the criminal prosecution resources, anyway limited as regards personnel and funds, to the detriment of other, promising criminal prosecutions. The (criminal) law treatment of potential violations of the prohibition on torture in Guantánamo Bay/Cuba or in connection with the Iraq war therefore remains the task of the justice system of the United States of America, responsible and competent to do this.
In 2010, in the DRC case, Germany’s Federal Court of Justice was called upon to decide whether to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court held:
The particular conditions necessary for extending pre-trial custody beyond the period of six months … are fulfilled. Because of particular difficulties faced by the investigations and due to their sizable scope, it has not yet been possible to reach a judgment and therefore the continuation of pre-trial custody is justified.
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
for crimes against humanity and war crimes as well as membership in a foreign terrorist association “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (FDLR); in addition, there is sufficient suspicion that the accused Dr. Ignace M. was gang leader of the FDLR (§ 4, § 7 para. 1 nos. 1, 3, 6, 8 and 9, para. 3, § 8 para. 1 nos. 1 to 5, para. 4 sentence 1, § 9 para. 1 and § 11 para. 1 no. 4 VStGB [International Crimes Code], § 129b para. 1 in connection with § 129a paras. 1 and 4 StGB [Penal Code]).
In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:
The … [FDLR] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of [the] Congo [DRC]. Its objective is to overthrow the current Rwandese government. It seeks to strengthen its power in Eastern Congo by conducting regular and violent assaults against the local civilian population. The means which the FDLR systematically uses to strengthen its unlawful regime of occupation include murder, bodily injury, rape, sexual enslavement, violent land grabbing, robbery, pillage and burning, the unilateral imposition of road tolls and the exploitation of the Congolese natural resources.
Since early 2009, the FDLR has increasingly been put under military pressure by joint offensive of the Rwandese and Congolese armies and the international protection force MONUC [UN Mission in the DRC] (since July 2010: MONUSCO [UN Organization Stabilization Mission in the DRC]). The FDLR reacted with retaliatory measures against the civilian population, thus causing targeted humanitarian catastrophes in the Kivu provinces in Eastern Congo. The FDLR intended to thereby stabilize its power base and to force the Congolese armed forces to give in and the Rwandese government to enter into direct negotiations about power sharing.
The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organisation’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of Congo between January 2009 and 17 November 2009. These crimes inter alia include the killing of more than 200 people, rape of numerous women, using civilians as human shields against attacks by military opponents and incorporating children into the FDLR militia.
The accused were arrested on 17 November 2009 … and have since been remanded in custody.
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
On 30 June 2002 the German International Crimes Code (Völkerstrafgesetzbuch – VStGB) came into force. With it, Germany created the preconditions for the prosecution of the gravest human rights crimes also in Germany. Like the Rome Statute [of the International Criminal Court], the VStGB refers to the international law crimes of genocide, crimes against humanity …, as well as war crimes committed in the context of an international or non-international armed conflict. In the form of a comprehensive catalogue of about 70 sub-crimes, substantive German criminal law is adapted both to the Rome Statute and further generally accepted international law.
The principle of universal jurisdiction applies to the crimes of the VStGB (Section 1 VStGB). Accordingly, crimes can be prosecuted also if neither the perpetrator himself is a German national, nor the acts were committed in Germany or against German nationals, nor have any other link to Germany.
The principle of universal jurisdiction is an important element in fighting impunity for the gravest crimes against human rights. This, however, does not mean that Germany wants to take on the prosecution of all international crimes committed somewhere in the world. The principle of universal jurisdiction is rather the last resort, when other options are excluded. Criminal prosecution on the respectively competent national level retains precedence, which is usually also essential for coming to terms with events and reconciliation within a society. Therefore, in the Criminal Procedure Code (StPO) a complementary procedural provision to the VStGB was created (Section 153(f) StPO). This provision, first, in comparison to the general provisions applicable to acts committed abroad, contains additional requirements for the exercise of discretion when dispensing with criminal prosecutions. Second, it allows avoiding an overburdening of the German investigation resources by cases which do not promise any successful investigation. Furthermore, it was clarified that criminal prosecution by an international court or another – primarily competent – State, in particular the State where the crime was committed or the home State of the perpetrator or victim, is an important factor for dispensing with investigation proceedings in Germany. Apart from that, other possibilities to dispense with criminal prosecution or to discontinue proceedings according to the further provisions applicable to all criminal proceedings are retained.
The prosecutor competent for the prosecution of crimes under the International Crimes Code is the Federal Prosecutor General. Until the end of February 2005, 30 reports of alleged crimes under the International Crimes Code have been filed with him, none of which, however, has so far led to the initiation of investigations, because they were mostly committed before the International Crimes Code came into force, making prosecution impossible already because of the prohibition on retroactive application of the law. There were also cases in which the general rules on immunity apply, which especially are relevant with regard to members of governments. As for the rest, the Federal Prosecutor General dispensed with criminal prosecution in application of the complementary procedural provision of Section 153(f) of the Criminal Procedure Code already mentioned, insofar as the reported behaviour did not already obviously lack the capacity to fulfil elements of crimes under the International Crimes Code.
In 2006, in a written reply to a question by a Member of the Bundestag (Lower House of Parliament), a Parliamentary State Secretary of Germany’s Federal Ministry of Justice stated:
Since entry into force of the International Crimes Code Völkerstrafgesetzbuch – VStGB] on 30 June 2002, overall 58 (as of: 30 August 2006) reports of criminal conduct were filed with the Office of the Federal Prosecutor General … and examination proceedings initiated ex officio. The facts on which the reports were based concerned: in 19 cases the Iraq war (including incidents in Abu Ghraib and Guantanamo), in 16 cases the Israel-Palestine conflict, in ten cases Chinese authorities (persecution of Falun Gong) as well as African, Caucasus-region and other States for reasons of persecution of own nationals.
So far, the Office of the Federal Prosecutor General has initiated investigation proceedings in one case, which concerns potential crimes in connection with the organization FDLR (Front Démocratique pour la Libération du Rwanda) in the DRC [Democratic Republic of the Congo]. In the other cases, an initiation of investigation proceedings was dispensed with. The reasons for this were, in essence, the inapplicability of the VStGB to events which took place before the VStGB entered into force, immunity of reported persons under international law, as well as the application of the complementary criminal procedure provision in Section 153 (f) of the Criminal Procedure Code with regard to acts purely committed abroad and no foreseeable chance of success of German investigation actions.
In 2006, in a written reply to a question by a Member of the Bundestag (Lower House of Parliament), a Parliamentary State Secretary of Germany’s Federal Ministry of Justice stated:
Until 15 November 2006, the Office of the Federal Prosecutor General has initiated two investigation proceedings because of the suspicion of crimes according to the International Crimes Code. The investigation proceedings in one case concern potential crimes in connection with the organization FDLR (Front Démocratique pour la Libération du Rwanda) in the DRC [Democratic Republic of the Congo]. The further investigation proceedings, initiated following the filing of a report of criminal conduct after the Federal Ministry of Justice had replied to the [earlier] written question conduct, concern the alleged detention and torture of persons not members of the army in the central US Military Confinement Center in Mannheim until the beginning of September 2006.
In 2007, in a written reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Application of the International Crimes Code”, Germany’s Federal Government stated:
Preliminary remark by the Federal Government
As regards the provisions on the prosecution of international crimes created by the Law Introducing the International Crimes Code, two different regulation levels must be distinguished. Section 1 of the International Crimes Code [Völkerstrafgesetzbuch – VStGB] deals with the material application of the International Crimes Code, regardless of whether the offence was committed in Germany or has a link to Germany. On the level of procedural law, this principle of universal jurisdiction anchored in Section 1 of the International Crimes Code is flanked by the provision of Section 153 (f) of the Criminal Procedure Code [Strafprozessordnung – StPO].
Insofar as a foreign national accused of an offence committed abroad is not present in Germany and such a presence is not to be anticipated, a criminal prosecution in Germany will often not be very promising. In this case, Section 153 (f), paragraph 1, sentence 1 of the Criminal Procedure Code in principle leaves it to the discretion of the public prosecutor to conduct the criminal prosecution as far as possible or to dispense with it … Different criteria apply only if the suspect is a German national and a criminal prosecution has not been initiated by a primarily competent jurisdiction (Section 153 (f), paragraph 1, sentence 2 of the Criminal Procedure Code). If the offence has no link to Germany, if no suspect is present in Germany, if this is also not to be anticipated, and if the International Criminal Court or a directly and therefore primarily concerned State has taken on the prosecution, criminal prosecution in Germany can, according to the principle of subsidiarity, generally be dispensed with (Section 153 (f), paragraph 2, sentence 1 Criminal Procedure Code). This is different if, as regards an offence with no link to Germany and no prosecutions by a primarily competent jurisdiction, a future criminal prosecution (be it in Germany or abroad) could be prepared by measures serving the preservation of evidence.
Whether the conditions for initiating investigation proceedings or for preferring public charges are fulfilled, can, on the basis of these provisions, only be decided in the individual case.
This must be based on the requirements of national procedural law. The German Criminal Procedure Code provides, for example, that judicial criminal trials may, in principle, only be held with the accused present. A requirement for preferring public charges is therefore that the German criminal prosecution authorities can get hold of an accused. Furthermore, the International Crimes Code must be applicable ratione temporis to the offence and there must be no legal grounds hindering proceedings, such as for example immunity.
It needs to be pointed out that the aim of anchoring the principle of universal jurisdiction in the International Crimes Code is to deprive perpetrators of safe havens or to provide anticipatory legal assistance as regards criminal proceedings which can be conducted in a directly concerned State (cf. Kreß,
Juristenzeitung 2006, pp. 982, 989). When creating the International Crimes Code, Germany by no means intended to presume the competence to prosecute international law crimes of the whole world (Kreß, l.c.).
In the situations relevant under international criminal law so far reported and examined, the conditions for the initiation of investigation proceedings predominantly were not fulfilled because either the International Crimes Code was not yet in force when the offence was committed, or there were legal grounds hindering proceedings, or the requirements of Section 153 (f) of the Criminal Procedure Code were given.
In 2008, a representative of Germany stated before the Committee on the Rights of the Child during the consideration of the initial report of Germany under the Optional Protocol on the Involvement of Children in Armed Conflict: “In accordance with the Code of Crimes against International Law and the Rome Statute of the International Criminal Court, Germany recognized extraterritorial jurisdiction for the war crime of recruitment of children under the age of 15.”
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “‘Goldstone Report’ on alleged war crimes during the Gaza war”, Germany’s Federal Government wrote:
11. How does the Federal Government evaluate the likelihood of criminal proceedings in case the Israeli and Palestinian authorities refuse to conduct independent investigations:
a) in European States based on the universality principle?,
b) based on a referral by the UN Security Council to the International Criminal Court?,
c) based on a declaration by the Palestinian authorities under Art. 12 paragraph 3 of the  Rome Statute?
… [N]ational investigations are not being refused.
In 2010, in its report on German human rights policy in the context of foreign relations and other policy areas between 1 March 2008 and 28 February 2010, which was submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Eight years after the entry into force of the VStGB [International Crimes Code], there is no general need to reform the law. § 1 of the Code establishes the universal application of its elements of crimes. Crimes can thus be prosecuted even if the offence was committed abroad and bears no relation to Germany. This does not mean, however, that Germany wishes to prosecute all offences committed somewhere in the world. Rather, the territorial State, State of origin of perpetrator and victim or an international tribunal willing to exercise jurisdiction should be given priority, as regulated in a special procedural rule (§ 153f Criminal Procedure Code StPO). This will also prevent that German investigation authorities are overwhelmed with cases which bear no relation to Germany and in which the initiation of investigation proceedings by German authorities does not promise to deliver any noteworthy results.
The Federal Government further stated:
Based on an arrest warrant by the investigation judge at the Federal Court of Justice, the office of the federal prosecutor has had two Rwandese nationals arrested on 17 November 2009 who are strongly suspected of being criminally responsible for crimes against humanity and war crimes as members of the foreign terrorist group Forces Démocratiques de Libération du Rwanda
[Democratic Forces for the Liberation of Rwanda] (FDLR).
In 2010, in its report on the implementation of UN Security Council Resolution 1325 on “Women, Peace and Security” between July 2007 and July 2010 submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Resolution 1325 emphasizes that all States are responsible for ending impunity and for prosecuting those responsible for genocide, crimes against humanity and war crimes, including in the context of sexual and other forms of violence against women and girls. Since 2002, the International Crimes code (VStGB) has been forming the criminal law basis in Germany for the protection of women and girls from genocide, crimes against humanity and war crimes, including sexual and other forms of violence against women and girls. The crimes listed in the VStGB can thus also be prosecuted if they were committed abroad and do not have any link to Germany.