Practice Relating to Rule 89. Violence to Life
Germany’s Military Manual (1992) provides that attempts on the lives of civilians and the wounded, sick and shipwrecked, or violence to their persons, are prohibited. It lists “wilful killing” among the grave breaches of IHL.
Germany’s Soldiers’ Manual (1991) provides: “Any attack on the lives or persons of the wounded, sick and shipwrecked is prohibited.”
Germany’s Soldiers’ Manual (2006) states:
Civilians who do not take part in combat operations shall be respected and protected. They may neither be attacked nor killed, wounded or captured …
The wounded, sick and shipwrecked shall be respected and protected in all circumstances. Any violence to their lives or persons is prohibited.
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, in connection with an international or non-international armed conflict, “kills a person who is to be protected under international humanitarian law”.
The law also provides a punishment for anyone who, in connection with an international or non-international armed conflict:
imposes on or enforces against a person protected under international humanitarian law … the death penalty … , without such person having been convicted by an impartial and regularly constituted court affording the judicial guarantees required under international law.
In 2008, in the Kurdish Refugee case, Germany’s Higher Administrative Court for the Federal Land of Bavaria found that a Kurdish refugee claimant from Turkey was to be excluded from refugee protection inter alia because there were serious reasons for considering that he had committed war crimes and crimes against humanity during his involvement with the Kurdistan Workers’ Party. The court held:
The wilful killing of persons who are to be protected under one of the Geneva Conventions of 12 August 1949 … [is] a war crime under Art. 8 para. 2 sub-para. a nos. i [and] ii … of the  Rome Statute. According to Art. 3 of the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War … , the range of persons protected include, also in non-international armed conflict, persons who are not directly participating in hostilities. Also according to §8 para. 1 no. 1 of [Germany’s] International Crimes Code it is a war crime to kill a person who is to be protected under international humanitarian law.
Moreover, the various murders which the PKK [Kurdistan Workers’ Party] committed against civilians between 1987 and mid-1991 constitute crimes against humanity in the sense of §3 para. 2 sentence 1 no. 1 AsylVgG [Asylum Procedure Code] and Art. 1 F para. a GFK [1951 Refugee Convention]. Art. 7 para. 1 sub-para. a of the  Rome Statute and §7 para. 1 of the International Crimes Code state that any wilful killing is such a crime if it is committed in the context of a widespread or systematic attack against the civilian population. In addition, Art. 7 [of the 1998] Rome Statute requires that acts in the sense of Art. 7 para. 1 must be committed multiple times and with knowledge of the attack and pursuant to or in furtherance of a State or organizational policy whose objective was such an attack. If the PKK in multiple cases conducted its attacks … in a way that most of the victims were relatives of those protecting a village … , then this conduct reveals a certain method and must therefore be considered to be “systematic” in the sense of Art. 8 para. 1 of the Rome Statute and §7 para. 1 of the International Crimes Code. Since these attacks evidently had the objective to prevent Kurds from taking up the role of a village protector and to punish already active village protectors for their cooperation with the Turkish State, they enforced a PKK policy in the sense of Art. 8 para. 2 sub-para. a of the Rome Statute. If one accepts, in accordance with Number 13 of the UNHCR Guidelines of 4 September 2003, that an individual crime of killing is part of a coherent system or a series of systematic and repeated actions, the PKK’s conduct at the time against the relatives of village protectors also fulfils this requirement.
In 2010, in the Chechen Refugee case, Germany’s Federal Administrative Court was called upon to decide whether a Russian refugee claimant from Chechnya had to be excluded from refugee protection because there were serious reasons for considering that he had committed a war crime in Chechnya in 2002 by killing two Russian soldiers and taking a Russian officer hostage. The court held:
[Article 3 common to the 1949 Geneva Conventions] criminalizes violence to life and person and the taking of hostages who are not directly participating in hostilities, including members of the armed forces who have laid down their weapons and persons who have been placed hors de combat
by illness, injury, capture or any other reason. This provision thus also considers acts as war crimes which are directed against soldiers.
In 2010, in the Boere case, Germany’s Regional Court of Aachen found Heinrich Boere, a German national, guilty of murder because he shot three Dutch nationals in 1941 during the German occupation of the Netherlands. The court summarized the facts of the case as follows:
[A]t the beginning of the war between Germany and the Netherlands, the accused joined the Waffen-SS
[Armed SS]. He was a member of the Feldmeijer commando of the Germanic SS in the Netherlands when the crime was committed. … Together with other members of the Feldmeijer commando, the accused was tasked with the killing of [the three Dutch nationals] Fritz Hubert Ernst Bi., Teunis de G. und Frans Willem Ku. In the views of the accused, the killing of the pharmacist Bi. was an act of revenge and the individuals G. and Ku. were members of the resistance movement against whom countermeasures had to be taken because of a previous attack [against the German occupying forces].
The court held:
The three murders cannot be considered as lawful acts of war because they were not committed by members of the armed military forces but by members of the Feldmeijer commando with support from the SD [German security service] and because when the victims were shot, they were not resistance fighters engaged in combat or in escape or, at least, manifesting a readiness to engage in combat.
Neither can the murders be considered as lawful war reprisals because the conditions for permitted war reprisals under the international law in force at the time are not met.
… It has to be taken into account that the killing of innocent civilians in occupied territory for the purpose of forcing illegal combatants to give up their unlawful acts of war can be considered lawful under certain conditions under the law applicable at the time. However, lawful reprisals had to be taken by a subject of international law which had to be made public or at least had to be identifiable as the author of the reprisal in order to fulfil its repelling purpose (so-called requirement of notification). The victims Bi., de G. and Ku. were not killed by members of the occupying power but by members of the commando Feldmeijer and the superordinate Germanic SS in the Netherlands, albeit in cooperation with the German SD. The commando Feldmeijer and the superordinate Germanic SS in the Netherlands were neither part of the German occupying forces nor were they a unit bound by orders of the German occupying forces. Moreover, based on the facts established by this Chamber, it must be considered that after the commission of the acts, the German occupying power did not inform the Dutch public about the authors of the killings apart from some general guesses or speculations. On the other hand, the accused and his co-perpetrators, who inter alia
wore civilian clothes and used false identity documents, carried out the murders according to their directives in such a clandestine way that the German occupying power was not recognizable as the author of the three murders by the Dutch public and, according to the perpetrators’ plans, was not supposed to be recognizable either. This is demonstrated by the strict orders to remain silent [received by the accused and his co-perpetrators regarding the planning and execution of the killings]. Therefore, the requirement of notification cannot be considered to have been fulfilled.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General also stated:
4. Other crimes under the VStGB
Colonel (Oberst) Klein is not criminally responsible … for other crimes listed in the International Crimes Code. …
a) § 8 (1) nr. 1 German Code of Crimes against International Law punishes the killing of a person to be protected under international humanitarian law. According to the definition in § 8 para. 6 no. 2 such persons include in non-international armed conflict the wounded, sick, shipwrecked and persons not directly participating in hostilities and having fallen into the power of the adverse party. In referring to “persons in the power of the adverse party” the legislator wished to include in particular those persons who in the parallel case of international armed conflict would be considered as prisoners of war … The victims of the bombing were, however, not in captivity but in liberty. The conditions of § 8 para. 1 no. 1 are therefore not fulfilled in the present case.
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The court summarized the facts of the case as follows:
… Two [German] soldiers, whom the accused had tasked with obtaining transport vehicles [as part of a mission to repair a bridge], were killed by partisans in an ambush. A third [German] soldier was injured. Since the partisans had absconded after the attack, the accused, motivated by rage and revenge, decided to take retaliatory measures against the male civilian population of the area. First, he reported the incident to the battalion commander and suggested to take action against the Italian civilians which he had already planned. Agreeing with the accused’s proposal, the battalion commander ordered the [retaliatory] measure and additionally provided logistic supported by making available an antiaircraft gun and explosives. The next day, the accused ordered the arrest of all male civilians in the area. In the end, the detainees comprised a group of nine men, the oldest of whom was 67 years old and which included two adolescents who were 15 and 16 years of age. None of them had participated in the attack or was suspected of supporting the partisans. They were locked into a house.
Although some detainees were afraid of being shot, others assumed that they would stay alive but would be deported to a concentration camp in Germany in order to work there. Soon, however, the house was destroyed by explosion. Subsequently, and also pursuant to the accused’s order, machine guns were fired at the debris in order to kill any surviving victims. In the end, only the fifteen-year-old survived with severe injuries. …
On this basis, the accused was convicted on ten counts of murder and attempted murder and sentenced to life imprisonment.
The court held: “The criminal chamber [of the lower court] rightly considered the killings of the Italian civilians which had been ordered by the accused to constitute murder.”
The court further held:
Such killings, which were motivated by revenge, thoroughly prepared, directed at innocent individuals whose conduct ought not have prompted any kind of retaliation, which was carried out by destroying the building by explosion and subsequently firing machine guns, cannot even be justified by the background of a situation of emergency caused by the war as a humanly understandable act of the accused.
The court further held: “It is not possible to justify the killings as a war reprisal permissible under the customary laws of war applicable at the time because the subjective and objective requirements for such a justification are not fulfilled.”
Regarding the subjective requirements, the Court held: “In this case the accused, when committing the crime, did not think that he was acting within the legal framework of a war reprisal.”
Regarding the objective requirements, the Court held:
b) Justifying the killing of hostages who were taken in revenge as a lawful war reprisal under the customary law of war applicable at the time is not an option here anyway … All the objective conditions necessary under the law at the time were not fulfilled. This is the case for the circumstances, selection of the victims, the way they were killed and the subsequent events.
(1) A regular condition for such an act [a lawful war reprisal] was that it ultimately had the purpose of maintaining public order and safety in an occupied territory (… [see inter alia] Art. 43 HLKO [(1907) Hague Convention IV]). Even this condition was not fulfilled. The territory in question was not (or no longer) occupied by the Germans, the Allies were only a few kilometers away, and the accused was only temporarily in the area with his unit in order to repair a bridge which was essential for the withdrawal [of the German forces]. At the relevant point in time, there was no longer any authorization or obligation whatsoever to ensure public order and the safety of the local population. The Federal Court of Justice considered “preventive killings” in order to fend off potential future dangers as “criminal” (BGH [Federal Court of Justice], Judgment of 30 September 1960 - 4 StR 242/60, BGHSt 15, 214, 217). …
(2) War reprisals were limited by the so-called barrier of humanity (Humanitätsschranke). Even though a humane way of killing is barely conceivable, in particular not today, the law at the time at least recognized the prohibition of reprisals against women and children …
The accused argues that the victims who were 15 and 16 years of age were not children. The Court does not share this view. The term child is not uniformly defined in law. … The equation of women with children at the time means in the view of this Court that war reprisals ought not to be taken against those who cannot at all become regular soldiers (women) or who cannot yet become regular soldiers (children). According to the law in force in Italy at the time regulating compulsory military service, the obligation to provide military service only began at the age of 17 … . Thus, the two adolescents affected by the retaliatory measure would not have been subject to compulsory military service. For this reason, the Court considers that they must be considered children for the present purposes.
(3) The way in which the killing was carried out is often considered a central aspect in determining the “humanity” of a killing in the context of a reprisal … The destruction of a building by explosion in which the victims, unaware of their fate, were detained, is considered a humiliating and degrading and therefore inhumane way of killing which is not justified under the laws of war. The same is true for the subsequent and additional killing by firing machine guns …
(4) The least controversial condition for the lawfulness of a war reprisal in this context was the so-called notification, i.e. the public declaration of the event … The purpose of the notification was, on the one hand, to repel future repetitions of attacks against the occupying power … and, on the other hand, to demonstrate “that the measures taken were in the interest of enforcing the law … and thus did not have to be concealed” … There was no such notification. …
c) … [T]he finding of the criminal chamber [of the lower court] that the objective requirements for a permissible war reprisal were not fulfilled is fully confirmed.
In 2006, in reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Criminal prosecution of persons responsible for war crimes in Italy and compensation for Italian military internees”, the German Federal Government wrote:
17. a) How many mass shootings of civilian persons, suspected partisans, captured or surrendering soldiers were carried out by German troops in Italy between 1943 and 1945 (please list individually)?
b) How many mass shootings of Italian prisoners of war or Italian military internees were carried out by German troops outside Italy (please list individually)?
The Federal Government has no information on these questions.
c) From the point of view of the Federal Government, how are these mass shootings to be assessed under international law?
The methods applied by members of the German armed forces in Italy in many cases clearly contravened the applicable international law of war. This is in particular so as regards mass shootings. While fighting local resistance, Wehrmacht and Waffen-SS in other instances, however, also took measures which were quite in line with international law of war of the time. After the war, allied courts and courts of the Federal Republic came to differentiated judgements when assessing such cases.