Practice Relating to Rule 99. Deprivation of Liberty
Germany’s Military Manual (1992) states that “illegal … confinement of protected civilians” is a grave breach of IHL.
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 …
Internment of civilian persons is permissible only as an exception.
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international armed conflict, unlawfully holds a protected person as prisoner.
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, stated:
… from the start, UN Security Council resolution 1244 has authorized the military security presence in Kosovo also to take persons into custody, in the fulfillment of their mandate. The KFOR Commander issued the corresponding detention directives.
According to the currently applicable directive, the Detention Directive of 12 July 2004, persons may only be arrested if they are a danger to KFOR or a safe environment in Kosovo and if civilian authorities are unable or unwilling to take on the responsibility regarding these security problems. This provision also takes into account the fact that by now UNMIK has introduced a provisional civilian criminal justice system in Kosovo.
The general line is to release persons as quickly as possible. The Detention Directive of 12 July of last year, already mentioned, provides in cases of arrest, as a principle, a duration of detention of 72 hours. Only the KFOR Commander himself can order an additional duration of detention of up to 30 days and, if he regards it as necessary, extend it by, respectively, further 30 days. Unlimited detention is not to be envisaged. It might also interest you that currently – i.e. as of 13 December of this year – no persons are detained in the framework of the use of Camp Bondsteel as the seat of a KFOR detention facility.
In 2006, in a reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Suspicion of illegal practices in the US ‘Military Confinement Center’ in Mannheim”, Germany’s Federal Government wrote:
4. Are US military authorities permitted to detain foreign prisoners of war or, according to the US definition, “enemy combatants” in the MFC [Military Confinement Center in Mannheim] or comparable installations in Germany, and if yes, on what legal basis?
The detention of foreign prisoners of war by US military authorities in US detention institutions on German territory is permissible only with the consent of the Federal Government.
5. Is it correct that in 1999 the Federal Government permitted the detention of a Yugoslav national in the MFC, the US military authorities, however, had detained at least two Yugoslav nationals?
6. If question 5 is answered in the positive:
a) On what legal basis and because of what accusation did the Federal Government permit the detention of a Yugoslav national?
b) How does the Federal Government assess the circumstance that the US military authorities had detained a Yugoslav national without legal basis, and what consequences does the Federal Government draw from this?
Joint reply to question 5 and question 6 a and b:
In 1999, the United States, with the consent, or approval, of the Federal Government, detained two Yugoslav soldiers, whom they had arrested in the context of the Kosovo conflict, as prisoners of war in Germany. After a few weeks, with the involvement of the International Committee of the Red Cross, the prisoners were released from their detention as prisoners of war and were set free at the Hungarian-Yugoslav border.
The legal basis of the detention of a captured combatant as prisoner of war is general public international law, according to which a party to an international armed conflict is allowed to detain captured combatants of the other side until the end of the conflict, in order to prevent them from again participating in the conflict. In this context, a third State can consent to the detaining power detaining a prisoner of war on the territory of that third State. Details of the legal status of prisoners of war are regulated in Geneva Convention III relative to the Treatment of Prisoners of War of 12 August 1949.
7. What possibilities does the Federal Government have to examine compliance with human rights standards in US military installations in Germany, and are unannounced inspections, for example by public prosecutor offices, part of these possibilities?
According to paragraph 4bis, letter a of the Protocol of Signature to Article 53 of the Supplementary Agreement to the NATO Status of Forces Agreement, the authorities of a force grant the competent German authorities at federal, Land and local level all reasonable assistance necessary to safeguard German interests, including access to accommodation after prior notification. Examining compliance with human rights standards in US military installations belongs to the safeguarding of German interests. In emergencies and where there is danger in delay, the authorities of the force, according to the provision noted above, make immediate access possible without prior notification.
In 2007, in a reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Basic Law and international law in deployments abroad of the Federal Armed Forces: Treatment of persons taken into custody”, Germany’s Federal Government wrote:
1. What rules of engagement apply to the arrest or detention of persons by members of German armed forces abroad, for example in the context of Operation ENDURING FREEDOM or the ISAF [International Security Assistance Force] mandate?
The international law and constitutional law bases of the deployments abroad of the Federal Armed Forces in certain circumstances authorize the deployed German service men and women to take persons into custody. The concrete requirements for this follow from the international law and constitutional law bases, concretized in the rules of engagement and the pocket card “Rules on the use of military force”.
The rules of engagement generally are determined by:
- the international law bases of the respective deployment (for example UN mandate),
- the constitutional law parameters of the Basic Law,
- the concrete parameters of the Federal Government’s deployment decision, to which the German Parliament has given its approval,
- the operation plan of the respective system of mutual collective security, in whose context the deployment is taking place,
- the internationally agreed Rules of Engagement (RoE).
It is not necessary to specially emphasize that the protection of human rights has always been and is a formative element especially also of the Federal Armed Forces’ deployments abroad.
As regards the treatment of persons taken into custody by German service men or women during deployments abroad, the Federal Ministry of Defence, by order of 26 April 2007, for all deployments abroad of the German Armed Forces enacted actualizations and concretizations for the protection of the human rights of those persons:
7. Persons taken into custody are promptly either to be transferred to the competent authorities or to be released, insofar as they are no longer a danger. Release and transfer are to be documented. The International Committee of the Red Cross (ICRC) is to be informed of the taking into custody, release or transfer by the responsible contingent leader of the respective German deployment contingent.
In order to further take into account the characteristics of the individual deployments abroad of the Federal Armed Forces (UNIFIL, [KFOR], EUFOR, OEF, ISAF), this order was supplemented by five individual instructions by the Federal Ministry of Defence/coordination staff for deployment tasks Koordinierungsstab für Einsatzaufgaben – KSEA] of 27 April 2007. In these individual instructions not only a prompt information duty of the Contingent Commander of the DEU Deployment Contingent (KtgtFhr DEU EinsKtgt) vis-à-vis the ICRC in connection with the holding, transfer or release of persons by the respective German deployment contingent was codified, the KtgtFhr DEU EinsKtgt was also expressly made responsible for ensuring that persons taken into custody are at all times treated in compliance with the order of 26 April 2007.
For OEF and ISAF in particular applies in addition:
1. The right to self-defence according to Article 51 of the UN Charter in conjunction with Article 5 of the North Atlantic Treaty allows DEU forces in the framework of Operation ENDURING FREEDOM (OEF) to detain Taliban/Al Kaida.
1. On the basis of UN Security Council Resolutions (UN SC Res) 1386 (2001) and 1510 (2003), last extended by UN SC Res 1707 of 12 September 2006, deployment contingent ISAF DEU is authorized to take all measures necessary to fulfill the mandate, in particular to take the measures necessary to maintain security, to provide security-related assistance and therefore also to temporarily detain persons in order to implement the mandate.
2. Persons temporarily detained are, if possible, to be released within 96 hours or to be transferred to the competent Afghan authorities. For the duration of the custody, the persons are to be treated in accordance with the order of 26 April 2007. The KtgtFhr DEU EinsKtgt is responsible for this.
4. Is there a difference between persons “arrested”, “detained” or “taken into custody”?
If yes, what difference?
To what extent does such a difference, as the case may be, have an effect on the legal status of the persons concerned?
The term “taken into custody” means that someone is deprived of his liberty insofar as, in a manner conform with the mandate, he is prevented by deployment forces from moving away. The extent and the form of the effects on the legal status of the person concerned depend inter alia on the general framework of the respective deployment under international law as well as on the competences – mandated under international law – of the respective acting deployment forces. We refer to the preliminary remarks by the Federal Government as well as to the reply to question 1.
5. What legal guarantees apply to persons taken into custody in the context of deployments abroad of the Federal Armed Forces, and in which laws, treaties or agreements are these guarantees codified (please name exactly)?
The legal guarantees for persons taken into custody in the context of deployments abroad of the Federal Armed Forces are individually listed in the order of 26 April 2007 mentioned. We refer to the reply to question 1. With it, inter alia the existing international law obligations of the Federal Republic of Germany, such as Geneva Convention III, the International Covenant on Civil and Political Rights (ICCPR) or the European Convention for the Protection of Human Rights (ECHR) as well as constitutional law parameters are implemented. With a view to the deployment of the Federal Armed Forces in Afghanistan, the Federal Government aims for a bilateral agreement with the Afghan Government on the transfer of detained persons, with the objective to ensure that transferred persons are treated in accordance with the international customary law and treaty law human rights obligations also applicable to Afghanistan, and that the death penalty is not enforced against them. A draft text agreed within the Federal Government has been made available to the Afghan Government.
7. Does the Federal Government share the view of the UN Human Rights Committee according to which the International Covenant on Civil and Political Rights (ICCPR) also applies to persons subject to the jurisdiction of a State Party, if its troops or police forces, in particular in the framework of peace missions, are deployed abroad?
The Federal Republic of Germany according to Article 2, paragraph 1 of the ICCPR [1966 International Covenant on Civil and Political Rights] ensures the Covenant rights to all persons within its territory and subject to its jurisdiction.
During deployments of its armed forces abroad, in particular also in the framework of peace missions, Germany ensures the guarantee of the rights recognized in the Covenant to all persons, insofar as they are subject to its jurisdiction.
This also applies to German police forces, who in the framework of international peace missions are assigned to a mandate holder (in this context, exercise of an executive mandate is the exception – so far only during the UN mission UNMIK in Kosovo).
The international duties and obligations of the Federal Republic of Germany, in particular to fulfill the obligations under the UN Charter, remain unaffected by this.
The Federal Government has assured this to the UN Human Rights Committee. We refer to the Seventh Report by the Federal Government on its Human Rights Policy in the Context of Foreign Relations and in Other Policy Areas (BT-Drs. 15/5800 …).
13. Were or are persons, detained or arrested in the framework of operations in which also German service women or service men participated, transferred to security forces of other States?
If yes, when, and to which forces, and on what legal basis?
In number “3. Mandate”, the decision of the German Parliament on the deployment of German armed forces in the framework of OEF provides: “Operation Enduring Freedoms aims to disable command and training installations of terrorists, to fight terrorists, capture them and bring them to trial, as well as to permanently prevent third persons from supporting terrorist activities. German armed forces contribute to this with their abilities”.
Within these framework conditions approved by the German Parliament, also German security forces have made contributions in the form of work-sharing cooperation with other allies, in order to capture suspected persons.
Persons taken into custody are transferred only to the competent authorities on the ground, in Afghanistan to the Afghan security authorities.
15. Were or are persons in whose arrest German service women or service men participated transferred to Afghan authorities?
If yes, when, to which authorities, and on what legal basis?
Neither in the framework of OEF nor in the framework of ISAF do German deployment forces exercise own police or criminal procedure tasks. Insofar as German service women and service men participated or participate in arrests by Afghan authorities in a supporting manner, detained persons are transferred to the competent Afghan authorities. Support to arrests by Afghan security forces – for example securing of the Afghan operation forces or detaining persons – does not require a separate legal basis. Support to the Afghan State organs in maintaining security in the deployment areas is a core element of the UN mandate and the parallel mandate by the German Parliament.
23. According to the view of the Federal Government, which human rights or international law questions in connection with deployments of the Federal Armed Forces abroad require further internal or international clarification?
The human rights obligations of the Federal Republic of Germany have been and are respected in the framework of deployments of the Federal Armed Forces abroad. In this context, the Federal Government does not consider it to be conducive to speculate in a general way on the abstract need to clarify questions of international law.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Information on the 33 individuals detained by the German ISAF contingent”, Germany’s Federal Government wrote:
Preliminary remarks by the Federal Government
The participation of German armed forces in the deployment of the International Security Assistance Force in Afghanistan (… ISAF) under NATO leadership is based on Resolution 1386 (2001) and subsequent Resolutions, most recently Resolution 1890 (2009), of the United Nations Security Council.
Under constitutional law the participation of German armed forces in ISAF is based on Article 24 paragraph 3 of the Basic Law in conjunction with the current mandate by the Bundestag of 26 February 2010.
Respect for the applicable rules of international law as well as German constitutional law is self-evident.
This also applies to the detention of individuals in Afghanistan by members of the German ISAF contingent.
… [O]n 5 January 2005 the Federal Government made the following statement before the United Nations Human Rights Committee in response to a request to clarify whether the State party considers that the  International Covenant on Civil and Political Rights (ICCPR) applies to its armed forces and police forces in international operations, including Afghanistan (CCPR/C/80/L/DEU)
Pursuant to Article 2, paragraph 1, Germany ensures the rights recognized in the Covenant to all individuals within its territory and subject to its jurisdiction. Wherever its police or armed forces are deployed abroad, in particular when participating in peace missions, Germany ensures to all persons that they will be granted the rights recognized in the Covenant, insofar as they are subject to its jurisdiction. Germany’s international duties and obligations, in particular those assumed in fulfilment of obligations stemming from the Charter of the United Nations, remain unaffected. The training it gives its security forces for international missions includes tailor-made instruction in the provisions of the Covenant.
Regarding the European Convention on Human Rights (ECHR) the jurisprudence of the European Court of Human rights (ECtHR of 2 May 2007, Behrami vs. France, Appl. No. 71412/01; Saramati vs. France et al., Appl. No. 78166/01; concerning UNMIK [UN Interim Administration Mission in Kosovo] and KFOR [Kosovo Force]) must be taken into account.
The ISAF Operational Plan including its Rules of Engagement and other documents (ISAF Rules) as well as complementary national directives and orders consider in all respects the legal framework which comprises international law and constitutional law.
The order of 26 April 2007 by the Federal Ministry of Defence (BMVg) on the treatment of individuals detained by German soldiers during operation abroad exemplifies this at the national level. The content of this order is discussed in detail in the Federal Government’s reply to the Minor Interpellation by the parliamentary group BÜNDNIS 90/DIE GRÜNEN of 29 August 2007 published in Bundestagsdrucksache
The Federal Government also wrote:
1. What are the names of the 33 individuals detained [in Afghanistan]?
2. Why were these individuals detained?
3. When was the last time that an individual was detained by German armed forces in Afghanistan?
4. When were these 33 individuals detained, and when were they released?
5. Who of the 33 individuals has or have been released after the end of their detention?
6 What happened to the individuals who were not released after the end of their detention?
Were they transferred to other authorities?
If so, to which authorities and when?
7. On what legal basis was the release or transfer of the detainees undertaken?
9. After their apprehension, were the detainees informed of the accusations against them?
10. Were the detainees given the opportunity to nominate a defence counsel in order to refute the accusations against them or to enforce their rights?
According to the rules in force for the ISAF operations, the armed forces (Bundeswehr) may temporarily detain members of the enemy forces. Individuals who are participating in the hostilities against ISAF or the Afghan State are not combatants. Therefore they may be criminally prosecuted for their participation in hostilities. Since ISAF is merely supporting, but not replacing, the Afghan State, only the Afghan authorities are competent to do so. The Rules of Engagement provide that individuals who have been detained by ISAF forces must be either released or transferred to Afghan authorities within 96 hours.
Apart from substantive aspects, the order of 26 April 2007 … stipulates that the detention, release and transfer of members of enemy forces to third parties must be seamlessly documented.
For acts of detention that took place prior to April 2007 there was no such documentation within the national registration and reporting system.
The information presented here in the subsequent table on the individuals detained in April 2007 results from a compilation of individual registrations and reports as well as notes in operational diaries. 13 names are known to the Federal Government. For data protection reasons, names – to the extent that they are known – are not given.
There are gaps in the available information. Taken together and compared to the order and directive of April 2007, the information does not provide a reliable picture of the situation.
Since April 2007 German forces have detained no individuals in Afghanistan.
The Federal Government already stated in reply to a Minor Interpellation by the parliamentary group DIE LINKE entitled “Treatment of Afghan prisoners by the Bundeswehr within the ISAF mandate” (Bundestagsdrucksache
16/7839 of 23 January 2008) that since the beginning of operation ISAF German forces have detained individuals, noting that it cannot be excluded that short-term detentions were not documented.
The Federal Government listed the reasons for which a number of individuals were detained between 2002 and 2007 by German armed forces in Afghanistan during ISAF operations, including “suspected reconnoitring”, “threats with a weapon and resistance against a patrol’s orders”, “reconnoitring the main gate of Camp WAREHOUSE”, “operation lead by HQ ISAF J2: reconnoitring by local employees”, “pursuit and threatening of a patrol”, “suspected intrusion into the field camp”, “likely attacker on DEU [German] bus of 7 June 2003”, “suspected theft”, “IED [improvised explosive device] attack”, “VBIED [vehicle born IED] attack with white Toyota”, “theft of USB drive and crypto key”.
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Measures to transfer detainees (“rendition” and “extraordinary rendition”) and the prohibition on refoulement
The United States defines “rendition” as the transfer of a person into another State. This comprises both the transfer of persons into the United States (from another State, with the consent of that State) and the transfer from the United States into another State (for example for the purpose of interrogation). The latter is sometimes referred to in the United States as “extraordinary rendition”. “Rendition” and “extraordinary rendition” can also be insofar combined as a person is transferred from a State other than the United States, not into the United States but directly into a third State.
Such “renditions” apparently do not follow the rules on international legal assistance in criminal law matters …
As regards the assessment of the US “rendition” practice under international law, aspects relating to the possible violation of State sovereignty and aspects relating to the possible violation of the human rights of the persons concerned must be distinguished.
If a State consents to the transfer of persons from its territory to another State, State sovereignty is not infringed …
To be separated from this is the question whether and to what extent this form of “rendition” violates individual human rights. The case law of the Strasbourg bodies indicates that the rendition as such is not a violation of individual human rights by the State into which the person was transferred.
It needs to be underlined that the cases decided by the Strasbourg bodies concerned the transfer of persons from a State not party to the ECHR [1950 European Convention on Human Rights] into a State party to the ECHR, and (necessarily) proceedings only against the State party. A “rendition” by a State party to the ECHR outside the formal procedures of extradition/legal assistance provided for this could probably not be reconciled with Article 5 ECHR (right to liberty and security) and would – at least in Germany – also violate domestically applicable law. As regards Germany, formal procedures must be adhered to, and have been adhered to in the past.
The transfer of persons into other States, for example for the purpose of interrogation, is to be rejected for reasons of international law if it is intended to curtail the possibilities of legal protection guaranteed under international law. In any event prohibited under international law is such an “extraordinary rendition” which violates the imperative of “non-refoulement”, or, respectively, the absolute prohibition on torture.
[emphasis in original]
Germany’s Military Manual (1992) provides regarding aliens placed in assigned residence or internment: “It shall be possible to have the measures reconsidered by an appropriate court or administrative board.”
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 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:
4. The strong suspicion that the accused committed the aforementioned crime justifies in and of itself the continued pre-trial custody. …
Moreover, custody is justified by the existence of the danger of absconding and collusion …
6. 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.
After the accused’s arrest, a number of investigations were conducted, some of which were extensive and time-intensive. The crimes were largely committed in the DRC and thus in a Central-African country. Their prosecution by the German criminal authorities required inter alia various investigative measures involving mutual assistance requests to foreign authorities. …
The continued pre-trial custody is not disproportionate to the crimes which the accused allegedly committed.
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, wrote:
Does the Federal Government adhere to the view of the previous government that detaining human beings for years, as for example in Guantánamo Bay, in prisons in Afghanistan and at further unknown places, without an independent judicial decision on the deprivation of liberty[,] without possibilities to defend themselves, without assistance of a lawyer, and without an independent judicial trial, is incompatible with the recognized rules of international law and the international covenants to which also the United States have acceded, and what will the Federal Government do to protect at least German nationals from such detention and treatment?
The position of the Federal Government regarding the questions you addressed is unchanged. It is also known to the Government of the United States.