Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
Germany’s Military Manual (1992) provides: “Each member of the armed forces who has violated the rules of international humanitarian law must be aware of the fact that he can be prosecuted according to penal or disciplinary provisions.”
A commentary on the manual notes:
The Second Additional Protocol (AP II) does not mention grave breaches. Article 6 nevertheless regulates the prosecution and punishment of criminal offences connected with armed conflict. The AP II presumes application of domestic criminal law, whereby the domestic power of sentence is subordinate to the demands of the Protocol.
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of, inter alia
, genocide (Article 1, paragraph 6), crimes against humanity (Article 1, paragraph 7) and war crimes, including: “War crimes against persons” (Article 1, paragraph 8); “War crimes against property and other rights” (Article 1, paragraph 9); “War crimes against humanitarian operations and emblems” (Article 1, paragraph 10); “War crimes consisting in the use of prohibited methods of warfare” (Article 1, paragraph 11); and “War crimes consisting in employment of prohibited means of warfare” (Article 1, paragraph 12).
Some of these crimes must be punished when committed “in connection with an international armed conflict or with an armed conflict not of an international character”, some others when committed “in connection with an international armed conflict”.
In the Djajić case
in 1997, Germany’s Supreme Court of Bavaria tried a national of the former Yugoslavia. In its judgment, the Court referred to the 1949 Geneva Convention IV and the grave breaches regime. It considered the conflict to be an international conflict (in June 1992) and regarded the victims as “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in 14 counts of murder and 1 count of attempted murder.
In the Jorgić case
before Germany’s Higher Regional Court of Düsseldorf in 1997, the accused, a Bosnian Serb, was tried for acts committed in 1992 in Bosnia and Herzegovina which were punishable under the German Penal Code. The Court referred, inter alia
, to Article 147 of the 1949 Geneva Convention IV. It considered the conflict to be an international conflict in 1992, and the victims to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in genocide, in conjunction with murder, dangerous bodily harm and deprivation of liberty.
In 1999, the Federal Court of Justice upheld the conviction in the Jorgić case
for the most part.
In 2000, the Federal Constitutional Court confirmed that the accused could be tried by German courts and under German penal law.
In the Kusljić case
in 1999, Germany’s Supreme Court of Bavaria tried a national of Bosnia and Herzegovina for crimes committed during 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.
In 2001, the Federal Court of Justice revised this judgment into a life sentence for, inter alia
, six counts of murder. It considered the acts of the accused to be grave breaches in the meaning of Articles 146 and 147 of the 1949 Geneva Convention IV.
In the Sokolović case
before Germany’s Higher Regional Court of Düsseldorf in 1999, a Bosnian Serb accused of acts committed in 1992 in Bosnia and Herzegovina was sentenced for complicity in genocide, deprivation of liberty and dangerous bodily injury.
In 2001, the Federal Court of Justice upheld this judgment and referred, inter alia
, to Articles 146 and 147 of the 1949 Geneva Convention IV and provisions of the German Penal Code. The situation in 1992 in Bosnia and Herzegovina was qualified as an international armed conflict and the victims were considered to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV.
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the question of responsibility for attacks on UN and associated personnel and measures to ensure that those responsible for such attacks were brought to justice, Germany, referring to a draft of the Convention on the Safety of UN Personnel which had been introduced by New Zealand, stated:
[This draft convention] also established the personal responsibility of the perpetrators by making such acts crimes punishable under the national laws of States parties. That was especially important when the United Nations was operating in areas of the world where there was no effective authority to guarantee that the perpetrators were actually punished. The draft convention would fill a vacuum.
According to a representative of the German Central Office for the Investigation of National-Socialist Atrocities at Ludwigsburg (Zentrale Stelle zur Aufklärung nationalsozialistischer Gewaltverbrechen
), established by the judicial administrations of the German States in 1958, by September 1999, Germany had investigated the cases against more than 100,000 accused and suspected persons for crimes committed during the Nazi regime. In all, 7,225 of the proceedings were handed over to the public prosecution and about 6,500 individuals were convicted. The representative stated: “It is important that [even the elderly persons accused of having committed such crimes] must be held responsible for their deeds.”
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “German nationals in private security companies and in the foreign legion operating abroad”, Germany’s Federal Government wrote:
a) How does the Federal Government plan to ensure that … private security companies, due to their definition and status as “non-combatants”, do not consider themselves as not being bound by international law and undermine international humanitarian law?
… Employees of private security companies who are not combatants are bound by international humanitarian law and can be prosecuted by domestic courts or the International Criminal Court if they have committed war crimes in armed conflict.