Practice Relating to Rule 158. Prosecution of War Crimes
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.”
The manual refers to Articles 49 and 50 of the 1949 Geneva Convention I, Articles 50 and 51 of the 1949 Geneva Convention II, Articles 129 and 130 of the 1949 Geneva Convention III, Articles 146 and 147 of the 1949 Geneva Convention IV and Article 85 of the 1977 Additional Protocol I and states: “The four Geneva Conventions and Additional Protocol I oblige the contracting parties to make grave breaches of the protective provisions liable to punishment and to take all suitable measures to ensure compliance with the Conventions.”
Germany’s IHL Manual (1996) provides: “Under public international law, every State has the duty to hold responsible, in a criminal and in a disciplinary way, the members even of its own armed forces who have violated the rules of international humanitarian law.”
Germany’s Law Introducing the International Crimes Code (2002) applies “to all criminal offences against international law designated under this Act, to serious offences designated therein even when the offence was committed abroad and bears no relation to Germany”.
The Law 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).
The Law states that 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”.
The Law further provides: “The prosecution of serious criminal offences pursuant to this Act inter alia
, genocide, crimes against humanity and war crimes] and the execution of sentences imposed on their account shall not be subject to any statute of limitations.”
In the Djajić case
in 1997 involving a national of the former Yugoslavia, Germany’s Supreme Court of Bavaria 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.
The Court based its jurisdiction on Article 6(9) of the German Penal Code which extends the jurisdiction of German courts to acts which are committed abroad and which are prosecuted in Germany on the basis of an international agreement binding on Germany. It also stated 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 has to ‘bring such persons, regardless of their nationality, before its own courts’”.
In the Jorgić case
before Germany’s Higher Regional Court of Düsseldorf in 1997, a Bosnian Serb was tried for acts committed in 1992 in Bosnia and Herzegovina which were punishable under the German Penal Code. In its judgment, the Court referred, inter alia
, to Article 147 of the 1949 Geneva Convention IV. It based its jurisdiction on Article 6(1) and (9) of the Penal Code, which criminalizes genocide and acts the prosecution of which was made compulsory under the terms of an international agreement, and stated: “Geneva Convention IV serves as a basis for penal prosecution”. 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 Convention “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.
In its judgment in 2000, the Federal Constitutional Court confirmed that the accused could be tried by German courts and under German penal law. Moreover, it 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 recognised 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 applied to conduct deemed to constitute a threat to the protected interests of the international community. It therefore differs from the principle of criminal representation, codified in Article 7(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
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. The Court 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 in the course of the conflict in the former Yugoslavia.
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. It held: “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 this Convention.”
Referring to the apparent requirement of a specific link to Germany which, according to the judgment in the trial of first instance, had been established in the case and therefore gave it jurisdiction, the Federal Court of Justice moreover noted that not only had the Higher Regional Court of Düsseldorf correctly found such link to be established, but that:
The Senate is nevertheless inclined not to require such additional link, in any case with regard to [Article 6(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.
However, the Federal Court of Justice stated that in this case it did not fall to it to reach a decision in the matter.
In the Kusljić case
in 1999, Germany’s Supreme Court of Bavaria tried a Bosnian national 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. 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 national and against non-German victims, was established.
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. Referring to its judgment of the same day in the Sokolović case
, 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 before 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 have 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 fulfilment 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 Grhaib/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. Prosecution by the International Criminal Court were out of the question, because the United States of America had withdrawn the 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 for 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 American 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 2009, in the Roadblock case, Germany’s Office of the Prosecutor Zweibrücken stated:
The proceedings concerning X., Y. and Z. are discontinued pursuant to § 170 para. 2 of the Criminal Procedure Code.
For the following reasons:
1. The following facts are to be presumed:
At the time the act was committed, the accused were soldiers of the Bundeswehr [Germany’s armed forces] deployed to Afghanistan as part of the ISAF [International Security Assistance Force] operation.
In order to ensure that the examination [of whether explosive devices had been placed on a road] could be carried out in a timely and safe way, the accused X. gave the order to block the road with tanks.
The accused also ordered to warn and stop cars approaching the road block …
At about 20.30 o’clock a Toyota Super Van approached the road block at high speed. The driver of the car seemed unimpressed by the road block. Even though the laser pointer of a long firearm was being pointed at his car’s windscreen, the Toyota continued to speed towards the tanks. Also the firing of a red flare … by the accused, Sergeant (Oberfeldwebel) Y., did not prompt the driver to stop or at least slow down. Rather, he continued to approach the road block at the same speed and approached the tanks by overtaking cars who had already been waiting at the road block.
Therefore, the accused Y. ordered the accused Z. to fire a warning shot. As a result, Z directed his machine gun above the car and fired in the air. Since the car still did not slow down, Sergeant Y. gave the order “fire”; at this point in time the accused assumed that the driver was a suicide attacker who intended to drive into the road block and cause an explosion.
Consequently, the accused Z. fired at the vehicle. …
The vehicle, which had been hit by at least six bullets of a 7.62mm calibre, slowed down, made a left turn to the parking lot of a petrol station and stopped.
There were six Afghan civilians in the car. They did not carry weapons and were taking a relative’s body to Badakhshan province. … Five people in the car were injured by the bullets … There were no explosives in the Toyota.
3. These facts warrant that the proceedings against all accused be discontinued in accordance with § 170 para. 2 StPO [Criminal Procedure Code] because of the lack of a sufficient initial suspicion that a crime has been committed.
The following has to be noted with respect to the accused X.:
He is not to be held criminally responsible for attempted manslaughter, causing bodily harm by dangerous means and destruction of property.
The setting up of the roadblock and the instructions on how to proceed with approaching cars were lawful.
The legal basis is to be found in Art. 24 (2) GG [Basic Law] in combination with the submission of the Federal Government of 7 October 7 2008 … and the decision of the Bundestag of 16 October 2008 …
In the submission of the Federal Government referred to above it is noted under number 7 with respect to the status and rights of armed forces on mission in Afghanistan: “The international security assistance force is authorized to use all necessary means including the use of military force to enforce its mandate based on [UN Security Council] Resolution 1833 (2008).” The mandate of the international security assistance force based on this resolution and earlier ones is “to support the Afghan authorities in maintaining security in the area of operations in order for the Afghan state organs as well as UN personnel and other international civilian personnel to be able to exercise their functions in a secure environment.” …
Thus the order to set up roadblocks and the instructions on how to proceed with approaching cars were lawful. Because of prior monitored activities of suspicious Afghans it was feared that they had prepared an attack with explosive devices. These regular terrorist attacks endanger the aim of the mandate, i.e. to ensure that the relevant state organs and persons can work in a secure environment. A prompt, safe and reliable verification of suspicious facts which could only be ensured through the setting up of a roadblock and the relevant orders of the accused X was therefore in accordance with the mandate. The order further contained detailed instructions on how to proceed in case of approaching cars. Thus, the conflicting interests of the passengers of an approaching car and the mission to implement the mandate were considered in an adequate manner.
There are doubts whether firing into the Toyota’s passenger area was justified.
The accused Y. and Z. were – together with the other soldiers who set up the road block – in tanks. The Toyota’s passengers were unarmed. There were no explosives in the car.
Y and Z are not criminally responsible based on the notion of putative self-defence … Putative self-defence exists where a person wrongly assumes there is an emergency situation and defends himself or others in a way that would be lawful if the situation of emergency actually existed. Consequently, there is no criminal intent.
The conditions of putative self-defence are fulfilled in this context. The accused Y. and Z. wrongly believed to be confronted with a suicide attacker.
The Toyota continued to approach the road block without slowing down despite the light signal on the windshield, the firing of flare and a warning shot into the air. Based on these facts and assuming an imminent attack, the order to fire and firing the shots at the front of the car were justified under § 32 StGB [Penal Code]. The same is true for the shots fired against the front area of the Toyota after its driver, undeterred by the previous measures, continued driving towards the tanks.
In 2009, in the Kunduz Checkpoint case, the Senior Public Prosecutor at Germany’s Office of the Prosecutor Frankfurt (Oder) issued a press release, which stated:
The investigation proceedings against a 28-year-old sergeant (Oberfeldwebel) of the Bundeswehr in the context of the killing of civilians in Kunduz/Afghanistan have been discontinued because there no longer is a founded suspicion that a crime has been committed.
On 28 August 2008, the accused was deployed as a gunner on an operational vehicle (type “Dingo”) of the Bundeswehr [the German armed forces] in order to protect comrades and about 20–25 Afghan soldiers and policemen who were establishing a checkpoint. At about 21.50 o’clock, two vehicles approached the soldiers on a dirt road at high speed in close proximity to one another.
As a result [of the investigations], it can be presumed that the accused briefly fired his machine gun (15 bullets), thereby killing one woman and two children and injuring four other persons.
Criminal responsibility for crimes concerning wilful killing or injury can be excluded not least because the accused acted under the assumption that he and his comrades were being attacked by the approaching vehicles.
Criminal responsibility for negligent killing or injury had also to be considered, but had to be excluded because the necessary violation of due diligence was lacking. The accused cannot be considered to have violated his obligations by assuming that a situation of self-defence existed.
In essence the following circumstances are of relevance: The accused had to make a decision in a fraction of seconds. There was a potentially dangerous situation because various attacks against ISAF [International Security Assistance Force in Afghanistan] forces had occurred in the summer of 2008. The approaching vehicles were driving suspiciously fast and close together. Despite the soldiers’ visual and acoustic signals, they did not stop initially but continued with screeching tires towards the clearly identifiable soldiers. Because of the swirled up dust, visibility was very limited. In addition, the German and Afghan forces fired various warning shots as most of the persons present considered the vehicles as potentially dangerous. When the accused saw that a comrade was lying on the ground and when he heard further shots, he presumed an attack against his comrade and shot at the vehicles. It is to be assumed that he shot at their license plates.
In particular, the reconstruction of the events at a barrack in Bavaria showed that the accused cannot be considered to have committed any acts to which criminal law would apply. It has been established that the view from the operational vehicle was very limited, and that the other environmental conditions (darkness, dust) and other aforementioned conditions contributed to the interpretation of the drivers’ conduct as an attack.
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.
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 death 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 (Oberst
) 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:
Criminal liability under the International Crimes Code (VStGB)
The International Crimes Code applies in the present case because the characteristic element of the crimes listed in paragraph 2 of the Code (“war crimes”), namely the connection with an armed conflict, in this case a non-international armed conflict, are fulfilled. However, Colonel (Oberst
) Klein does not incur criminal liability under the International Crimes Code because his conduct did not fulfil the other elements of the crimes.
The Federal Prosecutor General further stated:
Company Sergeant Major (Hauptfeldwebel
) Wilhelm is not criminally responsible. His participation in the acts relevant for the present case consisted of supporting Colonel (Oberst
) Klein in the preparation and implementation of Klein’s order to attack. Since the conduct of Colonel (Oberst
) Klein did not violate criminal law … , criminal responsibility of Sergeant Major (Hauptfeldwebel
) Wilhelm must equally be excluded.
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:
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 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.
2. … 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.
3. 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. …
4. 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 ordered by the accused as murder.”
The Court further stated that “the finding of the criminal chamber [of the lower court] that the objective requirements for a permissible war reprisals were not fulfilled is fully confirmed.”
In a statement at the International Conference for the Protection of War Victims in 1993, Germany’s Minister of State stated: “Crimes against international humanitarian law are mostly war crimes. Crimes against international humanitarian law are internationally banned. These crimes must have criminal prosecution as consequences.” He added that guaranteeing prosecution was the task not only of individual States but of the international community as a whole.
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 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.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
Negotiating with armed non-State actors is a tricky issue. It requires flexibility and realism, but it should not come at the expense of impunity. Perpetrators of serious crimes against civilians must be brought to justice, irrespective of whether those groups operate against or in complicity with their respective Governments. This is a very contentious issue because questions of national sovereignty are at stake. But national sovereignty cannot and should not be an excuse when thousands of innocent, vulnerable civilians are threatened. The imposition of targeted sanctions and travel restrictions are possible measures against non-State armed groups and those who back them.
We also have to seek to protect civilians from exploitation by peacekeepers. As members of United Nations peacekeeping missions do not fall under United Nations jurisdiction, we must find a way to ensure that every country that provides peacekeepers establishes and applies its own laws, and that peacekeepers who commit crimes against the local population are to be brought to justice and convicted. It is not acceptable for pockets of impunity to remain for United Nations peacekeepers.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
We welcome the fact that, after long and difficult negotiations, the Council has adopted this resolution [UN Security Council Resolution 1556] … The Government of the Sudan has been given a chance to avoid the imposition of sanctions by demonstrating, within the next 30 days and in a clear and verifiable manner, that it is making significant and measurable progress on disarming the Janjaweed militias and bringing them to justice, and that it is making every effort to protect its own people. This is a clear and constructive message, and Germany therefore decided to sponsor this resolution.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
Given the scope of gender-based discrimination, including violence, we need to ensure that all substantive units of a peacekeeping operation, starting with the United Nations assessment team, include specialists with gender expertise …
That also requires that the United Nations continue to train its personnel, including at the level of the Special Representative of the Secretary-General, and that Member States invest more in gender training of potential peacekeeping staff. The German Government has made the latter a political priority in its endeavours. We strongly believe in the need for accountability for wartime violence against women, and in the necessity to end impunity …
The International Criminal Court (ICC) certainly has a key role to play with regard to the investigation and prosecution of gender-based crimes. However, its efforts must be supplemented by national legal mechanisms …
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 gravest human rights crimes also in Germany. Like the Rome Statute, 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 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 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”, Germany’s Federal Government wrote:
25. How does the Federal Government assess the circumstance that some war criminals in Germany have remained unpunished until today?
According to the principle of obligatory investigation anchored in Section 160, paragraph 1 of the Criminal Procedure Code, public prosecution offices, as soon as they obtain knowledge of a suspected criminal offence, have to investigate the facts to decide whether public charges are to be preferred. In doing so, they have to take into consideration potential legal obstacles to criminal prosecutions. The Federal Government has no information which indicates that the public prosecution offices insufficiently fulfil the statutory mandate with regard to the group of perpetrators mentioned by the authors of the Minor Interpellation.
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 at: 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:
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, in a statement 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, a representative of Germany stated: “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 2009, in a statement at the 21st Forum on Global Issues in Berlin, Germany’s Secretary of State at the Federal Office of Foreign Affairs stated:
The belief in the rule of law, which includes the understanding that neither governments nor the military are above the law and that they must be held to account for crimes against humanity and serious war crimes, has contributed to strengthening national and particularly international mechanisms for the criminal prosecution of violent acts, in particular the establishment of the International Criminal Court.
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Gaza War”, Germany’s Federal Government wrote:
4. How does the Federal Government justify its position that despite the allegations of independent international observers that Israel committed war crimes and human rights violations during the recent war in the Gaza Strip, the creation of an International Commission to investigate such allegations is to be blocked?
The Federal Government has always emphasized that fundamental rules of international humanitarian law must also be respected in Gaza … An investigation commission of the United Nations which examines attacks against UN installations and operations during the Gaza war began its work on 12 February 2009 and will report to the Secretary General of the United Nations after completing its investigations. The Federal Government agrees with its partners in the European Union that the result of these investigations should not be pre-empted. This common position is also reflected in the Council conclusions of 26 and 27 January 2009: “The Council reminds all parties to the conflict to fully respect human rights and comply with their obligations under international humanitarian law and will follow closely investigations into alleged violations of international humanitarian law.”
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
1. Does the Federal Government support the call by Amnesty International and other human rights organisations, which is also being made by the UN High Commissioner Navi Pilay to initiate an independent investigation of the serious violations of international humanitarian law and war crimes by both parties to the conflict through a commission of the United Nations?
If so, in what form?
If not, why not?
The Federal Government has always emphasized that fundamental rules of international humanitarian law must be respected. An investigation commission of the United Nations to examine the attacks against UN installations and operations during the Israeli military operation “Cast Lead” (27 December 2008 to 18 January 2009) commenced its work on 12 February 2009 and will shortly be reporting to the Secretary General of the United Nations. A “Fact Finding Mission” mandated by the Human Rights Council of the United Nations on 12 January 2009 shall soon begin its work. The Federal Government agrees with its partners in the European Union that the results of these investigations ought not to be pre-empted. This common position is also reflected in the Council conclusions of 26 and 27 January 2009: “The Council reminds all parties to the conflict to fully respect human rights and comply with their obligations under international humanitarian law and will follow closely investigations into alleged violations of international humanitarian law.”
Internal investigations of the Israeli armed forces concerning alleged violations of international humanitarian law have been ordered and are currently under way.
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:
3. In the Federal Government’s view, how should allegations of war crimes and crimes against humanity be criminally investigated in order to ensure justice for the victims and to prevent further aggression and a culture of impunity in the region?
It is the Federal Government’s view that criminal investigations should be in conformity with international standards, as included for example in international humanitarian law and in the  International Covenant on Civil and Political Rights.
The Federal Government also wrote:
9. What is the position of the Federal Government concerning the “Goldstone Report’s” recommendation to the UN Security Council to establish an independent expert body controlling the Israeli and Palestinian investigations [of the Gaza war]?
The Federal Government has always emphasized that the UN Human Rights Council as the body who initiated [the Goldstone Report] is the appropriate body for considering questions related to the report’s follow-up and consequences. The resolution of the [UN] General Assembly of 26 February 2010 asks the United Nations Secretary General to report on the implementation of the resolution within five months. It would not seem helpful to speculate before the end of this deadline about further considerations.
10. Is it correct that the Federal Government would have preferred if the “Goldstone Report” had only been considered by the Human Rights Council and the pertinent resolutions did not include a referral to the UN Security Council?
Reference is made to the response to question 9.
a) If so, why?
b) In the view of the Federal Government, what consequences would this have had for the chances of criminal prosecution?
An exclusive consideration of the Goldstone Report by the United Nations Human Rights Council would not have affected the chances of a criminal prosecution of potential violations of the law. The national criminal proceedings concerning the conflict are not influenced by considerations of the conflict at the international level. The international criminal justice system is complementary and requires that no national criminal proceedings take place.
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:
The office of the prosecutor responsible for the prosecution of crimes under the VStGB [International Crimes Code] is the Federal Prosecutor General at the Federal Court of Justice. Together with the Central Unit for the Fight against War Crimes of the Federal Criminal Police Office, the Federal Prosecutor General keeps an eye on the human rights situations in the hotspots and crises around the world. To this end, the Federal Prosecutor General established various observation procedures which make it possible to initiate targeted investigation proceedings on short notice if information on international crimes that can be used for judicial purposes is received. Moreover, he stays in touch with the office of the prosecutor at the ICC [International Criminal Court] in The Hague and with national war crimes units of other States in order to ensure information exchange. Since the entry into force of the VStGB, several formal investigation proceedings in the area of international criminal law have been begun. 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:
The Federal Prosecutor General at the Federal Court of Justice is responsible for the prosecution of crimes under the International Crimes Code. Thus, in line with their significance, these sensitive proceedings are in the hands of the highest German criminal prosecution agency. Within this jurisdiction and taking into account the practical possibilities, the Federal Prosecutor General prosecutes those responsible for genocide, crimes against humanity and war crimes. In so doing, the prosecution of crimes involving sexual or other forms of violence against women or girls is considered particularly important. At the moment there is an investigation proceeding against three individuals accused of crimes including sexual violence: The office of the federal prosecutor had two Rwandese nationals arrested on 17 November 2009. The accused 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 2008, in the Kurdish Refugee case, Germany’s Higher Administrative Court for the Federal Land of Bavaria found 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 during his involvement with the Kurdistan Workers’ Party. The Court held:
1.2 … [T]he fact that the claimant participated “in any other way” in acts which fall under all offences listed in §3 para. 2 sentence 1 AsylVfG [Asylum Procedure Code] and in Art. 1F GFK [1951 Refugee Convention] (with the exception of crimes against peace) while he belonged to the armed forces of the PKK between 1987 and 1991 opposes the granting of protection from expulsion under §60 para. 1 AufenthG [Law on Residence] and the recognition of refugee status.
1.2.1 Krech (The Civil War in Turkey 1978–1999, 1999, p. 51) summarizes the PKK’s conduct since Turkey’s conclusion of the agreements with Iraq and Syria in 1984 and 1987, respectively, whose purpose was the suppression of the PKK, and since the beginning of the Gulf War on 2 August 1990 as follows: “The PKK continued to escalate the terror by targeting Turkish teachers, business managers, [and] Kurdish village protectors and their families. It unscrupulously murdered hundreds of civilians, including women, children and even babies.”
1.2.2 These acts fulfil the requirements of all three alternatives of §3 para. 2 sentence 1 AsylVfG and Art. 1 F GFK [which include war crimes].
In order to specify the elements of the crimes listed in these provisions, the “Guidelines on International Protection: Application of the Exclusion Clauses – Art. 1 F of the 1951 Convention on the Status of Refugees” published by the High Commissioner for Refugees (UNHCR) on 4 September 2003 can be taken into account. …
220.127.116.11 Already according to the wording of §3 para. 2 sentence 1 no. 1 AsylVfG and Art. 1 F para a GFK, when specifying the notions “war crimes” and “crimes against humanity” used in these provisions, reference must be made to the international agreements addressing the prosecution of such crimes. The Rome Statute of 17 July 1998 of the International Criminal Court … can be considered the most recent body of rules in this respect … Further, the four Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War are relevant … In addition, all crimes listed in §§8 to 12 of the International Crimes Code can lead to exclusion [from refugee protection] under Art. 1 F para. a GFK …
According to §8 of the International Crimes Code and Art. 8 para. 2 of the Rome Statute, war crimes can be committed both in an international armed conflict and in purely domestic confrontations … At least this is the case if the duration and intensity of a non-international armed conflict exceeds the internal disturbances, tensions, riots and isolated acts of violence listed in Art. 8 para. 2 sub-paras. d and f of the Rome Statute.
According to Art. 27 para. 1 sentence 1 of the Rome Statute, perpetrators capable of committing war crimes and crimes against humanity do not only include persons who exert an official function within a State. This is because the opportunity to suppress such wrongs cannot depend on whether the perpetrator acted as a representative of the State, or on whether pertinent crimes are being committed by forces opposing the State, as is often the case in reality. The view that the crimes listed in Art. 1 F para. a GFK [of the 1951 Refugee Convention] can only be perpetrated by persons who have a high position within the power structure of a political system or a State or a state-like entity can only be sustained as regards crimes against peace.
It cannot be shown that the claimant participated in a criminal law sense in even one of the crimes listed in §3 para. 2 sentence 1 AsylVfG and Art. 1 F GFK committed by PKK activists in the time period between his accession to the organisation and his arrest on 11 June 1991. In particular, it cannot be shown that he positively knew that one of the messages … which he passed on for the PKK or one of the weapons which he transported for the PKK facilitated or made possible the commission of such a crime, or that the
franc-tireurs, whom he assisted in navigating the area, were about to commit such a crime. In light of the pertinent provisions of international law, the notion of participating “in any other way” in one of the acts listed in §3 para. 2 sentence 1 AsylVfG, which is used in §3 para. 2 sentence 2 AsylVfG, must be understood as encompassing any active collaboration with a group which plans acts listed in §3 para. 2 sentence 1 AsylVfG if the person in question knew the group’s general intent, if his contribution is objectively designed to further such acts, and if the act of support is undertaken in the knowledge that it may objectively support a crime listed in §3 para. 2 sentence 1 AsylVfG.
In principle, UNHCR rightly requires in this context that a person can only be held account for acts listed in Art. 1 F GFK which were committed by an organisation if the person in question was a voluntary member of this group …
By stating in Art. 12 para. 3 QRL [Council Directive 2004/83/EC of 29 April 2004, the so-called Qualification Directive,] that Art. 12 para. 2 QRL inter alia applies to persons who participate “in any other way” in the acts listed in Art. 12 para. 2 QRL, the Community legislator also intended to include conduct which goes beyond the criminal law concept of aiding, abetting and otherwise assisting [in the commission of a crime]. This is because the wording of the English and French version of Art. 25 para. 3 sub-paras. c and d of the  Rome Statute … shows that not only the German version but also the other two official languages of the European Community make a terminological distinction between the criminal law concept of participation regulated in Art. 25 para. 3 sub-para. c and the criminal law concept of “in any other way” contributing to a crime regulated in Art. 25 para. 3 sub-para. d [Rome Statute]. If the Community legislator had intended to solely include the criminal law concept of aiding, abetting or otherwise assisting under Art. 12 para. 3 QRL, it would have made sense to use the non-German terms available to describe the notion of aiding, abetting or otherwise assisting; this is precisely what was not done.
The PKK’s terrorist activities and the fact that members of this organisation were committing war crimes and crimes against humanity between 1987 and mid-1991 must have been known to the claimant already at that time. …
The acts which he undertook for the PKK since 1987 until his arrest on 11 June 1991 were designed to support or facilitate such crimes. At the same time, his past acts fall within the concept of participation in Art. 25 para. 3 sub-para. d no. i of the Rome Statute. Since the commission of terrorist acts, war crimes and crimes against humanity characterized the conduct of the PKK’s armed wing in Southeastern Turkey at the time (and thus in the region in which the claimant was active for the organisation in the same period), these acts must be attributed to the claimant. This is also in line with UNHCR’s views, as shown in numbers 19 and 26 of its Guidelines of 4 September 2003. If, as his statement suggests, he was working first as a messenger for different guerrilla units when he began his activities for the PKK between 1987 and 1989 and if he accompanied the PKK franc-tireurs as a local familiar with the area, he must have anticipated that such acts did not only further the PKK attacks against Turkish armed forces, the gendarmerie or other organs of the Turkish State who opposed the PKK in a way similar to combatants. Rather, he must have constantly assumed that the unit which he was guiding through the area familiar to him was on its way to perpetrating an act which is to be qualified as a terrorist act, a war crime or a crime against humanity, or that the message or weapon which he transported assisted in the perpetration of such a crime. This must have been particularly apparent to him because he was in possession of a hand grenade when he was arrested. According to his statement, he was supposed to transport this hand grenade for the PKK. Such weapons may also be used in hostilities against armed forces and the gendarmerie of the Turkish State. However, the use of explosive devices such as hand grenades, designed to kill or injury the highest possible number of people, is a classic instrument of terrorists … Moreover, the PKK did in fact use hand grenades during the massacre in Pìnarcìk. Therefore, the claimant could never have been sure that he was not supporting a terrorist act when transporting such weapons.
By way of a remark that complements the aforesaid, it is to be noted that §3 para. 2 AsylVfG and Art. 1 F GFK do not strictly require showing that a person did indeed commit any of the acts which hinder recognising him or her as a refugee. Rather, according to these provisions it suffices that there are serious reasons to make an assumption to this effect. Since §3 para. 2 sentence 2 AsylVfG refers to §3 para. 2 sentence 1 in its entirety, it is not necessary to show with certainty that incitement, aiding and abetting or another act of assistance for acts in the sense of sentence 1 occurred, at least in cases in which it is highly likely that the person in question objectively supported war crimes, crimes against humanity or (other) terrorist activities and that he was aware that the organisation for which he acted was planning acts listed in §3 para. 2 sentence 1 AsylVfG or Art. 1 GFK and that his contribution could further the perpetration of such an act.
It does not follow from the fact that the claimant was not yet of age during some of the period before 11 June 1991 during which he belonged to the PKK that the exclusion clauses of §3 para. 2 AsylVfG and Art. 1 F GFK cannot be applied. In number 28 of the Guidelines of 4 September 2003, UNHCR assumes that the exclusion clauses apply to minors if, as was the case for the claimant regarding the PKK, they obtained the age of criminal responsibility and had the mental capacity to be held to account for a crime.
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:
2. According to § 3 para. 2 sentence 1 no. 1 AsylVfG [Asylum Procedure Law], an alien is not a refugee if there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes (§ 3 para. 2 sentence 1 no. 1 AsylVfG). This also applies to aliens who have instigated others to commit such crimes or who have participated in such crimes in other ways (§ 3 para. 2 sentence 2 AsylVfG).
The appealed judgment violates federal law because it presumes that the requirements of § 3 para. 2 sentence 1 no. 1 AsylVfG are only met if one of the crimes listed in this provision is directed against the civilian population. At the very least this is not the case for the war crime to be considered in this case [treacherous killing]. The ground for excluding an individual from refugee protection under § 3 para. 2 sentence 1 no. 1 AsylVfG can also be fulfilled if the victim of the war crime is a soldier.
3. In defining crimes against peace, war crimes and crimes against humanity, § 3 para. 2 sentence 1 no. 1 AsylVfG refers to “the international instruments drawn up to make provision in respect of such crimes”. As the Senate [of the present court] stated in its judgment of 24 November 2009 (BVerwG 10 C 24.08) … , the question of whether war crimes or crimes against humanity exist in the sense of § 3 para. 2 sentence 1 no. 1 AsylVfG must be primarily determined in light of the elements of these crimes as set out in the Rome Statute of the International Criminal Court of 17 June 1998 … This reflects the current state of the criminalization of violations of international humanitarian law.
In defining war crimes, Article 8 para. 2 ICC Statute distinguishes between acts in international armed conflicts (paras. a and b) and non-international armed conflict (paras. c to f). Regarding international armed conflict, para. c ties in with the grave breaches of Article 3 common to the four Geneva Conventions relative to the Protection of Victims of Armed Conflict of 12 August 1949. This provision inter alia 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. Para. e covers other violations of the laws and customs of war applicable in internal armed conflict. Numbers (ix)-(xi) of para. e covers the protection of enemy combatants in case of perfidious killing or injury, the declaration that no quarter shall be given and the physical mutilation of persons who are in the power of an adverse party.
The lower court [i.e. the Higher Administrative Court for the Federal Land of Saxony-Anhalt whose judgment was appealed] did not decide whether the requirements of the crimes set out in Article 8 para. 2 of the ICC Statute, which can also be directed against soldiers, are fulfilled. The Senate cannot itself decide this matter because the facts established by the lower court are insufficient. Therefore, and pursuant to § 144 para. 3 sentence 1 no. 2 VwGO [Administrative Procedure Code], the case is returned to the lower court which must carry out renewed proceedings and take a decision.