Practice Relating to Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes
In 1995, in reply to a question from members of parliament concerning Russian action in Chechnya, the German Government stated:
The Federal Government has repeatedly reminded Russia of the latter’s duty to abide by its obligations under Protocol II additional to the 1949 Geneva Conventions, which provides for the protection of victims of non-international armed conflicts and thus applies to the conflict in Chechnya.
In 2000, Germany’s Federal Government adopted Political Principles for the Export of War Weapons and Other Military Equipment, which state:
4. Licences for exports under the KWKG [Law on the Control of War Weapons] and/or the AWG [Foreign Trade and Payments Law] will not be granted if the internal situation in the country concerned precludes such exports, for examine if there are armed internal confrontations or if there is sufficient suspicion that the weapons would be abused for the purposes of internal suppression or for continued and systematic human rights violations. Regarding this question, the human rights situation in the receiving country plays an important role.
5. The transfer of war weapons and other military equipment related to war weapons is not allowed to countries:
- which are involved in armed confrontations or where such armed confrontations are imminent;
- where the outbreak of armed confrontations is imminent or where such exports would trigger, perpetuate or exacerbate existing tensions and conflicts.
This is why transfers to countries which are involved in external armed conflicts or where there is a danger that such conflicts may erupt are ruled out in principle unless in cases covered by Article 51 of the  UN Charter.
7. Moreover, the receiving country’s conduct is taken into account regarding:
- compliance with international obligations, in particular refraining from the use of force, including obligations under international humanitarian law applicable in international and non-international armed conflicts.
[footnote in original omitted]
In 2003, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
The 59th Session of the Commission on Human Rights convenes at a dramatic time. A war is waging in Iraq. Its consequences and effects are a cause of great concern for a large majority of the population in Germany and Europe. War is terrible. War always represents a defeat. It is a great tragedy, first and foremost for those involved, but also for us all.
… The community of states is called upon more urgently than ever to respond to these dramatic events.
For human rights are always especially at risk in times of war and crisis. The war will further weaken the Iraqi population. Above all women, children and vulnerable groups will be those who suffer most. The risk of an imminent humanitarian disaster is a cause of grave concern.
For this reason we must today call on all warring parties to fully and absolutely abide by international humanitarian law. Above all the civilian population must be protected. The parties to the conflict must treat prisoners of war in compliance with the Geneva Convention.
The human rights situation in Chechnya continues to be a cause of concern. On the one hand the acts of terrorism committed by the Chechen rebels must be clearly condemned. On the other hand, the Government in Moscow must respect human rights and the basic principles of humanitarian law in its legitimate fight against terrorism. We expect our Russian partners to do justice to their responsibilities in the North Caucasus, to prevent future human rights violations and to prosecute those who have committed them in the past. In this context we welcome President Putin’s announcement that the Russian security forces will curb their cleansing operations. Despite all the serious publicly expressed doubts about the recent referendum, we hope that it will drive forward the process towards a genuine political solution.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
It is safe to say that it has become common wisdom that there is an interdependence among peace, democracy, justice and development. Yet it is appalling to observe that the determination to transform that wisdom into practical action is greatly lacking. All too often, efforts to strengthen the international rule of law are on the defensive and international law is ignored, or even declared obsolete, at the national level. In that context, Germany recalls the well-established obligations under international law – in particular, the Fourth Geneva Convention and Additional Protocol I to all four Conventions, which contain the basic rules for the protection of civilians in armed conflict.
Let me take this opportunity to express our hope that the forthcoming report of the Secretary-General on justice and the rule of law will reiterate that achieving the purposes of the United Nations – notably, peace, security and development – requires an increase in the level of guarantees and protection afforded to civilians. That is also the vision of the European Security Strategy, adopted by European Union member States as recently as 12 December 2003: to develop a rules-based international order.
In that context, the International Criminal Court deserves particular mention as an institution that has the potential to address one of the worst root causes of violating the integrity of civilians: impunity.
Combatants violating the principles of humanitarian law – be it by acts directed against civilians or by acts against humanitarian personnel – need to know that they are acting against fundamental principles of humanity and that their acts will eventually come under the judicial scrutiny of the International Criminal Court or of a regional tribunal. What is needed is to move even further towards universal acceptance of its jurisdiction, not to create new pockets of impunity, like those proposed by Security Council resolutions 1422 (2002) and 1487 (2003).
On the basis of the new report of the Secretary-General that we are considering today, I would like to share with the Council a catalogue of three areas for measures to move our protection agenda forward.
The first area is the protection of women and children … The second area is humanitarian access and the security of humanitarian personnel … Thirdly, regarding refugees and internally displaced persons, in general, their situation must be improved …
Germany thus proposes the following measures.
The first is a new resolution on the protection of civilians; the most recent resolution that the Security Council adopted on the protection of civilians in armed conflict (resolution 1296 (2000)) dates from 2000. That resolution, as well as the preceding relevant resolution (resolution 1265 (1999)), were regarded as a starting point. After four years we feel the need for an update of the most recent resolution, to take into account recent developments and the changing character of conflicts. Germany would support efforts aimed at adopting a new resolution.
A second measure would be more frequent reporting by the Emergency Relief Coordinator …
A third measure would be the promotion of the responsibility of new actors. There are new actors in the area of the protection of civilians in armed conflict whom we have to deal with. More than ever before, we need constructive engagement with non-State armed groups. They not only have the potential to deny humanitarian actors humanitarian access; they actually do it. They are also a potential source of harm to the civilian populations where they operate. Without legitimizing them and their actions, we must explore innovative ways to engage them in a constructive dialogue and, where necessary, to pressure them to make them abide by international humanitarian law and human rights norms.
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.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
On this occasion, Germany would like to propose three points that we deem to be of crucial importance concerning areas where the need for progress is urgent. … We propose the following.
First, let us put an end to impunity. Impunity is one of the worst root causes of the violation of the integrity of civilians. Parties to armed conflict need to comply with international humanitarian law, in particular the four Geneva Conventions and their two Additional Protocols. If we do not end impunity for violations of international humanitarian law, refugee law and human rights law, there will be no deterrent for the perpetrators of such acts of violence and aggression. Combatants who violate the principles of humanitarian law – be it by committing acts against civilians or acts against humanitarian personnel – need to know that they are acting against fundamental principles of humanity and that their acts will eventually come under the close scrutiny of the International Criminal Court or of a regional tribunal.
In that regard, we fully concur with the High-level Panel in its calls on combatants to abide by the provisions of the Geneva Conventions and on all Member States to sign, ratify and act upon all treaties relating to the protection of civilians, including the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions, the Rome Statute of the International Criminal Court and all refugee conventions. I would like to emphasize the role that the International Criminal Court might have in addressing the issue of impunity. We regret that there is serious disagreement about the role of the Court. We believe that we should consider options and possibilities aimed at bridging those differences, because we need to advance further towards universal acceptance of the Court’s jurisdiction.
My second point is that we should better address the issue of humanitarian access … Thirdly, we must stop the recent trend of using sexual violence as a weapon of conflict …
Let me end my remarks by reiterating our position: we believe that a new resolution on the protection of civilians would be a feasible option for the Council. I say that, bearing in mind that many of the points raised by the excellent Security Council resolutions 1265 (1999) and 1296 (2000) still await implementation. However, we believe that the changing character of conflict and the development of new threats, new institutions and new tools to engage more effectively in assistance should be reflected in an operational text adopted by the Council.
In 2007, in reply to questions by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, stated:
In the context of its EU Council Presidency, what initiative has the Federal Government taken or is it still going to take in order to contribute to or enforce the closing of the US camp in Guantánamo Bay, Cuba, and what, if applicable, are the elements of the initiative?
… already on 9 January 2006, the Federal Chancellor publicly declared that an institution such as Guantánamo must not exist in the long term and that means and ways for a different handling of the detainees must be found. She advanced this position also at the occasion of her first visit on 12 and 13 January 2006 vis-à-vis President Bush. Also the EU advances this position and has repeatedly made this clear vis-à-vis the United States. The issue was, inter alia, prominently addressed during the last EU/US summit in Vienna on 21 June 2006. Also in its capacity as holder of the EU Council Presidency, the Federal Government will continue advancing this line in political talks with the United States.
Furthermore, the Federal Government and the EU are in a dialogue with the US concerning legal questions arising in the fight against terrorism. It is, inter alia, the aim of this dialogue to point out possibilities how international terrorism can be fought effectively while observing international law.
In 2007, in reply to a written question by a Member of the Bundestag (Lower House of Parliament), a German State Secretary, Federal Foreign Office, wrote:
7. … Has the Federal Government protested against actions of the United States incompatible with international law in connection with the wars in Afghanistan and Iraq (torture of prisoners, illegal detentions in Guantánamo, abductions and transports of detainees by the CIA in violation of the sovereignty of European States), and when did it do this?
8. … Vis-à-vis whom and in which way did the Federal Government protest against actions of the United States incompatible with international law in connection with the wars in Afghanistan and Iraq (torture of prisoners, illegal detentions in Guantánamo, abductions and transports of detainees by the CIA in violations of the sovereignty of European States), and when did it do this?
The European Union and the United States have affirmed that measures combating terrorism must, without limitations, be in line with their international obligations, including human rights, refugee law and international humanitarian law (comp. declaration of the EU-US summit of 21 June 2006). The European Union and the United States are involved in an intensive dialogue on international law and the fight against terrorism. In October 2006, on the initiative of the Federal Minister of Foreign Affairs, Dr. Frank-Walter Steinmeier, also a German-American colloquium on this issue took place. In this context it is the aim of the Federal Government that also in the future the normative common ground of the principles of the rule of law unites Europe and the United States. In the framework of this dialogue also critical questions are addressed, so for example the situation of the detainees in Guantánamo. Before her first meeting with President George W. Bush in January 2006, Federal Chancellor Dr. Angela Merkel has made clear that an institution such as Guantánamo Bay cannot and must not exist like this in the long term (interview with Spiegel magazine, 9 January 2006). The Federal Chancellor and the Federal Minister of Foreign Affairs have addressed the issue also during meetings with President George W. Bush and Secretary of State Condoleezza Rice. At their meeting on 15 September 2006, the Foreign Ministers of the European Union affirmed that the existence of secret places of detention, where arrested persons are held in custody in a legal vacuum, is not consistent with international humanitarian law and human rights. As regards the overall position of the Federal Government, I further refer to the explanations in the “Report of the Federal Government in response to the request of the Parliamentary Control Panel of 25 January 2006 regarding incidents in connection with the Iraq war and the fight against international terrorism” of 23 February 2006, which is available to you.
In 2007, in reply to questions by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, stated:
The Federal Government several times has made clear its view vis-à-vis the United States regarding Guantánamo and the necessity of a treatment of detainees in line with human dignity. At the highest level and publicly, it has declared that an institution such as Guantánamo must not exist like this in the long term, and that means and ways for a different handling of the detainees must be found. Independent of the question of their status in the individual case, the Guantánamo detainees are to be treated according to the legal standards of international humanitarian law and human rights.
… We – not only the Federal Republic of Germany, but also the European Union – are in a constant dialogue with the United States, in order to insist on compliance with international law standards. Furthermore, in the framework of the bilateral relations between Germany and the United States – you know there is a frank and honest dialogue with the US State Department – we, in particular, very intensely address the role of the rule of law in the fight against terrorism.
In 2007, in reply to a written question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, wrote:
13. … To the knowledge of the Federal Government, are press reports correct according to which the United States in conducting “Operation Enduring Freedom” in Afghanistan uses interrogation methods partly highly questionable under human rights, and if yes, what efforts does the Federal Government make vis-à-vis the US allies to push for compliance with human rights standards during interrogations in Afghanistan?
The Federal Government has no own information on interrogation methods of the US armed forces in the framework of Operation Enduring Freedom.
Independent of that, it has repeatedly made clear vis-à-vis the US administration on all levels that international terrorism must be combated decisively, but that while doing so the principles of the rule of law and international law obligations must be taken into account.
The Federal Government will continue emphatically advancing this position.
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Gaza War”, Germany’s Federal Government wrote: “The Federal Government has always emphasized that fundamental rules of international humanitarian law must also be respected in Gaza”.
In 2009, Germany’s Federal Foreign Minister stated:
I appeal urgently to all conflict parties in Sri Lanka to ensure the protection of the civilian population and adhere to international humanitarian law. … [I]t is clear that a lasting resolution of the conflict can only be achieved through political means. My country is ready and willing to do all it can to support such a process.
In 2009, at a ceremony commemorating “150 years since Solferino”, Germany’s Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office stated:
It is the duty of the community of States to ensure respect for international humanitarian law in a determined and credible manner, including as regards the investigation and punishment of serious violations. In particular due to the increase in violations [of IHL], we must not silently accept disrespect for and violations of international humanitarian law.
In 2010, in its 2008 Military Equipment Report, Germany’s Federal Government stated:
[T]he following applies for the group of third countries: The export of war weapons is approved only in exceptional cases where, as justified by the individual situation, special foreign policy or security policy interests of Germany would support the granting of a licence. For other military equipment, licences are granted only insofar as such action does not endanger the interests to be protected under foreign trade and payments law …
The recipient country’s conduct towards the international community, for example … its compliance with its international obligations, particularly with respect to international humanitarian law … , [is one of several] other criteria when deciding whether a licence for the export of war weapons is to be granted.
In 2010, in its report on German humanitarian aid abroad between 2006 and 2009 which was submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated: “The Federal Government advocates the respect of international humanitarian law in its international relations”.
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:
26. In what time frame does the Federal Government plan to implement the resolution on the control of non-State military security companies (see Bundestagsdrucksache 16/10846)?
The Federal Government continues to be open in principle to initiatives at the international or national level aiming at the effective control of the conduct of private security companies. This is why it has actively participated in the drafting and adoption of the so-called  Montreux Document [on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict]. The Montreux Document summarizes the provisions of international law which are relevant for non-State security companies and includes recommended actions. …
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 bound by international law and undermine international humanitarian law?
Employees of private security companies who are not members of regular armed forces within the meaning of Article 43, paragraph 2 of the Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflict do not enjoy combatant status. 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.
In 2010, in its third and fourth periodic reports to the Committee on the Rights of the Child, Germany stated:
Prohibition with respect to the sale of arms when the final destination is a country where children are known to be – or may potentially be – recruited or used in hostilities (para. 23, CRC/C/OPAC/DEU/CO/1)
42. The Federal Government has complied with the suggestion to examine the possibility of such a prohibition. These aspects are taken into consideration as follows in the Federal Government’s arms export control policy. The Federal Government’s arms export control policy is based on the Federal Government’s political principles for the export of arms and other military equipment in the version of 19 January 2000. The political principles distinguish between arms exports to NATO countries, EU member States and countries on an equal footing with NATO (Australia, New Zealand, Japan, Switzerland) which in principle are not to be restricted, and exports to all other States (so-called third-party countries). The export of arms and other military goods to these States is dealt with restrictively. All applications for export licences are decided on in the respective individual case after carefully weighing up above all the foreign, security and human rights policy arguments. Major criteria of each decision here are inter alia
conflict prevention and compliance with human rights in the recipient country. Export licences are not considered if the domestic situation in the recipient country is against this, such as in case of armed domestic or international conflicts.
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
First, on the arbitrary withholding of consent to relief operations: The Group recalls that international humanitarian law obliges all parties to a conflict to protect civilian populations from the effect of armed conflict. One way this can be achieved is by allowing and facilitating access for humanitarian relief operations, including by simplifying and expediting procedures for the rapid and unhindered delivery of life-saving assistance. The Group is concerned about intimidations, threats, arrests, detentions, injuries or killings of humanitarian workers.
In this regard, the Group notes the intention of the Secretary-General to examine the issue of arbitrary withholding of consent to relief operations. We note the fact that several drafting seminars among legal experts from diverse backgrounds have taken place; responding to the Secretary-General’s recommendation in this regard, the Group expresses its readiness to discuss their findings, among other inputs, with a view to elaborating guidance on how to facilitate consent in a peaceful manner. All parties to conflict must abide by international humanitarian principles and practice to protect civilians; the international community needs to take the initiative to guarantee this.
Second, on the issue of casualty tracking and recording: The Group of Friends notes that civilian casualty tracking, where practicable, plays an important role in efforts to reduce harm to civilians. The Group of Friends invites parties to a conflict, as well as UN peacekeeping missions, to recognize the potential value of such a role. With regards to casualty recording, and in light of the recent presentation of the Rights Up Front Plan of Action, the Group notes the continuation of efforts to ensure effective and credible casualty recording mechanisms, noting further that the establishment of systematic and credible records of civilian casualties in the right context could support broader efforts to monitor and report on violations of international humanitarian and human rights law, while taking into account the practical challenges in recording casualties, civilian or otherwise.