Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section E. Cooperation with international criminal tribunals
Germany’s Law on Cooperation with the ICTY (1995) states:
§ 1. Obligation to Cooperate
(1) Pursuant to this Law, the Federal Republic of Germany shall fulfil its obligations to cooperate as stated in Resolutions 808 (1993) and 827 (1993) adopted by the United Nations Security Council in accordance with Chapter VII of the United Nations Charter.
(2) For the purposes of this Law, the term “Tribunal” shall refer to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 established by Resolution 827 (1993), and shall include its Trial and Appeal Chambers and prosecuting authorities and the members of that Tribunal and the prosecuting authorities.
Germany’s Law on Cooperation with the ICTR (1998) states:
§ 1. Obligation to Cooperate
(1) Pursuant to this Law, the Federal Republic of Germany shall fulfil its obligations to cooperate as stated in Resolution 955 (1994) adopted by the United Nations Security Council in accordance with Chapter VII of the United Nations Charter.
(2) For the purposes of this Law, the term “Tribunal shall refer to the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda between 1 January 1994 and 31 December 1994 and for the Prosecution of Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States during the same period, established by Resolution 955 (1994), and shall include its Chambers, its prosecuting authorities and the members of that Tribunal and the prosecuting authorities.
Germany’s Law on Cooperation with the ICC (2002):
The International Criminal Court supplements German criminal law jurisdiction. Based upon this law and the Rome Statute of the International Criminal Court (“Rome Statute”) of 17. July 1998 (Federal Law Gazette 2000 II p. 1393) the Federal Republic of Germany shall work together with the International Criminal Court.
In 1997, during plenary discussions in the UN General Assembly on a report of the International Criminal Tribunal for the former Yugoslavia (ICTY), Germany stated that it wished to “underline again the obligation of States to cooperate with the [ICTY] under Security Council resolution 827 (1993)”. It further stated:
[Germany] has made every effort to contribute to the prosecution of violations of humanitarian law in the Balkans and will continue to do so. Germany was one of those actively supporting the establishment of the [ICTY] right from the beginning. We have continued vigorously to support its work in the political and legal fields. We have also assisted with personnel and financial contributions … The cooperation of German authorities with the Tribunal is regulated in a statute passed by the German parliament in April 1995 [i.e. the Law on Cooperation with the ICTY (1995)]. [The German] Government extradited two men charged with war crimes to the Tribunal. The extradition of Duško Tadić by Germany to The Hague was the very first extradition to the Tribunal by a Member State. Germany has also declared its readiness to execute sentences handed down by the Tribunal. German law enforcement authorities cooperate closely with the Tribunal in order to ensure an effective and transnational prosecution of violations of humanitarian law. The efforts include special protection for those of the many refugees from Bosnia and Herzegovina on German territory who are required by the Tribunal as witnesses.
Upon ratification of the 1998 ICC Statute, Germany stated:
The Federal Republic of Germany declares, pursuant to article 87 (1) of the [1998 ICC] Statute, that requests from the Court can also be transmitted directly to the Federal Ministry of Justice or an agency designated by the Federal Ministry of Justice in an individual case. Requests to the Court can be transmitted directly from the Federal Ministry of Justice or, with the Ministry’s agreement, from another competent agency to the Court.
The Federal Republic of Germany further declares, pursuant to article 87 (2) of the [1998 ICC] Statute, that requests for cooperation to Germany and any documents supporting the request must be accompanied by a translation into German.
In 2003, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
A few days ago the 18 judges of the International Criminal Court were sworn in. The establishment of this Court is a milestone in the history of international law and the international protection of human rights. For the first time ever a permanent tribunal has been created to prosecute war crimes, genocide and crimes against humanity. We must now do our utmost to enhance the operability and effectiveness of the Court. We therefore call on all states who have been hesitant or critical of this project, to ratify or accede to the Statute. Only with the universal support of the community of states can the ICC do full justice to its duties.
In 2003, during a debate in the UN Security Council, the representative of Germany stated:
Germany supports the position of the European Union as expressed in the statement made by the Greek presidency earlier this morning. We agree, in particular, with the remarks pertaining to article 16 of the Rome Statute. We also share the views of the Secretary-General and the concerns expressed by all the delegations in the open debate. We therefore could not vote in favour of the draft resolution.
Germany was and remains a major driving force in the creation of the International Criminal Court (ICC). As a State party, Germany is deeply committed to the mission of the ICC: to fight impunity by prosecuting those responsible for the most serious crimes that are of concern to the international community in situations where national jurisdictions do not prosecute those crimes. The International Criminal Court project has been consistently and actively supported by the present and earlier Governments of the Federal Republic of Germany. The German Parliament has repeatedly expressed its support for the ICC across party lines.
We feel that a treaty already ratified by 90 States and signed or ratified by 12 of the 15 Security Council members should not be amended by a Security Council resolution.
Justice is, and must remain, indivisible. At the beginning of the new millennium, the International Criminal Court will serve as an efficient and indispensable instrument to further international security, peace and justice.
We do not share the view that the ICC is an impediment to peacekeeping. On the contrary, the ICC is a safeguard. As an institution designed to prevent impunity, the ICC can play an important role in protecting peacekeepers in the execution of their missions.
Meanwhile, the Judges and the Prosecutor of the ICC have been elected. Germany is confident that experience will show that the Court is going to work impartially, justly and without politically motivated misuse.
In 2003, during a debate in the UN Security Council, the representative of Germany stated:
We would like first of all to thank you, Mr. President, for having convened this very important meeting. The issues dealt with by the Security Council – peacekeeping, crisis prevention and conflict management – are inseparably linked to the rule of law. The creation or restoration of rule-of-law structures in post-conflict situations may be very difficult, but they are vital. Multilateral engagement in a crisis area can generate a better and more peaceful order in the long term only if this order is based on rule-of-law principles.
The rule of law can be destroyed by conflict very quickly. But it takes great effort, time and resources to rebuild a State based on the rule of law. We Germans know from our own experience that external assistance is essential in building a State based on the rule of law in post-conflict situations. The restoration of peace and justice in El Salvador, Timor-Leste and Kosovo would not have been possible without the commitment of the United Nations. The two ad hoc Tribunals created by the Security Council have played a valuable role in dealing with the serious crimes committed in the former Yugoslavia and in Rwanda. The Special Court for Sierra Leone is a successful example of cooperation between national and international justice systems.
In this context I would like to single out the International Criminal Court. The International Criminal Court is an important step towards global civilization. It serves the same principles that are upheld and the same purposes that are pursued by the Security Council. It serves international justice, the rule of law and the fight against impunity. It can take on those very serious crimes which a State believes cannot be handled by its own courts at present. It should thus also be seen as an offer to countries weakened by crisis.
I should like quickly to outline six proposals on the rule of law in post-conflict situations. First, the Council knows that greater efforts to create rule-of-law structures in conflict areas can help ensure the sustainability of a peaceful order. It should go without saying that mission mandates also provide for the protection and restoration of the rule of law. But we do not have to reinvent the wheel in every post-conflict situation. Therefore, the development of standard or model procedures would be desirable. They should apply to the secondment of judicial commissions of inquiry, the integration of rule-of-law components into peacekeeping missions and the establishment of provisional judicial authorities. I suggest that the Secretary-General include proposals on this in his report. He might also consider establishing a task force in the Secretariat to tackle these issues.
Secondly, the complementarity between national and international efforts should be kept under constant review. The main pillar of justice continues to be the national judicial system, for which every country bears its own responsibility. However, in post-conflict situations in particular, the judicial sector is often crippled. I propose that, in his report, the Secretary- General also identify the weaknesses of national judicial systems in such situations and how they can be redressed. The personnel, financial and intellectual resources of States, international organizations, including non-governmental organizations, should be made available and included in these deliberations.
Thirdly, we feel that complementarity also means the institutional division of labour between national and international justice systems. In Sierra Leone, Kosovo, and Bosnia and Herzegovina, the international community has had good experience with various forms of division of labour. With regard to the prosecution of the most serious crimes in the Democratic Republic of the Congo, it appears that the Democratic Republic of the Congo and the International Criminal Court may work together. This cooperation between national and international bodies should be further developed.
Fourthly, some instruments aimed at fostering justice and the rule of law were created by the Security Council – for example, the ad hoc tribunals. Others, such as the International Court of Justice, emerged outside of that framework. However, its Statute contains cross-references to the Security Council. In order to use the various judicial systems efficiently, it could be worthwhile for the Security Council to observe their work more closely. I therefore propose that the Security Council set up a monitoring group for that purpose. It would be especially welcome if those Council members who are critical of or sceptical about some tribunals would participate in this group.
In 2004, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
The establishment of the International Criminal Court is without a doubt one of the positive developments in recent years. We cannot assess highly enough its long-term significance for the international protection of human rights. For Germany, it therefore remains a priority to defend to the best of our ability the enforcement of the Rome Statute.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
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).
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
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.
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Both on the international and the domestic level the Federal Government has taken numerous measures to fight impunity. Apart from supporting international criminal jurisdiction, Germany together with its EU partners also in the reporting period has supported a resolution against impunity sponsored by Canada in the UN Commission on Human Rights and has co-sponsored it annually. The resolution recognizes the fundamental role of the International Criminal Court as well as of the ad hoc tribunals in the fight against impunity and appeals to States to continue supporting the work of the tribunals, as well as to consider acceding to or ratifying the Rome Statute.
Germany remains one of the strongest supporters of the Rome Statute and a supporter – politically, financially and as regards human resources – of a speedy establishment and development of the International Criminal Court (ICC), considering the important contribution this makes to preventing impunity for international crimes and to resolving conflict situations permanently.
Many States party [to the 1998 ICC Statute] still need to adapt their domestic criminal law and criminal procedure law. Germany has done this with the adoption of a specific International Crimes Code (Völkerstrafgesetzbuch – VStGB) and a detailed law on cooperation with the ICC; both laws are used as models by the legislators of many other States. With the VStGB it has been avoided to have to split, adapt or amend the existing criminal law norms in many places; it is thereby achieved that, e.g., the behaviour of German soldiers in deployments abroad is measured against a uniform body of law.
It is the task of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), which are emphatically supported by Germany, to prosecute genocide and other grave crimes against humanity. Tribunals, interpreting and concretizing international criminal norms and developing new procedural provisions, have set standards which will influence also the future work of the International Criminal Court and domestic legal orders.
Finally, Germany gives assistance in the enforcement [of judgments of international tribunals]: in October 2000, for the first time, a person convicted by the ICTY (Dusko Tadic) was transferred to Bavaria for the enforcement of his sentence, a second convicted person (Dragoljub Kunarac) has been serving his sentence in North Rhine-Westphalia since December 2002.
3. Priorities of the German human rights policy 2005–2006
3.13. Prosecuting grave violations of human rights
The Federal Government commits itself to preventing perpetrators of grave and gravest violations of human rights from going unpunished. It will therefore
- also in the future emphatically support the work of the International Criminal Court and the International ad hoc Tribunals for the Former Yugoslavia and for Rwanda, as regards human resources, financially and politically;
- commit itself to ensuring the independence of the International Criminal Court and its staff;
- defend, together with the EU partners, the unlimited applicability of the Rome Statute and the jurisdiction of the International Criminal Court.
In 2006, in its Report on the Cooperation between the Federal Republic of Germany and the United Nations in the Years 2004 and 2005, submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
From the beginning, Germany was among the strongest supporters of the ICC and with its partners in the EU advocates the strengthening of the integrity of the Court and the accession of further States …
Due to the crimes committed by national socialism, Germany has a special responsibility for the prevention of genocide, crimes against humanity and war crimes. The Federal Government therefore still regards it as an important task, also in the future, actively to support and further the ICC, as the only world court permanently dedicated to this mission. Also after the completion of the set-up phase, the Courts needs the further support of the State community, the more so as the Court has no executive power and cannot simply resort to the United Nations. Support to States willing to ratify therefore is a special interest of Germany and will continue.
The Federal Government unreservedly supports the work of the two International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) … By interpreting and concretizing international criminal law norms as well as by developing new procedural provisions they have set standards which will also have effects on the future work of the International Criminal Court and on national legal orders …
The Federal Government supports the work of the International Criminal Tribunal for the Former Yugoslavia in various forms: The German criminal prosecution authorities exchange information with the Tribunal and coordinate own proceedings with it. At the request of the Tribunal, Germany to a considerable extent gives international legal assistance. A great number of persons needed as witnesses by the Criminal Tribunal are present in Germany. They can be exempt from repatriation procedures for the time being and are entitled to social benefits in Germany. For the enforcement of their sentence, Germany has accepted two persons convicted to multi-year prison sentences by the Criminal Tribunal.
In 2009, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Germany stated:
4. Germany actively supports the International Criminal Court (ICC). Legislative measures concerning the implementation of the Rome Statute were incorporated into German domestic law in June 2002. Amendments to domestic criminal law concerning vertical cooperation between Germany and [the] ICC are contained in a separate code in order to achieve transparent and coherent regulation of the cooperation with [the] ICC (Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof) [Law on the Cooperation with the International Criminal Court], conceding to [the] ICC, to the extent possible, all measures of judicial cooperation available between States.
7. Germany also continues to cooperate with the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and supports the Special Court for Sierra Leone as well as the Extraordinary Chambers in the Court System of Cambodia.
8. Germany supports the Special Tribunal for Lebanon established in accordance with Resolution 1757 (2007) of the Security Council. As one of the major donors to the budget of the tribunal [it] is an active participant of its Management Committee.
In 2010, in its report on German cooperation with the UN and other international organizations and institutions within the UN system in 2008 and 2009 submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Apart from the mandatory contribution to the budgets of the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) totalling 26.01 million US Dollars (2008) and 29.20 [million] US Dollars (2009), the Federal Government also provided other support to the tribunals. German criminal prosecution authorities exchanged information and coordinated proceedings with the ICTY. Based on a request of the ICTY, Germany provided considerable legal assistance and in three cases took over the execution of the sentence.
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 … in order to ensure information exchange.
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:
On the basis of international treaties and domestic law, Germany is … providing legal assistance to … international courts carrying out criminal proceedings against those responsible for genocide, crimes against humanity and war crimes. Since May 2007, members of staff of the focal points with jurisdiction over persons responsible for genocide, crimes against humanity and war crimes have been meeting annually. … The Federal Government supports the work of the international criminal courts both in individual cases and more generally in achieving the goals for which they were established. The international courts prosecute particular crimes against women and girls, for example mass rapes and forced marriages.
Holding perpetrators to account [for] grave violations against children continues to be rare … and yet is a crucial element towards protecting children’s rights … In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc
and mixed tribunals, can and should play a complementary role.