Practice Relating to Rule 139. Respect for International Humanitarian Law
Germany’s Military Manual (1992) provides: “The members of the Federal Armed Forces are obliged to comply and ensure compliance with all treaties of international humanitarian law binding upon the Federal Republic of Germany.”
The manual further states:
It shall be a natural duty for a member of the Federal Armed Forces to follow the rules of international humanitarian law. With whatever means wars are being conducted, the soldier will always be obliged to respect and observe the rules of international law and take them as a basis for his actions.
Germany’s Soldiers’ Manual (2006) states:
International humanitarian law serves the protection of human beings in armed conflicts, by subjecting the behaviour of the States party to the conflict to certain rules.
As soon as a State uses armed force against another state, international humanitarian law becomes applicable. Also in internal armed conflicts, e.g. in a civil war, the fundamental guarantees of international humanitarian law apply as minimum protective provisions. As far as practically feasible, the service men or service women of the Federal Armed Forces adhere to the rules of international humanitarian law in military operations in all types of armed conflicts.
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Part A – Core areas of the German Human Rights Policy
Focal point: Human rights and combating terrorism
At the 28th International Conference of the Red Cross and Red Crescent in Geneva in December 2003, the then Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office, Claudia Roth, stated the following with regard to the treatment of prisoners of war in Guantánamo:
“International humanitarian law and the international human rights protection standards create legal protection, without gaps, for the individual human being. No grey areas can be allowed in this comprehensive protective mechanism, to which States have committed themselves.
This applies to prisoners of war, suspects and also to a war criminal, who, rightly so, is held to account. He also is entitled to humane treatment and a fair trial, in accordance with the rule of law.
Also in the fight against terrorism we must remain committed to our humanitarian standards, even if the adversary has disregarded them in a cruel and unscrupulous way. I would like to stress this expressly with a view to the detainees in Guantánamo.”
2 Council of Europe
The guidelines [on human rights and the fight against terrorism] adopted by the Council of Europe in 2002 stress the obligation of member States to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. The measures taken by States to fight terrorism must respect human rights and must be subject to appropriate supervision. In their fight against terrorism, States may never act in breach of peremptory norms of international law nor in breach of international humanitarian law, where applicable.
In its measures taken to fight terrorism the Federal Government has adhered to these principles.
5 United Nations
To a large extent, it is owed to the efforts also of Germany that the UN Security Council in its resolutions has affirmed in a legally binding and unequivocal way the universal validity of human rights standards in the fight against terror. In this sense, the UN Security Council declared in its resolution 1456 (2003) that States, when combating terrorism, must adhere to their obligations under international law, in particular international human rights, refugee law and international humanitarian law.
As regards terrorism, the legal committee of the UN General Assembly primarily deals with negotiations on the draft of a comprehensive convention against terrorism and a Russian draft of a convention against nuclear terrorism … Germany has signed and ratified the twelve already existing UN conventions against terrorism and in the context of the current negotiations expressly works towards an inclusion in the texts of references to international human rights standards and international humanitarian law as well as of the obligations of States in this area. Germany clearly and without exception condemns all terrorist acts, no matter by whom they are committed.
The efforts for an adoption of this comprehensive convention against terrorism for years have not come to a conclusion. One of the decisive reasons for this is the demand … to limit the scope of application of such a convention by an “exception clause” for liberation movements and similar non-State powers in a “popular fight” against “foreign occupation, aggression, colonialism and hegemony”. The position of Germany and its EU partners on this question is clear: Such a very broad “exception clause” can be accepted neither politically nor legally, since terrorist acts are liable to prosecution irrespective of their motivation and since in situations of armed conflict it is not the rules of the anti-terrorism conventions, but the rules of international humanitarian law which are applicable.
C 3 Near and Middle East, North Africa
With the Iraq war of the coalition under US leadership and the fall of Saddam Hussein in April 2003 the conditions of the human rights situation [in Iraq] have changed fundamentally since the last reporting period.
The Multinational Forces are mandated by UN Security Council resolution 1546 of 8 June 2004 … to provide for public security in Iraq. In this, they are bound by, inter alia, international humanitarian law and the Geneva Conventions.
In 2005, in reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Parliamentary State Secretary, Federal Ministry of Defence, stated:
For all Member States of the United Nations, resolution 1373 (2001) lays down the obligation to “[t]ake the necessary steps to prevent the commission of terrorist acts”, and to “[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice”. It goes without saying that the Federal Armed Forces respect the obligations under international law, including international humanitarian law and the human rights minimum standards, as well as the value decisions of the Basic Law of the Federal Republic of Germany. This applies also to the deployment of the special forces in the framework of the Operation Enduring Freedom in Afghanistan.
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Terrorism and right to self-defence
It is now accepted that terrorist attacks, led from outside against a State, can give rise to the right to self-defence according to Article 51 of the UN Charter (or, for the NATO allies, Article 5 of the North Atlantic Treaty). The right to self-defence can further also be drawn upon in the case of an imminent attack …
To start with, the recognition of the right to self-defence against terrorist attacks according to Article 51 UN Charter or Article 5 North Atlantic Treaty leaves open which rules apply in the exercise of this right. One needs to differentiate: If the right to self-defence is exercised in the context of an armed conflict in the sense of international humanitarian law (armed confrontation between armed forces or between armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of a territory as to enable them to carry out sustained and concerted military operations and to apply the provisions of international humanitarian law), international humanitarian law applies.
When fighting international terrorism outside an armed conflict, from the viewpoint of international law the human rights guarantees apply. Terrorists outside armed conflicts are criminals and can be put to trial wherever a State can exercise its jurisdiction according to the rules of international law.
abc) Result and consequences for the Federal Government
The Federal Government is convinced that the fight against international terrorism must only be fought while respecting the rule of law and international law … The Federal Government, in particular, tolerates only such measures by foreign governments on its territory which are consistent with German and international law.
Within the EU framework, together with other EU member States, it has therefore supported the clarification of the allegations raised in media reports. In the context of bilateral talks with the US government, it has also pressed for clarification.
Should the Federal Government, in the course of the clarification efforts …, become aware of cases in which national law has been violated, the competent authorities will initiate the steps required under German law.
In 2006, in a white paper on German Security Policy and the Future of the Bundeswehr, Germany’s Federal Ministry of Defence noted:
The Bundeswehr [Federal Armed Forces] is firmly integrated into the constitutional structure of Germany’s Basic Law and is subject to the primacy of democratically legitimized politics.
The Basic Law and international law form the foundation for all German Armed Forces operations. Their observance and enforcement are indispensable components of international peace policy. International humanitarian law and the Rules of Engagement (ROE) laid down for operations are integral to the command and control process in the German Armed Forces.
In 2007, in a written reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Basic Law and international law in deployments abroad of the Federal Armed Forces: Treatment of persons taken into custody”, Germany’s Federal Government stated:
16. To what extent does the Federal Government share the view that German authorities, also by subordinate support actions, may not participate in human rights violations by other States?
The legal order of the Federal Republic of Germany prohibits all State authorities and offices from committing violations of human rights or from participating in them.
21. Is the Federal Government prepared to include a passage in the motions for continuation of the German participation in ISAF [International Security Assistance Force] or OEF [Operation Enduring Freedom] which clarifies that Germany, during deployments of German armed forces, ensures the guarantee of the rights recognized in the International Covenant on Civil and Political Rights [ICCPR] to all persons, insofar as they are subject to its jurisdiction?
The mandates of the German Parliament on the deployment of German armed forces are the constitutive bases of their armed participation in foreign deployments permissible under international law. Compliance with the applicable (domestic law and international law) legal provisions is a self-evident condition of the approval of the German Parliament. Insofar as part of the motion of the Federal Government for the approval of the German Parliament an express reference for example to the human rights obligations of the Federal Republic of Germany following from the ICCPR, the ECHR [European Convention on Human Rights], Geneva Convention III or other international law provisions is not necessary.
23. According to the view of the Federal Government, which human rights or international law questions in connection with deployments of the Federal Armed Forces abroad require further internal or international clarification?
The human rights obligations of the Federal Republic of Germany have been and are respected in the framework of deployments of the Federal Armed Forces abroad. In this context, the Federal Government does not consider it to be conducive to speculate in a general way on the abstract need to clarify questions of international law.
In 2007, in a written reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Statements of the State Secretary of the Federal Ministry of the Interior on the development of international law with a view to the terrorist threat”, Germany’s Federal Government stated:
Preliminary remarks by the Federal Government
International law is in a process of permanent development – this applies not only to the area of combating terrorism. New international law cannot be decided or decreed by one State. The development of international law rather depends decisively on the consensual cooperation of States. International treaty law can unfold its binding effect only on the basis of the express acceptance by States, and then also only with regard to the States which accede to such a treaty. Customary international law evolves from general and consistent State practice, supported by opinio iuris.
1. Is the Federal Government of the view that international law needs to be developed with a view to the terrorist threat, if yes, with what aim and in what direction, and what are the reasons for its view?
Also today, international law still is a basis for the security policy challenges of the 21st century, even if since 2001 Al-Qa’ida and other terror groups have confronted politics with radically new challenges.
This includes that in specific areas of inter-State cooperation a development of existing international law instruments for combating terrorism is examined. This is also why the Federal Government, on the international level, strongly supports a comprehensive convention on international terrorism. The negotiations in the UN General Assembly on the draft convention regrettably are not progressing, because some States would like to politically privilege certain cases of terrorist acts and exclude them from the scope of application of the convention. The latter is collectively rejected for conceptual reasons by the majority of the UN General Assembly, including all EU member States. They rather are convinced that terrorist acts must be treated independent of their political motivation, because even justified political concerns must never be pursued with terrorist means, in particular attacks against uninvolved civilians.
3. Does the Federal Government intend a different interpretation of legal terms of international law, and if yes, what are the terms it is thinking of in this context, and in what direction shall they be developed?
The Federal Government at all times acts in compliance with international law binding in Germany. A development of international law by an individual State is not possible. We further refer to the preliminary remark of the Federal Government.
4. What regulation gaps does the Federal Government see in applicable international law in context with combating international terrorism, and what are the reasons for its views?
We refer to the reply to question 1.
5. In connection with combating international terrorism, what are the essential differences in the interpretation of international law in the United States on the one hand, and in Europe and especially Germany on the other hand?
Germany and the United States agree that international terrorism must be combated in compliance with international law, including the rules of international humanitarian law, refugee law and human rights law. There are differences in the evaluation of the relation between international humanitarian law and other regulation systems of international law. There are differing assessments as regards the rights of detainees in the fight against terrorism, in particular with a view to the conditions in the Guantánamo camp. This also applies to the question whether specific parts of international humanitarian law regulated by treaty (in particular stemming from the Additional Protocols to the Geneva Red Cross Conventions) today already apply as customary law and therefore also bind States which have not become parties to these treaties. Differing assessments also apply to the territorial scope of application of specific international law instruments and the requirements of international law concerning the access of detained persons to courts.
6. Is it correct that the Federal Foreign Office discusses with European and US international law experts on a development of international law, and if yes, with whom, since when, and with what aim?
Since 2006, the Federal Government is in an intense dialogue with the United States, dedicated to the issue “Legal questions in the fight against terrorism”. In parallel, on the European level, the Council Working Group on International Law discusses the same legal questions both within the group and with the United States. This dialogue takes place between the international law experts of the States involved. The aim is that the normative common ground of the principles of the rule of law also in the future connects Europeans and the United States.
7. What is the current state of discussions?
The Federal Government and the United States have affirmed their determination to cooperate in the fight against terrorism as well as their obligation to respect human rights …
9. In the view of the Federal Government, what would be the advantages in the fight against terrorism if one granted a combatant status to terrorists, and what are the reasons for the Federal Government’s view?
The term “combatant” is defined under international humanitarian law; it is not in the power of the Federal Government unilaterally to grant the quality of combatant to a specific category of persons. We refer to the preliminary remarks of the Federal Government.
10. What additional rights of intervention is the Federal Government further hoping for, in consequence of the application of international law provisions to the fight against terrorism?
International law provisions are applicable to the fight against terrorism. This is not a question of additional rights of intervention.
11. Has the question of the combatant status of terrorists been the object of the discussions between the Federal Foreign Office and international law experts, and if yes, what is the current status of discussions?
The question of the status of terrorists in the categories of international humanitarian law has been the object of the discussions mentioned. So far no complete agreement could be achieved on this. We further refer to the reply to question 5.
17. During the talks with the international law experts, is it discussed to subject terrorists, “enemies” or “potential offenders” [Gefährder] to a specific legal regime, if yes, what would be the consequences on their position as subjects of law, human dignity and the protection of the Basic Rights?
No. Object of the discussion is rather the opposite, which regulation systems of international law are applicable to specific situations of the fight against terrorism, and, as the case may be, what exact content they have.
19. Does the Federal Government want to work towards a new definition of the situation of war under international law, and does it regard this as in accordance with the Basic Law, if yes, how does it come to this view?
The answer to the first question is “no”. Questions two and three therefore do not arise.
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: “Where war and violence govern … , the rule of law means that there may be no space and time void of law. The rule of law-concept requires respect for and compliance with international humanitarian law.”
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 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”.