Practice Relating to Rule 139. Respect for International Humanitarian Law
Section B. Orders and instructions to ensure respect for international humanitarian law
Germany’s Military Manual (1992) states: “Superiors shall only issue orders which are in conformity with international law.”
Germany’s IHL Manual (1996), referring to common Article 1 of the 1949 Geneva Conventions and Article 1(1) of the 1977 Additional Protocol I, states:
It necessarily follows that each soldier of the [German Armed Forces] must know the rules of international humanitarian law in armed conflicts. This is relevant especially for superiors who may give orders only by respecting the rules of public international law.
Germany’s Soldiers’ Manual (2006) states:
Every individual service man or service woman is personally responsible for observing the rules of international humanitarian law. Superiors may give orders only in compliance with the rules of international humanitarian law.
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:
1. What rules of engagement apply to the arrest or detention of persons by members of German armed forces abroad, for example in the context of Operation ENDURING FREEDOM or the ISAF [International Security Assistance Force] mandate?
The international law and constitutional law bases of the deployments abroad of the Federal Armed Forces in certain circumstances authorize the deployed German service men and women to take persons into custody. The concrete requirements for this follow from the international law and constitutional law bases, concretized in the rules of engagement and the pocket card “Rules on the use of military force”.
The rules of engagement generally are determined by:
- the international law bases of the respective deployment (for example UN mandate),
- the constitutional law parameters of the Basic Law,
- the concrete parameters of the Federal Government’s deployment decision, to which the German Parliament has given its approval,
- the operation plan of the respective system of mutual collective security, in whose context the deployment is taking place,
- the internationally agreed Rules of Engagement (RoE).
It is not necessary to specially emphasize that the protection of human rights has always been and is a formative element especially also of the Federal Armed Forces’ deployments abroad.
As regards the treatment of persons taken into custody by German service men or women during deployments abroad, the Federal Ministry of Defence, by order of 26 April 2007, for all deployments abroad of the German Armed Forces enacted actualizations and concretizations for the protection of the human rights of those persons:
1. All persons taken into custody are entitled to treatment and accommodation consistent with human dignity, in particular to respect for their persons and their honour, as well as to protection against acts of violence and intimidation.
2. Custody is to be implemented with respect to the proportionality principle. Force against persons in custody is permissible only within the limits of the applicable pocket card in the respective case. Women may be searched only by female soldiers, men by male soldiers. Physical examinations are to be carried out by a male doctor or a female doctor. Objects found can be confiscated. An admittance protocol and a file per person with a photograph of the [face] are to be created promptly. Searches and confiscations are to be recorded in writing.
3. Promptly and – if necessary – with the assistance of an interpreter, persons taken into custody are to be informed of the reason for detaining or arresting them.
4. Persons taken into custody who are suspected of having committed a criminal offence are to be presumed innocent until the competent court in a trial consistent with the rule of law on the basis of recognized means of evidence has issued a conviction in a final judgement. If the person taken into custody is accused of criminal behaviour, that person is free to give evidence on the matter or to remain silent, and to enlist the services of a defence counsel at any time. That instruction on these rights has been given must be recorded and the record added to the file.
5. Furthermore, persons taken into custody have the right to refuse to give evidence insofar as they would incriminate themselves or close relatives. Questionings must only be conducted by trained staff (military police, officers or legal advisers), in a language the person taken into custody understands, and in compliance with these provisions. A transcript of every hearing must be produced and added to the file.
6. Adequate food, clothing and medical attention must be provided. Religious customs and traditions must be respected. Immediately after persons have been taken into custody, their state of health must be documented by a female or male doctor of the Federal Armed Forces as well as before they are released or transferred.
7. Persons taken into custody are promptly either to be transferred to the competent authorities or to be released, insofar as they are no longer a danger. Release and transfer are to be documented. The International Committee of the Red Cross (ICRC) is to be informed of the taking into custody, release or transfer by the responsible contingent leader of the respective German deployment contingent.
8. The transfer of the persons taken into custody to security forces of third States is prohibited if there are factors indicating that respect for human rights standards is not guaranteed. Before every transfer, in every case, the competent legal adviser of the deployment contingent DEU is to be involved, who, as the case may be, receives instructions on how to proceed from the Federal Ministry of Defence. The involvement is to be documented.
9. If German nationals are taken into custody in the areas of deployment, they shall not be transferred to foreign State authorities. The Federal Ministry of Defence is promptly to be involved via the competent German legal adviser of the deployment contingent DEU.
10. Human rights violations which come to the knowledge of the deployment contingent are to be reported by the competent contingent leader of the respective German deployment contingent in the framework of the national reporting system.
In order to further take into account the characteristics of the individual deployments abroad of the Federal Armed Forces (UNIFIL, [KFOR], EUFOR, OEF, ISAF), this order was supplemented by five individual instructions by the Federal Ministry of Defence/coordination staff for deployment tasks [Koordinierungsstab für Einsatzaufgaben – KSEA] of 27 April 2007. In these individual instructions not only a prompt information duty of the Contingent Commander of the DEU Deployment Contingent (KtgtFhr DEU EinsKtgt) vis-à-vis the ICRC in connection with the holding, transfer or release of persons by the respective German deployment contingent was codified, the KtgtFhr DEU EinsKtgt was also expressly made responsible for ensuring that persons taken into custody are at all times treated in compliance with the order of 26 April 2007.
For OEF and ISAF in particular applies in addition:
1. The right to self-defence according to Article 51 of the UN Charter in conjunction with Article 5 of the North Atlantic Treaty allows DEU forces in the framework of Operation ENDURING FREEDOM (OEF) to detain Taliban/Al Kaida.
2. All persons detained in the context of such deployments are to be treated in accordance with the order of 26 April 2007. The KtgtFhr DEU EinsKtgt is responsible for ensuring this.
3. Insofar as persons are detained in the context of OEF, the KtgtFhr DEU EinsKtgt is under the obligation promptly to inform the ICRC. The information obligation also applies to the release, transfer to third parties, as well as in the case of hospitalisation or death of a detained person.
4. The ICRC has the right to inspect all facilities which serve as accommodation for detained persons.
5. Currently, an agreement is being prepared between Germany (DEU) and Afghanistan (AFG), in order to ensure that persons to be transferred to Afghan State authorities are treated in accordance with the customary law and treaty law human rights obligations applicable to Afghanistan, and that the death penalty is not enforced against them. Until such an agreement is concluded, every transfer of persons is subject to the decision by the Federal Ministry of Defence, if for the crime of which they are suspected the death penalty is to be expected in Afghanistan. In order to assess whether the crime in question can result in the death penalty, first of all the respectively responsible legal adviser is to be involved.
1. On the basis of UN Security Council Resolutions (UN SC Res) 1386 (2001) and 1510 (2003), last extended by UN SC Res 1707 of 12 September 2006, deployment contingent ISAF DEU is authorized to take all measures necessary to fulfill the mandate, in particular to take the measures necessary to maintain security, to provide security-related assistance and therefore also to temporarily detain persons in order to implement the mandate.
2. Persons temporarily detained are, if possible, to be released within 96 hours or to be transferred to the competent Afghan authorities. For the duration of the custody, the persons are to be treated in accordance with the order of 26 April 2007. The KtgtFhr DEU EinsKtgt is responsible for this.
3. Currently, an agreement is being prepared between Germany (DEU) and Afghanistan (AFG), in order to ensure that persons transferred from ISAF to Afghanistan are treated in accordance with the international customary law and treaty law human rights obligations applicable to Afghanistan, and that the death penalty is not enforced against them. Until such an agreement is concluded, every transfer of persons is subject to the decision by the Federal Ministry of Defence, if for the crime of which they are suspected the death penalty is to be expected in Afghanistan. In order to assess whether the crime in question can result in the death penalty, first of all the respectively responsible legal adviser is to be involved.
4. The KtgtFhr DEU EinsKtgt ISAF is under the obligation promptly to inform the ICRC of the detention. The information obligation also applies with regard to transfers to Afghan authorities, release, as well as for the case of hospitalization or death of a detained person.
5. The obligation of the contingent commander directly to inform the ICRC does not apply if it is verified that the ICRC has already been informed by HQ ISAF.
6. The ICRC has the right to inspect all facilities which serve as accommodation for detained persons.
5. What legal guarantees apply to persons taken into custody in the context of deployments abroad of the Federal Armed Forces, and in which laws, treaties or agreements are these guarantees codified (please name exactly)?
The legal guarantees for persons taken into custody in the context of deployments abroad of the Federal Armed Forces are individually listed in the order of 26 April 2007 mentioned. We refer to the reply to question 1. With it, inter alia the existing international law obligations of the Federal Republic of Germany, such as Geneva Convention III, the International Covenant on Civil and Political Rights (ICCPR) or the European Convention for the Protection of Human Rights (ECHR) as well as constitutional law parameters are implemented. With a view to the deployment of the Federal Armed Forces in Afghanistan, the Federal Government aims for a bilateral agreement with the Afghan Government on the transfer of detained persons, with the objective to ensure that transferred persons are treated in accordance with the international customary law and treaty law human rights obligations also applicable to Afghanistan, and that the death penalty is not enforced against them. A draft text agreed within the Federal Government has been made available to the Afghan Government.
8. Before the order of 26 April 2007, have there been comparable orders or instructions?
If yes, what did they say?
If no, on what basis have Germans participated in arrests during deployments abroad since 1994?
We refer to the reply to question 1.
In the framework of concrete operations, apart from generally binding orders/instructions, individual instructions are regularly given, and while fulfilling their missions soldiers are bound also by the content of the pocket card respectively applicable.