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IX. Germany

The German Code of Crimes against International Law (CCAIL),²⁸⁰ which came into force on June 30, 2002, provides for universal jurisdiction over genocide, crimes against humanity and war crimes. International crimes committed before this date have to be considered under paragraph 6 number 1 of the German Criminal Code, providing for universal jurisdiction over genocide, and paragraph 6 number 9, which provides for universal jurisdiction over international crimes that Germany has a treaty obligation to prosecute.²⁸¹  Except for the crime of genocide,²⁸² there was no implementing legislation prior to June 30, 2002, and all complaints regarding international crimes thus had to be investigated and prosecuted on the basis of crimes defined in the German Criminal Code.²⁸³  Several international crimes committed in the former Yugoslavia were investigated and prosecuted by German authorities in the 1990s, but no complaints have been investigated since the new Code came into force.  A new provision in the Criminal Procedure Code provides the federal prosecutor with considerable prosecutorial discretion.²⁸⁴  Cases against U.S. Defense Secretary Donald Rumsfeld, former Chinese President Jiang Zemin and former Uzbek Minister of Interior Zokirjon Almatov, have not been investigated as the federal prosecutor relied on the discretion provided for in the Criminal Procedure Code.

A. Jurisdictional Challenges

1.   Presence

Before 2002 German courts held with regard to crimes committed in the former Yugoslavia that German authorities could only exercise universal jurisdiction where the suspect was present in Germany, or some other “legitimizing link” existed between the crime and Germany.²⁸⁵ This requirement was thought to have been overcome by the entry into force of the CCAIL, which does not make the exercise of universal jurisdiction by German authorities dependent on the presence of the suspect or any other link to Germany.²⁸⁶ However, paragraph 153f of the Criminal Procedural Code, introduced in conjunction with the CCAIL, provides the federal prosecutor with discretion to refrain from starting an investigation where the suspect’s presence cannot be anticipated.²⁸⁷ Although not required to start an investigation, practitioners indicated to Human Rights Watch that an investigation is far more likely to start in cases where the suspect is present in Germany, since this would increase the likelihood of a successful investigation.²⁸⁸  The suspect’s presence or anticipated presence makes an investigation obligatory, provided that no other jurisdiction is carrying out a genuine investigation of the crimes.²⁸⁹ This follows from the principle of not providing a safe haven to perpetrators of international crimes.

2.   Immunities

While the CCAIL is silent on the issue of immunity, Germany’s Judiciary Act (Gerichtsverfassungsgesetz) does recognize two forms of immunity: article 20 (1) confers immunity on representatives of other states and their delegations and those present in Germany by invitation of Germany. Article 20 (2) recognizes general rules of public international law concerning sovereign immunity.²⁹⁰ Relying on this latter provision, the federal prosecutor in 2003 accepted immunity for the former Chinese President Jiang Zemin. The prosecutor adopted an expansive reading of the ruling of the International Court of Justice in the case of the Democratic Republic of the Congo v. Belgium (“Arrest Warrant” case)²⁹¹ as conferring immunity on former as well as current heads of state/government and foreign ministers.²⁹²

3.   Limitation

Under the CCAIL, none of the crimes referred to are subject to statutes of limitation.²⁹³ As no implementing legislation existed prior to 2002 except in cases of genocide, other international crimes committed before the enforcement of the CCAIL, such as torture and grave breaches of the Geneva Conventions, have to be investigated and prosecuted on the basis of the German Criminal Code and consequently are subject to a statute of limitations.²⁹⁴

4.   Subsidiarity

The German federal prosecutor will only exercise universal jurisdiction if the competent authorities of the territorial state, or of the state of nationality of the suspect or victim, refrain from carrying out a genuine investigation and where the International Criminal Court or another competent international tribunal does not investigate the case.²⁹⁵ These limiting considerations stopped the investigation of a complaint filed by Iraqi torture victims against Donald Rumsfeld and others with the federal prosecutor. Referring explicitly to paragraph 153f, the prosecutor argued that the crimes referred to in the complaint (war crimes against persons andgrievous bodily harm),were already under investigation by U.S. authorities and therefore the principle of subsidiarity would not permit German authorities to investigate the complaint. According to the prosecutor’s argument, the principle of subsidiarity does not permit national authorities to take into account whether national authorities are investigating the individual referred to in the complaint but rather whether the U.S. authorities were investigating the complexas a whole.²⁹⁶ As the federal prosecutor answered this question in the affirmative, he did not consider it possible or necessary for German authorities to start an investigation.

B.  Practical Arrangements for the Exercise of Universal Jurisdiction in Germany

1.   Special departments in charge of the investigation and prosecution of international crimes

The crimes committed during the wars in the former Yugoslavia led to a wave of refugees arriving in Germany, among them a number of suspected perpetrators of international crimes. A total of 128 investigations into the crimes committed during the wars have been conducted since 1993, and led to the establishment of a specialized unit within the Federal Criminal Police Office (Bundeskriminalamt, or BKA) for the investigation of war crimes committed in the former Yugoslavia.²⁹⁷ German authorities recognized the need to concentrate the competence of experienced practitioners within one unit in order to deal with the challenges of investigating international crimes while also acting as a contact point for both national and international police investigators.²⁹⁸

Since 2001, however, the number of BKA staff working on international crimes has been gradually reduced, such that now only one investigator works on international crimes on a daily basis. The investigator is in charge of international crimes and serves as a contact point between the BKA and the federal prosecutor.

The federal prosecutor is in charge of the investigation and prosecution of international crimes. It deals with all cases of international crimes under the CCAIL and with most complaints regarding crimes committed before 2002.²⁹⁹ Where the federal prosecutor decides that an investigation is necessary, it will usually refer the complaint to the BKA and supervise the investigation.

2.   Notification

No special department within the immigration authorities exists, and most complaints to date filed under the CCAIL have been filed by private parties. The German federal prosecutor so far has not considered an investigation on the basis of newspaper reports, as these are deemed insufficient information for a successful investigation.³⁰⁰ Only a small number of complaints concerning international crimes have been received so far, a fact that is invoked to justify the low number of people working exclusively on international crimes.³⁰¹

3.   Decision to investigate and prosecute

The decision to investigate and prosecute a complaint of the CCAIL is taken exclusively by the federal prosecutor. As noted above, a new provision in the Code of Criminal Procedure gives the prosecutor the discretion to decline to open an investigation where the suspect is not on (or anticipated to be on) German territory or where the territorial state or an international tribunal is exercising jurisdiction over the matter.³⁰²  Where the suspect is present or likely to be present, the prosecution is obliged to investigate unless a country with priority jurisdiction is already carrying out a genuine investigation.

The case against Jiang Zemin illustrated that where the suspect is not present in Germany, the prosecution will take into account other aspects such as the practical ability of German investigators to investigate the complaint with a view to prosecuting the individual.

Practitioners indicated to Human Rights Watch that the overall context is considered, and that the possibility of questioning witnesses in other European countries is disregarded even where the presence and identity of such witnesses in neighboring countries is specified by the complainants.  A decisive element in the exercise of prosecutorial discretion is therefore the suspect’s presence, in combination with the principle of subsidiarity and the ease with which German authorities are able to investigate the crimes.³⁰³ The federal prosecutor’s decision not to open an investigation against former Uzbek Minister of Interior Zokirjon Almatov illustrates the approach towards international crimes favored by the federal prosecutor: The prosecution argued that the likelihood of a successful investigation was non-existent and that therefore no investigation would be opened.³⁰⁴

When the complainants in the case against Donald Rumsfeld and others tried to appeal against the decision of the federal prosecutor not to initiate an investigation, the Higher Regional Court dismissed the appeal as inadmissible.³⁰⁵ Accordingly, complainants do not have the opportunity to appeal to the courts against the decision of the federal prosecutor not to investigate according to 153f Code of Criminal Procedure.³⁰⁶ Instead complainants must direct their complaint to the Ministry of Justice in a purely administrative procedure.

4.   Investigation

The BKA will usually be ordered by the federal prosecutor to investigate complaints filed under the CCAIL.³⁰⁷ However, as mentioned above, there have been no such referrals as yet. Prior to the coming into force of the CCAIL, German practitioners in 128 cases investigated crimes committed in the former Yugoslavia and heard 4,500 witnesses during the period from 1993 to 2003, including a large number of refugees in Germany and Austria as well as people who had returned to Bosnia-Herzegovina.  In light of the considerable experience German practitioners obtained in the investigation of international crimes, and the fact that a specialized unit has existed in this capacity, the current commitment does not seem to correspond to that once shown on a practical level by German authorities.

C. Cooperation

Each complaint is considered first and foremost on the basis of its possible investigation within Germany and therefore cooperation is only considered once it has been decided that an investigation will take place.

1.   EU Network

A contact point within the Ministry of Justice deals with all requests for cooperation in international criminal law. As such the contact point has dealt with requests from other countries, but due to a lack of investigations carried out by German authorities he has not yet had to transfer requests regarding international crimes on behalf of German authorities to another country.³⁰⁸

2.   Interpol

 Interpol is considered a useful platform for sharing information and expertise, but in the absence of active cases it is not used in the investigation of international crimes.

D. Role and Rights of Victims

1.   Victims - Compensation and legal representation

Victims can participate in criminal proceedings as joint plaintiffs and theoretically claim compensation from the accused in criminal proceedings, provided that their claim will not require separate evidence and is not too complex.³⁰⁹ Otherwise, compensation must be pursued in civil proceedings. Victims who cannot pay for their legal representation are entitled to legal aid, the amount of which has to be decided by the relevant court.³¹⁰

Victims are primarily witnesses in German proceedings and as such, their access to justice is limited to the possibility of filing a complaint with the federal prosecutor. The detailed evidence necessary for a complaint that will convince the federal prosecutor to initiate an investigation of the complaints will generally require legal assistance or representation.³¹¹ A complaint filed by a victim or an NGO must contain a selection of evidence, witnesses and some persuasive indications that the accused is in Germany. It must also take account of any political dimensions to the complaint.³¹²

E. Fair Investigation and Trial

Any investigation of international crimes under the CCAIL is carried out under the supervision of the federal prosecutor. It is the responsibility of the prosecution to investigate inculpatory and exculpatory evidence.³¹³ During the investigation, the defense is entitled to be present when statements are taken by the court from the accused or any other witness, and to obtain access to any expert opinion.³¹⁴ Once the investigation has been completed, the entire dossier of evidence that the prosecution will rely upon before the court must be made available to the defense.³¹⁵ The defense can request the police to carry out further investigation and where the prosecution does not comply, the defense can apply for a court order for further investigation.³¹⁶ The court therefore has a supervisory role from the moment the prosecution decides to indict the accused. The accused is entitled to legal aid where he or she cannot afford to pay for it.³¹⁷