Section 3: Germany Legislation
C. Case Study
C.2: Cases in accordance with VStGB:
According to information given by the Federal Prosecutor529, the decisions to decline to open formal investigations were based either on lack of sufficient evidence to proceed, as required by §170(2) StPO, the suspects’ legal immunity530 or §153 f StPO.531
C-2.1: Complaint against Donald Rumsfeld:
A criminal complaint filed by a US civil rights group, the Center for Constitutional rights, and four Iraqi citizens before the Federal Prosecutor in Karlsruhe532.The petitioners based their complaint on the findings of official US investigative commissioners; the 180-page complaint explains exhaustively why the acts described in the reports constitute war crimes, especially the war crime of torture, under relevant provisions of international law and German criminal law.533
528 Judgment of 21 February 2001, 3 StR 372/00, at 19-20, In: Cassese, ICL2003, p.289, margin no.23 (see more information about Legitimizing link, in the first section of this Chapter in part B-1.3).
529See BT-Drs.16/11479, p.6, In: Werle, ICL2009, op-cit, p.135
530See (German) Judicative Act [Gerichtsverfassungsgesetz], §18-20, Bundesgesetzblatt (1975) I, p.1077, In: Ibid, (These sections are about immunity under Vienna Conventions of 1961 and 1964, respectively, for diplomatic and consular representatives), [ On November 2003, complaint have been filed, against former President of China Jiang Zemin, for alleged genocide, crimes against humanity, and torture; On June 24, 2005, the federal prosecutor dismissed the complaint, arguing, inter alia, that Jiang had immunity under international law as a former head of state, in: Hummel Kaleck, Rechtsanwalt, Einstellung Strafverfahren gegen chinesische Regierung, at http://www.diefirma.net/index.php?id=84,174,0,0,1,0, In: Langer Maximo, The Diplomacy of Universal Jurisdiction: The Political Branches and The Translational Prosecution of International Crimes, 105 AJIL 2011, p.14]
531Werle, Ibid
532Jessberger, Complementarity, op-cit, p.213, passim 533 Ibid
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The Federal Prosecutor (Generalbundesanwalt, or GBA) attached to the Federal Supreme Court refused on February 10, 2005, to open an investigation of war crimes against US Secretary of Defense Donald H. Rumsfeld and nine other suspects under the VStGB for the abuse of prisoners in Abu Ghraib prison in Iraq between 2003 and 2004.534
The Prosecutor found the requirements of §153f StPO to be present and exercised his discretion by refusing to prosecute the crimes in the complaint535. His arguments may be summarized as follow: The purpose of §153f is to ensure that crimes committed abroad with no connection to Germany can only be prosecuted by German authorities if a jurisdiction with precedence either cannot or will not ensure prosecution of the crime536.The prosecutor derived from the Rome Statute the idea that exercise of criminal jurisdiction on the basis of universal jurisdiction is only permissible as a backup mechanism, where the primary jurisdiction is unable or unwilling.537
Dismissal of the complaint was affirmed by the Stuttgart Higher Regional Court on 13 September 2005, finding that the Federal Prosecutor is not required to prosecute this case538. In the court’s view, when the VStGB was introduced, the legislature purposely refrained from establishing a process in the law for court review of the Federal Prosecutor’s decisions.539
Substantively, the decision has been criticized in the literature primarily on the grounds that a duty to prosecute exists under §153f(1) sentence 1 StPO, because the majority of the suspects were found in Germany, especially the soldiers stationed
534Kaleck, op-cit, pp.103-104, [Also on 16 November 2007, the Paris District Prosecutor dismissed the complaint, finding that Rumsfeld(former US Secretary of Defense) enjoyed immunity from prosecution about alleged commit torture under the Torture Convention. On 27 February 2008, the Public Prosecutor affirmed the dismissal, citing the same immunity grounds, In: Gallagher Katherine, Proceeding against Donald Rumsfeld, In: The Oxford Companion to International Criminal Justice, op-cit, pp.890-891]
535 An English translation of the prosecutor’s decision is available at http://www.ccr-ny.org. In: Jessberger, Complementarity, op-cit, p.217 536Ibid
537Ibid
538Gallagher , op-cit, p.890 539Kaleck, op-cit, p.104
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there, and therefore conditions for the exercise of broad discretion on the part of the Federal Prosecutor were not present.540
C-2.2: Complaint against former Uzbek Minister:
On December 12, 2005, a criminal complaint was lodged with the Federal Prosecutor in Karlsruhe against Uzbek Minister of the Interior Zakir Almatov and eleven other leading members of Uzbek security forces.541
The complaints alleged torture and crimes under VStGB, murder and manslaughter under StGB.542 A complaint against him was presented by eight Uzbek victims (assisted by Amnesty International and Human Rights Watch) for acts committed in Uzbekistan by police and security forces under the authority of the suspect since the mid-1990s.543
In a decision on March 30, 2006, the Federal Prosecutor refrained from initiating a case against Almatov et al, under §153f StPO, and for incidents occurring before June 30, 2002, under § 153c StPO.544
The prosecutor added that German officials would be unable to determine whether ‘one can assume tolerance or promotion of systematic torture by the Uzbek government that would justify prosecution under §7 VStGB’, thus the strong suspicion necessary to issue an arrest warrant was not present.545
Furthermore, a ‘significant loss of evidence resulting from the failure of German investigative authorities to act’ was not to be feared, since many facts have already been comprehensively documented by non-governmental organizations and the United Nations…The view that a German investigation must document according to procedural standards and systematically
540See, e.g., M. Kurth, Zeitschrift für international Strafrechtsdogmatik2006, p.84; T. Singelnstein and P. Stolle, Zeitschrift für international Strafrechtsdogmatik2006, pp.118; A. Frischer-Lescano, International Legal Materials2006, p.115, In: Ibid, p.105
541Ibid, p.109 542Ibid
543Zappala Salvatore, The German Federal Prosecution's Decision not to Prosecute a Former Uzbek Minister, Missed Opportunity or Prosecutorial Wisdom? In: 4 JICJ 2006, p.602
544Kaleck, op-cit, p.109 545Ibid
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evaluate evidence existing worldwide, based on an unlimited principle of universal jurisdiction (§1 VStGB), is a mistake. It would lead to purely symbolic prosecutions. These were not wanted by the legislature, even for crimes under international law, especially since it would lead to long-term commitment of the prosecution’s already limited personnel and financial resources, to the detriment of other prosecutions that hold greater promise of success.546
Under this restrictive interpretation, the VStGB can apparently only be applied in the rare cases in which perpetrators who enjoy no immunity in the broadest sense spend enough time in Germany for investigations to be carried out without the perpetrators’ knowledge that can lead to results justifying strong suspicion.547
As a result, there is the ideal and exclusive law in Germany for ending to international impunity of crimes under international law. But in above cases:
Since no national court establish until now, in Iraq or United States, for those crimes against Donald Rumsfeld, in attention that his residence in Germany in times of complaint was anticipated.
Also, “one of the complainants’ important arguments for prosecution of the former Uzbek minister by German prosecutors is the obvious lack of punishment in Uzbekistan itself for torture and systematic violence against the civilian population”.548
We reach again to this core sentence that: “Crimes under international law are typically state sponsored crimes, and thus the state of commission or the home country of the perpetrators and victims is, as a rule, itself involved in the crime, or at least not willing or able to punish those responsible”.549 Thus enforcement of universality and complementarity in practice and toward end to impunity is very controversial.
546Ibid, Kaleck in this article concluded that :There thus seems to be a gap between the ideal and the reality of international criminal law in Germany, Ibid, p.93 547Ibid, p.110
548Ibid
549Jessberger, Complementarity, op-cit, pp.220-221
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