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New Zealand Yearbook of International Law |
Last Updated: 7 February 2019
THE CRIME OF AGGRESSION UNDER GERMAN LAW
Sascha
Mueller[∗]
I. INTRODUCTION
Owing to Germany’s experiences under the Nazi dictatorship and the
Second World War, German Law has contained a ban on aggressive
wars since the
inception of its Basic Law (Germany’s constitution) in 1949. A general
war-weariness and a desire to prevent
the atrocities of World War II from
happening again, as well as an effort to show goodwill to the Allied
occupational powers, led
the drafters of the Basic Law to proscribe wars of
aggression. This was codified in Article 26 of the Basic Law and section 80 of
the Criminal Code.
In the course of the past decade, several complaints have
been made to the Federal Public Prosecutor General (Generalbundesanwalt);
however, no one has yet been charged with the offence in a German court.
Complaints against the German Chancellor and other Cabinet
Members with regard
to Germany’s involvement in the invasions of Kosovo, Iraq, and
Afghanistan, have each been rejected by
the Generalbundesanwalt’s
office after preliminary assessment. Consequently, no judicial interpretation of
the offence of preparing a war of aggression
exists, and the offence remains
very broad and tentative.
Although the Rome
Statute[1] has given the International
Criminal Court jurisdiction over the crime of aggression, it will not exercise
this jurisdiction until
the Special Working Group on the Crime of Aggression has
defined the crime. At the same time, there are efforts in New Zealand to
introduce the crime of aggression into domestic law. These developments warrant
examining a jurisdiction that already has a ban on
wars of aggression enshrined
in its domestic law. This paper will provide an overview of both the
constitutional ban on wars of aggression
and the criminal offence of preparing
such a war within German law. It will look at the elements of the offence and
discuss its practical
ramifications. To this end, it will examine situations
giving rise to the complaints against members of the German government, as
well
as the Generalbundesanwalt’s reasons for rejecting these
complaints.
II. ARTICLE 26(1) OF THE BASIC LAW
Towards the end of the 1940s, the Western occupying powers in Germany
– France, the United Kingdom and the United States –
authorised
representatives from the German States to draft a constitution for a new Federal
Germany. With the horrors of the war
still fresh in their minds, and probably to
some degree as a sign of goodwill towards the Allied Powers, these so-called
‘Mothers
and Fathers of the Constitution’ included, in Article 26, a
general prohibition of a war of aggression. Article 26(1) of the
Basic Law reads
as follows:[2]
Acts tending to and undertaken with intent to disturb the peaceful relations
between nations, especially to prepare for a war of aggression,
shall be
unconstitutional. They shall be made a criminal offence.
As is obvious
from its wording, first and foremost, Article 26 has a declaratory character. It
affirms Germany’s commitment
to peaceful coexistence of nations. As such,
it specifically declares that the preparation of a war of aggression is an
instance
of disturbing the peaceful relations between nations. This reference
stems from the Charter of the International Military Tribunal
at
Nuremberg,[3] which defines crimes
against peace as ‘planning, preparation, initiation or waging of a war of
aggression’.[4]
This was included to signify that an act of aggression is the primary and most
prominent case of disturbing peaceful coexistence
of nations. The ban is the
first of its kind in German legal history. While there may have been similar
provisions in earlier Prussian
and German law, they primarily sought to prevent
the involuntary involvement of the state in
war.[5]
Article 26, on the other hand, incorporates the prohibition on the use of war as
an instrument of national policy as provided for
in the 1928
Kellogg-Briand-Pact. Yet its scope is significantly broader; it declares all
aggressive acts as unconstitutional and
as criminal offences. The ban on
aggressive wars has also been mirrored in the 1990 Two-Plus-Four
Treaty[6] between the two Germanys and
the four occupational powers. Article 2 of that Treaty states that ‘only
peace will emanate from
German soil’. Thus, Germany not only has a
constitutional, but also an international, obligation to ban aggressive
wars.
The term ‘war of aggression’ is not defined in the Basic
Law or the Criminal Code. It is generally referred to as an armed
aggression in
contravention of international law.[7]
However, as the crime of aggression is not yet defined under international law,
German scholars tend to refer to the definition of
aggression in the UN General
Assembly’s Resolution 3314 adopted in
1974.[8] Article 1 of the Resolution
states:
Aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another
State, or in any
other manner inconsistent with the Charter of the United
Nations...
Consequently, a use of force authorised by the UN Security
Council under Article 42 of the UN Charter would not fall within the scope
of
Article 26; neither would an act of self-defence pursuant to Article 51 of the
UN Charter.[9] However, beyond these
two accepted exceptions the scope of the Article is unclear. Pre-emptive wars
may be in accordance with international
law in cases where the target poses a
real and imminent threat of a military strike, which the attacking state could
not be expected
to tolerate. However, pre-emptive wars are generally seen as
incompatible with the ban on aggressive wars in Article 26, because
of the lack
of sufficiently certain objective criteria with which to determine an imminent
threat.[10]
There appears to be
agreement that German contribution to peace-keeping, and possibly even
peace-making, measures would fall outside
the scope of the Article, as long as
it stays within the limits of international law. At the same time, actions taken
in the context
of a humanitarian intervention but without a UN mandate are
highly controversial. According to some, a humanitarian intervention
would fall
outside of Article 26 under two conditions: first, where it is aimed at
preventing or putting a stop to severe human rights
violations; and second, if
the situation materially warrants an intervention in accordance with Article 39
of the UN Charter, yet
a solution is prevented by one of the veto
powers.[11]
However, this means
that actions that are aimed at preventing human rights abuses may be
criminalised. Sternberg-Lieben points out
the irony of this: the laws that were
created as a result of the atrocities of Nazi-Germany might in fact criminalise
a humanitarian
intervention which is meant to prevent such
atrocities.[12]
In
contrast, others believe that according to Resolution 3314 any act against the
sovereignty of another nation must be consistent
with the UN Charter, and
therefore requires authorisation by the Security Council. If the Security
Council cannot find a consensus,
the intervention does not formally meet the
requirements of Chapter VII and is therefore in contravention of the UN Charter.
In that
case, the humanitarian intervention is in contravention of both
international law as well as Article
26.[13]
III. REQUIREMENTS OF ARTICLE 26
To fulfil the requirements of Article 26, an act ‘tending to ...
disturb the peaceful relations between nations’ is required.
Apart from
the specific example of a war of aggression, the scope and nature of
‘peaceful relations between nations’
is unclear and highly
contentious: opinions range from the absence of military force (negative notion
of peace) to a duty to actively
pursue peaceful relations (positive notion of
peace).[14] As the Article
specifically refers to an act ‘undertaken’, only positive action
will fulfil this element. Failure to
prevent an act of aggression does not
suffice. Moreover, mere approval or endorsement of an act of aggression does not
constitute
an act pursuant to Article
26.[15] The act has to tend
to disturb the peace. This means that the prerequisite is met if the act is
objectively capable of disturbing the peaceful relations
between nations; the
disturbance does not actually have to have come to fruition.
The Article
also requires, as a mental element, the intention to disturb peaceful
relations. As the act merely has to be capable of disturbing peace, the scope of
the Article is wide. Therefore,
the requirement of intention serves as a limit
to the wide scope of the Article. However, the intention must merely be in the
form
of dolus eventualis; i.e. it suffices that the perpetrator knows of
the possible consequences of his or her actions and willingly proceeds.
Consequently,
an act that actually does disturb the peace, but which has another
purpose as its object, may still fulfil the requirements of Article
26.
Therefore, the act of aggression does not have to be the primary intention of
the perpetrator. This is especially applicable
where a person, for his own
political reasons, incites or propagates the waging of a war of
aggression.
IV. SECTIONS 80, 80A OF THE CRIMINAL CODE
Prior to the Promulgation of the Basic Law, there was some dispute over
whether an act of aggression should be merely condemned via
a declaration in the
constitution, or whether it should be actively penalised by way of a criminal
offence. However, according to
the drafters of the Basic Law the prohibition was
meant to enable the German people to hold accountable those who are responsible
for waging a war of aggression.[16]
Article 26 does not include sanctions for a breach of the provision, nor is an
unconstitutional act per se penalised elsewhere in the constitution.
Therefore, the proscription on aggression was perceived to be lex
imperfecta if it remained merely declaratory in
nature.[17]
Consequently, the drafters included a constitutional instruction for the
legislature to create a criminal offence.
Early attempts at creating a
criminal offence proved to be unsuccessful. The drafting committee had
particular problems with the lack
of certainty of the element of aggression.
These difficulties were further illustrated by the contemporaneous Korean
War.[18] The divided Germany was in
a similar situation as the two Koreas. West-Germany was about to be rearmed and
many allied armed forces
were stationed in the country. A deteriorating
situation between East- and West-Germany could have resulted in conflict and a
broad
definition of aggression may have included potential actions by
West-Germany or its new allies. Consequently, the creation of the
offence was
politically impossible and was put on hold during the 1950s. Only when work
commenced on a comprehensive reform of political
crimes in 1967 did the
legislators attempt to create the offence again. The crime of preparing a war of
aggression was finally introduced
into the Criminal Code in 1968, almost twenty
years after the inception of Article 26 in the Basic Law. The ban has been
implemented
in two sections: section 80 deals with wars of aggression
exclusively, while section 80a penalises other acts disturbing the peaceful
relations between nations. Sections 80 and 80a provide:
Section 80. Preparation of a war of aggression
Whoever prepares a war of aggression (Article 26(1) of the Basic Law) in
which the Federal Republic of Germany is meant to participate
and thereby
creates a danger of war for the Federal Republic of Germany, shall be liable
with imprisonment for life or for not less
than ten years.
Section 80a.
Incitement to a war of aggression
Whoever publicly incites to a war of aggression (section 80) in a meeting or
through the dissemination of written materials (section
11(3)) within the
Federal Republic of Germany shall be liable with imprisonment from three months
to five years.[19]
Section 80
carries the maximum penalty available in German Criminal Law. Ten years to life
is otherwise reserved only for offences
which include the intentional killing of
another person. Yet, section 80 requires the mere ‘preparation’ of a
war of
aggression. It is, therefore, the only offence under German Law that
carries the highest sentence even before an attempt is made
to harm another
person. As such, the severity of the punishment demands a narrow and restrictive
interpretation of section 80.
The difficulties of definition have meant that
the constitutional ban on aggressive wars has been transposed only incompletely
into
criminal law, which is evident from even a brief comparison of Article 26
and section 80. The scope of the criminal offence has been
limited by adding two
requirements. Firstly, the incriminating act must be linked to Germany –
Germany has to participate in
the war of aggression; secondly, the war of
aggression must create a danger of war for Germany
itself.[20]
Article
26 does not include any reference as to where or by whom the act of aggression
must be committed. The drafting committee feared
that incorporating this into
section 80 would mean that German criminal courts may become venues for trials
against foreign nationals
alleged to have committed acts of aggression on
foreign territory. Therefore, they included the requirement that Germany must
intend
to participate. This specifically excludes any kind of universal
jurisdiction for German courts.[21]
The second additional element under section 80 is the creation of a danger of
war for Germany. This requires a concrete danger, so
that the mere
possibility of a war would not
suffice.[22]
Definition of the
incriminating act limits it to the preparation of a war of aggression.
Preparation of a war entails any act which is objectively capable of inducing a
war of aggression.[23] Due to the
severity of the punishment, preparatory acts must carry a substantial amount of
weight, such as the recruitment of troops
or the acquisition of weapons.
Incitement or verbal support, on the other hand, do not meet this requirement
and may only be punishable
under section 80a. Acts, which are undertaken after
the commencement of a war of aggression, fall outside of the scope of
preparation.[24] This raises the
question whether the actual waging of a war of aggression is forbidden under
section 80. Some commentators argue
that the waging of a war of aggression is,
a minore ad maius, included in the element of preparing it, and that if
the one is punishable, the other must be
too.[25] However, others say that
waging a war of aggression is not specifically mentioned in section 80 and
punishment of such an act would
be in contravention of Article 103(2) of the
Basic Law, which enshrines the principle of nulla poena sine lege in the
German constitution.[26]
V. LIABILITY AND IMMUNITY
Article 46(2) of the Basic Law guarantees immunity from criminal
prosecution to all acting Members of the Bundestag, the representative
chamber of the German Parliament. Therefore, Cabinet Members or other Members of
the Bundestag[27] cannot be
charged under section 80 while sitting as Members of Parliament. However, the
Bundestag can lift the immunity of a Member by simple majority of the
full plenum. It is a common but controversial practice for the Bundestag
to lift immunity of all Members at the beginning of a new legislative
period.[28] Moreover, Members are
only immune for the time they are active Members of the Bundestag.
VI. PROSECUTION
Prosecutions under sections 80 and 80a fall under the jurisdiction of the
Generalbundesanwalt’s Office. The
Generalbundesanwalt’s jurisdiction covers offences against state
security, such as high treason or espionage. Prosecutions can be initiated
either
by complaint to the Generalbundesanwalt, or he/she can initiate
prosecutions ex officio.
Public prosecutors, like judges, are public
servants in Germany. To ensure their independence, they enjoy special
privileges, such
as lifetime tenure. Generally, public prosecutors are appointed
by way of public procurement and on the merits of their applications.
This is
meant to ensure their political independence. In contrast, appointment as the
Generalbundesanwalt is recommended by the Minister of Justice and
confirmed by the Bundesrat, the upper chamber of Parliament. Because of
the political implications of the Minister’s recommendation, and because
the Generalbundesanwalt does not enjoy tenure and can be removed from
office by the Minister, his/her independence in cases of breaches under section
80
has been called into question. The fact that the office of the
Generalbundesanwalt has so far declined to investigate any complaints
laid against the Chancellor or any cabinet member tends to corroborate this
point.[29]
However, many
complaints against the government seem far-fetched and their rejection may not
necessarily warrant such suspicions.
In an attempt to expose an alleged bias,
complaints were laid against the former Generalbundesanwalt for
perverting and obstructing the course of justice. But the responsible public
prosecutor regarded the decision to decline the
investigations as within the law
and acceptable, and did not press charges. While this indicates that the
Generalbundesanwalt at the time acted within the law, the potential for
abuse of the discretion to prosecute offences under section 80 by an inherently
biased Generalbundesanwalt remains.
VII. CASE STUDIES
Complaints against cabinet members stem from the last ten years. Prior to
1999, complaints were few. The reason for this is that Germany
has only recently
begun to deploy soldiers on combat missions. Due to its violent and aggressive
history, Germany’s army had
been set up as a purely defensive force in the
1950s. However, in 1994, the Federal Constitutional Court decided that a
reunited
Germany had duties towards its allies at the United Nations and NATO.
Therefore, Germany should be able to assist its allies militarily
and deploy
soldiers even to combat missions, albeit within reasonable
limits.[30] Since then, German
troops have been involved in several foreign countries, including combat
missions in Kosovo and Afghanistan. As
a result, some German citizens,
uncomfortable with these developments, have laid complaints under section 80 of
the Criminal Code
against Government officials.
A. Kosovo 1999
In 1999, German fighter aircraft took part in the NATO bombing campaign
against the Federal Republic of Yugoslavia. German ground
troops were also
involved in the subsequent invasion of the Kosovo Region. There was no direct
Security Council mandate to use force,
but NATO decided that UN Resolutions 1160
and 1199 served as a sufficient basis to mount a humanitarian intervention.
These resolutions
threatened Yugoslavia with Chapter VII measures, but fell
short of authorising use of force. In response, several complaints against
the
Minister of Defence and the Minister of Foreign Affairs were laid with the
Generalbundesanwalt.
The Generalbundesanwalt was of the
opinion that section 80 must be interpreted in light of Article 26 of the Basic
Law. He said that Article 26 presented
a war of aggression as a disturbance of
the peaceful relations between nations and that the intention to prepare a war
of aggression
must therefore include an intention to disturb the peace. As the
intention of NATO to bomb and invade Kosovo was not to disturb the
peace but to
prevent a humanitarian catastrophe, the mental element of section 80 was not
met. Consequently, the Generalbundesanwalt was of the opinion that
peace-making missions in the context of a NATO operation did not present a war
of aggression pursuant to
section 80, even if there was no UN
mandate.[31]
B. Afghanistan 2001
Another wave of complaints was laid against Chancellor Schröder in
2001 over Germany’s participation in Operation Enduring
Freedom in
Afghanistan. Germany had sent Special Forces units to Afghanistan who actively
fought Taliban fighters. The complainants
said that Security Council Resolution
1368 did not authorise the use of force against Afghanistan, as it only stated
that the perpetrators
of the September 11 attacks and everyone who aided,
supported or harboured them should be held accountable. The
Generalbundesanwalt disagreed and said that Resolution 1368 did provide
implicit authorisation which was enough to make the use of force legal under
international law. Moreover, Resolution 1368 emphasised that the September 11
attacks had been a threat to international peace and
security and that the
United States and its Allies were justified in using force in collective
self-defence under Article 51 UN Charter.
Consequently, in the opinion of the
Generalbundesanwalt no act of aggression on the part of the German
government had been committed.[32]
C. Iraq 2003
Germany’s position on the second Gulf War notwithstanding, in 2003
many complaints were laid against Chancellor Schröder.
These imputed that
Schröder aided an alleged preparation for a war of aggression against Iraq
committed by the United States.
The complainants alleged that by granting the
United States overflight rights, the German government was assisting the United
States.
Moreover, the United States used their bases in Germany for activities
related to the military operations.
Again the Generalbundesanwalt
declined to investigate the matter. He said that the concept of participation in
a war of aggression required that Germany be a belligerent
power, which either
provided armed forces or was otherwise massively militarily involved. Merely
providing rights of overflight and
letting the United States use their military
bases in Germany did not reach this threshold. In his opinion, section 80 was
meant
to prevent any war of aggression originating from German soil by German
forces. Clearly, Germany’s activities were too remote
to be said to be
aiding in the United States-led war.
By focusing on Germany’s role,
the Generalbundesanwalt avoided having to evaluate the United
States’ action as to whether the war on Iraq may have been a war of
aggression pursuant
to section 80. Had the opposition been in government,
Germany might well have taken a much more active role in the war on Iraq. In
that case, it would have been more difficult to decline an investigation under
section 80.[33]
VIII. CONCLUSION
While Article 26 of the Basic Law and section 80 of the Criminal Code
provides the German people with a tool to prosecute the crime
of aggression, the
level of punishment warrants a high threshold for its prosecution. So far, the
Generalbundesanwalt has declined to investigate any complaints. Whether
this is connected with an alleged lack of independence, or rather with the fact
that none of the complaints actually warranted an investigation, remains
controversial. The Generalbundesanwalt could have mitigated this
controversy by laying charges against the Ministers over the Kosovo Invasion.
Arguably, deploying German
troops in Kosovo without a UN Mandate fell
sufficiently within the scope of section 80 for the Generalbundesanwalt
to pass the matter on to the courts. This would have allowed the Federal Court
of Justice and possibly the Federal Constitutional
Court to scrutinise and
explain the elements of section 80, thus establishing more certainty around the
crime. Moreover, this would
have created more certainty around complaints
regarding the subsequent German Involvement in Afghanistan and Iraq. However,
whether
the Kosovo case would have been enough for the courts to convict the
Ministers is doubtful. As it is, so far the ban on a war of
aggression under
German Law appears to have a mostly symbolic character.
[∗] Lecturer, School of Law,
University of Canterbury.
[1]
Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS
XVI (entered into force 24 October
1945).
[2] Translation by the
German Bundestag Public Relations Division, <www.bundestag.de.> at 15
November 2009.
[3] Agreement
for the Prosecution and Punishment of the Major War Criminals of the European
Axis, United Nations, 8 August 1945, 82 UNTS 279 (entered into force 8
August 1945).
[4] Rudolf Streinz,
'Artikel 26 - Verbot des Angriffskrieges' in Moritz Sachs (ed), Grundgesetz
Kommentar (4th ed, 2007) ,
[18].
[5] Claus Dieter Classen,
'STGB § 80 - Vorbereitung eines Angriffskrieges' in Wolfgang Joecks and
Klaus Miebach (eds), Münchener Kommentar zum Strafgesetzbuch (2005)
vol 2/2, [5].
[6] Treaty on the
Final Settlement with Respect to Germany, opened for signature 12 September
1990, 1696 UNTS 124 (entered into force 15 March
1991).
[7] Decision of the
Landgericht Cologne, ‘Begriff des Aufstachelns zum
Angriffskrieg’, (1981) 7 Neue Zeitschrift für Strafrecht,
261.
[8] Resolution on the
Definition of Aggression, GA Res 3314, UN GAOR, 34th sess,
2319th plen mtg, UN Doc A/Res/3314
(1974).
[9] Peter Badura,
Staatsrecht - Systematische Erläuterung des Grundgesetzes (3rd ed,
2003),
[K 3].
[10] Classen,
above n 5,
[20].
[11] See for instance,
Christian Tomuschat, ‘Völkerrechtliche Aspekte des
Kosovo-Konflikts’ (1999) 74 Die Friedens-Warte
33
[12] Detlev Sternberg-Lieben,
'STGB § 80 - Vorbereitung eines Angriffskrieges' in Adolf Schönke and
Horst Schröder (eds),
Strafgesetzbuch (27th ed, 2006)
[4].
[13] Classen, above n 5,
[24].
[14] See Streinz, above n
4, [9], for further
references.
[15] Ibid
[24].
[16] Verfassungsausschuss
der Ministerpräsidenten-Konferenz der westlichen Besatzungszonen,
‘Bericht über den Verfassungskonvent
auf Herrenchiemsee vom 10. bis
23. August 1948’.
[17]
Streinz, above n 4,
[3].
[18] Classen, above n 5,
[4].
[19] Translation by the
Federal Ministry of Justice and Juris GmbH, <www.juris.de> at 15 November
2009.
[20] Claus Kress, 'The
German Chief Federal Prosecutor’s Decision Not to Investigate the Alleged
Crime of Preparing Aggression against
Iraq' (2004) 2 Journal of International
Criminal Justice 245,
246.
[21]
Ibid.
[22] Hans-Joachim Rudolphi,
'STGB § 80 - Vorbereitung eines Angriffskrieges' in Hans-Joachim Rudolphi
and Jürgen Wolter (eds),
Systematischer Kommentar zum
Strafgesetzbuch, [6].
[23]
Classen, above n 5,
[30].
[24] Sternberg-Lieben,
above n 12,
[5].
[25] Kristian Kühl,
'STGB § 80 - Vorbereitung eines Angriffskrieges' in Kristian Kühl and
Karl Lackner (eds), Strafgesetzbuch (26th ed, 2007), [3]; with
further references.
[26] Classen,
above n 5,
[30].
[27] The German armed
forces are a parliamentary army. They can only be deployed with the assent of a
majority of the Bundestag. Consequently, any Member of the Bundestag,
who votes for the deployment of the armed forces for a war of aggression,
may commit an offence under section
80.
[28] Siegfried Magiera,
‘Artikel 46 – Indemnität und Immunität’ in Moritz
Sachs (ed), Grundgesetz Kommentar (4th ed, 2007),
[20].
[29] Heiner Jüttner,
Stellungnahme des Aachener Friedenspreises zur Entscheidung der
Generalbundesanwältin vom 5. Dez. 2006, kein Ermittlungsverfahren
einzuleiten (2006) Aachener Friedenspreis e.V. On file with author.
[30]
Bundesverfassungsgericht, 90 BVerfGE 286 (12 July
1994).
[31] The
Generalbundesanwalt’s letter of rejection is available at
<http://friedensini.de/archiv/ strafanzeigen/99-09-27_GBA-Karlsruhe_Kosovo-Krieg.pdf>
at 19 October
2009.
[32] Peter Strutynski,
Der Generalbundesanwalt beim Bundesgerichtshof weist Anzeige gegen
Bundesregierung zurück (2001)
<http://www.uni-kassel.de/fb5/frieden/themen/
Voelkerrecht/bundesanwalt.html>
at 10 November 2009 .
[33]
GBA: Kein Anfangsverdacht wegen Vorbereitung eines Angriffskrieges (§ 80
StGB) (2003)
<http://www.uni-kassel.de/fb5/frieden/regionen/Irak/klagen.html>
at 10
November 2009 .
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