Committed in Ukraine, Prosecuted in Germany?

Public authorities are not particularly famous for quick reactions. However, the Russian war of aggression against Ukraine has not only triggered a swift response from the German Government alongside its European and international allies. Two former federal ministers filed a criminal complaint against President Putin, his ministers, and numerous Russian officials from the political, administrative and, of course, military hierarchy of the Russian state apparatus. The complaint lodged by former Minister of Justice Sabine Leutheusser-Schnarrenberger and former Minister of the Interior Gerhart R. Baum (both from the Free Democratic Party, liberals) was sent to the Federal Public Prosecutor General (Generalbundesanwalt) on 6 April 2022 and presented to the public the day after. The Prosecutor had already announced on 8 March that he would investigate war crimes and crimes against humanity that may have been committed in the war in Ukraine since it began, following the initial announcement of the criminal complaint by Baum and Leutheusser-Schnarrenberger. Shortly after the war of aggression against Ukraine began, the Office of the Prosecutor of the International Criminal Court (ICC) declared that it will investigate international core crimes committed in Ukraine. Since not only the ICC but also other states are investigating, the question inevitably arises how and to what extent German investigations into crimes committed in the war against Ukraine can make a difference.

Investigations, Jurisdiction and Immunities

The investigations of the Federal Public Prosecutor General will first take the form of so-called “structural investigations” (Strukturermittlungsverfahren). The prosecutors will gather evidence of potential crimes, including the examination of witnesses, without focusing on a specific criminal provision, incident, or perpetrator. The Prosecutor General has already conducted structural investigations, e.g., into crimes committed by the Syrian national security authorities as well as crimes committed by ISIS Members against the Yazidis, both of which led to ‘common’ investigations against specific suspects, indictments and convictions. These investigations could be compared to the initial investigations into a ‘situation’ at the ICC but are rather uncommon in national criminal law.

If the investigations follow the criminal complaint, they will focus on allegations of war crimes and crimes against humanity. Both are criminalized under Sections 7-12 of the German Code of Crimes against International Law (CCAIL). The recently unveiled massacre of civilians at Bucha has also led to allegations of genocide committed by Russian soldiers. Genocide is equally criminalized under Section 6 CCAIL and there is nothing that would bar the Federal Public Prosecutor General from including such allegations in his investigations. Germany recognizes universal jurisdiction over these crimes, meaning that its courts have jurisdiction regardless of the perpetrator’s nationality or the place where the crimes were committed (Section 1 CCAIL). The fact that Russian soldiers or mercenaries are committing war crimes on Ukrainian soil is therefore not an obstacle to prosecution in Germany.

Speaking of officials and soldiers: It is obvious that the individuals who bear the gravest responsibility for the war of aggression and the war crimes committed therein are currently not to be found in Ukraine but, in Moscow, among other places. Although the Federal Public Prosecutor General has not yet opened investigations against individuals, there is no doubt that Putin and his inner circle will – materially – be criminally liable for certain or all war crimes committed in Ukraine. However, it seems unlikely that they will have to answer for these crimes to a German or another national court in the near future.

There is still some debate in international law about so-called functional immunity (or immunity ratione materiae) for international crimes committed by top state officials in the exercise of their official position. However, the only reasonable approach to this issue was already formulated 76 years ago by the International Military Tribunal in Nuremberg: ‘International Crimes are committed by men not by abstract entities.’ The German Federal Court of Justice left this issue open in a judgment from 2021. However, the Federal Public Prosecutor General has already made it clear in an article from 2021 that in his view, no immunity ratione materiae exists for international crimes before German courts.

This does not mean though, that a Putin, Lavrov or Shoigu could currently be prosecuted in Germany. Sections 18(1), 20(2) of the German Courts Constitution Act establish a far-reaching immunity of top state officials before German authorities as long as these persons are in office (immunity ratione personae). According to traditional reading, this immunity even prevents prosecutors from opening investigations against these persons. However, this immunity only covers the highest echelon of power, i.e., the head of state, head of government and federal ministers. It neither applies to military officials at the following levels of the hierarchy nor to other influential politicians. The chief of the general staff, the commanders of the various branches of the Russian military, influential secretaries of the security council and the presidential office; none of them enjoy immunity, even while in office.

International Crimes and the Individual Responsibility of Soldiers and Commanders

The list of alleged war crimes committed by Russian troops in Ukraine is long and growing. Accusations include the massacre of civilians in Bucha, the shelling of hospitals, theatres, nuclear power plants and civilian housing. There is also credible evidence of the use of cluster bombs since the early days of the war. While cluster bombs are internationally banned, they are not criminalized per se. Their use, however, often leads to indiscriminate killing and can therefore qualify as a war crime under the CCAIL. The siege of Mariupol, the blockade of humanitarian aid and ‘evacuation’ routes that are meant to force civilians into Russian territory fuel further allegations of war crimes and crimes against humanity. The latter of these crimes, in the CCAIL as well as in international jurisprudence, requires that crimes are committed as part of a wide-spread or systematic attack on a civilian population. This requirement differs from the armed conflict that must accompany war crimes. After two month of war, however and especially with a view to Bucha and Mariupol there can be little doubt that the Russian forces deliberately and in an organized manner direct their attacks against the civilian population and thereby commit both, war crimes and crimes against humanity.

Under German substantive criminal law, anyone from the soldier pulling the trigger or pushing the button of a weapons system to Vladimir Putin as the supreme commander-in-chief of the Russian armed forces may be criminally responsible for these crimes.

Foot soldiers directly involved in the numerous atrocities can be considered direct or joint perpetrators under German criminal law (Section 25 German Criminal Code – GCC) and be punished with up to life imprisonment for crimes against humanities and war crimes under the CCAIL. Many others involved in the atrocities on the ground may incur responsibility for aiding the crimes under Section 27 GCC. Foot soldiers may invoke superior orders as a defence, if they did not know that their orders were unbinding because of their illegality under international law (Section 3 CCAIL). However, on a correct and narrow interpretation of this provision any doubt on the part of the soldier as to the legality of an order disqualifies this defence. Given the widespread knowledge of basic rules of international humanitarian law – which should also exist within the Russian forces – it seems unlikely that this defence will become relevant in practice.

Future investigations, however, should not and will not be limited to low-level soldiers and mercenaries. Investigations should focus on those most responsible for the crimes committed:  the middle and higher ranks of the military and political state apparatus, as they are of course the intellectual and ideological drivers of the war of aggression and crimes employed within it as means of war. The attribution of criminal responsibility for international crimes to political and military decision makers has long been discussed in international criminal law. German legal doctrine and jurisprudence holds a solution for these individuals. While it is obvious for many that Putin, his inner circle and subsequent levels of the state hierarchy may have instigated the commission of crimes (Section 26 GCC, “chain instigation”), German doctrine recognizes “indirect perpetration through an organisation” as the most relevant form of responsibility in such cases. According to this doctrine, a person who holds a decision-making position within an organised apparatus of power can be considered a perpetrator who committed the crime ‘through another’ (Section 25.1. 2. Alternative GCC). The doctrine emerged in academic literature as a way to convict Nazi officials and officers but never made its way into practice for this purpose. Eventually however, it was adopted (and altered) by German courts dealing with former state officials of the GDR. Today, it is also used – in a somewhat modified form – by the ICC. The details of this doctrine are disputed in jurisprudence and literature, but there is no doubt that German courts will generally be able to convict Russian military and political decision-makers based on this doctrine, should they be brought before them.

Another way to attribute criminal responsibility to members of the military and civilian hierarchy is provided by Section 4(1) CCAIL, which resembles Article 28 Rome Statute. ”Superior responsibility” is a form of liability based on the omission of the superior to prevent their subordinates from committing crimes. While omission liability is well known to the GCC (Section 13), Section 4(1) CCAIL explicitly excludes any mitigation of sentences for superiors, meaning that they are punished as a perpetrator who committed the crime themselves. However, liability under section 4 is not as broad as superior liability under Art. 28 Rome Statute.

With regard to criminal intent, German Criminal law is potentially broader than the Rome Statute. According to jurisprudence, the latter does not include dolus eventualis, a concept that is recognised in German law. A person can incur liability if they recognised the potential criminal result of their action, accepted the risk of this criminal result occurring and acted nevertheless. This could lead German courts to ponder the risks and calculations taken by military service persons, touching the major dilemma in modern international humanitarian law: The circumstances under which it is okay to kill or injure or to accept the killing and injuring of human beings.

Outlook: Chances and Challenges for German War Crimes Investigations

So much for the law. It will largely depend on the Federal Public Prosecutor General what he will make of it in the next weeks, month and probably years. Putin and his ministers enjoy immunity – for the time being – and cannot be investigated against individually as outlined above. Many other high-ranking political and military officials will not be available either. But responsibility begins with foot soldiers with their boots on the ground and includes the many mid-level commanders and organisers as well. If they find their way to Germany or the EU, either as prisoners or deserters who have decided to turn their backs on a criminal regime, proceedings can be initiated against them. Some may even be willing to testify in court and may supplement the testimonies of Ukrainian refugees. As witness testimonies remain the most important evidence in criminal proceedings, it will be crucial for the German authorities to gather and organise the information provided by eyewitnesses. The former Chief Prosecutor of the ICC, Fatou Bensouda, in her strategic plan for the years 2019-2021 a prosecution strategy based focusing on mid-level perpetrators a few years ago. Accordingly, prosecuting foot soldiers and mid-level commanders at the European national level may be the most promising way forward, as they may prove to be valuable sources of information for a potential later prosecution of the ”real culprits”.

One of the more difficult decisions concerns soldiers and irregular fighters on the Ukrainian side. International Criminal Law has often been accused of selectivity, and while most of the western world stands with Ukraine in the face of this blatantly illegal war of aggression, war crimes can be committed on all sides. It is not unlikely that a few Ukrainian refugees and some returning foreign fighters will be suspected of having committed such crimes. The prosecution of crimes committed by those publicly perceived as the victims of Putin’s invasion could cost the Prosecutor General political support. However, failure to investigate such allegations will bring the Prosecutor General under fire of the Russian propaganda machine and its supporters in Europe. However, this tension also presents an opportunity for German criminal authorities and the European public in general. By separating fake news from facts, political allegations from credible testimony, and war criminals from freedom fighters, the prosecution of international crimes committed in Ukraine can help establish a reliable account of history, of what happened and of the criminals behind it.

As a Trainee Lawyer at the Law firm GAZEAS NEPOMUCK Attorneys, the author was involved by attorneys-at-law Dr. Nikolaos Gazeas und Dr. Andrej Umansky in researching for and preparing the criminal complaint of Sabine Leutheusser-Schnarrenberger and Gerhart Baum. The views expressed in this article are his own.