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Mueller, Sascha --- "The Crime of Agression under German Law" [2008] NZYbkIntLaw 26; (2008) 6 New Zealand Yearbook of International Law 183

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, 34^th sess, 2319^th 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 (26^th 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 .