Published: 16 March 2021 Author: Stefan Talmon
Throughout the year, Germany makes numerous statements on international law. Not all these statements form part of a case study presented on GPIL. However, these statements may nevertheless be of interest to international lawyers. We therefore compile these statements on a monthly basis.
2 November 2020
On 2 September 2020, U.S. Secretary of State Mike Pompeo announced that the United States was imposing sanctions, including a freeze on assets held in the U.S. or subject to U.S. law, on the Prosecutor of the International Criminal Court (ICC) and the Court’s Head of Jurisdiction, Complementary, and Cooperation Division over the ICC’s investigation of war crimes allegations against U.S. forces in Afghanistan. Back in March 2019, the U.S. Secretary of State had ordered the revocation or denial of visas to the Prosecutor and other ICC staff involved in the investigation. Without directly naming the United States, Germany delivered a strong rebuke of the U.S. sanctions against the ICC. On the occasion of the ICC Report to the UN General Assembly, the German Permanent Representative to the United Nations, Ambassador Christoph Heusgen, delivered the following statement on behalf of 72 States Parties to the Rome Statute in support of the Court:
“[…] The ICC, as the world’s first and only permanent international criminal court, is an integral part of the multilateral architecture upholding the rule of law. It is a central institution in the fight against impunity and the pursuit of justice, which are essential components of sustainable peace, security and reconciliation. We will continue to respect our cooperation obligations under the Rome Statute and encourage all States to fully support the Court in order to enable it to carry out its important mandate to ensure justice for the victims of the most serious crimes under international law. We would like to remind the Assembly that the ICC is a court of last resort that anchors a system of justice for serious international crimes rooted in national courts. National authorities have the primary responsibility for investigating and prosecuting Rome Statute crimes. The ICC steps in only when States are unwilling or unable to genuinely conduct national proceedings.
Following the statements by the President of the Assembly of States Parties issued on 11 June and 2 September 2020, we reiterate our commitment to upholding and defending the principles and values enshrined in the Rome Statute and to preserving its integrity and independence, undeterred by any measures or threats against the Court, its officials and those cooperating with it. We note that sanctions are a tool to be used against those responsible for the most serious crimes, not against those seeking justice. Any attempt to undermine the independence of the Court should not be tolerated.
The International Criminal Court embodies our collective commitment to fighting impunity for the most serious crimes under international law. By giving our full support to the Court and promoting its universal membership, we defend the progress that we have made together towards an international rules-based order, of which international justice is an indispensable pillar.”
3 November 2020
In the UN Security Council VTC open debate on Peacebuilding and Sustaining Peace: Contemporary Drivers of Conflict and Insecurity, the Minister of State at the Federal Foreign Office Niels Annen, once again, advocated a broader understanding of international peace and security and an expanded mandate of the UN Security Council, stating, inter alia:
“[T]oday’s conflicts are driven by complex, multifaceted challenges that require a concerted effort by the entire United Nations system. That must include the Security Council. Unless the Council systematically and effectively considers the security implications of climate change, global pandemics, underdevelopment and violations of human rights, we will fall short of what the international community — and, most of all, those who are most severely affected by conflicts —expects us to deliver.
[…] the challenges of the twenty-first century are not the same as those we faced in the middle of the twentieth century. If we want to live up to our responsibility, we must keep up with these developments and act accordingly. […] And if the Council wants to remain relevant, it will have to up its game and finally grapple with the security implications of pandemics, climate change and all the other pressing global issues the world expects it to deal with. A comprehensive approach to peace and security implies the need to address root causes and anticipate mid- and long-term challenges. We must strive harder to find integrated solutions to interconnected challenges. And we must do more to strengthen prevention, peacebuilding and sustaining peace.
[…] In July, the Council explicitly recognized in resolution 2532 (2020) that the pandemic is likely to endanger the maintenance of international peace and security and might reverse peacebuilding gains. We should do more to follow up on this resolution. […].
Climate change is undoubtedly one of the most relevant threats to stability and security in our time. […] climate change is a major driver of conflict in the twenty-first century. The Security Council has to live up to its responsibility. More needs to be done to enhance our understanding of this dimension of conflict.
[…] There is a vicious circle of climate change, environmental degradation and conflict. It increases the risk of violent conflict, displacement and, consequently, humanitarian crises. […].”
3 November 2020
During the UN General Assembly debate on the Report of the International Court of Justice, the German Permanent Representative to the United Nations stated:
“The International Court of Justice is the principal judicial organ of the United Nations and the most important guardian of international law, as it is the only Court with a legal basis in the Charter of the United Nations itself and therefore has a truly universal membership. […]
However, the Court’s jurisdiction, like that of other international tribunals and arbitration tribunals, is based on the consent of the States concerned. That is a well-established principle in international law. […]
Article 94 of the Charter of the United Nations states that when States have submitted to the Court’s jurisdiction, they must respect and follow the Court’s decisions. Failure to comply with a judgment undermines respect for the Court and its general efficiency as a mechanism to settle disputes. It is imperative to accept legally binding decisions by international courts and tribunals, including rulings on their own competency to decide on a case, as well as decisions that go against immediate national interests, because we believe that the rules-based system itself is in all our national interests. […]
The practical significance of the Court’s decisions and opinions reaches far beyond the actual claim or even the substantive law in question. They have a direct effect on the political debate. […].”
4 November 2020
Germany, speaking also on behalf of the other EU Member States, made a statement in explanation of vote on a draft resolution on “Work of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories”. In the draft resolution, the UN General Assembly, inter alia, noted “the accession by Palestine to several human rights treaties and the core humanitarian law conventions, as well as other international treaties”. The German representative stated that:
“the use of the term ‘Palestine’ could not be construed as recognition of a State of Palestine and was without prejudice […] to the question of the validity of the accession of Palestine to the international instruments referred to in the draft resolutions.”
The draft resolution was adopted by 72 States voting in favour, 13 against, and 76 (including Germany) abstaining.
4 November 2020
In response to a parliamentary question on the construction of a space launch platform in the North Sea, the Federal Government stated:
“According to the 1967 Outer Space Treaty, activities in outer space of non-governmental entities require the authorisation and approval and continuing supervision by the appropriate State Party, which is also responsible for non-governmental activities under international law.”
5 November 2020
During the UN Security Council meeting on Syria (chemical weapons), the German representative stated:
“[…] the Syrian regime must stop the use of chemical weapons against its own citizens for good, fully disclose its chemical weapons programme and fully cooperate with the OPCW. […]
The Al-Assad regime in Syria has killed its own people using chemical weapons. Russia has shielded Al-Assad, including by ending the OPCW-United Nations Joint Investigative Mechanism in 2017, the very mechanism that had been set up to examine the use of such weapons.
We all have a responsibility to safeguard and support the Chemical Weapons Convention and its guardian, the OPCW – a central pillar of the global disarmament, arms control and non-proliferation architecture. The re-emergence of chemical weapons, as we have seen in Syria and in other cases, must not be tolerated. The use of these despicable weapons undermines the international non-proliferation architecture, and we will not accept impunity for those who use or develop toxic agents, regardless of where these agents are being used. […].”
9 November 2020
On 3 November 2020, Israeli security forces carried out demolition work to clear the Palestinian settlement of Khirbet Hamsa al-Foqa in the northern Jordan Valley, located in the Israeli-occupied West Bank. Seventy buildings and other structures were destroyed, including housing and sanitary facilities for eleven Palestinian families. The United Nations recorded the demolition of 557 Palestinian-owned structures, an umbrella term for houses, huts, tents and basic infrastructure, in the West Bank and East Jerusalem so far this year. On 9 November 2020, a Federal Foreign Office spokesperson issued the following statement on the demolition of Palestinian housing:
“We were concerned to hear of the demolition of Palestinian housing in the village of Khirbet Hamsa al-Foqa in the West Bank. This operation […] is part of a worrying trend of seizures and demolitions of Palestinian structures in the West Bank which has been seen since the beginning of this year. […]
International humanitarian law obliges all states to ensure particular protection for civilians during conflicts. We call on Israel to observe these obligations, in particular those contained in the Fourth Geneva Convention relative to the Protection of Civilian Persons, in the occupied territories. […].”
10 November 2020
During the UN Security Council meeting on the International Criminal Court (ICC) and Sudan, the German representative stated:
“In line with the principle of complementarity, it is indeed the primary responsibility of States to investigate and prosecute crimes under the Rome Statute. […] However, if crimes under international criminal law do not fall under the Sudan’s national jurisdiction, it also needs to fully cooperate with the United Nations and the ICC. Those obligations were recently reaffirmed in the Juba Agreement for Peace in the Sudan, specifically the obligation to arrest and surrender suspects for whom arrest warrants have been issued.”
11 November 2020
In the Security Council AOB on Belarus, the German permanent representative, Ambassador Christoph Heusgen, explained why Germany considered Belarus to belong on the agenda of the Security Council, saying:
“In Russia’s intervention, it was questioned why Belarus is on the agenda. Let me try to explain why we believe that it belongs on the agenda of the Security Council.
First, we saw again last weekend an increasing level of violence against peaceful protesters. When you look at the agenda of the Security Council, on many of the issues that we are discussing here, conflict started because of violence against peaceful protesters. Last weekend, more than one thousand peaceful protesters were arbitrarily arrested and detained.
We are also alarmed by severe human rights violations, including excessive violence and torture against detainees. […] In Belarus there is not one single legal investigation against members of security forces. Many documented allegations by many victims have been entirely rejected. There is no accountability! We know from around the world, where there is no accountability for violations of human rights violations and there is conflict, it belongs on the agenda of the Security Council. When media freedom is under fire, there are attacks on journalists. […] These kind of attacks lead to conflict and need to be discussed by us in the Security Council. […]
Belarus[…] is also a member state of the OSCE and therefore also obliged to follow its rules. Belarus’ refusal to cooperate with the rapporteur [on human rights as established by the Moscow Mechanism] is a violation of its OSCE commitments. […]
Pointing to the obligations that Belarus has under its OSCE membership and discussing the situation on the Security Council is not interference. It is just a reminder of its obligations and pointing to blunt violations of OSCE commitments. […] It is very good that the Security Council deals with the situation in Belarus.”
16 November 2020
During the Security Council VTC meeting on Peace and Security in Africa (G5 Sahel), the German representative commented on the G5 Sahel Joint Force’s anti-terrorism operations, saying:
“It is important though that the Joint Force’s counter-terrorism activities are in compliance with human rights standards and international humanitarian law. Therefore, it remains key to further and fully operationalize the human rights compliance framework by implementing human rights due diligence as well as by conducting comprehensive investigations of potential human rights violations by the G5 Joint Force.”
17 November 2020
In response to a parliamentary question on the legal basis of the European Union multinational military training mission in Mali (EUTM Mali), the Parliamentary Secretary of State at the Federal Ministry of Defence, Peter Tauber, stated:
“In terms of international law, EUTM Mali is based on an invitation which the Government of Mali extended to the European Union and on corresponding resolutions of the Council of the EU within the framework of the common foreign and security policy.
The invitation of the Republic of Mali is valid under international law until it is explicitly revoked. A change of government generally has no direct impact on the continuance of the legal basis.”
17 November 2020
During a Security Council media stakeout, it was put to the German permanent representative to the UN as chair of the North Korea Sanctions Committee that the humanitarian exceptions to the sanction regime were failing and that many innocent North Koreans were dying as a result of the United Nations sanctions. Ambassador Christoph Heusgen replied:
“What are we facing – we are facing a situation where North Korea is defying international law. North Korea – against international law – is continuing to develop a ballistic missile programme and it is continuing to entertain a nuclear programme. This is against international law. The global community has told North Korea to stop this. If North Korea would stop their illegal programmes, they would no longer need to spend money – enormous money – on this programme but could spend it on the development of their country, on providing the population with what the population needs most and that is, indeed, to get enough food, to get education, to get chances to work, to have a chance to travel. So it is foremost the obligation of the North Korean regime to look after the fate of the population. On the other hand, what we have of course done […] there [are] humanitarian exceptions. We have, as chair of the Sanctions Committee, we have done everything to see to it that all the exceptions that are asked […] to deliver humanitarian goods to North Korea, that these exception are being treated on a priority level. It does not take, on average, more than 2 days to get a green light for all humanitarian deliveries to the country. We are working very closely with OCHA [United Nations Office for the Coordination of Humanitarian Affairs], actually we will have a meeting of OCHA with the Sanctions Committee in the coming days, because for us, this issue is very important. We want to give as many possibilities [as possible] for humanitarian actors to deliver humanitarian [goods] to the population. But let me remind you again – responsible for the fate of the people is the North Korean regime.”
18 November 2020
Commenting on the adoption of the resolution on the human rights situation in Crimea by the UN General Assembly’s Third Committee, Germany’s permanent representative to the United Nations wrote on Twitter:
“More than 6 years after the illegal annexation, Russia continues grave human rights violations on Ukrainian territory. Germany supports Ukraine’s territorial integrity and calls on Russia to end its aggression.”
18 November 2020
On the occasion of Greece passing the chairmanship in the Committee of Ministers of the Council of Europe to Germany, Federal Foreign Minister Heiko Maas stated:
“[O]ur goal is more coherent protection of human rights throughout Europe. All Member States have the duty to abide by the final judgments of the European Court of Human Rights. Too often, however, the execution of these judgements remains incomplete or does not happen at all. […]
We must prepare our European human rights architecture for the challenges of the future. Artificial Intelligence […] raises serious questions regarding privacy and human dignity.”
18 November 2020
Germany, together with France and the United Kingdom, made a statement on Iran at the IAEA Board of Governors Meeting, saying inter alia:
“As participants to the JCPoA, we reiterate our continued commitment to the preservation and full implementation of the nuclear agreement. We E3 have worked hard to preserve the agreement. We have been consistently clear that we regret the US withdrawal from the JCPoA and re-imposition of US sanctions. We have lifted sanctions as foreseen by the JCPoA and taken additional efforts to allow Iran to pursue legitimate trade, by developing the financial mechanism INSTEX.
However, despite these good faith efforts, Iran has engaged, for a year and a half now, in numerous, serious violations of its nuclear commitments. We continue to be extremely concerned by Iran’s actions, which are hollowing out the core non-proliferation benefits of the deal. Advancements on Research & Development have irreversible consequences.
We are concerned at Iran enriching uranium above the 3.67% JCPoA limit, and the continued growth of its low-enriched uranium stockpile, which is now 2443 kg. This is a dozen times the JCPOA limit. Contrary to the JCPoA, Iran is using advanced centrifuges for the production of low-enriched uranium (LEU). Contrary to the JCPoA, Iran is also enriching at Fordow: this facility has no credible civilian use.
Iran also continues to conduct research and development on several types of advanced centrifuges not permitted under the JCPoA and the JCPoA’s R&D Plan. This includes the operation of hundreds of IR-2m, IR-4 and IR-6 centrifuges. Iran has also introduced new types of centrifuges not authorized under the JCPoA. Iran must cease undertaking any research and development of advanced centrifuges contrary to the provisions of the JCPoA.
On top of this, Iran has announced that it intends to install advanced centrifuges at the Fuel Enrichment Plant at Natanz. The IAEA report confirms this process has already started: one full cascade of IR2m centrifuges is now installed at the FEP, as well as some IR4 centrifuges. The report also indicates that these cascades will continue to accumulate uranium. The IAEA reported on 17 November that the process of feeding the IR2m cascade with UF6 has now been initiated.
The JCPoA is clear that all centrifuge research and development should be undertaken at the PFEP. The JCPoA is also clear that only IR-1 centrifuges may be installed at the FEP for enrichment purposes and that their number is limited to no more than 5060. Iran’s latest decision to change the location of its research and development activities, which are already being conducted in ways that are inconsistent with the JCPoA, as well as increasing the overall number of centrifuges installed at the FEP, is a matter of deep concern. It makes it easier for Iran to expand its activities with advanced centrifuges in the future should it decide to do so. The FEP IAEA – Iran report –E3 Statement has space for thousands of additional centrifuges, therefore moving advanced centrifuges to a larger space raises serious concerns about Iranian intent. We urge Iran not to proceed with the installation of advanced centrifuges at the Fuel Enrichment Plant, and its plans to move its R&D facility to the FEP. These activities constitute a further violation of the JCPoA and send an unacceptable signal to the broader international community that has rallied in support of preserving the JCPoA.
It is now critical that Iran immediately reverses its steps and returns to full compliance with the JCPoA without further delay. We remain committed to working with all JCPoA participants to find a diplomatic way forward and we intend to pursue these discussions within the framework of the JCPoA. […].”
19 November 2020
During the UN Security Council meeting on Libya, the German representative indirectly accused the Russian Federation of blocking the work of the Council’s Libya Sanctions Committee, stating:
“As Chair of the Committee established pursuant to resolution 1970 (2011), concerning Libya, I regret to inform the Council that the presentation of the Committee’s activities that was planned as part of today’s meeting had to be cancelled. Owing to the blockade of one member of the Committee, we were not able to agree on a mere factual account of what has happened since September. That is very unfortunate and disappointing given the importance of the 1970 Committee’s work in support of a peaceful solution for Libya. It is another lamentable development following the failure to agree on the publication of the interim report of the Panel of Experts in September. Those who are blocking even such small steps in the Sanctions Committee must bear the responsibility for this.”
20 November 2020
In a speech at a commemorative event on the occasion of the 75th anniversary of the start of the trials of 24 high ranking German officials before the International Military Tribunal at Nuremberg, the Federal President Fank-Walter Steinmeier said:
“Until the opening of the trial 75 years ago, international law was a matter for states. Only they could be held accountable for wars and war crimes. The perpetrators, planners and instigators were able to evade justice. Even those who bore the main responsibility for the most monstrous crimes called for impunity […].
The London Charter created the legal basis for the trials. The most powerful figures of a state stood before a court for the first time in Nuremberg, accused of the gravest crimes the world had ever seen: for unleashing a war of aggression, for war crimes and for crimes against humanity.
By laying the legal groundwork for the Nuremberg Trials, the London Charter initiated a twofold renewal of international law. The prohibition of war crimes, of the ill-treatment of prisoners of war, of the terrorisation of the civilian population and of other serious violations of international humanitarian law was not new. All of that had been established under customary international law since the Geneva Convention of 1864, the Hague Convention of 1907 and follow-up conventions after the First World War.
Preparing and waging a war of aggression had also been prohibited under international law since the conclusion of the Briand-Kellogg Pact in 1928. Until this point, however, responsibility for violations of international law lay solely with the state in whose name the crimes had been perpetrated. What was new in the London Charter was that it enshrined the individual criminal responsibility of those who had committed the most serious crimes, and the means to prosecute them. Also new was the establishment of crimes against humanity as a criminal offence which was applied for the first time in the Nuremberg Trials 75 years ago.
The idea behind the Nuremberg Trials was groundbreaking: ‘Crimes against international law are committed by men, not by abstract entities’, the judges stated very aptly at the time. Those in government office and senior civil servants who had issued heinous orders were no longer to hide behind immunity under international law. Those who received the orders were no longer to claim the defence of superior orders.
That was new: the law was to be used to stand up against power. It was to be used to set limits on the flagrant abuse of power. It formed the basis for universal international criminal law and international criminal jurisdiction – for an international order based on law and justice. It was also the foundation for the principle of universal jurisdiction, according to which war crimes and grave human rights crimes are not to go unpunished anywhere in the world. […]
There would be no International Criminal Court in The Hague today without the main Nuremberg war trial. […]
[…] What Nuremberg had initiated, the concept that the most serious crimes against international law must not go unpunished, only became an established principle much later. Ideas such as maintaining the criminal tribunal as a permanent institution, as an outpost of the United Nations, were still a long way off. Decades were to pass until the spirt of Nuremberg took tangible form in the shape of an international criminal court. Only after the atrocities of the Yugoslav war did the will grow to establish an international institution to persecute crimes against international law. The time after the lifting of the Iron Curtain in Europe was a period of optimistic internationalism.
During the last two decades, however, we have not seen the hopes that the rule of law would be strengthened in international relations fulfilled. Old and new powers have started competing. Internationally binding norms are regarded as a limitation on a state’s own power. International criminal jurisdiction is increasingly challenged, even here in Europe. The United States and Russia have not joined the International Criminal Court. Nor have China, India or dozens of other states.
The United States, which played a major role in the establishment of the International Military Tribunal in Nuremberg and whose international law experts thus also inspired the creation of the International Criminal Court, has actively worked against the court in The Hague during the last few years. […]
I know that indictments by the International Criminal Court against national leaders are not always regarded as helpful, especially during fragile peace processes. Trials can narrow the political scope for negotiations. The pressure they exert can make it difficult for dictators to back down. How can we prevent criminal law being used as a weapon against political opponents if what we really want to do is prepare the ground for political dialogue? The mediators in many internal conflicts around the world are faced with this question. For instance, it played a role in the ending of the policy of apartheid in South Africa and in the peace talks in Colombia. Inevitably, a balance has to be struck between legal considerations and political interests when it comes to international criminal jurisdiction.
Nuremberg marked a breakthrough on the road to the judicialisation of international relations. However, international criminal jurisdiction demonstrates time and again how difficult it is to help bring about more justice in the world through normative principles.
The International Criminal Court has yet to fulfil some lofty hopes. However, the attacks against the court in The Hague also highlight its effectiveness, the fear of those in power of being meted out a just punishment.
Despite all its imperfections and faults, international criminal jurisdiction has become established. The desire to use the means of the law to address unprecedented excesses of power 75 years ago was a start. Today, the International Criminal Court is a well-established institution. Not punishing the gravest crimes would be disastrous – this lesson learned in Nuremberg had an impact.
Without Nuremberg, warlords in Serbia, Croatia or Rwanda would not have been held to account over mass murder, torture or rape, nor would genocide be prosecuted as a crime. […]
Criminal jurisdiction can only ever be one part of the answer. Crimes against international law are a betrayal of all civilised values. If they remain unpunished, not only the law but humanity as a whole suffers. Our aim must be to restore broken law in the name of humanity. The law must win the day in the struggle with power. It cannot always overcome power but it can place limits on it. […].”
22 November 2020
Federal Foreign Minister Heiko Maas issued the following statement on the withdrawal of the United States from the Treaty on Open Skies:
“The declared withdrawal of the United States of America from the Treaty on Open Skies enters into force today. We deeply regret that the United States decided to take this step and has now implemented it. Our own position on the Treaty is unchanged: we regard it as an important part of the arms control architecture, which has helped to foster mutual confidence-building and thus also to enhance security in the northern hemisphere from Vladivostok to Vancouver. The German Government will of course continue to implement the Treaty. […].”
25 November 2020
Germany established diplomatic relations with the Kingdom of Bhutan. The German Ambassador in India will also be accredited to Bhutan. Consular relations had already been established in July 2000. Germany now maintains diplomatic relations with all 193 Member States of the United Nations.
Category: International law in general
DOI: 10.17176/20220627-172948-0
