The Committee on Enforced Disappearances this morning concluded its consideration of the additional report of Germany on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts commending the State for prosecuting international crimes in its territory, and asking questions about the full integration of enforced disappearances in legislation as a separate offence and protections from non-refoulement.
Olivier de Frouville, Committee Expert and Country Co-Rapporteur, said the Committee greatly appreciated efforts by the State party to continue to prosecute and bring to justice the authors of serious crimes against international law that found themselves in German territory, including on the grounds of universal jurisdiction. Germany, he said, was at the forefront of efforts to combat impunity of authors of crimes including enforced disappearances.
Mr. de Frouville noted that the State party was hesitant to transpose the Convention into national law, which created an obstacle to the effective implementation of the Convention and encouraged impunity for authors of enforced disappearances. Suela Janina, Committee Expert and Country Co-Rapporteur, invited the State party to review its position, reiterating the need to introduce a separate offence for enforced disappearance in the legislation.
Ms. Janina expressed concern over protection from non-refoulement. Could more information be provided on how individual assessments were taking place, with the pressure of the high number of refugees and migrants reaching Germany?
Sigrid Jacoby, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, in her opening statement, said German criminal law provided for criminal responsibility and appropriate penalties for enforced disappearance in line with articles six to eight of the Convention. The delegation added the Government believed there was no obligation under the Convention for the State party to create an autonomous offence for enforced disappearance. The State party may consider establishing a new project for considering the creation of such an offence.
Ms. Jacoby said every asylum case was assessed to ensure non-refoulement. If Germany had the impression that a destination State was not adhering to their assurances, then the extradition would not take place.
In her concluding remarks, Ms. Jacoby said a consensus was not reached on all topics discussed in the dialogue, owing to different legal interpretations. However, the consistent prosecution of enforced disappearance in all its forms was a very important issue for Germany. Three divisions with 16 prosecutors were pursuing cases of enforced disappearance, showing that Germany was serious about tackling this issue, promoting the rule of law and pursuing justice for victims and their relatives.
In concluding remarks, Carmen Rosa Villa Quintana, Committee Chair, thanked the delegation for participating in the dialogue, which constituted a significant step forward in cooperation between the State party and the Committee. She said the Committee’s previous concluding observations had recommended that the State party introduce dedicated legislation on enforced disappearance and address the statute of limitations on enforced disappearance. She called on the State party to implement those recommendations.
The delegation of Germany was made up of representatives of the Federal Ministry of Justice; the Federal Prosecutor General at the Federal Court of Justice; the Federal Ministry of the Interior and Community; the Federal Ministry of Defense; the Federal Foreign Office; the Federal Ministry of Education and Research; and the Permanent Mission of Germany to the United Nations Office and other international organisations in Geneva.
The Committee will issue its concluding observations and recommendations on the report of Germany at the end of its twenty-fourth session, which concludes on 31 March. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.
The Committee is next scheduled to meet in public at 3 p.m. on Wednesday, 22 March to begin its review of the initial report of Costa Rica (CED/C/CRI/1).
Report
The Committee is considering the additional information submitted by Germany under article 29 (4) of the Convention (CED/C/DEU/AI/1).
Presentation of the Report
KATHARINA STASCH, Ambassador, Permanent Representative of Germany to the United Nations Office at Geneva and co-head of the delegation, said 2023 marked 50 years of Germany in the United Nations and a series of reviews of the State in several human rights treaty bodies. The dialogue with United Nations treaty bodies was of outmost importance to the State party, which took its human rights obligations seriously. Enforced disappearances were no longer a practice in the country. The preservation of the rule of law required continued efforts. Germany was actively prosecuting enforced disappearances happening abroad, including in Ukraine and in Syria.
SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said the Convention required all high contracting parties to hold those who committed any of the acts listed in article six criminally responsible. German criminal law provided for criminal responsibility and appropriate penalties in line with articles six to eight of the Convention. In submissions by civil society, the criticism was mainly directed at the fact that in some theoretical scenarios, offenders might be held responsible only as participants rather than as main perpetrators. In the State party’s view, however, even in these scenarios, criminal responsibility would be established in line with article six. The punishments applicable would also necessarily vary according to the degree of culpability and the respective roles of any perpetrators or participants. The penalties provided even for just a single offence might amount to as much as ten years imprisonment. Severe penalties had been handed out for mere participants.
The Federal Government would keep the matter of introducing an autonomous offence of enforced disappearance under consideration and continue to evaluate the possibility of reform.
Regarding the implementation of article five of the Convention, the German Code of Crimes Against International Law incorporated the crime of enforced disappearance as defined in the Rome Statute. The Government considered following the Rome Statute’s definition to be the best solution.
Germany was actively prosecuting perpetrators of crimes against humanity under its universal jurisdiction. Enforced disappearance was very much part of these investigations and prosecutions. This also included the collecting of evidence in the Ukraine war for eventual prosecution. Germany had taken in roughly one million refugees from Ukraine, an issue considered in investigations.
The Committee had asked for details of the procedure for a constitutional complaint before the Constitutional Court in the context of extradition. An English leaflet had been produced containing this information, as well as an example of a successful complaint against extradition. The State party had found no factual basis for the allegations made against Germany by certain non-governmental organizations.
Education and training were two further important elements of implementation. The Convention was included in general training and education schemes on Germany’s international human rights obligations that were provided for law enforcement personnel and the military.
Questions by Committee Experts
SUELA JANINA, Committee Expert and Country Rapporteur, asked if the Government intended to take the necessary steps to implement the Committee’s recommendation to criminalise enforced disappearances as a separate offence. What initiatives had been launched so far to address the recommendation? How were the Committee’s recommendations regarding mitigating and aggravating circumstances and the statute of limitations considered in the ongoing discussion in the State Party on possible improvements of its criminal law?
OLIVIER DE FROUVILLE, Committee Expert and Country Rapporteur, said the Committee greatly appreciated efforts by the State party to continue to prosecute and bring to justice the authors of serious crimes against international law that found themselves in German territory, including on the grounds of universal jurisdiction. Germany was at the forefront of efforts to combat impunity of authors of crimes including enforced disappearances. However, there was some hesitance to transpose the Convention into national law, which created an obstacle to the effective implementation of the Convention and therefore encouraged impunity of authors of enforced disappearances. Some years after the ratification of the Convention, it was difficult to understand why the State had yet to ensure that enforced disappearance constituted an offence under criminal law. To illustrate the difficulties created by the lack of this legislation, in a case involving a citizen of Vietnam who was a victim of enforced disappearance, a person was tried, receiving 5 years community service. If the court had recognised the perpetrator as an author of enforced disappearance rather than solely of deprivation of liberty, the punishment would have been much harsher.
The State party had informed that criminal proceedings currently pending before Koblenz Higher Regional Court against two members of the Syrian intelligence service demonstrated that the provisions of German law allowed criminal prosecution as described in article nine, paragraph two of the Convention. The case involved actions that fell under the definition of “enforced disappearance” as set down in article two of the Convention. The Committee praised the fact this trial had taken place, together with other trials, an important step to combat impunity in connection with very serious crimes against international law, including the crime of enforced disappearances. In its list of issues, the Committee had asked if the charges had included the crime of enforced disappearances as a crime against humanity. The European Center for Constitutional and Human Rights had reported that in the Koblenz trial, some plaintiffs presented a motion to add the offence of enforced disappearances to the charges brought, which originally included murder, torture and deprivation of liberty. The tribunal had rejected the demand. The German Institute for Human Rights had reported that the definition of enforced disappearance integrated in the code of international law was not in line with the terms of the Convention and included conditions that seemed difficult to fulfil. The tribunal had convicted the authors of the crime, but had not taken into account the reality of enforced disappearance, which was different from the arbitrary deprivation of liberty. To qualify the crime properly was of major importance for society at large and the victims.
What was the statute of limitations for offences of abductions and falsification of identity? Did the State party intend to lift the statute of limitations in light of the ongoing nature of these offences? Many adoptions in various countries, possibly including Germany, took place under illegal conditions, the product of enforced disappearance. Could the criminal code cover and tackle this situation?
Were there modalities in Germany for cooperation against terrorism, and for providing information to people at risk of enforced disappearance?
SUELA JANINA, Committee Expert and Country Rapporteur, said the Committee had recommended that Germany incorporated into its domestic legislation a prohibition on carrying out expulsions, returns or extraditions where there were substantial grounds for believing that the person would be in danger of being subjected to enforced disappearance. Had the State Party taken any measures to address this recommendation?
Could the State party provide data on the number of diplomatic assurances requested, given and rejected by the State party, including the reason of refusal? What was the procedure for filing a constitutional complaint with the Federal Constitutional Court? Was the State party addressing the Committee’s recommendation to withdraw the State party’s declaration on article 16?
Information had been received about an increasing number of migrants, refugees and asylum seekers that had disappeared in Germany, either as soon as they had arrived or after a short period, including unaccompanied minors. Could the State party give relevant data on the disappearance of these groups in the State party and the criteria to classify them as missing?
