A special court?

On a dark night in Afghanistan a small group of German soldiers are putting up a roadblock. Three soldiers have left the armoured vehicle, a fourth is securing the site from the car. Suddenly two cars come racing by in the darkness. The soldier in the vehicle hears shots and thinks they are under attack. With his machine gun he fires at the cars. But there are civilians, not Taliban fighters - one woman and two children are killed, several others are wounded.

Who's responsible?

Was the soldier right to fire? Did he act with negligence or or even commit a war crime? Or was it just a tragic mistake? These are the kinds of questions that are currently put before a court in Germany.

Generally the rule is that any incident involving German citizens has to go before a German court, even if that incident occurred abroad. Members of the German army are therefore investigated by normal civilian prosecutors.

For historical reasons, there's no special military court or justice system in Germany. "It was a deliberate political decision after World War II, when military courts had passed blatantly unjust sentences," explains Christoph Safferlin, professor of criminal and international law at Marburg University. He is also in charge of a center documenting war crimes trials. In the case of desertion or other offences classified as demoralizing the troops, the WWII military courts usually passed the death sentence.

In the first years of post-war West Germany, remilitarization itself was highly controversial. If Germany was to have an army it should at least be "firmly anchored" in society, says Safferlin. Therefore the decision was that normal civil courts would be responsible for offences committed by German troops.

Long delays

For decades, this procedure was not questioned - after all, the Bundeswehr was not involved in any military conflicts. But since 2002, German soldiers have been stationed in Afghanistan - and so a prosecutor in Germany might have to decide whether or not a soldier there was or was not justified to pull the trigger. Obviously, a case like this differs from the day-to-day cases handled by German court system. The scene of the alleged crime is far away, and witnesses cannot be called. Also, military procedures, structures and situations are likely to be entirely unfamiliar to the prosecutor in charge.

"Experience in the past has shown that some investigations go on for far too long, making the whole procedure an unacceptable ordeal for the soldier who's being investigated," says Rainer Arnold, defense policy spokesman for the opposition Social Democrats and chair of the defense committee in the German parliament.

Controversy over centralized prosecution

The government in Berlin shares Arnold's assessment of the situation. Justice Minister Sabine Leutheusser-Schnarrenberger now wants all cases involving the German military and alleged offenses committed abroad to be tried by a specific specialized court in the southern-German city of Kempten.

However, the plans have been criticized: Germany's Left party, which is against the Bundeswehr operation abroad, has accused the government of trying to set up "military justice through the backdoor," expressing concern that the court wouldn't be independent and would be more lenient on the soldiers than a normal court.

Omnid Nouripour of the Green party doesn't go quite as far but he also thinks the judiciary's independence might be at risk. "A single centralized prosecution could lead to a special application of the law when it comes to members of the German army," Nouripour warns. What he suggests instead is that each of Germany's states should have a prosecution specializing in such cases.

Yet those in favor of the new plans dismiss the criticism. Rainer Arnold says that it still would be a civil prosecution with independent lawyers and judges. He also points out that currently there are very few cases pending. "In many years there would be nothing to do for the prosecution if we had a separate specialized prosecution in each German state," he says, adding that one court could develop a far greater expertise. A centralized prosecution would also increase transparency and make it easier to keep statistics on how many and what kind of cases are brought against German soldiers.

High standards

"Many of the cases are routine investigations and are not about serious crimes," Arnold points out. "These are things that actually happen in Germany: traffic violations, brawls or theft."

What is crucial is however is how the really serious cases are being handled. Compared to the military justice systems in countries like the US, German civil law actually offers a chance, Safferling argues. "I would always think it's better that in a democracy we uphold human rights and civil structures," he says. German soldiers should always consider martial law as the exception, never as the norm."

Author: Michael Gessat / ai
Editor: Joanna Impey