Investigative independence and war crimes

In its February 16, 2021 decision in Hanan v. Germany, Application no. 4871/16, the Grand Chamber of the International Criminal Court had to address, among numerous other issues, whether a war crime investigation had been conducted with the requisite independence. The Grand Chamber observed (¶ 152):

. . . The Court considers that the interaction between the Federal Ministry of Defence and the Dresden Public Prosecutor General in the context of the preliminary investigation carried out by the latter (see paragraph 30 above) was from the outset incapable of affecting the independence of the investigation, given that the Federal Prosecutor General, who had commenced a preliminary investigation on 8 September 2009 (see paragraph 30 above), had exclusive competence for the investigation and prosecution of offences under the Code of Crimes against International Law and that the Dresden Public Prosecutor General was obliged by law to transfer the investigation concerning Colonel K.’s liability for offences under that code to the Federal Prosecutor General without delay (see paragraph 101 above). There are no indications that the Federal Ministry of Defence tried to influence or interfere with the Federal Prosecutor General’s investigation. Moreover, a lack of independence cannot be deduced from the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General, it being undisputed that no such directives were issued in the present case (see Mustafa Tunç and Fecire Tunç, cited above, § 222).

The decision sets forth the institutional arrangements followed by Germany for the prosecution of war crimes. ¶¶ 30-33, 96-98. Civilian authorities wield the disposition power, subject to judicial review by the civilian courts. ¶¶ 99-100.