NATO Status of Forces Agreement after the Wittlich case: Cri­minal prose­cu­tion should no longer be out­sourced

Hier geht es zur deutschen Version des Kommentars.

The Wittlich case, with its failures on all points, but especially on the part of the U.S. military, made clear: Germany can no longer hand over jurisdiction to the U.S. military by default when U.S. soldiers are accused of serious crimes on German soil. Not only because U.S. military courts continue to reach dubious decisions, not only because of the Wittlich case where the confession of the suspect was ordered to be inadmissible for no clear reason, and the military court in Spangdahlem refusing to release its order against the principle of open justice. But because of the Basic Law. In its Gorch Fock decision from 2014, the Federal Constitutional Court (Bundesverfassungsgericht) made clear that the state has a fundamental duty to protect not just the victims of serious crimes, but also their relatives (2 BvR 1568/12). 

The Federal Constitutional Court recognized a right of the surviving relatives to an effective criminal investigation of the crimes their family has experienced. This right is part of their general right of personality under Article 2 (1) in conjunction with Article 1 (1) of the Basic Law, and they can sue if it is not upheld. An across-the-board waiver of jurisdiction of German authorities even in cases of serious crimes no doubt violates that right – if for no other reason than that the U.S. is not bound to comply with German fundamental rights.

NATO Agreement itself is not the problem

According to the NATO Status of Forces Agreement and the Supplementary Agreement the U.S. military generally has jurisdiction over its soldiers. This alone does not raise concern because the agreements state that German authorities can reclaim their jurisdiction if required by the German administration of justice. Homicide is explicitly named as an example, under the condition that the victim itself is not a member of the U.S. military. Problematic is what German authorities make of this provision in reality: jurisdiction is waived not just in cases of minor traffic offenses, but in all cases. 

One reason are administrative provisions like those of Rhineland-Palatinate. They make it virtually impossible for public prosecutors to take over a case themselves. According to these regulations, German investigations – even for the most serious criminal offenses – are only considered if there is a “reasonable prospect in human and legal judgement” that the U.S. military will not handle the case appropriately. But how could German prosecutors know that? They don’t know who will be judge, who will be prosecutor and how the jury will be composed. German prosecutors would need visionary powers to justify an investigation, and they need – at least in Rhineland-Palatinate – another thing: the approval of the state ministry of justice. The ministry, however, would probably be more worried about the potential diplomatic crisis than the valid but vague concerns of the public prosecutor’s office. This way, authorities compromise on the rule of law in favor of good relations with the U.S. 

So, what can be done about this? For one thing, administrative regulation needs to be changed so that by default German police and public prosecutor's office investigate serious crimes against German citizens in Germany. Additionally, the public prosecutor's offices must be able to decide independently from state ministries and their diplomatic concerns whether to take on cases.

Lack of transparency and judicial independence

Even in the U.S., the military justice system has a bad reputation. While most trials are certainly conducted in accordance with the rule of law, academics and human rights groups often criticize a lack of transparency and institutional biases in favor of the defendant. The accusations are not new and the Wittlich case makes a strong case for them as well: withholding of the order suppressing the confession, failure to summon a key witness for the motion hearing and an amateurish instruction of the suspect in the first place.

The German rule of law has earned the trust of Germans over decades of hard work and Germans continue to trust it – even in times of political crisis. This trust must not be put at risk by German authorities giving away their jurisdiction over serious crimes to a foreign military power.

This text is a translated and slightly revised version of the article published in German on March 5, 2025.