Espionage Prosecution Case

Abstract

State succession — Union of States — German reunification — Demise of German Democratic Republic with accession of its Läuml;nder to Federal Republic of Germany — Whether constituting case of State succession — Continuity of the law — Criminal law — Prosecution of head of intelligence of former German Democratic Republic for engaging in espionage against Federal Republic — Whether permissible following absorption of German Democratic Republic into Federal Republic — Whether any rules of international law governing internal relationship between two States in such circumstances

States — Continuity of States — Reunification of Germany — Whether former German Democratic Republic still to be regarded as foreign State in relation to Federal Republic of Germany — Whether absorption of former German Democratic Republic altering status of Federal Republic as subject of international law

Jurisdiction — Territorial — Jurisdiction over foreigners — Criminal jurisdiction — Espionage activities in peacetime — Offences committed abroad — Exercise of extraterritorial jurisdiction — Whether contrary to international law — Whether justified for protection of essential State interests

States — Conduct of foreign relations — Espionage in peacetime — Whether permissible under international law — Absence of treaty practice or rule of customary international law

Territory — Effects of changes of sovereignty — Reunification of Germany — Legal consequences — Whether spies of former German Democratic Republic subject to criminal prosecution in Federal Republic of Germany following reunification

Reprisals and countermeasures — Espionage — Appropriate countermeasures — Espionage by German Democratic Republic against Federal Republic of Germany — Criminal prosecutions — Whether appropriate following German reunification — Failure of German States to reach agreement concerning treatment of members of intelligence services of former German Democratic Republic — Whether amnesty should be granted by Federal Republic — Relevance of facts that activity in question was regarded as lawful in German Democratic Republic and did not involve human rights abuses

War and armed conflict — Spies — Hague Regulations on the Laws and Customs of Warfare on Land, 1907, Article 31 — Unlawfulness of prosecution for espionage where spy captured after having rejoined his regular army — Whether rule forming part of customary international law — Whether rule applicable by analogy to prevent prosecution by Federal Republic of Germany of former spy of German Democratic Republic following German reunification

Relationship of international law and municipal law — Customary international law — State succession — Rights of individuals — Whether any rules of customary international law concerning treatment of individuals following State succession — Espionage in peacetime — Whether any rule of customary international law concerning treatment of spies captured in peacetime on territory of their own State

Human rights — Procedure for enforcement — Fundamental rights under Basic Law of Federal Republic of Germany, Article 3(1) — Equality of treatment — Prosecution for espionage of head of intelligence of former German Democratic Republic following German reunification — Whether prosecution violating principle of equality — The law of the Federal Republic of Germany