Suggested Citation:German High Courts Confront Serbian War Crimes, 2 German Law Journal (2001), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=64 In two recent decisions the German federal courts engaged in the interpretation and application of international criminal and humanitarian law, pursuant to the codification of those norms in German criminal law. Both cases involved appeals of convictions secured in lower German courts against Serbs who participated in the atrocities of the Serbian ethnic-cleansing (perpetrated against Bosnian Muslims) in the then newly independent Bosnia-Herzegovina.

As already reported by German Law Journal, the German Government, the Bundestag (Federal Parliament) as well as the Bundesrat (Federal Legislative Chamber of the Länder) filed motions with the Bundesverfassungsgericht (FCC; Federal Constitutional Court) seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany (NPD). Now, some eight, respectively six months, after filing the motions for a constitutional order of the NPD's dissolution, the banning of all of party activities and the confiscation of the party's property, the FCC decided on October 1st, 2001, that the motions were admissible. The following annotation discusses the meaning of the Court's decision to admit the motions, provoding a brief account of what the decision says and what — just as interesting — it does not say. It will also report on the course of events and developments that have taken place during the stretch of time between the filing of the applications and the Court's ruling of October 1. Finally this report will provide, leaving aside speculations as to possible results of the process, a short survey of the legal possibilities that are open to the NPD, once the FCC in Karlsruhe grants the motions and declares the party unconstitutional.

On July 12, 2001, the European Court of Human Rights (ECHR) handed down its judgement in the case of Prince Hans-Adam II of Liechtenstein v. Germany (application number 42527/98). The Court of Human Rights unanimously rejected the applicant's alle-gation that Germany violated Article 6 § 1 (access to court and fairness of the proceedings), Article 1 of Protocol No. 1 (protection of property) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

On June 26, 2001 the Bundesgerichtshof (Federal Court of Justice) handed down a new decision regarding the liability of experts towards third parties (Reg. No. X ZR 231/99). While the Court appeared to have taken a somewhat new direction, the latest judgement must be considered in the context of a steadily evolving jurisprudence related to the effect on third parties of contracts involving the transfer of expertise, especially in light of a third party's reliance on this expertise. Parties contracting for expert testimony or evaluation regularly do not, at least not explicitly, take a third party into consideration in their contractual dispositions. Problems arise, however, when in the performance of the contract a third party, often the buyer or a bank seeking an evaluation of a client's creditworthiness, substantially relies on this expert evaluation produced pursuant to the contract. Where the seller defaults, the bank (in this example) may attempt to directly sue the expert.

If social and political stability in a democratic state requires effective constitutional review, the brutal instability of German society over the first half of the 20th Century testifies to the shortcomings of earlier manifestations of German constitutionalism and the mechanisms for constitutional review upon which those constitutional systems relied. By the same standard, however, the stability and prosperity West Germany enjoyed (and has continued to enjoy since October 1990, as a reunified Germany) over the last half of the 20th Century bespeaks the integrity and efficacy of the Bundesverfassungsgericht (Federal Constitutional Court), the unique constitutional organ celebrating its 50th anniversary this year.

In the middle of the 19th century Jurists Forums were founded in several European countries, including Germany, Switzerland, the Scandinavian countries, the Netherlands, Italy and Hungary. The aim of the institution was to assemble practitioners and academics, in order to discuss contemporary legal problems with the goal of influencing jurisprudence and legislation. The activities of the Deutscher Juristentag (German Jurists' Forum) were interrupted after Hitler came to power, primarily because the German Jurists' Forum refused to exclude its Jewish members. The organization was resurrected after the Second World War, and has taken a leading role in influencing the jurisprudence of the Bundesgerichtshof (BGH — German Federal Court of Justice), for example in the area of product liability and family law.

It's a small book. Actually, it is a very small book. Only one hundred and twenty-eight pages, it's a format so thin it could fit into a pocket. As a matter of fact, it is smaller than a copy of the Grundgesetz (German Basic Law) that a German law student would carry along to class. The book's title, however, is considerably more intrepid than the book's small stature. At the same time breathtakingly pithy and slightly immodest, the book is simply called Das Bundesverfassungsgericht (The Federal Constitutional Court). And at the top of the cover, just to make sure, the word “WISSEN” (KNOWLEDGE) appears in big letters. While one wonders how a publication of such limited size could deign to comprehensively present the important “knowledge” of the Federal Constitutional Court, the other words on the cover provide some assurance. Those words are the name of the book's author who obviously could not be more adequate for the task. The author, Jutta Limbach, is the current President of the Federal Constitutional Court presiding in her seventh year.

The French are rightly proud of having spawned the Enlightenment. Their philosophers made a profound contribution to modern theories of government, which heavily influenced, inter alia, the Founding Fathers in the drafting of the American Constitution. (Montesquieu's arguments for a separation of powers, for example, are clearly reflected in the design of the executive, legislative and judicial branches of the US government.) The French political class have also largely determined the nature of post-war European integration. The edifice in Brussels reflects above all their habits, interests and vision of Europe. (For example, the European Union is run by a bureaucratic elite like France itself.) This latter conception of government is, however, unlikely to prove to be as successful over the long term as the former. Indeed, the way in which European integration has so far proceeded raises serious questions about both its sustainability and its transferability.

On July 19, 2001, the European Commission announced that it had reopened proceedings regarding the German system of fixed book prices, asserting anti-competitive effects on cross-border Internet bookselling. The Commission's announcement constitutes a new chapter in a long-running dispute over the legality of the so-called Sammelrevers system that dominates the book trade in Germany and, mutatis mutandis, other European states. The trigger in the present occasion was certain practices alleged of German publishers and book wholesalers regarding the application of the Sammelrevers to direct cross-border sales of books to final consumers. The ongoing integration of the continent's economy and the constant introduction of new technologies and ways of distribution have led many commentators to speak in terms of the German book trade vainly “struggling to hold back the tide of unfettered competition.”