President Erdogan versus Jan Böhmermann: Do Bad Poems Make Bad Law? – Reforming the Defamation of Foreign Heads of States under German Criminal Law

Note: Revised and translated version of a statement made before the Legal Committee of the German Bundestag at an expert hearing on 17 May 2017, further elaborating on questions that were raised by Veronika Bílková in her EJIL:Talk! post “Thouh shalt not Insult the (Foreign) Head of State?”, dated 28 April 2016 and commenting on subsequent developments.

1. Prologue

In 2016, after the Turkish government had requested the deletion of a satirical song about Turkish President Erdogan, aired on a German TV show, the Turkish Head of State became the subject of another, rather vulgar, satirical poem fittingly titled “Schmähkritik” (“defamatory critique”), recited by the German comedian Jan Böhmermann on his TV show in March, 2016. This in turn led to the initiation of a criminal investigation against the said German comedian, instigated both by the Turkish government, as well as by Turkish President Erdogan personally. Thereafter, President Erdogan also pressed civil charges against Böhmermann before German courts. As far as the criminal proceedings initiated by the Turkish government were concerned, a violation of Section 103 Criminal Code was claimed which currently still provides as follows:

Section 103 German Criminal Code
Defamation of organs and representatives of foreign states

(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Section 104a German Criminal Code further provides that before any such criminal proceedings under Section 103 German Criminal Code may be initiated, the German government has to formally authorize such proceedings:

Section 104a German Criminal Code
Conditions for prosecution

Offences under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offence, a request to prosecute by the foreign government exists, and the Federal Government authorises the prosecution.

When the German government granted the thus required approval for a prosecution pursuant to § 103 Criminal Code in April 2016, Chancellor Merkel also announced, however, the German government’s intention to request the German Parliament to abolish this provision by way of an amendment to the German Criminal Code. As a matter of fact, by that time, an intense public debate had already ensued regarding Böhmermann’s poem, Merkel’s immediate reaction thereto (labelling the rhymes as “deliberately hurtful”), and the allegedly anachronistic nature of Section 103 German Criminal Code.

In October 2016, the criminal charges against Böhmermann were dropped by the prosecution, which was neither convinced of Böhmermann’s criminal intent, nor of the poem’s qualification as an insult within the meaning of Section 103 German Criminal Code, but rather affirmed its protection by principles of free speech. In contrast, the Administrative Tribunal Berlin (Verwaltungsgericht Berlin) had previously confirmed an administrative decision by the local police authorities according to which an assembly in front of the Turkish Embassy was allowed only if the protesters refrained from displaying Böhmermann’s poem as planned (the tribunal’s order contains an anonymized version of the poem at paras. 7-29). Similarly, Erdogan’s civil law suit before German civil courts has so far, at least partially, been upheld.

In the meantime, the German government formally proposed a law providing for the deletion of Section 103 German Criminal Code, asserting that its regulatory scope would still be covered by the regular rules on libel, Section 185 German Criminal Code providing as follows:

Section 185 German Criminal Code
Insult

An insult shall be punished with imprisonment not exceeding one year or a fine and, if the insult is committed by means of an assault, with imprisonment not exceeding two years or a fine. 

2. Main Act: Germany’s abolition of Section 103 German Criminal Code – a violation of international law?

On June 1, 2017, the German government’s draft law, revoking Section 103 of the German Criminal Code, was passed by the German parliament. At a previous expert hearing on this matter before the German parliament’s Legal Committee, inter alia the issue was raised whether Germany is obliged under public international law to uphold this distinct libel law that specifically penalizes the defamation of foreign Heads of States (cf. also the post by Veronika Bílková, which concerns a similar question). Yet, as will be shown, and as confirmed by State practice, no such obligation exists. Rather, the continuing enforcement of Germany’s general libel laws (Section 185 et seq. German Criminal Code) complies with any potential general obligation to penalize defamations of foreign Heads of States.

An obligation to create a distinct statutory offense akin to current Section 103 German Criminal Code could follow from Art. 29 Vienna Convention on Diplomatic Relations, ratified by Germany in 1964, which provides as follows:

Art. 29 Vienna Convention on Diplomatic Relations

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Leaving aside the limited scope of the provision ratione personae, which would require its analogous application aimed also at the protection of foreign Heads of States as opposed to solely at the protection of diplomatic agents, the enactment of criminal sanctions might certainly be considered an appropriate step to prevent attacks on the dignity of a protected person. However, given the lack of specificity of the obligation underlying Art. 29 Vienna Convention on Diplomatic Relations, recourse to other protective measures under either civil or public law (such as the above-mentioned executive order, confirmed by Berlin’s administrative tribunal) might also be well sufficient to fulfil the aforesaid obligation (cf. inter alia on that question Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, pp. 9 et seq., at p. 43).

In any event, however, it is at the very least safe to assume that no obligation can be derived from Art. 29 Vienna Convention on Diplomatic Relations to enact a distinct libel law that specifically sanctions the defamation of foreign representatives. Already prima facie, the norm’s open wording does not suggest such a narrowly defined obligation, but rather implies that the States Parties enjoy a wide margin of appreciation in that regard. Moreover, it stands to reason that the enforcement of general libel laws, such as the ones contained in Section 185 et seq. German Criminal Code, equally serves the very object and purpose of Art. 29 Vienna Convention on Diplomatic Relations, namely to ensure an effective protection of the foreign representative’s interests, and those of his or her home State. Finally, given the inconsistency of the various domestic libel laws of States Parties to the Vienna Convention on Diplomatic Relations, such an interpretation of Art. 29 Vienna Convention on Diplomatic Relations is also in line with their subsequent practice within the meaning of Art. 31 (3) lit. b) Vienna Convention on the Law of Treaties.

Further, no obligation to uphold Section 103 German Criminal Code may be deduced from the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (‘Protection of Internationally Protected Persons Convention’), ratified by Germany in 1977 either. As is well-known, Art. 2 Protection of Internationally Protected Persons Convention link provides as follows:

Art. 2 Protection of Internationally Protected Persons Convention

1. The intentional commission of:

(a) A murder, kidnapping or other attack upon the person or liberty of an

internationally protected person;

(b) A violent attack upon the official premises, the private accommodation or

the means of transport of an internationally protected person likely to

endanger his person or liberty;

(c) A threat to commit any such attack;

(d) An attempt to commit any such attack; and

(e) An act constituting participation as an accomplice in any such attack

shall be made by each State Party a crime under its internal law.

2. Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3. Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Art. 2 (1), (2) Protection of Internationally Protected Persons Convention therefore obliges Germany to penalize attacks against internationally protected persons, such attacks having been defined in Art. 2 (1) of the said Convention. However, Art. 2 (1) lit. a), b) Protection of Internationally Protected Persons Convention only refers to attacks threatening the person or liberty of such internationally protected persons, but omits to mention attacks upon their dignity, which latter attacks are currently penalized by Section 103 German Criminal Code. Since Art. 2 (3) Internationally Protected Persons Convention, in turn, explicitly mentions the dignity’s protection as an objective of other parallel international obligations, it can be assumed e contrario that the States Parties deliberately excluded this obligation from Art. 2 (2) Internationally Protected Persons Convention. The provision’s wording and systematic context thus confirm that the Internationally Protected Persons Convention does not oblige Germany either to enact a general libel law, let alone one that specifically protects representatives of foreign States against libel (cf. also G. Dahm/J. Dehlbrück/R. Wolfrum, Völkerrecht Band I/1 (2nd ed., de Gruyter, 1989), at p. 251).

Besides, according to Art. 1 (1) lit. a) Internationally Protected Persons Convention, Heads of States are only considered internationally protected persons, whenever they are in a foreign State. Hence, the wider scope of current Section 103 German Criminal Code, which also protects foreign Heads of States in their home State when being exposed to libellous acts (such as in the case at hand President Erdogan in Turkey), constitutes yet another reason why abolishing the said provision would not amount to a violation of a treaty-based obligation Germany entered into when it ratified the Internationally Protected Persons Convention.

Finally, neither does an obligation arise for Germany under customary international law to uphold Section 103 German Criminal Code. It is widely acknowledged that a constant and uniform State practice and a corresponding opinio juris have led to the evolution of a customary norm, obliging States to prevent and punish attacks by private individuals upon the person and liberty of foreign Heads of States (cf. Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 RdC (1994-III), pp. 9 et seq., at p. 48 et. seq.). However, it appears by the same token at least questionable whether a parallel customary obligation also exists to criminalize private attacks against the dignity of foreign Heads of States (cf. also Tobias Thienel’s comment to Veronika Bílková’s post, in which he cited a British Court of Appeals judgment in the case of Aziz v. Aziz and others, HM the Sultan of Brunei intervening, rendered in 2007 by (then) Lord Justice Lawrence Collins, who was “far from convinced of the existence of a rule of customary international law requiring States to take steps to prevent individuals from insulting foreign heads of state abroad”, para. 93).

While it is true that, apart from Section 103 German Criminal Code, other comparably distinct libel laws specifically protecting foreign Heads of States do exist e.g. in the Netherlands, Switzerland (Art. 296 Criminal Code), Spain (Art. 605 (3) Criminal Code), Portugal (Art. 322 (2) Criminal Code), Denmark (Art. 110 d Criminal Code), Iceland (Art. 95 Criminal Code), Estonia (Art. 247 Criminal Code), Poland (Art. 136 (3) Criminal Code), Slovenia (Art. 164 (1) Criminal Code), Macedonia (Art. 181 Criminal Code), Greece (Art. 68 Criminal Code) and Turkey (Art. 340 (1) Criminal Code). Nonetheless, as Veronika Bílková rightly had similarly concluded in her post, relevant State practice is by no means uniform. For instance, France abolished a comparable statutory offense in 2004. Likewise, no specific criminal laws, sanctioning the defamation of States or Heads of States exist inter alia in Sweden, Finland, Latvia, Slovakia, Austria, Hungary, Croatia, Bosnia-Herzegovina, Albania, Romania, Georgia, Canada, Ireland, the USA and Great Britain. Norway (Art. 95 Criminal Code), Serbia (Art. 175 (1) Criminal Code) and Montenegro (Art. 200 (1) Criminal Code), in turn, only penalize the defamation of a foreign State, its flag, national coat of arms or anthem, rather than the defamation of a head of State, while relevant State practice in other regions of the world varies even further.

Given this lack of uniform State practice, it at least appears to be beyond doubt that customary international law does not require States to enact distinct libel laws, specifically sanctioning the defamation of foreign heads of States. Should a customary rule exist, however, pursuant to which States are generally obliged to sanction such defamations, Germany’s compliance with the respective international obligation is not jeopardised by the abolition of Section 103 German Criminal Code, but simply ensured by the enforcement of its general libel laws.

On the flipside, one may of course equally raise the question, to which extent human rights, such as the right to freedom of expression pursuant to Art. 10 European Convention on Human Rights, require States to interpret their libel laws restrictively, when alleged insults are directed against Heads of States in their official capacity or whether States might even be obliged to abolish criminal norms that excessively penalize the insult of a foreign Head of State. Of particular relevance in this regard is the case of Colombani and others v. France, which was brought before the European Court of Human Rights in 1999 by two French Le Monde journalists, who had previously been convicted by French courts of insulting a foreign Head of State, namely the Moroccan King. In its 2002 judgment, the European Court of Human Rights held that “shielding [heads of States] from criticism solely on account of their function or status, irrespective of whether the criticism is warranted […] amounts to conferring on [them] a special privilege that cannot be reconciled with modern practice and political conceptions” (para. 68). Accordingly, the Court concluded in Colombani and others v. France that “the offense of insulting a foreign head of State is liable to inhibit freedom of expression without meeting any ‘pressing social need’ capable of justifying such a restriction” (para. 69). Subsequently, France abolished its respective statutory offense (see above). For a brief overview of further pertinent judgments rendered by the European Court of Human Rights, we gladly refer to Veronika Bílková’s post “Thouh shalt not Insult the (Foreign) Head of State?”.

3. Epilogue

As is well-known, the maxim “hard cases make bad law” suggests that the conception of a general rule shall not be guided primarily by the conclusions drawn from an exceptional case. Given its context and satirical character, the poem in question arguably constitutes such a case, the special circumstances of which led to Böhmermann’s impunity. Hence, one is tempted to argue that the German government fallaciously based its decision to initiate the abolition of a general rule on its unsuitability in an exceptional case; had a foreign head of State been rudely insulted with no satirical connotation, there might have been no impetus to repeal the criminal norm.

While there may be some merit to this observation, it ultimately misses the critical point. The relevant illicit behaviour is covered by the wider scope of Germany’s general libel laws. Therefore, while a hard case (or bad poem, for that matter) may have driven the legislative reform, it did not “make bad law”, at the very least not from the perspective of public international law.