On 24 December 2023, Gerd Schultze-Rhonhof wrote an urgent message to the party chairmen, general secretaries of the parties, parliamentary group chairmen in the German Bundestag and prime ministers of the federal states.

A letter to the public followed on 2 February 2024 after it became apparent that the politicians contacted, with two exceptions, did not bother to reply and certainly did not respond to the peace initiative.

Major General (ret.) Schultze-Rhonhof has sent detailed, explanatory annexes to both letters. The two letters and the annexes are published here in order to present the underlying thoughts, motives and, above all, the background information set out in this way to a broad public.

The following therefore represents the knowledge and views of Gerd Schultze-Rhonhof. At the end you will find a reference to a description of his person. Publication here is by agreement with the author.

1. Letter to the public, February 2024
2. Letter to the politicians mentioned, Christmas 2023
3. Appendix with detailed explanations and background information
4. Enclosure: Draft peace treaty

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1st letter to the public

Letter to the public, from February 2024

Gerd Schultze-Rhonhof 39340 Haldensleben, 2 February 2024
Major General (ret.)

Ladies and gentlemen

I did not serve 37 years as a soldier to keep the peace in Germany and now watch without comment or action as Germany is slowly but probably heading towards active participation in a foreign and senseless war. Our "Three Wise Men", Chancellor Scholz, Minister Lindner and Minister Dr Habeck, all initially refused to do military service in their younger years in defence of Germany's rights and freedom and the preservation of our democracy. They are now spending far more than 10 billion euros of taxpayers' money per year on "justice", "freedom", "democracy" and Western values in a foreign state that is neither a democracy nor represents Western values. They are using our tax money and the blood of foreign conscripts to prolong a war that has now become pointless.
Ukraine is by no means a democracy and its values are not ours. 11 opposition parties are banned in Ukraine. Zelensky has banned the presidential elections scheduled for March 2024. All media in Ukraine are synchronised. No reports by German journalists critical of Ukraine are permitted from within Ukraine (comments by German journalists critical of Russia are quite common from Moscow). Political murders are the order of the day in Ukraine (according to the 3-week protocols of the Federal Agency for Civic Education until the beginning of the war). Ukraine and Russia are together the two most corrupt states in Europe (according to Transparency International). Buying exemption from military service is just as common in Ukraine as it is in Russia. With its register of offences involving breaches of state treaties and violations of UN conventions and international charters, Ukraine is in no way inferior to the Russian register in terms of frequency and severity. The type and frequency of Ukrainian war crimes are the same as those committed by Russia, with the exception of the misuse of humanitarian facilities protected under international law of war as shields for fighting troops, which only occurs on the Ukrainian side (according to the OSCE report of 29 June 2022).
This Ukraine is neither a democracy nor does it stand for our values, as the German media and the majority of our parties would have us believe. The interpretation presented to us by the official side, that Ukraine would co-defend our values, is as foolish as Struck's "Germany's defence in the Hindu Kush" was. I expect the former conscientious objectors in the Bundestag and in the German government to actively campaign for an end to the war in Ukraine as soon as possible - true to their former peace-mindedness - and to abandon their unrealistic phantom ideas of a victory in Ukraine. I expect the same from all other governments and members of parliament. The idea of a possible reunification of two quarrelling and now hating parts of a nation that had been at war with each other for eight years before the Russian invasion into a future Ukraine of old is the dream dance of fools. Regarding the eagerness of the majority of German parties to help the Ukrainians to victory with money and arms supplies after all, I am reminded of a saying by Russian Lieutenant General Alexander Lebed, who said during the first Chechen war: "Let me recruit a company from the sons of the elite and the war will be over the next day". (Lebed was an unsuccessful presidential candidate in Russia in 1996).
The second question at issue here is whether the Russian Federation has actually threatened the West or even just one NATO country or another neighbouring country since its withdrawal from Central Europe following the end of the Soviet disintegration process. I will answer this question in detail in the explanatory memorandum to the following letter to politicians. This justification follows as Annex 1 to this e-mail.
Since 15 August 2022, I have tried to educate hundreds of MPs about the history of the Russian invasion and the events inside Ukraine. I then proposed a German initiative for a rapid end to the war to the Federal Chancellor and former chancellors and top politicians with channels of communication with Moscow that were still open. I sent my last attempt at Christmas 2023 with the following letter to members of the Federal Government, the parliamentary group leaders of all parties in the Bundestag, all party leaders and general secretaries and all state prime ministers. Only two party leaders in the side rows of the plenary chamber responded in favour and with the message that they could do nothing. I have just received a polite but negative reply from the leader of the largest opposition party [note: Christian Democratic Union, CDU], whose concealment and ignoring of the long history of the war I cannot accept and whose insinuations against Putin I largely cannot confirm. Incidentally, allegedly proven but unjustified insinuations were also part and parcel of the fuel for the two world wars. Despite all politeness, the reply gives the impression that its author has not read the reasoning behind my proposal (Annex 1) at all.
Some of the German people are now fed up with not being informed about the background to the war in Ukraine and investing 10 to 15 billion euros a year in a pointless foreign war and the further deaths of tens of thousands of Ukrainians and Russians when their own budgets are tight. If the German government, disregarding German interests, risks the Ukraine war - as originally feared by Chancellor Scholz - escalating into a conflagration and also involving Germany, the people themselves must remind the government of its first duty. So far, the overwhelming majority of German politicians are primarily interested in a victory for the Ukrainians and a defeat for the Russians and only secondarily in peace. Please read my Christmas letter to the "politicians" and pass on my thoughts to other interested parties. And try to convince your MPs of the possibility of an early end to the war.

Yours, Gerd Schultze-Rhonhof

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2nd letter to the politicians, 24 Dec. 2023

Gerd Schultze-Rhonhof [address]

Major General (ret.)                                                            

This letter was sent

to all party chairmen and chairwomen, party secretaries-general, parliamentary group chairmen in the German Bundestag and the prime ministers of the federal states.

Salutation!

The war in Ukraine has been raging for almost two years and there is no end in sight, not even a practicable impetus from Germany that could bring about an early end to the war.

After having unsuccessfully approached Chancellor Scholz and the leader of the SPD parliamentary group in the German Bundestag with a proposal on this issue, I am now writing this letter to all German party leaders, the leaders of the parliamentary groups in the German Bundestag, the Secretaries General of the parties and the Prime Ministers of the federal states with the request to urge the Federal Government to mediate a rapid peace solution in line with the following proposal (Annex 2).

When soberly calculated and analysed, the war in Ukraine cannot be won by either of the warring parties, unless it escalates into a "Third World War". Nevertheless, the USA, NATO, the EU and, within the aforementioned communities of states, first and foremost the Federal Republic of Germany are subsidising the war as if it could be won through Ukraine. This is aiding and abetting Ukraine's military bankruptcy and deliberately accepting the continuation of mass killings and destruction in the war zone. It seems as if the leading political forces in Germany still believe they are faced with the military choice of "Russia or Ukraine". But we should be consciously facing the political choice of "war or peace". Both together, a military victory of only one warring party and a lasting and reconciliatory peace is not possible.

On sober and objective reflection, Germany and our European allies have so far been faced with eight (recently nine) theoretically possible developments. All the options open so far promise a bad outcome. None of them will end in anything better than a frozen ceasefire. None of the options lead to real peace. NATO, the EU and Germany are at a dead end with their Ukraine policy to date.

The 8 (now 9) theoretical possibilities mentioned are:

1. Russia wins in the sense that it takes control of Ukraine. Then Germany and the West, on the one hand, and Russia, on the other, will once again find themselves in a Cold War against each other for a very long time to their mutual detriment.
2. Ukraine wins in the sense that it recaptures all the territories previously occupied by Russia. The approximately 8 million Russian citizens of Ukraine will then face terrible persecution and punishment. President Zelensky has announced this several times. And Germany is threatened by the next wave of refugees.
3. There is a military stalemate on the battlefield without a subsequent mutually agreed peace solution. Then we are faced with a European "Korea solution" with a Cold War and a permanent centre of danger in Europe.
4. The war will continue endlessly without stalemate or victory. Then hundreds of thousands of Ukrainians and Russians will die and be maimed senselessly. Ukraine will continue to be destroyed and Germany will continue to pay and supply weapons to Ukraine without end.
5. Negotiations are underway. Then, given the mutual preconditions put forward by both warring parties so far and the hardening of positions and hatred that has occurred in the meantime and the interference that is certainly to be expected from NATO, the EU and the USA, there will be months, if not years, of wrangling. Accordingly, the destruction and human sacrifices will continue. With the current Ukrainian and Russian preconditions for negotiations, it is foreseeable that negotiations will not even take place.
6. There is a ceasefire. Ceasefires are not a solution to the war problem, but merely a procedural step. This must be followed by a reconciliation of interests between the hostile neighbouring states of Ukraine and the Russian Federation. There are currently no signs of willingness or signs of a reconciliation of interests among the warring parties, in NATO, in the EU, in the USA or in the "political world" of Germany.
7. Ukraine is clearly approaching defeat. There is then a risk that NATO, and therefore also the USA and Germany, will intervene in the war. Despite claims to the contrary, all previous promises of support from NATO and EU states point to this.
8. NATO intervenes in the Ukraine war with its own troops. There is then a danger that Russia will reach the limits of its defence capabilities and deploy tactical nuclear weapons in Europe at the risk of its own defeat. Russia will not dare to use strategic nuclear weapons against the USA, and the war will be fought in our Europe. Obvious targets for Russian tactical nuclear weapons in Europe would be the US command centres from which American support for Ukraine is already being supplied and controlled, Ramstein and Wiesbaden. (Addition from 6 February 2024 from the Tucker Carlson-Putin interview, 69th min u 40th sec: Carlson quotes US senator from 5 February 2024 from US debate on US aid to Ukraine: "Either we support Ukraine now or US soldiers will deploy and fight in Ukraine.")

9. after the next presidential election, the USA will completely withdraw its financial and material support for Ukraine. The EU, and with it its main financier Germany, will then continue to support Ukraine as unsuccessfully as before with greatly increased contributions and keep the war "on the boil". All promises of loyalty and support from Brussels and Berlin suggest this. This would drag Germany further and deeper into Ukraine's debt quagmire than before.

As all the solutions attempted so far have led to nothing but further prolongation of the war, a way out must be found through a different approach. The approach to an early end to the war can be an arbitration award in the form of a fully and comprehensively formulated peace treaty that is negotiable for both warring parties. The proposal must satisfy the vital interests (not demands) of the two belligerent peoples - Ukrainians and Russians - and accordingly require both sides to make reasonable sacrifices, fulfil the right to self-determination of the affected populations and present a result that can be expected anyway after the further course of the war. The arbitration procedure prevented the outbreak of wars "in the air" twice in the last century. By proposing such a treaty text, both warring parties could assess whether they could come closer together on its basis and negotiate and reach an agreement without "non-negotiable" preconditions or whether they would prefer to continue the bloodshed and sacrifice of war. The arbitration award was to be submitted to the two belligerents by Germany, France and Italy - and for good reason only by them.

All previous calls for negotiations from NATO and EU circles were linked to unilateral waiver conditions exclusively for Russia and were therefore unsuitable. Almost all previous requests lacked a concrete offer to Russia.

I have spent 20 years researching the causes of war, peace efforts and peace treaties and have written books on the subject. With this prior knowledge, I take the liberty of presenting you with a proposal for such a fully formulated treaty text in my Annex 2 to this letter. The guiding principle of this proposal is a reconciliation of interests and the goal of long-term reconciliation.

As this approach is incomprehensible at first reading in view of the two years of pro-Ukrainian reporting and commentary in the German media and in view of the one-sided accusations against Russia that are widespread here in Germany, I would like to take the liberty of presenting you with a detailed explanation of my proposal in Annex 1 to this letter.

In view of the Federal Foreign Office's hardened, one-sided self-determination in this matter, I refrain from submitting this proposal via the Federal Foreign Office, which is actually responsible.

I ask you to advocate such a German peace initiative within the Federal Government.

If you wish, I am available to talk to you about the background to my proposal. (Offer from December 2023 to politicians and MPs)

With the sign of my esteem

Gerd Schultze-Rhonhof

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Enclosure 3: Explanation of the proposal for peace negotiations, war background, research

Gerd Schultze-Rhonhof

3.2.2024

Explanatory memorandum to the draft
Ukrainian-Russian peace treaty

Structure

The urgency of the end of the war
Danger of war for Germany
The Ukrainian prehistory
Ukraine and the EU
The language dispute
Eight years of the Donbass war
The status today
The Russian prehistory
Russia and the USA
Georgia, America's pretext
Russia and NATO
The Crimea
The significance of war crimes
The psychological and political impact
The Butscha massacre
The Retroville department stores' bombardment
War crimes on both sides
The validity of the international law of war
Weighing up the legal bases and legal opinions
Negotiations and contractual partners
Participation recommendations
Warning against investments
Places of negotiations
The initiation of negotiations
Essential contents of the contract text
Impact on the German public

The urgency of the end of the war

The suffering and misery of the Ukrainian people and the destruction of their country as well as German co-financing of the war there must be ended as quickly as possible, even if EU and NATO policy currently stand in the way. It is time to dispel the illusion that the warring parties can significantly improve their positions in the event of a peace agreement if the fighting continues. The Ukrainian leadership in particular must realise that Ukraine is closer to complete self-destruction than the reconquest of territories whose majority population does not want to remain Ukrainian. To this end, it is necessary for the German government to reduce its support and promises of assistance to Ukraine and not constantly renew them. The promises from Berlin and other capitals have a psychological effect on the Kiev government like a "blank cheque to carry on". The time is ripe for a rapid end to the war and a corresponding immediate German initiative.

Developments in Germany, the USA and the EU also speak in favour of an early end to the war. In the USA, the mood and willingness of politicians and the population to continue financing the war in Ukraine with grants and loans is clearly waning. This is because there is no end in sight and the previous US arms deliveries in the form of loans will obviously have to be written off later. In the EU, the gap between Ukraine supporters and Ukraine critics is slowly widening. An end to the war would relieve the EU financially and from internal strife. In Germany, the willingness to provide billions for the Ukraine war and the Ukraine refugees from the already tight federal, state and local budgets is decreasing. Diverting money from the 100 billion special fund of the Bundeswehr for Ukraine, repeatedly transferring weapons from the already shaken Bundeswehr to Ukraine and the transfer of eight billion euros to Ukraine in 2024 plus Germany's three billion share of EU support for Ukraine in 2024 can hardly be explained to German voters in view of the budget woes at home.

In the interests of an early end to the war on the basis of a hasty peace agreement, the number of negotiating and signatory states involved should be kept to a minimum and, above all, all states pursuing their own interests in Ukraine should be excluded from the negotiations.

In the interests of an early end to the war on the basis of an urgent peace treaty, both warring parties should be offered a fully formulated treaty text that shortens the necessary negotiations and largely avoids the usual months or years of haggling, playing poker and arguing. This is the purpose of the draft peace treaty already sent to the Federal Chancellor in Annex 2, which contains all the usual political, territorial, economic, legal, military and other provisions of peace treaties.

Danger of war for Germany

Following the initially successful mediation of the Minsk II agreement, the reactions of the German governments to the Russian-Ukrainian conflict have increased in intensity since the start of the war. Despite Chancellor Scholz's repeated hesitation and reluctance, this led first to the delivery of protective waistcoats and steel helmets, then to the delivery of wheeled vehicles, then artillery guns and ammunition, then anti-aircraft tanks and anti-aircraft missiles, and finally battle tanks. After careful consideration and hesitation, the German government ultimately always gave in to Ukraine's increasing demands, pressure from allies and many German media and parliamentarians, and delivered. Now German-Ukrainian armaments cooperation is on the agenda, and the delivery of combat aircraft and cruise missiles is on the Ukrainian list of demands. Due to Ukraine's military ineffectiveness and exhaustion, and due to the unrelenting pressure on the German government, it is unlikely that it will resist this increasing involvement in indirect war participation. Germany and the Federal Government can only escape this if the war comes to a swift end.
Even the direct involvement of parts of the Bundeswehr can no longer be ruled out if the war continues and the Ukrainian armed forces are further worn down. The more often the German government accepts the EU's and NATO's declarations of solidarity and promises to Ukraine, the more difficult it will be for Germany to find a way out of this impasse of indirect war involvement and towards a solution to the conflict.

One of the very few strategically-minded German commentators, the former chairman of the NATO Military Committee and former chairman of the NATO-Russia Council, General Kujat, described the situation in an interview on 31 August and repeatedly thereafter not just as a risk, but as a "real danger" that the still local Russian-Ukrainian war could escalate into a third world war. In this context, the word "strategic" means thinking a development through to its end.

Fatally, the German government has de facto ceded to Ukraine its political and moral freedom to decide on Germany's future involvement in a possible escalating war in Ukraine. Through its repeated promises of support, combined with the expressions of solidarity within NATO and the EU, it has issued the Ukrainian government with a blank cheque for the endless continuation of the war. These days, on 16 February in Berlin, Germany's next eternal promise to support the war in Ukraine is planned in the form of a written, bilateral "security agreement". According to a radio commentary, it will apply until Ukraine is admitted to NATO. It is high time that the German government stopped its "encouragement" towards Kiev and its reassurances towards NATO. With every new promise of this kind, the door to peace negotiations is slammed shut once again.

The Ukrainian-Russian conflict has been described asymmetrically in the German media and "political establishment" for years. Both the Ukrainian prehistory and the Russian prehistory are ignored and the Ukrainian breaches of law and treaties and the massive Ukrainian war crimes are suppressed. I will describe these areas in turn before going into the necessary modalities of the proposed Ukrainian-Russian peace treaty.

The Ukrainian prehistory

Ukraine and the EU
Ukraine concluded a free trade agreement with Russia in November 2011 and negotiated an association agreement with the EU in 2012 and 2013. It tried to open up one market without losing the other. The Ukrainian government under Prime Minister Azarov intended to combine EU rapprochement with membership of Russia's free trade zone, which the Russians were prepared to negotiate after initial resistance, but which the EU Commission under Commission President Barroso rejected outright. The EU de facto attempted to assert a "claim to sole representation" for Ukraine's future foreign trade. This meant that President Yanukovych's original intention of establishing Ukraine economically and politically as a bridge between East and West had failed.
When the negotiations with the EU entered their "hot phase", the President of Ukraine, Mr Yanukovych, realistically feared that Ukraine's economy would not be able to cope economically and technically with the competitive pressure of adapting to the EU, as the GDR had previously done to the FRG. He demanded 160 billion euros in adjustment aid from the EU, and the EU refused, which was understandable.

A second obstacle was the association agreement offered by the EU. According to the treaty, Ukraine was to open up to Western imports, but was only granted minimal export quotas. With the loss of the Russian market, Ukraine was only granted a 200,000 tonne export quota to the EU for its 30 million tonnes of wheat exports per year. That was 0.7 1TP3 tonnes of the wheat on whose export and revenue Ukraine was dependent. The figure for meat products was 21TP3 tonnes and for steel exports similarly low. As a result, Yanukovych put the association agreement on hold for a year to allow time for renegotiations. EU Commission President Barroso then blatantly threatened Yanukovych "If you don't sign, the next president will".
(as if he knew that a change of power was already in the pipeline.) Barroso's presumption was the second seed that later sprouted into the Ukraine war, alongside the unfortunate allocation of Crimea as a state. Former German Chancellor Helmut Schmidt strongly condemned the EU Commission's attempt to "give Ukraine the choice between West and East" at the time and described it as "megalomania on the part of the EU". He had already warned in 2014 that such behaviour could lead to war.
President Yanukovych has therefore not "burst" Ukraine's association with the EU out of an affinity for Russia, as reported by an ARD newsreader (22 November 2023), but has postponed it by a year out of responsibility for the Ukrainian economy.

However, the pressure of opinion in Ukraine in favour of an economic connection to the West and subsequent EU membership was now so strong among the Ukrainian population that Yanukovych was unable to survive this decision. He was overthrown and the so-called Maidan uprising broke out.

The language dispute
The overthrow of Yanukovych triggered the internal Ukrainian language dispute and, as a direct consequence, the internal Ukrainian war of separation. On 22 February 2014, Ukrainian President Yanukovych failed to achieve the planned EU association and was overthrown. The following day, on 23 February, interim President Turchynov issued a language law that declared Ukrainian to be the sole national language and thus banned Russian - previously the second national language - as the official, school and court language in the Russian-speaking cities and oblasts. However, the mother tongue is - even more than formal citizenship - an essential part of personal identity. Immediately after the law was passed, there were riots in the majority Russian-speaking cities from Odessa to Mariupol, in Crimea and in the two eastern oblasts of Lugansk and Donetsk.
With the Turchynov language law, the Ukrainian central government had also violated the "European Charter for Regional Languages". By ratifying this charter in 2003, Ukraine committed itself to protecting the regional languages in its own country.

Eight years of the Donbass war
At the same time as the secession of Crimea, the eastern Ukrainian cities and oblasts were also seething. In cities such as Odessa with 65 % Russian speakers and Mariupol with 90 % Russian speakers and in the hotly contested Krematorsk with 68 % such inhabitants and in the Lugansk and Donetsk oblasts, Russian was the predominant native language. (Figures from the 2001 census) This meant that the unrest in 2014 was pre-programmed as a result of the anti-Russian language law.

On 7 and 28 April 2014 - two to five weeks after Turchinov's language law - first the Donetsk oblast with a Russian-speaking population of 75 % and then the Lugansk oblast with a Russian-speaking population of 69 % declare themselves independent people's republics. In a referendum in May 2014, over 90 % of respondents in both oblasts voted in favour of their independence from Kiev. The Ukrainian central government then deployed the military against them and suppressed similar endeavours there and elsewhere in weeks of street fighting. From 12 April to 5 July, the "putschists" were defeated and driven out in an "anti-terrorist operation" in Odessa, Mariupol and the western Donbass, for example in Krematorst, Sloviansk and other cities. Since then, the local war of secession has been raging in Donbass.

What is missing for an assessment of the acts of war in the "anti-terrorist operation" is reporting in the Western media. According to unverifiable reports, the operation began with the deployment of around 100,000 soldiers from the regular Ukrainian armed forces against around 30,000 separatists. 80 % of those killed are said to have been separatist fighters at the beginning. Reports that are nevertheless available generally come from Switzerland. This is how it became known that in 2014 Ukrainian companies and entire battalions of Russian-speaking soldiers defected with their weapons to the separatist side, and that hundreds of thousands of Russian-speaking Ukrainians fled from the contested areas to refugee camps in neighbouring Russia. Instead, our media only reported on "Ukrainians abducted to Russia".

Although Russia supported the Russian separatists in the breakaway oblasts, it did not attack the territorial integrity of Ukraine itself until 2022. Nevertheless, the then NATO Secretary General Rasmussen claimed as early as September 2014 that "Russia was attacking Ukraine", which the OSCE observers in the country were unable to confirm. Instead, at the beginning of May 2014, Putin called on the leaders of the two breakaway oblasts to postpone their planned referendums so as not to block possible negotiations. After the referendums, he did not recognise the independence of Lugansk and Donetsk for eight years. Instead, at the two Minsk conferences in September 2014 and February 2015, together with France and Germany, he attempted to arrange a favourable settlement for Lugansk and Donetsk as semi-autonomous oblasts within Ukraine.

What is striking about the German reporting of that time is that from 2014 to 2022, nothing was reported about the suffering of the affected populations, about the destruction in Donbass, about the plight of refugees and about Ukrainian war crimes. After all, the OSCE reported around 14,000 deaths in the two embattled eastern oblasts during this period. This meant that there was no general outrage in the German Bundestag and among the population, as there was eight years later when Russia attacked Ukraine.
The annexation of Crimea to the Russian Federation and the intra-Ukrainian war of separation were the result of a disastrous chain, starting with the EU's unfortunate offer of association to Ukraine, the postponement of the treaty for a year by Yanukovych, the overthrow of Yanukovych and the disastrous alienation of the Russian-speaking majority of the Ukrainian population by Turchynov with his language law. My advice is not to disregard this unfortunate chain of events when attempting to reconcile Ukrainian and Russian interests and not to blame Russia in particular for the development towards war.

With regard to the legal assessment of the secession of parts of a state from the former Ukraine, a landmark ruling by the International Court of Justice in The Hague in the case of Kosovo independence on 22 July 2010 should be considered. The ruling states that "general international law does not recognise any kind of fixed prohibition of a declaration of independence" if the overwhelming majority of the population of a contiguous territory decides, through democratic decision-making, to secede from the territory that previously belonged to it. The question must also arise for the legally untrained observer as to why the secession of Estonia, Latvia and Lithuania, each with 2 million inhabitants plus/minus the Soviet Union, was welcomed and recognised by all NATO and EU states and the secession of the Crimean population with its 2.3 million inhabitants should have been a violation of international law.

The language dispute since 2014 and the eight-year civil war with its harshness and war crimes against part of the eastern Ukrainian population preclude a prosperous coexistence of Ukrainians and the strong Russian minority in one state in the future. The Ukrainian government squandered its chance to preserve the two-nation state when it failed to respect and implement the Minsk Agreement with its autonomy solution for eastern Ukraine. This must be taken into account in a Russian-Ukrainian peace agreement if peace is to last in the long term.
Status today
Ukraine has been "bled dry" of human strength through war losses, emigration and secession (from a former population of 42 million to 23 million now), largely depleted of weapons and ammunition and heavily indebted in terms of financial strength for decades to come. It was also not in a position to lead its last attempted major offensives to success. The Ukraine war has thus de facto become an ongoing trench war a la the First World War. Without further extensive rearmament by the NATO states and other support from third countries, Ukraine will not be able to achieve any of its self-imposed territorial war aims in the future either.
Ukraine's support for the war against Russia also remains highly questionable in other respects. Firstly, Ukraine itself provided the first reason for the war with the language dispute and the use of the army against its own population in the Donbass. And secondly, Ukraine and the Russian Federation are in no way inferior to each other in terms of their authoritarian leaderships, the frequency of political murders and cases of corruption and the number of international treaties, resolutions and charters violated since 1995. The same obviously applies to the frequency of war crimes committed. (More details on this two chapters later) In summary, this means that Ukraine is neither defending "Western values" nor Europe's freedom, as some of the Western political elites suggest to their populations.

President Zelensky apparently fears for his office after General Salushnyi, the respected army chief in the country, expressed his own interest in the presidency and the mayor of Kiev, Klitschko, harshly criticised Zelenskyi's performance in office. In December 2023, Salushnyi is well ahead of Zelenskyi on the popularity scale with 88 % and 62 %. It is quite possible that, despite his frequently repeated rejection of negotiations, Zelensky would be prepared to agree to a quick end to the war on reasonable terms if it meant that he himself could end up as a bringer of peace and successfully run for president again.

The Russian prehistory

Russia and the USA
The Russian-Ukrainian rift began, among other difficulties, with the breakdown of mutual trust and increasing conflicts of interest between the USA and Russia. The US-Russian rapprochement from1997 with the NATO-Russia Founding Act and the NATO-Russia Council gave way to renewed estrangement from 2002. The USA cancelled the ABM Treaty in 2002 without renegotiating it with Russia, as requested by Russia and as provided for in the NATO-Russia Founding Act. Furthermore, 30 states negotiated a CFE successor treaty in 1999, which the NATO states, unlike Russia, subsequently failed to ratify. Last but not least, in 2008 the USA demanded the admission of Ukraine to NATO under the pretext of a crisis in Georgia, thereby jeopardising the mainstay of Russian security policy. This pillar was the reaction and security distance to the NATO area with the resulting mutual nuclear vulnerability. However, the Georgian affair has gone down in the memory of the German "political world" in a twisted way.

Georgia, America's pretext

The facts of the prehistory of the Georgian conflict were as follows:
South Ossetia, until then a northern province of Georgia, had already separated from Georgia in 1989, even before Georgia itself broke away from the Soviet Union in 1991. Afterwards, the now independent Georgia attempted to rejoin the breakaway South Ossetia in two "Georgian Wars". During mediation attempts by the EU and Russia, Russia acted as a protecting power for the Ossetians and deployed a peacekeeping force in South Ossetia. In November 2006, the regional South Ossetian government held a referendum, which resulted in a 90 per cent vote in favour of independence from Georgia. Despite this, Russia did not recognise South Ossetia's independence from Georgia, citing the question of Kosovo's independence from Serbia, which was still unresolved at the time. (Russia was on Serbia's side and opposed the secession of Kosovo).

Kosovo declared its independence on 17 February 2008. The very next day, on 18 February, the USA recognised Kosovo's independence. (This was followed by recognition by Germany on 20 February.) One month later, on 21 March, Russia recognised South Ossetian independence with reference to the previous Kosovo case. Another two weeks later, on 3 April, at the NATO summit in Bucharest, the USA applied for Georgia and, without further ado, Ukraine to join NATO. Three months later, from mid-July 2008, Russian forces held the "Caucasus Frontier" manoeuvre in the North Caucasus on Russian territory and US forces, together with Georgian forces, held the "Immediate Response" manoeuvre in Georgia.

Putin reacted to the US proposal to admit Georgia to NATO,
and now strengthened Russia's efforts to achieve independence for the South Ossetians. On 16 April, he ordered closer cooperation between the Russian and South Ossetian authorities and had the Russian peacekeeping forces there reinforced by 500 soldiers in May. The Georgians saw this as Russian interference in their internal affairs and a Russian threat. Georgian President Shaakashvili then had South Ossetia attacked and its capital bombed on 8 August 2008 in the hope of receiving support from American manoeuvre troops in his country. When Russia intervened and drove the Georgians out of South Ossetia in five days, the American-Georgian threat narrative for NATO became manifest. Since then, the sword of Damocles of NATO enlargement has hung over Russia's security architecture, not only around Georgia but also around Ukraine. This was an early milestone on the road to today's war in Ukraine.
It seems strange how almost comparable events are assessed and labelled differently depending on the point of view. NATO's intervention in Serbia to protect the threatened Kosovars was an act of "humanitarian duty to protect". And the Russian intervention in South Ossetia to protect the threatened Ossetians was a criminal attack. The intervention of NATO troops in Serbia without a UN mandate was "self-mandated", and the intervention of the Russians in South Ossetia without a UN mandate was contrary to international law. This asymmetry of judgement was repeated in 2022 when Russia intervened in the intra-Ukrainian separatist war that had been going on for eight years.

Russia and NATO
Russia's endeavours to prevent the estrangement between East and West from coming to an extreme can be seen in its efforts to maintain the risk and security distance between NATO's military area and that of the Russian Federation. It is NATO, with the nuclear power USA, that is moving towards Russia with its zone of interest, influence and military power, and not Russia, which is expanding westwards. At the Munich Security Conference in February 2007, Putin clearly stated that "a further eastward expansion of NATO on the former territories of the Soviet Union would mean crossing a red line". After that, the USA's Bucharest proposal in 2008 to admit Georgia and Ukraine to NATO was an obvious challenge to Moscow. From 2021, Ukraine's wishes for NATO membership and the hints and offers to do so from Brussels-NATO, Washington and other capitals were repeated in quick succession. At the same time, Moscow repeatedly and unsuccessfully proposed mutual security agreements and President Putin telephoned and conferred with Western heads of state and government around twelve times in an attempt to avert Ukraine's NATO membership after all. When NATO Secretary General Stoltenberg then called on Putin to "return to diplomacy" on 13 December 2021, and three weeks later, on 12 January 2022, the same Stoltenberg told the Russian delegation to the NATO-Russia Council that NATO and candidate countries alone decided on NATO membership and that "no one should interfere", and when President Zelenskyi addressed Ukraine's nuclear rearmament on 19 February 2022, Moscow's point of view had reached its limit. On 24 February 2022, President Putin allowed Russian troops to march into Ukraine. Shortly after the outbreak of war, a Swiss OSCE observer in Ukraine commented on the Russian arms deliveries to the separatists reported by Polish intelligence services: "We were unable to detect any arms deliveries before the outbreak of war."

Ukraine's obviously planned NATO membership was one reason for the Russian invasion of Ukraine, and the eight-year-long internal Ukrainian war of separation waged by the central government in Kiev against the Russian minority was the other reason for Moscow's intervention in the civil war in the neighbouring country. In this respect, the Russian attack on Ukraine on 24 February 2022 was not a "criminal war of aggression", but an intervention in a civil war that had been raging in the neighbouring country for eight years. As such, according to Western terminology, it was a "self-mandated" fulfilment of a "humanitarian duty to protect".
When formulating a peace treaty, given the confusing web of actions and reactions and the international, ambiguous assessment of obligations to protect national minorities beyond one's own borders, one should refrain from apportioning blame and focus the treaty exclusively on the immediate silencing of the weapons, the hasty end of the war and future ethnic-compliant borders.

The Crimea

The question is why the Western world approved the secession of 1.3 million Estonians, 2 million Latvians and 2.8 million Lithuanians from the Soviet Union in 1990, just as it approved the secession of 2.1 million Slovenes and 3.9 million Croats from Serbia in 1991 and, in contrast, condemned the secession of 2.3 million Crimeans from Ukraine in 2014 as a breach of international law?
The secession of Crimea from Ukraine in 2014 and its subsequent accession to the Russian Federation coincided with two synchronised processes: firstly, the abolition of Russian as the second official language for the whole of Ukraine and, secondly, the Russian government's fear that it would have to cede its naval port of Sevastopol to the US Navy if developments continued.
In Crimea, 77 % of the inhabitants spoke Russian and only 10.1 % spoke Ukrainian. The Supreme Soviet of Crimea had already decided in favour of autonomy and remaining part of the Soviet Union in January 1991. The central government in Kiev did not recognise this later, in August 1991, when it made its own declaration of independence from the Soviet Union - nor had it done so before. Subsequently, in December 1991, 54 % of Crimea's inhabitants voted in a new local referendum - but again unsuccessfully - in favour of rejoining Russia. This old wound reopened on 24 February 2014 with the Ukrainian language law and the abolition of Russian as a second official language. As in eastern Donbass, unrest broke out. On 27 February 2014, Crimean President Aksyonov turned to the Russian government with a request. He asked for "assistance in ensuring peace and tranquillity on the territory of the Autonomous Republic of Crimea.
This was followed by another referendum on 16 March, in which 95 % of the votes cast were in favour of rejoining Russia. Observers from the OSCE, EU and UN were invited to this referendum. However, they did not turn up. The annexation of Crimea to Russia followed on 21 March. Finally, Russia deployed paratroopers (the so-called green men) to "secure" the election in Crimea. Putin invoked the "Russian duty to protect", as the USA has often done in similar cases, citing its American "humanitarian duty to protect".
In the case of Kosovo's previous declaration of independence, the UN International Court of Justice also ruled four years ago that the withdrawal of a part of a state from a state does not violate customary international law (judgement of 22 July 2010). All reasonable requirements were also met in the case of Crimea, namely a closed territory with a majority of a common nationality, the majority of which decided in a referendum against continued citizenship in their previous state and thus in favour of secession.
The second synchronised event was the dispute between the USA and Russia over dominance in the Black Sea. Ukraine's NATO membership, which the USA had publicly sought since 2008, would have meant that Crimea would have been open to the USA and closed to Russia in future. Russia would have had to relinquish its strategic maritime position in the Black Sea to the US Navy with the loss of its naval harbour in Crimea and thus also control of the sea route to Russia's largest commercial port, Novorossiysk. Ukraine's commercial harbour, Odessa, would also have been under American control. The fact that Russia's concerns were not unfounded was demonstrated by the behaviour of the USA even before Moscow intervened in the intra-Ukrainian civil war in 2022. The USA had already established its naval command "73rd Maritime Special Operations Center" in Ochakiv, 150 kilometres west of Crimea, at the mouth of the Dnieper, thus extending its maritime strategic arm to Russia's rear entrance.
The annexation of Crimea is comparable to the American defence against the Soviet missile deployment in Cuba in 1962. Back then, the USA also did not tolerate an opponent right at its back door. And what would happen if China, with Cuba's consent, prepared to take over the US naval base at Guantanamo Bay in Cuba? (The USA took over the base in 1934 without a treaty and without any legal basis). Comparisons are usually a little skewed, but often not skewed enough not to make it clear what is at stake.
Four days after the annexation of Crimea by Russia, on 26 March, former German Chancellor Helmut Schmidt described Russia's actions in Crimea as "quite understandable", albeit dangerous. He considered the subsequent Western sanctions to be "stupid stuff" and blamed the West for the situation in Ukraine.
The Western world immediately declared the secession of Crimea and its annexation to Russia in 2014 to be an annexation by force. The USA immediately imposed its first sanctions against Russia. And, while the decision-making process was still underway in Crimea, 42.37 tonnes of Ukrainian state gold were loaded and flown to the USA on 11 March 2014. (according to a Swiss source)
After President Putin's experiences with the USA and NATO, it must be assumed that he no longer trusts the West. He had experienced the ineffectiveness of verbal promises (Baker's pledge not to expand NATO eastwards in 1990), then the duplicity of NATO Secretary General Stoltenberg (first the call to "return to diplomacy" in Dec. 2021 and shortly afterwards Stoltenberg's instruction that Russia had "no say" in the eastward expansion in Jan. 2022) and over the years the American refusals to conclude new security agreements with Russia (1999-2022). Putin does not accept preconditioned requests for negotiations. He obviously needs a concrete offer, the proposal of a peace treaty with Ukraine that is negotiable for Russia. (see Annex 2)
(This chapter is written without the use of Russian sources.)

The significance of war crimes

The psychological and political impact
Committed and invented war crimes play a significant role in the war in Ukraine, both in terms of international law and war psychology. Their "commercialisation" has led to the generation of hatred and the hardening of positions on the one hand and to the generation of a willingness to help and support on the other among both warring parties and among the states and peoples supporting the war. The almost exclusively Ukrainian-influenced media coverage in the Western world - especially in Germany - has led to one-sided ideas of the enemy and equally one-sided ideas of justice and thus to an asymmetrical narrative. This manipulative friend-foe image makes it difficult today to convince the German public and German "politics" of a peace of understanding and reconciliation for Russia and Ukraine and to dissuade them from the illusion that the war is "winnable" for Ukraine.

A few corrections should therefore be added to the war crimes of which the Russians are accused and contrasted with Ukrainian war crimes. I would like to illustrate this using the examples of the "Butsha massacre" and the bombing of the department stores' in Retroville and then go into war crimes in general. Firstly, it should be noted that disinformation, propaganda and deception are among the legitimate means of war used by both the Russians and the Ukrainians.

The "Butscha massacre"
Just over a month after the start of the war, on 30 March 2022, Russian troops left Kiev and the surrounding area, including the city of Butsha, following their unsuccessful attempt to take Kiev by hand. Four days later, reports and footage of a Russian massacre in the city appeared on Ukrainian television. A memorable video film showed a Ukrainian military pickup truck with mounted soldiers driving between neatly lined up dead bodies. A camera car followed behind. The camera conspicuously faded out a corpse with the help of a grey veil as it passed close by. I noticed that the dead lay there as if neatly draped, and that they lacked the pools of blood usually seen on the slain or shot. The grey veiling of the nearest dead body made me suspicious. When I searched several times on different channels and found a video of this scene without the grey veil, I saw that this dead man was wearing a wide, very conspicuous white Russian armband. When I immediately put the film back at this point and tried to watch it a second time, it was immediately deleted. Instead, I read "This page is not available". When I tried again, I got "Link not found". Who has an interest in covering up the fact that there is a dead Russian lying here? On repeated and careful viewing of the same scene on other channels, I also found pieces of their white Russian armbands on some of the corpses lying further away.
I also found a Ukrainian video of a soldier dragging a corpse on a long rope along a road to another location. This and the lack of pools of blood fit with the suspicion that Butsha's bodies were dragged into the "picture" of Butsha days after she was killed. The whole thing was quite obviously a failed Ukrainian staging, a "false flag operation".
It is also striking that the Russian government twice subsequently requested the UN Security Council to investigate the Butsha incident and twice failed due to vetoes.
The Butscha incident crossed a threshold of absolute irreconcilability between the warring parties, including NATO, the EU, the USA and Russia, which still stands in the way of peace, reconciliation and the balancing of interests.

The Retroville department stores' bombardment
Another example of the dubious value of information from the war is the Russian shelling of the Retroville shopping centre on the outskirts of Kiev on 20 March 2022. The news itself was true. Russian artillery had shelled the department stores'. When Kiev's mayor Klitschko broadcast the "terrible" event on German television the following day and lamented the Russian war crime, German viewers were horrified by the supposed cruelty of the Russians. Normally, one associates shopping centres with crowds of people and, in this case, high numbers of victims. As the news item included a precise location, I took a closer look at the Shopping Mail on Google Earth and found the building described with large delivery entrances, a large but empty customer car park and a ring of tall residential buildings around it. By chance, I next discovered a video by a Ukrainian blogger using the keyword Retroville, which showed the same department stores', the same empty car park and the large delivery entrances. The blogger had filmed, with palpable pride, via a Ukrainian wartime ruse, artillery guns pulling out of the driveways, firing a few rounds and then retreating back under the cover of the driveways. Apparently, Russian artillery reconnaissance had also seen the same video, and the Russians had then accurately targeted and destroyed the warehouse. All in all, it was not a Russian war crime, but the psychological effect on the German television audience was enormous and so lasting that it is currently almost impossible to communicate a peace treaty in this country without apportioning blame and without punishment.

War crimes on both sides
Russian war crimes have been widely reported in the Western media. There has not been an equally sharp look at the behaviour of Ukrainian soldiers. Thus, only the videos of Ukrainian war crimes disseminated by Ukrainian bloggers on the internet at the beginning of the war, which were reported on in Ukrainian patriotic euphoria as if they were heroic deeds, help to compare the two warring parties.
But first an excerpt from the report of the UN High Commissioner for Human Rights of 29 June 2022, which states, among other things, on war crimes: "And these include numerous abuses and killings of prisoners of war and civilians uninvolved in the fighting, which both sides are equally guilty of. Only one type of war crime can be attributed solely to the Ukrainian army: the misuse of human shields, i.e. the deployment of its own soldiers and artillery next to and behind health and care facilities in order to take advantage of their protected status."
Back to the Ukrainian violations of the laws of war. At the beginning of the war, Ukrainian television stations and bloggers themselves reported on Ukrainian violations of the law and brutalities committed against Russian citizens and prisoner-of-war soldiers as if they were glorious deeds. For example, laughing Ukrainian soldiers standing around kicked and machine-gunned shackled Russian prisoners lying in their midst. Russian prisoners of war were first beaten up, then shot in the legs and then left unattended. Shackled Russian prisoners lying in large pools of blood were kicked on the head until they gave up. Among other things, there was a scene of a Russian civilian in a car (recognisable as such with a white Russian armband) being stopped, pulled out of the car and kicked in the head with boots on the spot.
This evidence of Ukrainian war crimes does not justify making comparisons of guilt in a peace treaty and deriving disadvantages for only one of the warring parties.

The validity of the international law of war
When weighing up the mutual breaches of treaties and the violations of the international law of war by the Russians and the Ukrainians, both sides should be measured with the same yardstick, with the law that has been codified up to that point. For years, the "West" has been increasingly deviating from this in its arguments, justifications and accusations for its own benefit and instead of relying on codified international law, it is referring to a so-called "rules-based order". This is a home-made order and its rules, which the USA and its surrounding allies - i.e. excluding Russia, China, South American states and others - have tailored to their own ideas. According to this rule-based order, Kosovo's declaration of independence, for example, was in line with international law, while Crimea's declaration of independence was not. This rule-based order is in part a self-serving, Western self-deception.
The codified international law of war should apply equally to all warring parties. The Hague Regulations on Land Warfare and the Geneva Conventions have been used in an attempt to curb the atrocities of war. The protection of the unarmed civilian population and the protection of undefended towns and villages from shelling and bombing are among the protection requirements of both sets of rules.
A head of state who calls on his civilian population - as Zelensky did - to make Molotov cocktails, get guns and fight, accepts that the rules of protection for the population in his sphere of influence no longer apply. Anyone who orders his military to fortify and defend the cities is taking the calculated risk that the cities will be fought over and that they will be shot at and bombed. Anyone who proudly shows young volunteers receiving military training in a school building in front of television cameras must not complain on the same television channel about the brutality of the enemy when they shoot at such buildings.
Zelensky himself abrogated the protective provisions of the Hague Regulations and the Geneva Conventions for civilian citizens and Ukrainian cities.

Weighing up the legal bases and legal opinions

The balancing of the right to territorial integrity against the right to self-determination and the will of the people on the basis of the two treaties "UN Resolution on the Principles of International Law ( 1970 )" and the "Charter of Paris ( 1990 )" will be part of the preamble of the present draft peace treaty.
The legal basis for many peace efforts to date, the Charter of Paris of 21 November 1990, contains two sometimes incompatible principles, namely the inviolability of the territorial integrity of states and the special protection of national minorities. The previous United Nations resolution of 24 October 1970 on the principles of international law already specified the collective exercise of minority protection. It states that national minorities can democratically decide to establish their own independent state in closed parts of their former territory or to integrate into another state if their protection rights are permanently and grossly disregarded and if they are denied adequate internal autonomy. The latter also applies to the resident Russian minorities in clearly defined parts of the former state of Ukraine, in which they form a clear local majority.
In the war to be ended, Ukraine defends its right to the inviolability of its territorial integrity and the Russian Federation defends the right to self-determination of the Russian minorities in certain parts of Ukraine where they form a clear majority of the population. The peace treaty proposed in Annex 2 is based on the practical balancing of the two incompatible peace principles in this specific case, the Charter of Paris and the UN Resolution on the Principles of International Law. It is based on a decision in favour of the right to self-determination and the will of the people as an expression of a modern democratic understanding of the state in the sense of a hasty end to the war. A contrary decision in favour of the territorial integrity of the former Ukraine was obviously no longer sensible due to the now completely broken and irreconcilable relationship between the Ukrainian and Russian parts of the previous two-nation state. After eight years of civil and separatist war within Ukraine, the two-nation state of Ukraine could no longer realistically be revived morally and politically.

Negotiations and contractual partners

Participation recommendation
It is in the interests of concluding an agreement quickly and amicably to keep the circle of negotiators and those concluding the agreement as small as possible. For the same reason, states - with the exception of Ukraine and the Russian Federation - and supranational organisations that represent their own interests in the Ukraine war and in Ukraine should not be involved in the peace process.
The peace negotiations for the Peace of Münster may serve as a cautionary example of negotiations with too many interested parties. They lasted five years, during which the fighting continued. The swift 2-plus-4 negotiations on German reunification, in which the more than 40 additional former war opponents of Germany were excluded, may serve as a positive example.
It would be hopeless for Germany to mediate peace on its own. The three states of France, Italy and Germany would be suitable for peace mediation.
France, together with Germany, had already prevented the then unjustified admission of Ukraine to NATO in 2008 and then arranged the Minsk Conferences and the Minsk Agreement again together with Germany in 2015 and 16. In 2016, it was again France and Germany together that urged Ukraine to grant the eastern oblasts the internal autonomy promised to them in the Minsk Agreement, which Ukraine refused to do. Also in 2016, the French upper house of parliament recommended the gradual withdrawal of EU sanctions against Russia. On 9 December, Macron and Merkel negotiated the Christmas ceasefire between Russia and Ukraine. In 2019, it was again Macron and Merkel who organised the last summit between Putin and Selensky. On 8 February 2022, Macron called on the West to "make compromises with regard to Russia's legitimate security needs". The French president is obviously the right partner for a German peace initiative. Among the old EU and NATO states, France has also retained the greatest independence from the USA, the main representative of Ukrainian interests and its own geopolitical ambitions there.

So far, the most frequent impetus for peace mediation in the Ukraine war has come from Italy. It began on 4 May 2022 with the declarations by the head of the Italian Air Force, Lieutenant General Tricarico, and Lieutenant General Bertolini (Army) "This is not our war" and "Let's stop the USA!". This was followed by the Italian Foreign Minister Di Maio on 20 May 2022 with a peace plan proposed in the European Parliament. Then came the offer of mediation by former Prime Minister Berlusconi on 8 September 2022 and finally, on 29 June 2023, the appeal by Cardinal Zuppi, President of the Italian Bishops' Conference. A mediating role in a Russian-Ukrainian peace settlement would obviously be popular in Italy.
France, Italy and Germany are also the big three founding members of the EEC and currently the largest net contributors to the EU and therefore also indirectly the largest contributors to EU war aid. The three states would have the political clout to put a peaceful end to the EU's one-sided pro-Ukraine and war-prolonging policy. Italy, France and Germany would also have the means and opportunities to threaten to end their own continued support for the war if their mediation failed and, in extreme cases, to announce their veto on joint EU and NATO activities in the event of a continuation of the war. A peace arranged by Italy, France and Germany would be a European solution to the European war in Ukraine.
The Federal Chancellor should enter into talks with President Meloni and President Macron as soon as possible and ask both to participate politically in the German peace plan and actively with Italian and French forces in the peace process proposed in the draft treaty. These talks should be successfully concluded before the draft peace treaty can be proposed to the two parties to the conflict.

Warning against participation
The UK and USA, which are particularly interested in Ukraine joining NATO, have repeatedly demanded that the war be continued. British Prime Minister Boris Johnson intervened in the Istanbul Ukrainian-Russian negotiations on 9 April 2022 shortly before the treaty was signed and prevented the signing of the Ukrainian treaty. His reasoning was that "the West is not ready for an end to the war." Similarly, the US government recently announced on 27 November 2023 that it currently considers Russian-Ukrainian peace negotiations to be pointless. The reason given was that such talks would only degenerate into Russian "surrender monologues". In doing so, the US government deliberately overlooked the fact that Zelensky's so-called 10-point peace plan of 5 August 2023 was itself a de facto demand for Russia to surrender. The recognisable interest of the USA and Great Britain in the continuation of the war disqualifies both states as moderators, negotiating partners or signatory states for participating in the rapid end to the killing and destruction in Ukraine. They must therefore not be directly or indirectly involved in the proposed peace process, despite their expected objections and obstacles. The exclusion of the USA is also linked to the exclusion of NATO, which is dominated by the USA.

Places of negotiations
I propose that the mediation talks with the two warring parties initially take place in separate preliminary negotiations at their seats of government. This will make the talks easier because they will still lack the hardened and aggravating confrontational atmosphere of a clash between two enemies.
The final conference was to take place in Geneva, in the Old Town Hall, in the "Alabama Hall". Geneva is on neutral ground and the aforementioned hall harbours a "good spirit" that will hopefully spill over into Ukrainian-Russian understanding and reconciliation. It was in this hall that the First Geneva Convention was concluded in 1864 and the dispute between the old colonial power England and its old colony North America was settled by arbitration in 1872, paving the way for a final and everlasting friendly partnership.

The initiation of negotiations
Germany is currently one of the states that is keeping Ukraine in the delusion that there is still a chance of victory in 2024 with its promises and money and arms deliveries. Before the German government takes away the Ukrainian government's illusions of "victory" and reconquest by presenting a draft peace treaty, thereby psychologically plunging it from plus degrees to minus degrees, it should first refrain from making any further promises and call on the Ukrainian government and the Russian government to make the opposing side an offer of talks without preconditions. If the disputing parties are not prepared to do so in the near future, the peace treaty proposed here can be submitted to both parties.

Essential contents of the contract text

So far, by my count, there have been 18 few concrete mediation and treaty proposals, which have left room for different interpretations and many evasive options for both warring parties. So far, the warring parties have also mentioned "non-negotiables" as preconditions, so that negotiations have not even taken place. The proposed treaty text therefore contains all the necessary territorial, legal, economic, military and other provisions that are customary and necessary in peace treaties, so that each side can assess what it will receive and what it must give.President Putin will see that the final word on a lasting post-war order will not be spoken by the Russian land conquests, but by the result of a referendum of the inhabitants of the disputed territories. The future borders between Ukraine and Russia should be drawn freely by the population concerned. However, Russia must maintain its old nuclear response and security distance from NATO territory and grant Ukraine the status of "armed neutrality" in return.
President Zelensky will realise that the final word on a lasting post-war order will not be spoken by a final Ukrainian victory financed by the international community, but by the result of a referendum of the inhabitants of the disputed territories. By ignoring the Minsk II Agreement, the Ukrainian central government has itself gambled away the existence of the former bi-national state. The language dispute since 2014 and the eight-year civil war with its harshness and war crimes against part of the eastern Ukrainian population preclude a prosperous coexistence of Ukrainians and the strong Russian minority in one state in the future.
On the other hand, the Ukrainian people must be assured of a secure and sovereign future with the prospect of reconstruction and economic recovery. To this end, further destruction and the exorbitant growth of Ukraine's war debts for arms leasing and repayable loans to the USA must be ended. In return, Ukraine must be offered the future preservation and viability of the Ukrainian people as the core of a treaty, but not the preservation of its entire former territory.

Impact on the German public

The realisation that a rapid end to the war must take absolute priority over a victory for Ukraine is unfortunately countered by the false narrative that the German media has been conveying to the German public for three years with its good-and-evil narrative. This includes ignoring the prehistory of this war with the language dispute, with the eight-year civil war of the Ukrainian central government against the strong Russian minority in its own country and with the frequency of political murders and corruption in Ukraine. This includes the violations of international law by Ukraine and not just the breach of peace by the Russians. It also includes the legends of a democracy there and the freedom of Europe that is supposedly to be defended there. When the media make the connection to the "defence of Europe's freedom", they should also address the fact that the core issue is also the expansion of the USA's geopolitical interests and sphere of power. The recent speeches by members of the Bundestag on the war in Ukraine clearly show how deeply the false narrative is already entrenched in Germany's "political world". The appeals by several speakers on arms aid to Ukraine show their frightening and shameful ignorance of the realities in Ukraine and the prehistory of the war in Ukraine.
This false narrative is most effectively manipulated by the phrases repeated several times a day in all the media, such as "Putin's criminal attack" and the use of negative attributes that precede everything Russia does and fails to do. The German press outdoes itself with "cruel, inhuman, merciless" and many other negative descriptions instead of reporting objectively and leaving the judgement to the readers. The German government cannot control the media, but it should refrain from making its own comments in the manner described. The longer and more effectively Germany supports Ukraine and snubs the Russian side, the more difficult it will be to negotiate with Russia and ultimately keep Germany's head out of the noose of direct involvement in the war.
My proposal for a peace initiative by Chancellor Scholz under the motto "reconcile and forgive" may seem like an inconsistent change of heart to German voters after this media history. Nevertheless, the initiative would be a credible return to Chancellor Scholz's original views that Germany is in danger of becoming involved in the war and that Germany should hold back on supplying arms to Ukraine. Today, after almost two years of futile war and unsuccessful Ukrainian offensives, the German public will honour him with the realisation that Ukraine cannot achieve its war goal of reconquest and that the main task now is to protect the Ukrainian people from further human losses through death and emigration, from further destruction of its infrastructure and from the further increase in exorbitant foreign debt. The German people are currently having growing doubts about their own immense war expenditure and the simultaneous unmet financial needs at home. They see the weakening of their own economy without any noticeable effects of the embargoes and sanctions on Russia. It notes with concern the further plundering of the Bundeswehr in favour of the Ukrainian army while at the same time increasing its own obligations outside its own borders. The German people are becoming increasingly tired of the burdens of this foreign war. And the Ukrainian people are about to be "bled dry" in many respects. A peace between Ukraine and Russia brokered by a German chancellor could be the highlight of his chancellorship.

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Enclosure 4: Draft peace treaty

Annex 2 to Ukraine Letter to the public

Gerd Schultze-Rhonhof

3.2.2024

Treaty to end both wars,
the internal Ukrainian civil war and
of the Ukrainian-Russian War.
Geneva Peace Treaty of ... 2024
(Text excerpt from the present full-text version)

Preamble

The Republic of Ukraine, on the one hand, and the Russian Federation, on the other hand, conclude this treaty for the urgent termination of the Russian-Ukrainian war and, at the same time, for the termination of the intra-Ukrainian war between the Ukrainian central government and the Ukrainian, but predominantly Russian-speaking parts of the country, which have unilaterally declared their independence in a dispute with the central government.

In the war to date, neither of the warring parties has been able to realise their goals and achieve a victorious end to the war. On the contrary, there is a danger of a long-lasting continuation of the war and ultimately a renewed division of Europe through an "iron curtain". Preventing this is the purpose and aim of this treaty.

The core of the treaty is the immediate end to the war on the basis of a referendum by the populations of the disputed territories on their will to belong to Ukraine, the Russian Federation or a new intermediate state independent of both warring parties in the future.

The treaty is guided by the mutual endeavour to free the population in the affected areas from the scourge of war as quickly as possible, to save Ukraine from further destruction and permanent indebtedness, to free the Russian Federation from the burdens of war and its international isolation, to establish lasting stability and peace on the Ukrainian-Russian linguistic and national border, to usher in a new era of peace among the peoples of Europe, to eliminate the worldwide supply bottlenecks caused by the war and to alleviate the ongoing famine in the poor countries of our world.

The legal basis for many peace efforts to date, the Charter of Paris of 21 November 1990, contains two sometimes incompatible principles, namely the inviolability of the territorial integrity of states and the special protection of national minorities. The previous United Nations resolution of 24 October 1970 on the principles of international law already specified the collective exercise of minority protection. It states that national minorities can democratically decide to establish their own independent state in closed parts of their previous territory or to integrate into another state if their rights to protection are permanently and grossly disregarded and if they are denied adequate internal autonomy.
The latter also refers to the resident Russian minorities in clearly defined parts of the former Ukraine, in which they form a clear local majority.

In the war to be ended, Ukraine defends its right to the inviolability of its territorial integrity and the Russian Federation defends the right to self-determination of the Russian minorities in certain parts of Ukraine where they form a clear majority of the population, and restores their minority protection. This peace treaty is based on the practical balancing of the two incompatible peace principles in this specific case, the Charter of Paris and the UN resolution on the principles of international law. The decision was made by the three mediators of this peace, Italy, France and Germany, in favour of the right to self-determination and the will of the people as an expression of a modern democratic understanding of the state, in the sense of a hasty end to the war. An opposing decision in favour of the territorial integrity of the former Ukraine was obviously no longer sensible due to the now completely disrupted and irreconcilable relationship between the Ukrainian and Russian parts of the previous two-nation state. After eight years of civil and separatist war within Ukraine, the two-nation state of Ukraine could not realistically be revived morally and politically.

This prioritises the future preservation and viability of the Ukrainian people over the preservation of the current Ukrainian territory.

The contracting warring parties refrain from attempting to offset their own legal positions and the violations of international law committed by their opponents against each other and from offsetting their opponents' and their own escalation steps that exacerbate violence against each other. This would generate further hatred through mutual accusations and protracted negotiations and unnecessarily prolong the suffering and destruction of this war. The large number and diversity of mutual breaches of international charters and intergovernmental treaties cannot be assessed against each other anyway.
The guiding principle of this peace treaty is: "forgive and reconcile". The treaty is intended to regulate future neighbourly relations between the Republic of Ukraine and the Russian Federation peacefully, permanently and as quickly as possible through a reconciliation of interests.
The President of the French Republic and the Heads of Government of the Italian Republic and the Federal Republic of Germany recognise this treaty as just, appropriate and necessary. They have proposed this treaty to the two belligerents in order to restore peaceful coexistence between the peoples of Europe and to avert the danger of war spreading throughout Europe and the North Atlantic world. Italy, France and Germany, as signatories to this treaty, will exhaust all their possibilities to persuade the warring parties to conclude and honour this peace treaty.
Germany, Italy and France will support both warring parties as far as necessary and within the scope of their possibilities in measures for the transition from war to peace.

The five signatory states hope and expect that other states will also demand and support this peace agreement.

Part I End of hostilities

Article 1
The fighting on all fronts on land, on the Black and Azov Seas and in the air end at 06:00 on the morning following the signing of this peace treaty by the President of Ukraine and the President of the Russian Federation, separately or at the agreed place of signing, Geneva. The contract becomes final and fully valid after the additional signature by the President of the Republic of France and the Prime Minister of the Republic of Italy and the Federal Chancellor of the Federal Republic of Germany and after the deposit of the peace treaty instruments ratified by the Ukrainian and Russian parliaments with the German Foreign Office in Berlin or the German embassies in Kiev or Moscow, i.e. the effective date of this contract.

Irrespective of the full effectiveness of the Treaty, the European Powers Italy, France and Germany shall abide by their Supplementary Agreement under Article 22 of this Treaty even if both or one of the belligerents violate or fail to ratify this Treaty.

Part II Waivers

Article 2
The Russian Federation shall vacate its territories in eastern Ukraine conquered since 24 February 2022, spatially up to the western border of the territories occupied by the Donbass separatists until 24 February 2022 and temporally until the final new Ukrainian and new Russian state borders have been established. The final borders will be determined after a referendum (Article 11 of this treaty).
The Russian Federation renounces future demands for the dismantling of the structural foreign NATO infrastructure in the new north-eastern NATO states to their territorial holdings from 1997, the founding date of the NATO-Russia Council. (Article IV of the NATO-Russia Founding Act contains regulations on the permanent stationing of foreign NATO forces in the former Warsaw Pact states and Soviet republics that now belong to NATO).
The Russian Federation does not lay claim to the temporarily conquered territories west of the Dnieper, including Kherson.
The Russian Federation renounces its demand for the future demilitarisation of Ukraine.

Article 3
The Republic of Ukraine renounces its intention, expressed by the President in 2021, to become a nuclear-armed power again.
The Republic of Ukraine renounces its intention to join NATO as a member. It will assume the status of armed neutrality and will not participate in any bi- and multinational exercises and military planning. It will not tolerate the stationing of foreign troops, mercenary troops, foreign military depots and staff and liaison commands on its territory. Exceptions to this are the foreign military attaché staffs at the embassies in Kiev.
Apart from its own defence industry, the Republic of Ukraine will not tolerate any arms and ammunition manufacturing companies on its territory that are wholly or partly foreign-owned or whose management is headquartered abroad.

The Republic of Ukraine renounces its intention to reincorporate the Crimean peninsula and recognises that it belongs to the Russian Federation.
Ukraine renounces its former territories east of the Lower Dnieper-Saporizhia line, the majority of which are Russian-speaking
(inclusive) - Kupyansk (exclusive), insofar as the majority of the population there decides in the referendum provided for in Article 11 of this Treaty in favour of state independence or its annexation to the Russian Federation. Ukraine shall thus cease to be a de facto divided state of two peoples.

Article 4
The storage of Nuclear weapons NATO and of nuclear weapons and nuclear weapon delivery systems in general will remain excluded for Ukraine in the future in accordance with the Budapest Memorandum of 1994 and Article IV of the NATO-Russia Founding Act of 1997.
New regulations on the permanent stationing of foreign NATO troops in the former Warsaw Pact states and former Soviet republics that now belong to NATO are reserved for future negotiations and treaties between the Russian Federation and NATO.

Article 5
Safety guaranteesThe security guarantees demanded by Ukraine from external powers for its future territorial integrity and the security guarantee demanded by the Russian Federation for the preservation of its nuclear second-strike capability within the framework of a pan-European security architecture are to be regulated by subsequent international treaties. These subsequent treaties must not contradict the provisions of this peace treaty. Until the date of entry into force of this peace treaty, the Russian Federation and Ukraine shall cancel and terminate all military-security treaties and agreements with external powers that contradict this peace treaty.

Article 6
The former enemies of the war mutually waive any claims for compensationcompensation or reparations for the damage and burdens caused to each other since 2014.

Part III The transition to peace

Article 7
The Russian troops ...

Article 8
The Ukrainian troops ...

Article 9
Foreign military ...

Article 10
The former wartime enemies and the republics of France, Italy and Germany agree that the Troop disengagement and the retreat of the Russian and Ukrainian troops will be monitored and documented by Italian, French and German troop commands until a final decision is made on the future Ukrainian and Russian borders. An Italian high command on the spot shall be responsible for the supervision. (Article 23 of this treaty)

Article 11
The referendum
Article 11(1):
The inhabitants of the territories in dispute between Ukraine and Russia will decide for themselves in a referendum whether they want to continue to live in Ukraine, in an independent new state or in the Russian Federation.
The date of the vote shall be set by the Ukrainian central government no later than the 30th day after the entry into force of this Treaty for a date between the 6th and the 90th day after the entry into force of this Treaty.
All residents who were resident in the affected area in 2014 and their spouses and descendants who are at least 20 years old on election day will be eligible to vote.
The voter lists valid in 2013 apply. Eligible spouses and descendants must have registered on the local electoral rolls by the 15th day before the referendum. The date of determination and announcement of the referendum and the referendum itself must be sufficiently far apart to allow eligible spouses and descendants at least 15 days to register on the electoral rolls.
Article 11(2):
The Voting area is the territory east the lower Dnieper and the Zaporozhzhya line east of the Dnieper (including) Kupyansk (exclusively) to the state border running north-east of it ( 49° 54' 45'' north / 38° 00' 57'' east ) and west of the Russian state border in the east from 23 February 2022.
Independence or annexation to Russia is achieved with a 55 % majority of eligible voters. Where the votes in favour of independence do not reach 55 %, they are added to the votes of the other majority after an initial publication.
Article 11 Paragraph 3:...
Article 11 Paragraph 4:...
The referendum shall take place under French supervision and with French, Italian, German and OSCE assistance and monitoring. In the event of disputes over unclear election modalities or the outcome of the election, a French arbitration award shall decide in accordance with Article 23 of this Treaty.
Article 11 Paragraph 5:...

Article 12
The former enemies of the war release all their prisoners of war and civilian internees by ...
There is a general amnesty for all prisoners of war and civilian internees with Ukrainian and Russian citizenship in their ethnically different countries of detention.
Further details ...

Part IV Mutual obligations

Article 13

Article 13 Paragraph 1: The declining military of the former war opponents ...

Article 14

Prohibition of any Agitation and propaganda ...

Article 15

Article 15 Paragraph 1:

On the citizenship option ...

Article 16

To the Protection of minorities ...

Article 17

On the preservation of vested rights in the change of territorial sovereignty as a result of the referendum ...

Part V Further information

 Article 18

On economic normalisation: Irrespective of their fundamental orientation towards either the European Union or the Russian Customs Union, the former war opponents will abolish their trade and co-operation barriers with each other for the benefit of increasing the prosperity of their peoples. Treaties and agreements on duty-free or preferential tariffs for individually defined industrial goods, agricultural products and mineral resources produced mainly on their own territory should be possible again.

The former warring parties and the additional signatory powers Italy, Germany and France shall immediately return all confiscated assets of the warring parties to their original owners or reimburse them financially if they have been sold in the meantime. The five signatory states hope and expect that other states will also sign up to this regulation.

Ukraine and the Russian Federation will re-establish normal international banking connections and mechanisms for the transfer of funds between each other as quickly as possible. The settlement and payment of mutual state, business and private debts from the period before the Russian invasion of 24 February 2022 will be regulated later by a Russian-Ukrainian agreement.

More ...

Article 19

End of boycotts, embargoes and punitive sanctions: The contracting states Ukraine, the Russian Federation, France, Italy and Germany will end all boycotts, embargoes and sanctions imposed on each other since 2014 and related to the Ukrainian-Russian conflict no later than 30 days after the entry into force of the treaty. This also applies to boycotts, embargoes and sanctions previously agreed by the five signatory states together with other states. This regulation is made in the hope that other "sanction states" will follow suit.

In particular, the five contracting states shall terminate their mutual SWIFT embargo. If attempts are made to prevent this by other states, the five contracting states will execute their mutual transfer payments in a non-dollar currency via a SWIFT OPC operations centre in a neutral state or, if necessary, secure them via another clearing system.

Article 19 loses its binding force under Article 22 if both or one of the belligerents violate or fail to ratify the treaty.

Article 20

On the return of refugees ...

Article 21

The Diplomatic and consular relations ...

Part VI French, Italian and German obligations

Article 22

The Governments of the European powers Italy, France and Germany see themselves first and foremost committed to lasting peace in Europe. They see no higher-ranking reason to support the continuation and prolongation of the war, which is destroying both warring parties, in any way. They are also of the opinion that a continuation of the war makes no sense, as neither of the two warring parties is obviously in a position to achieve their self-imposed goals by defeating their opponent and by their own efforts. If the war continues, there is also a risk of the war spreading to the whole of Europe and the entire North Atlantic world.  

France, Italy and Germany therefore also see no reason to help repair the senseless war damage that will continue to occur if the war continues by participating in financial and other reconstruction aid and generally see no reason to participate directly or indirectly in post-war debt cancellation schemes for the former war opponents.

The hasty end to the war sought by this treaty should also enable Ukraine to concentrate its efforts on the reforms necessary for its accession to the European Union. The hasty end to the war should also prevent Ukraine from becoming even more dependent on the debt of foreign states through war loans and leases for supplied war material and thus becoming a "debtor state" and ballast in the European Union for decades to come.

France, Italy and Germany did not presume to play judge in the inextricable tangle of language disputes, minority rights and human rights violations, treaty violations and war crimes during the eight-year internal Ukrainian civil war until February 2022 and of mutual treaty violations, war crimes, disinformation campaigns and the military, cross-border intervention of the Russian Federation in violation of international law afterwards. Germany, Italy and France are therefore not taking sides in favour of any of the previous opponents in this peace agreement. They are acting solely in the interests of an immediate end to the war through a sensible and sustainable reconciliation of interests between the warring parties.

If the two warring parties do not decide to end their war in the interests of their suffering populations and their national right to self-determination, which also exists at regional level, the European powers Germany, France and Italy will draw their own conclusions.

To secure the peace ... More ...

The three governments also undertake to continue or resume the previous embargoes and sanctions and to block any further financial, humanitarian and military support for the two warring parties by international organisations, to which France, Italy and Germany belong, during and after the war by not giving their consent if hostilities continue or resume after the start of negotiations on this agreement. The only exception to this veto obligation will be direct medical aid.

The three governments will act in the same way if one or both of the former belligerents fail to comply with the steps and deadlines for the transition from war to peace laid down in the treaty.

Upon signing and compliance with this contract the three signatory states Italy, Germany and France will do their utmost to support the repair of war damage from the intra-Ukrainian war from 2014 to 2022 in eastern Ukraine and war damage from 2022 onwards in Ukraine as a whole. More ....

Article 23

On the organisation of troop disengagement and referendum the three governments of Italy, France and Germany agree to provide suitable troops and equipment jointly and proportionately. They will jointly allocate tasks and maintain a joint headquarters in the referendum voting area for the required duration of their deployment.

The Commander of the French contingent will be responsible for monitoring the referendum, mediating in any disputes and, if necessary, submitting a proposal for a political French arbitration ruling on the final border demarcation.

The Commander of the Italian contingent will be responsible for monitoring and documenting the repatriation of Russian and Ukrainian troops and, if necessary, initiate Italian political intervention in the event of Russian or Ukrainian breaches of contract.

The Commander of the German The German contingent will co-operate with its forces with the Italian and French contingents and keep the German government constantly informed about the progress of the peace measures. The German Government will also be responsible for the preparation and organisation of the peace conference

Part VII Final provision

Article 24

This Treaty, the Ukrainian, Russian, French, Italian and German texts of which are equally authentic, shall be deposited in the archives of the German Foreign Office.

Peace conference in Geneva ...

Date, Geneva

Signatures of the President of the Republic of Ukraine

                        of the President of the Russian Federation

                        of the President of the French Republic

                        the Prime Minister of the Republic of Italy

                        of the Federal Chancellor of the Federal Republic of Germany

                                     ___________________

About the author of these letters and the draft peace treaty you will find here a biography and bibliography.

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Der Beitrag Friedensinitiative und Hintergründe zum UKRAINE-Krieg erschien zuerst auf Advocatus Veritas.

to part 1

to part 3

Part 2:

Consideration of the Federal Republic of Germany with regard to the separation of powers

Separation of powers and the rule of law today

As a thesis, one can attest to the Federal Republic of Germany's lack of separation of powers: The existing in the FRG Interlocking powers is in line with the principles and objectives of the Montesquieu This does not do justice to the doctrine of state organisation described above; indeed, it is disregarded. However, a distinct and practically effective separation of state powers is the basis and a prerequisite for a functioning and long-lasting constitutional state.

All too often, the fact that the "Interlocking of powers" and close co-operation between the powers of the state is described in specialist literature as a characteristic of a modern constitutional state or functioning checks and balances. A distinction must be made between the often-mentioned interlocking of powers, which usually only describes the interaction, such as the fact that the federal or state government may submit draft laws to the responsible parliament for discussion and voting, usually in consultation with parliamentary groups.

There is also the Interdependence of state powers. The interweaving of powers is a close connection that thwarts the idea of the separation of powers. In the literature on the subject, it is sometimes argued that an overly consistent separation of state powers could hinder processes, making it inappropriate or even outdated or unfeasible in modern states.

Strictly speaking, this justifies a delicate state of affairs or even describes the rejection of the principle of separation of powers for our modern states in a coded way.
The frequent glossing over or justification of an alarming state of affairs, especially with regard to the judiciary, is striking. In many cases, reference is made to the vertical and Horizontal separation of powers pointed out. The "vertical separation of powers" represents the separation between the federal and state levels in the federal state.

The Basic Law

In the German Basic Law (Basic Law, GG), the powers of the state at the federal level are described in several articles, and the separation of the powers of the state from one another is not an explicit requirement of the Basic Law.

In particular, Article 20(1) enshrines federalism, as the Federal Republic is a federal state, and Article 28(1) of the Basic Law declares that the constitutional order in the [federal] states must comply with the principles of the [...] constitutional state within the meaning of the Basic Law, which is reflected in the state constitutions. This is to be accompanied by the "vertical separation of powers".

Article 20(2) and (3) states that "all state authority shall emanate from the people" and names the three branches of government as well as their obligation to law and justice. However, the nature of the separation and independence of these state powers from one another is not explicitly described. Article 92 of the Basic Law names the judges as the holders of judicial power, and Article 97 guarantees the independence of the judges.

However, it is premature, even negligent, to conclude from these written words that the separation of state powers will be realised in reality.

The state of the judiciary in the FRG

In the reality of the Federal Republic of Germany, criticising the status quo seems to be seen as sacrilege. This became clear in 2013, for example, when in a public hearing in the German Bundestag a draft law of the Left Party (DIE LINKE) on the creation of the independence of the judiciary was discussed: "Draft law to establish the institutional independence of the judiciary" and, in connection with this, a necessary amendment to the Basic Law, "Draft ... law to amend the Basic Law - establishing the institutional independence of the judiciary". The absolute majority of those invited to the hearing Experts saw no need for reform, judged the initiative to be unnecessary or even fraught with dangers and risks. (https://www.bundestag.de/webarchiv/textarchiv/2013/44141576_kw17_pa_recht_justiz-211924)

Although the Left Party's concern is certainly understandable, it was rejected in the parliamentary decision-making process.

Not only the Left Party, but later also the Alternative for Germany (Alternative für Deutschland, AfD) have made several statements outlining what they see as clear deficiencies in the separation of powers in the Federal Republic of Germany. For example, in a press release dated 20 February 2023, the parliamentary managing director and legal advisor of the AfD parliamentary group criticised the following Stephan Brandnerthat Election procedure for the Federal Constitutional Court judges. According to Brandner's proposal, a panel of judges could separate the legislative from the judiciary in line with the separation of powers. (https://afdbundestag.de/stephan-brandner-richterwahl-fuer-das-bundesverfassungsgericht-reformieren/) In a press release from May 2019, Brandner also criticised the lack of independence of German public prosecutors' offices, on which his party had introduced initiatives in the Thuringian state parliament and the Bundestag. (https://afdbundestag.de/brandner-gewaltenteilung-umsetzen-weisungsgebundenheit-der-staatsanwaltschaften-abschaffen/ , viewed on 3 March 2024)

The Alternative for Germany is not alone in this. The situation of the public prosecutor's office in the Federal Republic of Germany is a difficult case to analyse. European Court of JusticeECJ, a judgement worthy of note. The leader of the AfD party, Alice Weidel, has also made clear comments on deficiencies in the separation of powers in speeches and interviews, for example in a summer TV interview on ZDF in August 2022.

It is striking that in Germany, only representatives of parties that are permanently in opposition in the Bundestag make statements on the separation of powers and the rule of law, point out shortcomings in this regard and take initiatives. People or organisations that are professionally and politically established in the current system do not seem to want to shake things up. This is understandable for personal reasons: If you have successfully climbed a career ladder in a system according to its rules, you want to avoid changes to the system, as this career ladder could possibly disappear as a result.

If, over the course of several generations, responsible individuals or institutions have come to terms with a system throughout the entire structure of the state, however flawed it may be from certain points of view, it must be regarded as extremely entrenched. The will to reform has no opportunity to develop.

Only the Left Party parliamentary group in the Bundestag spoke out in favour of its above-mentioned bill in the recommendation of the Legal Affairs Committee, dated 26 June 2013. The BÜNDNIS 90/DIE GRÜNEN (Green Party) parliamentary group abstained. The other three parliamentary groups rejected the Left Party's bill. The Alternative for Germany (AfD) did not yet have a parliamentary group in the Bundestag in 2013. The Left Party's request is not unjustified in principle. Numerous experts, including lawyers, are in favour of a clear or fundamental independence of the German judiciary from the executive. However, this was not sufficiently emphasised by the experts invited to the hearing in the Bundestag. This can be explained to some extent by the rules for inviting experts to such parliamentary hearings and the reluctance of those invited to appear or speak uninhibitedly on certain topics.

In the Federal Republic of Germany, the professional careers of judges essentially depend on the judgement of the ministry or minister. Judges are aware that their behaviour and working methods must be adapted to the liking of the government, a minister and possibly even certain party lines if they do not want to risk a break in their career.
This allows the government to influence the promotion or appointment of judges according to its own standards. This means that the courts cannot be assumed to be independent. In detail, the federal states have different compositions of the committees for the election of judges. In some federal states, the Ministry of Justice is involved. The composition of the committees for the election of judges is not regulated in the Basic Law. The federal states themselves decide on this, usually with the involvement of members of parliament and members of the government.

A detailed explanation of the appointment, promotion and dismissal of judges in Germany can be found in the 'Scientific Service of the Bundestag', "Appointment, term of office and promotion of judges and public prosecutors". On the legal situation in Germany with regard to ordinary jurisdiction File no: WD 7 - 3000 - 043/22; completion of the work: 31 May 2022
(https://www.bundestag.de/resource/blob/902980/fa44b4a2bd35820f5a087513c2bc7207/WD-7-043-22-pdf-data.pdf).

This elaboration states the following with regard to the appointment of federal judges: "Pursuant to Article 95 (2) of the Basic Law, the appointment of judges to the supreme federal courts is decided by the federal minister responsible for the respective subject area together with a committee for the selection of judges. The Committee for the Election of Judges consists of the ministers of the Länder responsible for the respective subject area and an equal number of members elected by the Bundestag for the respective legislative period ..."

Court presidents also supervise their court as ministerial officials bound by instructions and thus sit between the chairs of the executive and the judiciary. Serious critical statements on the state of the judiciary and the lack of independence were made in the first years after the founding of the FRG, without this having any consequences for further developments. (https://www.gewaltenteilung.de/gewaltenteilung-in-deutschland-die-steckengebliebene-reform/).

Personal union: the link between the legislative and executive branches - parliamentarians as part of the government

"However, legislative bodies must not fulfil an executive function in any way; they must not become tyrannical. If enforcement were taken over by those who make the laws, there would be no more freedom."

• Charles-Louis de Montesquieu, "De l'Esprit des Lois"

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Cross-power dual or even multiple functions are no exception in the Federal Republic of Germany. If you take a look at the governments in the FRG, you will find that a dual function is more the norm: A large number of Minister is currently (and was) also a member of the Bundestag.

Parliamentary state secretaries even have to be members of the Bundestag. Similar conditions apply in the federal states. This means that these Government members of the largest or most influential party groups in the coalition in the Legislature on. According to political theory, the legislature is primarily responsible for exercising control over the government in addition to participating in legislation.

But these Members of Parliament in dual function As a rule, this is of course the opposite of government control. Instead, they support "their" government from within parliament and cooperate with ministries. The "hand-in-hand working" between ministries or the government cabinet and government parliamentary groups is part of everyday business. But is this situation also legitimate in terms of the separation of powers and the rule of law?

This becomes clear in the creation and parliamentary treatment of draft laws, which are obviously introduced by the government and parliamentary coalition in agreement and joint co-operation. The Opposition has no de facto opportunity to exert any significant influence; its criticism goes largely unheard in the parliamentary process. Only in the further course of the procedure, after the vote in the Bundestag, does an often factually critical statement appear from the Bundesrat (Federal Council), insofar as its consent is required.

As members of the government are also members of parliament and of the influential coalition groups, they exert influence on the parliamentarians of the relevant coalition groups - and therefore on parliament as a whole due to the majority ratios - or work together with the coalition groups. These "Government deputies" are also entitled to vote in parliament, which illustrates the undermining of the separation of legislative and executive powers. Participation in government and voting rights in the government cabinet (EXECUTIVE) as well as in parliament (LEGISLATIVE) is not in the least compatible with the separation of powers.

It can occasionally be observed how ministers move from the government bench to their parliamentary seats in the plenary chamber. Where is the separation of state powers required for a constitutional state? The same applies to the Federal Chancellor: apparently nobody finds it disturbing when the former Chancellor, Angela Merkel (CDU, Christian Democratic Union), was part of the CDU/CSU parliamentary group in the Bundestag or is now Chancellor Olaf Scholz (SPD, Social Democratic Party of Germany) as the head of the executive is also a member of the SPD parliamentary group and can advocate for the government's concerns or agenda at parliamentary group meetings and is also authorised to vote in the legislature. As already mentioned, the parliamentary state secretaries a connecting roller.

With the personal interdependence between government (executive) and parliament (legislative), we find the opposite of the separation of powers. Montesquieu is being thrown overboard.
Even if the members of the government do not always make full use of these options and rights, these avenues are open to them, and when it comes down to it, the government votes in parliament.

With all of the above in mind, it should be borne in mind that often the Minister of Justice at the same time Members of Parliament This is not unusual for the Federal Republic of Germany. This means that the interweaving of powers in relation to the judiciary is complete. In the 19th parliamentary term of the Bundestag, 2017 to 2021, for example, there was one Minister of Justice at federal level, Christine Lambrecht, and two Parliamentary State Secretaries in the Ministry of Justice (Christian Lange and Rita Hagl-Kehl), all three of whom were also SPD members of the Bundestag at the time.

The Parliamentary State Secretaries (officially: "Parliamentary State Secretary to the Federal Minister", in short: ParlSt) are often the subject of public disputes. In fact, they are to be regarded as non-voting members of the government; constitutionally and formally, however, they are not. They even have to be members of the Bundestag at the same time, with the exception of the Parliamentary State Secretaries in the Chancellery and the ParlSt to the Foreign Minister, both of whom may bear the title of Minister of State.

While the main issue today is the large number of ParlSt and the associated costs (in April 2022 there were 38 - German Bundestag - Current number of Parliamentary State Secretaries: https://www.bundestag.de/presse/hib/kurzmeldungen-890468), their office in the 1950s was a cause of public controversy in principle. Over the decades, the perception of the ParlSt shifted towards a purely material or monetary view.

The Parliamentary State Secretaries' main tasks also include representing or supporting the relevant minister in Bundestag committees or the parliamentary group's working groups. This means that the questionable function of liaising between the powers of the state is part of their job. The "Act on the Legal Relationships of Parliamentary State Secretaries (ParlStG)" regulates the details of this official relationship.

In the 20th legislative period, since 2021, the situation is similar to the 19th period. The Federal Minister of Justice, Dr Marco Buschmann (FDP), is also a member of the Bundestag. This means that this minister once again forms a link across all three branches of government: he is authorised to vote in the government cabinet as well as in the Bundestag and is also head of the Federal Ministry of Justice (BMJ). This gives him far-reaching powers in the judicial system. However, he "only" has one Parliamentary State Secretary (Benjamin Strasser, FDP). It is noticeable, however, that the "Traffic light coalition" - SPD, FDP, Greens - the total number of Parliamentary State Secretaries has recently increased significantly.

The function of Parliamentary State Secretaries represents an organised, additional undermining of the separation of powers, not only in the area of justice, but in all departments. From the point of view of the ministers concerned, their support and assistance function is understandable as desirable. However, measured against the standards of the rule of law, this position with its tasks and powers must at least be viewed critically and even rejected outright.

Analogue structures largely continue in the federal states. The regulations on parliamentary state secretaries are different and inconsistent in the German federal states. There is no difference in the practice that members of parliament can be members of the government at the same time. This raises the question of the meaning and effectiveness of the vertical separation of powers. Such a total linking of state powers or state organs, which according to theory should be separate, cannot be justified on the basis of practical requirements; there is not even the slightest hint of separation and independence here.

With regard to the three (traditional) branches of government, the fact that the members of governments - at state or federal level - are not only frequently also members of parliament, but often also have a special role to play within their own organisations, is a further complicating factor. Party one Leadership role or top positions and also have close ties across the federal and state levels through party memberships and connections via international network organisations, instead of a so-called vertical separation of powers.

It can have significant consequences if ministers or chancellors, as members of the parliamentary group, also have the authority to issue directives or guidelines within a large party, for example as members of the executive committee or other party committees, and from there influence two or even all state authorities with their party agenda, at both federal and state level.
The demand to maintain a separation of (party) office and parliamentary mandate is not unjustified. However, not even the Green Party, which in its first few years issued this as a bold slogan and objective, has stuck to it in the long term; the earlier declarations have fizzled out in the reality of political parties in the Federal Republic.

Other special features of the Federal Republic of Germany

The justice system as a whole must be considered separately in two complexes: The Case law (judiciary) by the courts or the judges working there - i.e. the Judicial power - and on the other hand the Public prosecutor's office. The main tasks of the public prosecutor's office include prosecution, investigation, indictment, monitoring the legality of the execution of sentences and co-operation with other law enforcement authorities - including internationally. It is obvious that objectivity and neutrality are important.

The public prosecutor's office in the Federal Republic of Germany is in any case a case worth examining in detail. However, this will only be done here to the extent necessary.
The European Court of Justice (ECJ) has ruled that German public prosecutors are not independent enough from the executive and are therefore no longer allowed to issue European arrest warrants. According to the ECJ ruling, one of the requirements for the execution of a European arrest warrant is that it is issued by an independent "judicial authority". This is not the case for German public prosecutors, as it cannot be ruled out that a European arrest warrant may be issued in individual cases on the instructions of the justice minister of the respective federal state. German public prosecutors are therefore not independent of the executive. In Germany, the Public Prosecutor General heads the public prosecutor's office. He in turn reports to the respective Minister of Justice of the federal state and is therefore not considered independent. The executive is authorised to issue instructions to him. (Deutsche Welle: "ECJ: German public prosecutors not independent27 May 2019") The ECJ has thus certified the dependence of this part of the judiciary on the executive.

There is also an academic debate about the extent to which the public prosecutor's office in Germany is subordinate to the ministries of the interior or (also) to the ministry of justice.

In addition, the Committee on Legal Affairs and Human Rights of the Council of EuropeIn 2009, under the chairmanship of Sabine Leutheusser-Schnarrenberger, it issued a comprehensive report calling on Germany, alongside the Russian Federation, the United Kingdom and France, to implement comprehensive reforms in the justice system. Among other things, an introductory summary of the report states that the committee demands "in Germany, the establishment of "judicial councils", as exist in most other European countries, so that judges and public prosecutors have a greater say in the application of the justice system and the exclusion of the possibility for justice ministers to issue instructions to the prosecution authorities in individual cases." Point 4.2.3. states: "in both countries, the independence of prosecutors is significantly less developed than in the UK; a clear regression in practice has recently been deplored by senior prosecutors and elected representatives of judges and prosecutors in France". (Original, English: "in both countries, the independence of prosecutors is considerably less developed than in the United Kingdom; a marked regression in practice has recently been deplored by senior prosecutors and elected representatives of judges and prosecutors in France„)

The following recommendation is summarised for Germany under point 5.4. and the associated sub-points - English-speaking Original:

The Assembly calls on Germany to:
5.4.1. consider setting up a system of judicial self-administration, taking into account the federal structure of the German judiciary, along the lines of the judicial councils existing in the vast majority of European states, as a matter of securing the independence of the judiciary in future;
5.4.2. gradually increase the salaries of judges and prosecutors and to increase the resources available for legal aid (as recommended for France in paragraphs 5.3.2. and 5.3.3. above);
5.4.3. abolish the possibility for ministers of justice to give the prosecution instructions concerning individual cases;
5.4.4. strengthen in law and practice the supervision by judges of the exercise of the prosecutors' increased powers, in particular in the fight against terrorism

Translation of (with apologies if this appears a second time in the English version):
The Assembly calls on Germany to,
5.4.1. to consider the establishment of judicial self-administration, taking into account the federal structure of the German judiciary, modelled on the judicial councils that exist in the vast majority of European countries, in order to safeguard the independence of the judiciary in the future;
5.4.2. gradually raise the salaries of judges and public prosecutors and increase the funds available for legal aid (as recommended for France in points 5.3.2. and 5.3.3.);
5.4.3. abolish the possibility for the Minister of Justice to issue instructions to the public prosecutor's office for individual cases;
5.4.4. to strengthen judicial supervision of the exercise of the public prosecutor's extended powers, particularly in the fight against terrorism, both in law and in practice. (Report: Document 11993, 7 August 2009: https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=12276&lang=en; https://www.gewaltenteilung.de/europarat-pressemitteilung/)

If the Federal Republic were to become a candidate for EU membership today, the situation of the judiciary would certainly be an obstacle and the FRG a questionable candidate for accession. Since Germany was one of the founding members of the EEC, EC and thus the EU, this was never an issue. The current demands for reform are being tacitly ignored. They found no resonance in this country and went under with the few press reports at the time.

It is remarkable how, in view of the situation here, other countries, such as Poland or Hungary, are accused of making the judiciary dependent and jeopardising the rule of law because of their judicial reforms. In the Federal Republic of Germany, the first step should be to work on Rule of law in one's own country or to establish them at all before pointing the finger at other countries.

The horizontal and vertical separation of powers in the FRG

The traditional separation of powers into the legislative, executive and judicial branches of government is Horizontal separation of powers refers to. In a federally organised state such as the Federal Republic of Germany, these should be found at federal level as well as in the federal states.

The Vertical separation of powers describes the division between the federal and state levels in the federal state, in the Federal Republic of Germany between the federal level and the federal states. This type of state structure is intended to balance the powers across the federal levels. However, this could only work if these levels also had a certain degree of separation and independence from each other and there were no major "bracketing effects" between the federal and state institutions.

The Federal Council

The Federal Council As a second chamber of parliament at federal level, it assumes the parliamentary representation of the federal states. Some Western states have a second parliament (a second chamber) or a bicameral parliament. In the Federal Republic of Germany, however, the Bundesrat, as the second chamber of parliament and federal legislative body, is not directly elected by the citizens. Instead, the Bundesrat is made up of members of the governments of the federal states, usually the minister presidents and other government representatives of the federal states. The federal states each delegate three to six members to the Bundesrat, depending on their size.

Provided that Opposition groups have a political "foot in the door" at federal level (in the Bundestag) through government participation in one or more federal states, they may be able to influence legislative decisions at federal level via the Bundesrat. The consent of the Bundesrat is required for new federal laws that require approval. However, the Bundesrat itself can also submit draft federal laws to the Bundestag.

The extent to which the Federal Council consolidates the vertical separation of powers and actually fulfils an intermediary role between the federal and state levels cannot be described with certainty in a nutshell. It is highly likely that there is a consensus that without the Bundesrat, the deficiencies in the separation of powers described above would be more serious. However, here too, the parties form the link between the powers and the political federal and state levels. Party interests and party silos weaken a political system based on the separation of powers unless they are stopped.

The Federal Constitutional Court

The Federal Constitutional Court (BVerfG) of the Federal Republic of Germany plays a special role in the attention it receives from politicians and the media and has an essential function. It is comparable to the constitutional courts of other countries, but has a particularly high status. As a rule, decisions of the constitutional courts or constitutional tribunals in most countries are only of a recommendatory nature. In the Federal Republic of Germany, the decisions of the Constitutional Court are legally binding.

The German Federal Constitutional Court is divided into two chambers of 8 members each. Half of its 16 members, the federal constitutional judges, are appointed by the Bundestag and half by the Bundesrat through nomination and election. After the election, the elected members are sworn in as constitutional judges by the Federal President. However, the right to nominate candidates is reserved for the parliamentary groups, with the parliamentary groups of the so-called people's parties, SPD and CDU/CSU, traditionally taking turns to nominate candidates. With a certain regularity, however, they cede the right of nomination to the Alliance Greens (B90/The Greens) and the FDP. As a rule, the SPD occasionally leaves a proposal to the Greens and the CDU/CSU to the FDP.

As can be seen from this, the right to nominate candidates goes to the two current Opposition parties, THE LEFT and AfDover. (How this will develop in the future with the newly emerging parties, Sahra Wagenknecht Alliance and the ValuesUnion Party remains to be seen. An opposition that is growing in numbers and importance cannot continue to be suppressed in this way).
Their candidates would not have a chance of being elected anyway, which is safe to say with the required two-thirds majority.

It is not possible to apply as a candidate yourself, which means that parliamentary groups or parties - certain parties - are solely responsible for selecting candidates. It is therefore entirely up to the leading, established party factions in the Bundestag - and thus indirectly to the party headquarters of some parties or party-affiliated representatives in the Bundesrat - to determine the highest judges of the Federal Republic.

As you can see from this one example Party affiliation and party-affiliated localisation play a significant role in the Election of constitutional judges and thus the composition of the supreme court as a whole. And not only that: it is also questionable from the point of view of the traditional separation of powers if the legislature appoints important members of a key area of the judiciary without at least having an external right of nomination or the opportunity to freely apply to become a constitutional judge.

In addition, the Federal Constitutional Court is supposed to scrutinise the executive as well as the legislature. However, if the legislature, in conjunction with the executive, itself appoints or elects the constitutional judges who control it and these judges were often previously members of parliament themselves, this control can be characterised as weak. A questionable connection of interests or a contradiction to the claim of separation of organs and persons is obvious here.

It is also tricky when the Bundesrat, as a legislative body made up of representatives of the executive (the federal states), elects the other half of the constitutional judges and the influence of the same parties comes to bear as they have majorities in the Bundestag as well as in the state parliaments and form the governments.

In any case, this way of selecting judges for the highest court calls into question the principles of the rule of law. This is not to say that this control of the legislature and executive by the Federal Constitutional Court is excluded, but it must be regarded as insufficiently established due to the system, and there is a risk of alignment with party and government lines as well as government objectives.

In recent years, there has even been increasing criticism that the BVerfG is encroaching on the legislature, i.e. in the opposite way, as one must fear from the above description. Professor Dr Dr h.c. Dietmar Willoweit: "Today, it is obvious to defend the independence of the legislative power against presumptions of jurisdiction. It has gained so much ground at the expense of parliament that doubts must arise as to the constitutional admissibility of judicial practice." And Willoweit continues: "There is no need for individual evidence here to recall such well-known phenomena as the invention of new fundamental rights by the BVerfG or the instructions of this court for legislation that conforms to the constitution." (JuristenZeitung, 17th year, 6 May 2016, p. 431).
It is open to speculation to what extent these assaults or presumptions only appear as such on the surface but are possibly based on agreement or arrangements in the background. In any case, this phenomenon is highly questionable.

The Office for the Protection of the Constitution - VS

Another special feature of the FRG: the offices for Defence of the constitution (Verfassungsschutz, VS for short). In addition to the Military Counterintelligence Service (MAD) and the Federal Intelligence Service (BND) is the VS with its network from the Federal Office for the Protection of the Constitution (BfV) and the State Offices for the Protection of the Constitution (LfV) one of the secret services of the Federal Republic of Germany. Both the state offices for the protection of the constitution and the Federal Office for the Protection of the Constitution are managed by President of the Federal Office for the Protection of the Constitution.

The President of the Federal Office for the Protection of the Constitution is nominated by the Federal Minister of the Interior in consultation with the Federal Cabinet, i.e. the Federal Government, and subsequently appointed by the Federal President. The BfV President is appointed for an indefinite period of time. He can only be dismissed by the Federal President at the request of the Federal Government or at the suggestion of the Federal Minister of the Interior. The President of the BfV therefore reports directly to the Federal Government.

The situation is similar in most federal states with the presidents of the state offices for the protection of the constitution. Here, a new president is proposed for the respective LfV in consultation between the government cabinet and the interior minister, i.e. after consultation within the state government. In some federal states, the president of the Office for the Protection of the Constitution is elected by the state parliament. One difference to the federal level is that the new President of the Office for the Protection of the Constitution is appointed by the Interior Minister of the federal state itself. Given the key and high-profile role of this secret service, its influence and its often criticised and mostly non-transparent way of working, this direct appointment by the state parliament is not a good idea. connection as well as the dependence of the Office for the Protection of the Constitution on the executive to view.

The German public was made aware of the inadequacy of this election procedure for the President of the Federal Office for the Protection of the Constitution in 2018 through the influence of then Chancellor Angela Merkel. Merkel used her influence to prevent the candidate Armin Schuster, who was already considered a certainty due to previous agreements between the Federal Minister of the Interior, Horst Seehofer, and some leading members of parliament. Schuster was apparently unpopular with Merkel because he had criticised her immigration and refugee policy in the past. As a result, Thomas Haldenwang (CDU) was appointed as the current President of the Office for the Protection of the Constitution. Haldenwang attracts attention from the outset because he makes it clear in words and deeds that he is fighting right-wing opposition on a massive scale. He openly declares war on certain opposition groups and acts accordingly in an offensive and high-profile manner.

Since its inception, the Office for the Protection of the Constitution has been accompanied by scandals. Abuse of the influence of the offices for the protection of the constitution against the opposition or certain media or individuals is also a frequent accusation and has been proven in some cases.

One of the working methods of the VS is to infiltrate so-called "V-men", today usually referred to as "V-people". V-man stands for "confidant". V-men are undercover investigators who are often recruited as liaisons and often belong to the organisation being investigated or spied on or the associated environment or are infiltrated there in a planned manner. However, their task is not only to investigate and spy, i.e. to obtain information, but also to actively engage in criminal activities in order to remain undetected, maintain trust and even exert far-reaching influence on events and people.
This became public in the well-known case of the failed NPD ban proceedings from 2001 to 2003 (NPD - National Democratic Party of Germany). The Federal Constitutional Court rejected the application to ban the party because the extensive activities of the VS within the party made it impossible to distinguish which actions and statements were actually the activity of the NPD itself and which were due to the activities of infiltrated Verfassungsschutz V people. This means that through years of activity, apparently even decades, the VS has significantly influenced and shaped the party itself in a way that fundamentally moulded its character and nature, which means that it is or was to a large extent a product of the VS rather than undergoing an independent development.
It is impossible to understand how this party would have looked and developed without the work of the VS. It is reasonable to assume that the NPD would have been a different party without the VS.

This is just one example of many that, when measured against constitutional standards, must give rise to serious doubts about the meaning and purpose and, above all, the working methods of this German domestic intelligence service or intelligence network. And it is therefore particularly difficult when government politicians and indirectly party functionaries are able to influence such an organisation and there is a serious lack of transparency.

The Office for the Protection of the Constitution (VS) was founded in 1950 on the initiative of the three Allied High Commissioners of the occupying powers in the Western occupation zone and the still young Federal Republic of Germany.
Doubts about the purpose, working methods and methods as well as possible misuse of the VS come from various sides, from different political camps or parties.

The Office for the Protection of the Constitution is increasingly confronted with the accusation that it is protecting the major parties but not the constitutional order in the country. It is also accused of acting unilaterally, Government protection and means of Fighting the opposition is explained. The extent to which these evaluations and assessments are justified needs to be analysed in detail. In any case, it is highly questionable that the Office for the Protection of the Constitution, both at state and federal level, reports to the respective government and that the responsible government can appoint the President of the Office for the Protection of the Constitution. It is no secret that governments or interior ministers (in the case of Berlin, the interior senator) have sometimes issued direct instructions to offices for the protection of the constitution. Such cases have been publicised. Such a large and influential domestic intelligence service must not be firmly linked to the executive in this way. This also means that the parties close to the government have influence.

Critics of the VS and its actions include constitutional lawyers, representatives of some parties and also the left-wing lawyer and civil rights activist Rolf Gösser, who was observed by the VS for 38 years due to "contact guilt". A final judgement by the Administrative Court of Cologne in 2011 found that the long-term surveillance of Gösser by the VS was unlawful.
This judgement was confirmed in 2018 by the Higher Administrative Court of North Rhine-Westphalia in Münster. Such cases are not isolated instances. Rolf Gösser himself compares the Office for the Protection of the Constitution and its methods with the state security of the GDR (Staatssicherheit, StaSi).

Political parties

As there was no parliamentarianism and no political parties as we know them today in Montesquieu's time, political parties and their factions in parliaments could naturally not be taken into account in his theories. The reality of state and social structures has developed towards more complexity and thus deviates in part from the ideals and assumptions of Locke and Montesquieu. If we want to theoretically discuss the current situation of the rule of law and state structure, measured against today's realities, we cannot avoid considering other forces in addition to the three state powers described by Montesquieu. These forces must be considered as additional factors in the overall structure of state and international mechanisms of action. Parties are one such factor.

In modern states, political parties form a link between the powers of the state. They are often ascribed the role of a further force or power with a critical finger pointing, as their representatives fulfil tasks or exert influence in all areas of state structures and strongly influence the opinion-forming of the electorate, alongside the leading media.

In recent years, the role and the various opportunities for parties to exert influence have been increasingly criticised in Germany.
The well-connected members or leaders of parties - mainly the larger, established parties - are represented in parliaments, governments, councils (e.g. broadcasting councils of the public media institutions), administrations and have connections to other influential organisations and multipliers (lobby organisations, associations, federations, political non-parliamentary groups and others). The sphere of influence of parties or certain important party members extends into the economy or media, or they are networked with increasingly influential, internationally active non-governmental organisations (NGOs).

In many countries, especially in Germany, party affiliation or at least a good connection to certain parties is also decisive for appointment to certain judicial positions or a successful career as a judge, as explained above. As far as public prosecutors are concerned, the situation is similar in the FRG. Especially in the Federal Republic of Germany, the position and influence of the parties cannot be overestimated. In 'Konrad Duden: Richterwahl und parteipolitische Einflussnahme - Vergleichende Anregungen zum Schutz der Unabhängigkeit des Bundesverfassungsgerichts und der obersten Bundesgerichte' (German), the author makes an international comparison between the situations in different countries and possible dangers of the influence of strong parties (Konrad Duden, 'Richterwahl und parteipolitische Einflussnahme. Comparative suggestions for the protection of the independence of the Federal Constitutional Court and the supreme federal courts'; ISSN 0033-7250 - © 2020 Mohr Siebeck. - here online to find.

Last but not least, party proportionality and parliamentary group strength have an impact on numerous committees. These include parliamentary committees. These are filled according to the size of the party parliamentary groups, which means that the larger parliamentary groups, which generally form the governing coalition and are therefore naturally close to the government, also have a preponderance in parliamentary committees. This marginalises the influence of the opposition groups, which have fewer votes, in such committees that are important for the parliamentary, legislative role, as is also the case in parliamentary votes and allocated speaking time or the right to make proposals. The long arm of the government thus extends far into parliament.
Of course, it can be argued that this balance of power reflects the will of the voters. In parliamentary reality, however, it is clear that the opposition is in many respects at a loss compared to the coalition parties and that, as a consequence, the will of the voters of opposition parties is at best insufficiently recognised. This suppression of the will of the voters can be particularly pronounced when two or even three parliamentary groups deliberately push relatively strong opposition groups into a corner via coalitions.

According to Article 21 (1) sentence 1 of the Basic Law, the parties participate in the decision-making process of the people. The Basic Law thus grants the German parties the status of a constitutional body. What sounds so harmless here has been a far-reaching reality in Germany for decades in an exaggerated form.
This is supported by the now lavish state funding of political parties in the form of a lump sum for election campaign costs, donation subsidies and, last but not least, the funding of party-affiliated foundations (in most cases actually organised as registered associations) - all together around 800 million euros per year, of which 20 parties receive funding. Of course, the majority of this goes to the parties in the Bundestag; of these, the Alternative for Germany (AfD) receives by far the smallest share, as its party-affiliated foundation currently receives no funding and efforts are openly being made to maintain this in the future, contrary to the usual rules and practices.
It will now be exciting to see how the newly founded parties will be dealt with in the coming years: The Sahra Wagenknecht Alliance (BSW) and the spin-off from the CDU, the Values Union Party (Werte Union).

The well-known German constitutional law expert Professor Hans Herbert von Arnim has achieved the repeal of many laws through successful lawsuits, writings and expert opinions on party finances, parliamentary salaries and the remuneration of members of government. Hans Herbert von Arnim has also put his finger in the wounds with numerous books over the decades. He is regarded as one of the most knowledgeable and influential critics of the influence and financing of parties and the party felt in Germany. In his most recent book "Die Angst der Richter vor der Macht" (The judges' fear of power), first published in 2015, new edition 2020, von Arnim once again gets to the bottom of the problem based on his experiences, including criticism of the Federal Constitutional Court.

The profound interlinking of state powers - in connection with the parties' influence on the opinions, knowledge and ideological orientation of the population - creates a system that is sometimes referred to as "articulated democracy". Former Federal President Richard von Weizsäcker declared in an interview in 1992: "The parties have made the state their prey", the parties are "obsessed with power".

Has Germany really learnt from history?

In this country, reference is all too often and fervently made to recent history - the 'Third Reich' and the 'German Democratic Republic' (GDR). We should learn from the mistakes of the past, it is repeated from various sides on all conceivable and also less appropriate occasions.
Today, the Basic Law and de facto the entire state system assigns parties, of all things, such a degree of influence as described above.

As a lesson from history, it is imperative to keep a watchful eye on parties, their hierarchies and influence and the urge to dominate the state! Did not the National Socialist Workers' Party of Germany (NSDAP) - authorised by parliament - implement a dictatorial leader principle combined with party rule from 1933 onwards? In 1933, referendums in this far-reaching form would not have been able to achieve anything like this; indeed, it is possible that the seizure of power would not have taken place through direct democracy. From this we can conclude that even democratically established parliaments are no sure bulwark against the emergence of a dictatorship.

Likewise, the GDR was a party state, which, also as an arbitrary rule with the Socialist Unity Party (SED), created and maintained a party dictatorship. As in all dictatorial, socialist and communist states, the party and its functionaries were at the centre, and they were able to act largely untouched by constitutional structures, ordered by separate state powers and the distribution of power.
What both systems have in common is that, in the absence of a separation of powers, the party leaders, party cadres and party functionaries directed state affairs and processes, determined careers, controlled ministries, the judiciary and secret services and thus realised a totalitarian form of rule.

It becomes dangerous for a constitutional state and thus for freedom and justice when relatively small groups of people, inspired by the belief that they are doing the only right thing and have history or morality on their side, can push through their ideological or personal goals largely unchecked.

The fact that there is a lack of critical awareness in Germany of all places today of the dangers that can emanate from parties and party power leads to the conclusion that the endeavour to learn from history is obviously being ignored in some respects. However, we need to be more specific here. The dangers of parties are often pointed out today when it comes to opposition parties. As far as the existing structures and the influence of the established parties that have existed for decades are concerned, people are blind in at least one eye.

Other external forces and influencing factors

In an increasingly complicated political world with further national but above all international or supranational players, an expanded view of important influencing factors and institutions relevant to decision-making and today's important additional forces must be considered in detail:
The EU and other supranational organisations of which a country is a member or with which it is contractually bound (e.g. UN with all its sub-organisations, NATO, OSCE, etc.),
Non-governmental organisations,
Transatlantic and supranational network organisations,
Lobby organisations.

Of course, it is important to question the extent to which the EU's influence on political processes and legislation in the European member states can be justified under the rule of law. It also has a massive indirect influence on opinion-forming and social development.

Just because citizens have been told for decades that the progression of "European integration" to such an extent is progressive, important and would serve certain noble goals and promote peace and the economy, this does not mean that the increasing all-encompassing influence of the EU Commission and the ECJ and other institutions on all areas of life and the associated Dismantling state sovereignty and rule of law can be legitimised. After all, unelected persons, some of whom are hardly known to the citizens, exercise a power over politics in the member states that is highly questionable.

This must also be scrutinised if the German Federal Constitutional Court approves such "progress". In this context, it is important to consider the independence and objectivity of the Federal Constitutional Court. Above all, it should not be overlooked that the European Union itself does not have a sufficiently democratic structure that conforms to the rule of law: Key EU officials are not democratically elected - the composition and working methods of the influential Commission are not subject to the co-determination of voters in the member states and lack transparency. On the other hand, the sovereignty and powers of democratically determined state bodies are being undermined. Certainly, the value and impact of the EU and its various institutions cannot be dealt with conclusively here; that is not the task of this paper. However, it is clear that the EU itself and its influence must also be viewed critically if the rule of law and the state of the separation of powers in the European states are to be analysed.

to part 3

Der Beitrag Bundesrepublik Deutschland am Scheideweg – Ohne Gewaltenteilung kein Rechtsstaat – Teil 2 erschien zuerst auf Advocatus Veritas.