Project of an International Commission of Jurists inquiry committee on Berlin

Notes about the project of an International Commission of Jurists inquiry committee on Berlin.

1. The question of Berlin consists from the legal point of view of three separate issues:

(a) The right of the Western powers to a joint participation with the USSR in the administration of the entire city (Gross-Berlin, Greater Berlin in the sense of the London Protocol of September 12, 1944) with the appurtenant rights of free access thereto;

(b) The human rights of the population of West Berlin, violated by the arbitrary erection of a dividing wall between the West and East sectors of the city on August 13, 1961, with the result of breaking up some 300,000 families with members in both parts of Berlin, disrupting orderly commerce and services and creating a permanent threat to peace and security along the artificial border;

(c) The human rights of the population of East Berlin and of East Germany, affected by a legislation and administrative practice which have, particularly since August 13, 1961, been promulgated and applied in violation of the East German Constitution and of generally accepted principles of the Rule of Law.

2. The International Commission of Jurists “is dedicated to the support and advancement of those principles of justice which constitute the basis of the Rule of Law. The Commission conceives that the establishment and enforcement of a legal system which denies the fundamental rights of the individual violates the Rule of Law”. (Statute, Art.4, par .1)

The situation in Berlin and – through the so-called emergency measures related to it and imposed by the East German Government – in all of the German Democratic Republic is one where the government in power generally and systematically violates the Rule of Law. Freedom of movement, of information, of opinion, of communication, of choice of employment, has Project of an ICJ Inquiry Committee on Berlin been totally suppressed; forceful deportations have been undertaken as administrative measures on a large scale without legal basis and available remedies; condemnation of real property and confiscation of personal property without due process of law have become a common practice in exposed border areas not only in Berlin proper but throughout the Soviet Zone; shooting at and killing of would-be refugees has developed into daily routine with policemen punished on suspicion of deliberately avoiding the target; an enabling act was passed authorizing detention in labour camps without trial and legal charge “in the interest of the community”; a defence law provides for mobilization of human and material resources in gross violation of constitutionally guaranteed personal and property rights of the East German population.

3. It is therefore proposed that in response to an invitation from the Supreme Civilian Authority of West Berlin – the Senate -, which would be submitted once the Commission policy on the subject is finally determined, the International Commission of Jurists set up a committee of inquiry consisting of 3-5 members drawn from non-committed countries of various continents with a Secretary from among the Commission staff to investigate the alleged violations of human rights mentioned above under 1 (b) and (c) and resulting:

(a) from the physical division of the City of Berlin, and

(b) from the measures taken by the East German Government under the pretext of an emergency situation arising from the demands of the Soviet Government in the matter of control over Berlin,

to report to the Commission and to publish in due time its findings in appropriate form. The committee, whose frame of reference would be drawn up prior to its proceeding with the inquiry, would request adequate office facilities in West Berlin and would be given ways and means to summon and hear witnesses in Berlin and in the territory of the Federal Republic. The committee would also reserve the right to request information and evidence from Soviet and East German authorities.

4. The work of the committee could not be totally divorced from the actual political realities. It is, however, proposed that the inquiry of the committee be limited in this field to the establishment of one basic legal fact, namely the separate character of the entire city of Berlin (Gross-Berlin) within the framework of the occupational system devised by the victorious powers and the rights deriving there from.

The question of civilian access to the city is part of the problem of the freedom of movement that would form a legitimate point of inquiry of the committee.

Conversely, the problem of the legal existence and sovereignty of the East German State would not be dealt with by the committee as its implications are primarily of political nature and as the result of such an inquiry would not reflect on the main issue under consideration, i.e., the alleged violation of fundamental human rights in the area.

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