Germany debates prisoner swap: A 'deal with the devil'?

German Chancellor Olaf Scholz was visibly relieved about the historic prisoner exchange with Russia this Friday as he greeted 12 of the released prisoners at the Cologne Bonn Airport.

Their reception was reserved in comparison to the jubilant scenes in Washington, where US President Joe Biden and Vice President Kamala Harris embraced journalist Evan Gershkovich and other former prisoners in front of media.

Scholz spoke only a few words, saying that the exchange had only been possible "through intensive cooperation with many European countries and especially with the United States of America over a very long period of time."

He went on to say that he believed this agreement had been the right decision in the end, and that anyone with doubts would reconsider after speaking to those who were now free.

Independent of any moral or ethical assessment, the exchange was a major diplomatic achievement.

Russia released 16 prisoners in the exchange, among them four with German passports. In return, eight Russians were released, including the "Tiergarten murderer" Vadim Krassikov. He was sentenced to life in prison in late 2021 after a Berlin court found him guilty of fatally shooting a Georgian of Chechen origin in the city's central Tiergarten park in August 2019.

'Justified by the human gain'

Debate in Germany about the prisoner swap revolves primarily around Krassikov and the question of whether a constitutional state ought to simply release a convicted murderer. But unlike many debates on current political issues, this one has been thoughtful and moderate.

Leading opposition politicians from the conservative Christian Democratic Union expressed their fundamental approval, perhaps in part because Scholz announced that CDU leader Friedrich Merz had received advance notice and signaled his agreement.

CDU foreign affairs expert Norbert Röttgen told national broadcaster Deutschlandfunk that while Germany had accepted a "serious disadvantage," it was "justified by the human gain, by freedom and the liberation from torture for 16 people."

Michael Roth, foreign affairs expert for the center-left Social Democratic Party (SPD) summed up the German dilemma succinctly in a post on social media platform X (formerly Twitter), writing that sometimes one is called to to "make a deal with the devil for the sake of humanity." In this case the devil was Russian President Vladimir Putin.

Legal gray zone

Asked about the legal basis on which Germany acted, Christian Mihr, deputy secretary general for Amnesty International in Germany, told DW: "International humanitarian law contains rules on the exchange of prisoners of war. In the current case, however, we are not dealing with prisoners of war and there are no fixed rules with which states must comply."

There are also no provisions for prisoner exchanges in German law. The government used Section 456a of the Code of Criminal Procedure, which states that a prison sentence can be waived under certain conditions. This decision was reached on behalf of the federal government by Justice Minister Marco Buschmann of the libertarian Free Democratic Party (FDP).

Observers agree that the exchange came about primarily because Putin wanted convicted murderer Krassikov, while US President Biden was motivated by the release of Gershkovich. Does that mean that Germany, and Chancellor Olaf Scholz in particular, caved to pressure from the US in agreeing to release a murderer from a German prison?

Günter Krings, the CDU's legal policy spokesman, said that the legal system cannot be "arbitrarily subordinated to foreign policy considerations." He considers the exchange to be fundamentally wrong, though he concedes that he is the lone member of his party to hold this opinion.

Some politicians have also expressed fears about what the consequences of the deal might be. "From a human perspective, this deal was probably the only way for some political prisoners like Vladimir Kara-Mursa and Evan Gershkovich to escape alive from Russian hostage-taking," CDU security expert Roderich Kiesewetter told DW. But Russia is a terrorist state that is waging a war against our way of life, he added. "This includes the fact that hostage diplomacy is intended to create precisely this dilemma."

The dilemma being that the rule of law must violate its own principles to save lives. Kara-Mursa is a Russian-British politician and journalist who was the target of at least two poison attacks and sentenced to 25 years in prison in April 2023 for condemning the Russian invasion of Ukraine.

Cold War strategy

But could the successful exchange mean that new diplomatic lines of communication with the Kremlin might help to end the war in Ukraine?

Political scientist David Sirakov, who directs the Atlantic Academy Rhineland-Palatinate, a non-profit institution that fosters transatlantic relations, warned against such optimism. "This is not a confidence-building measure, nor does it raise hopes for a better relationship with Moscow or Minsk," he told German news wire DPA.

This article was originally written in German.