International Criminal Law in Germany: An Overdue but Incomplete Reform

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After more than 20 years of German practice in international criminal law (ICL) pursuant to the entry into force of the Code of Crimes against International Law (Völkerstrafgesetzbuch, VStGB) in 2002, the Federal Government has proposed a Draft Bill (Draft) to amend German ILC at various levels. The Draft primarily provides for changes to the VStGB, the Code of Criminal Procedure (Strafprozessordnung, StPO) and the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG). The legislator’s aim is to “close gaps in criminal liability, strengthen victims’ rights and improve the impact of ICL trials and judgments.” (Draft, p. 10). However, the Draft is silent on the central principle of (functional) immunity. This gap should be closed in the legislative process.

Selective comments

The draft is detailed and by and large convincingly justified, which is why a few selective comments should suffice here.

Germany’s current “pioneering role” in the prosecution of international crimes is rightly emphasized (Draft, p. 10). Yet, this pioneering role is of more recent date. The author still remembers well the meetings of the VStGB expert working group set up by the then Federal Minister of Justice Däubler Gmelin and various events of the (non-governmental) ICL working group (AK Völkerstrafrecht), in which the representatives of the Federal Prosecutor’s Office (Generalbundesanwalt, GBA) in particular appeared extremely skeptical about the project of a German ICL and tried to interpret the principle of universal jurisdiction (sect. 1 VStGB) as restrictively as possible. This was ultimately achieved with the discretionary procedural norm of section 153f StPO, which largely goes back to the influence of the Federal Public Prosecutor’s Office. Today, however, ICL investigations and prosecutions belong to the Office’s main areas of work – alongside terrorism, espionage and the appellate work. Against this background, it is regrettable that the Draft does not strengthen the position of the GBA by abolishing the right of the Federal Minister of Justice to issue instructions.

The proposed substantive changes are all convincing and mostly necessary. For example, the criminalization of “sexual assault” (“sexueller Übergriff”) follows, on the one hand, the development of ICL with its stronger focus on sexual violence (especially in armed conflicts) and in particular also covers cases that fall under the – for reasons of certainty – problematic – catch-all offense of Article 7 (1) (g), (2) (f) (“any other form of sexual violence of comparable gravity”). On the other hand, the change also aligns with (the amended) section 177 (paras. 1, 2) of the Criminal Code (Strafgesetzbuch, StGB), which sees sexual assault primarily as an attack on (sexual) self-determination and autonomy. “Sexual slavery” increases the injustice of simple slavery (sect. 7 (1) no. 3 VStGB).

When it comes to “enforced disappearance”, the waiver of the requirement of inquiry (“auf Nachfrage”) is not only in line with international (criminal) law (it is not found in Article 7 (2) (i) of the Statute of the International Criminal Court [ICC-Statute] nor in Article 2 of the 2006 Convention on Enforced Disappearances), but also reasonable. The obligation to provide information arises from the previous (criminal) unlawful conduct of the State or the organization that deprived a person of their freedom. It does not have to be triggered by a request or inquiry from relatives or other close persons. Such an additional requirement also ignores the criminological reality of enforced disappearances. The victim and his relatives are regularly confronted with an organized power apparatus, the questioning of which is either life-threatening or completely pointless because no (true) information can be expected. The criminalization of enforced disappearances as an individual offense (new section 234b StGB) is also convincing. Although the incriminated conduct is already covered by other offenses (in particular §§ 234a, 235, 239-239b, possibly §§ 211, 212, 223 ff. StGB), the specific wrongfulness of an enforced disappearance can only be adequately represented by an autonomous offense. Of course, this argument also applies to other (individual) crimes under ICL, above all torture (cf. Article 4 of the 1984 UN Convention), for which Germany has so far refrained from implementing a specific torture offence, arguing, inter alia, that the respective conduct is already covered by other offenses. In terms of jurisdiction ratione loci, the new Section 234b StGB is subject to the principle of universal jurisdiction via section 6 No. 9 StGB given its basis in an international treaty (the above mentioned Enforced Disappearance Convention).

From a methodological perspective the repeated reference to customary international law (CIL) deserves some criticism (especially since it seems to put CIL on an equal footing with the ICC Statute as an international treaty), although, arguably, any ICL criminalization needs a basis in CIL to be legitimate. At any rate, there are two problems: For one, the identification of CIL, especially when it comes to international crimes, is by no means an easy undertaking; notwithstanding, the concept is used in an almost inflationary manner by ICL case law, without even a rudimentary discussion of the difficult prerequisites and conditions for the existence of such CIL (for the conclusions of the respective deliberations International Law Commission [ILC] see here). Likewise, the reference to the ICC-Statute as the source and reason for CIL is by no means unproblematic given that an international treaty is an autonomous source of international law vis-a-vis CIL (cf. Article 38 (1) (a) and (b) ICJ Statute) and it is controversial whether and to what extent CIL can be derived from it (see ILC Conclusion 11, especially paragraph 2).

The extension of the Nebenklage (sect. 395 StPO), i.e., a private accessory prosecution by the victim giving her a sort of partie civile status, to (certain) crimes under international law is to be welcomed. It clarifies the previously uncertain legal situation created by the opening clause of section 395 (3) StPO allowing for the joining as an accessory prosecutor/plaintiff pursuant to the “serious consequences of the crime”, a highly uncertain formulation essentially determined by case law. The proposed extension is long overdue because the (foreign) victims of these crimes are exposed to particular pressures that require their procedural involvement as well as their legal and psychological support. This also justifies recognizing genocide as a crime that allows for an accessory prosecution, regardless of the dispute about its character as (also) protecting individual (not just collective) interests (leaving open Bundesgerichtshof [BGH, German Supreme Court] decision of November 30, 2022 – 3 StR 230/22, para. 56). However, it is debatable whether property crimes (§ 9 VStGB) should not have been taken into account too, given that there exists a special need for protection of the victims since these crimes amount to war crimes, i.e. acts committed during an armed conflict. Furthermore, as with offences against life, physical integrity and freedom, an important individual right is being attacked here too. What is worthy of criticism, however, is the limitation of the victim’s active participation to the assigned lawyer (as “Beistand”, § 397b (4) new StPO) and the resulting disadvantageous position compared to other victims entitled to partie civile status exercising their procedural rights themselves (cf. § 397 (1) cl. 3, 4 StPO); it should be noted however that the restriction does not apply if the right to partie civile status can be based not “only” (§ 397b (4) new StPO) on VStGB crimes but also on (ordinary) offenses of the Criminal Code (StGB). At least worthy of discussion is the regular assumption of similar interests and thus joint legal representation of victims of ICL crimes in the case of “the same factual situation” (“Lebenssachverhalt”, corresponding to the act in procedural terms [“prozessuale Tat”] (§ 397b (1) cl. 2 no. 2 new StPO).

The deletion of the reference to Germany in section 169 (2) GVG allowing for a trial documentation now (finally) makes clear that ICL proceedings have a contemporary historical significance that extends beyond Germany and is rather independent of any link to Germany. In fact, these proceedings are by definition of trans- or international interest (just recall the historic Syria torture trial before the Koblenz Appeals Court). Last but not least, the increase in the storage and selection review periods in section 77 (1, 2) of the Act on the Federal Criminal Police Office (BKAG) appears to be a technical marginality, but in view of the fact that investigations of international crimes often begin long after commission and take a long time, it can be decisive in ensuring that relevant data is still available (see also Draft, pp. 46-7).

The elephant in the room: no rule for functional immunity

Immunity represents an important obstacle to prosecution for international crimes, especially when perpetrators belong to the leadership level of a State. For a start, one must distinguish between personal immunity (ratione personae), which only benefits the highest State representatives (the so-called trias of head of state, prime minister and foreign minister), and functional immunity (ratione materiae) for (sovereign) official acts (acta iure imperii). The former applies, in principle, absolute at the horizontal interstate level (to ensure smooth relations at the highest executive level) and is, at most, limited at the vertical level, i.e., vis-à-vis international criminal tribunals (in this sense – not undisputedly – the ICC Appeals Chamber see here, para. 103 ff.). In contrast, functional immunity already suffers restrictions at the interstate (horizontal) level in the case of international core crimes.

The ILC has recognized this limitation in Article 7 of its Draft of a respective treaty, which was adopted provisionally in 2017 and then in its first reading in 2022. Draft Article 7 excludes functional immunity for crimes under international law (see official commentary, p. 230 ff.) – excluding the crime of aggression (reasoning here, p. 239). The Draft was presented to the States on August 3, 2022, to obtain comments (see here, p. 189 ff.) and by 30 December 2023 (only)  26 States have used this opportunity (see here „Comments by Governments“). At the domestic level, the BGH has recognized the limitation of functional immunity in the event of war crimes (cruel or inhumane treatment of a protected person) by a lower-ranking official (BGH, January 28, 2021 – 3 StR 565/19). The Court had “no serious doubt” that current CIL excludes such immunity. At the same time, it suggested that this exclusion is not limited to lower-ranking officials and war crimes. The decision has met with overwhelming approval.

Against this background, the German Federal Government should have taken an unequivocal position in favor of restricting functional immunity in accordance with Draft Article 7 (in the same vein  ECCHR). Unfortunately, it has not done so. While in its statement, “exceptions to the functional immunity ratione materiae” are recognized as a “conditio sine qua non” of domestic prosecution of ICL crimes and reference is made to overwhelming national court practice (“thousands of national court judgments”), at the end of this paragraph the Government only speaks of CIL “in status nascendi” and only identifies a “trend” in this sense. In the following paragraph, the aforementioned BGH decision is referred to, but with emphasis on its case-specific limitation to lower-ranking officials and war crimes, without even mentioning the broader interpretation suggested by the BGH; insofar, reference is only made to the respective view in the academic literature (“has been interpreted”), but without adopting this view. Nevertheless, the BGH decision is then ultimately assessed as an “important German state practice” with “significant bearing” on the government’s position, which leaves the reader somewhat perplexed wondering why then the government did not adopt a more explicit position that actually reflects the BGH view and other court practice. In terms of a policy position, this would have been perfectly in line with the position of the majority of the 26 States which have submitted statements: 18 are in favor of restricting immunity in line with Draft Article 7, while only seven opined against it. The ones in favour are: Austria, Estonia, Latvia, Liechtenstein, Lithuania, Luxemburg, Poland, Romania, Switzerland, Ukraine (in addition in favour of including for the crime of aggression) as well as Czech Republic, Norway (for the five Nordic countries) and Panama; in the result also Netherlands; those against are: Brazil (!), Iran, Israel, Saudi Arabia, Singapore, United Arab Emirates and USA; a more nuanced view has been taken by Japan, Malaysia, Morocco and United Kingdom.

Given this situation, it seems all the more urgent now that the German legislator unequivocally supports the position excluding immunities. Recall that the GVG only refers to the development of international law (section 20 (2)) and this development is – see the ILC treaty process and the Federal Government position just mentioned – highly dynamic and uncertain. A legislative clarification would send a strong signal against impunity for international core crimes. It would correspond to Germany’s current pioneering role in the ICL context. In doing so, Germany does not ignore the above mentioned discussions and developments in international law, but rather takes a clear position at a crucial crossroads in order to steer this development in the right direction. It would thus contribute to the respective State practice. A corresponding section 5a VStGB could read as follows:

“Functional immunity (immunity ratione materiae) does not apply to the crimes contained in this law.”

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