Betrayal of peace

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Under the title of betrayal of peace , the German Criminal Code (StGB) summarizes offenses whose acts are likely to endanger the state of peace. The corresponding prohibitions have a double direction of protection: externally, the peaceful coexistence of peoples ( Article 26, Paragraph 1 of the Basic Law ) is to be protected; internally, the free democratic basic order , which also includes life in peace.

The individual facts

Until December 31, 2016, German law recognized the facts of Section 80 StGB - preparation for a war of aggression and Section 80a StGB - incitement to a war of aggression, which are described as treason. These facts were incorporated into the Criminal Code by the Eighth Criminal Law Amendment Act of June 25, 1968. In Art. 6a of the statute of the International Military Tribunal in Nuremberg (see Nuremberg Trials ) in 1945, however, the "Crime against Peace" was already included. This was defined as "planning, preparing, initiating or carrying out a war of aggression or a war in violation of international treaties, agreements or assurances or participation in a common plan or in a conspiracy to carry out one of the aforementioned acts".

With the law amending the International Criminal Code (VStGB), Section 13 VStGB was introduced into the VStGB as an independent offense of the crime of aggression with effect from January 1, 2017 , replacing Section 80 StGB ( preparation of a war of aggression ). In addition, the wording of Section 80a of the Criminal Code was adapted by replacing the term “ war of aggression ” with inciting the crime of aggression in the sense of the Rome Statute of the International Criminal Court .

The offense of § 13 Abs. VStGB describes a specific endangered offense that is designed as a serious crime with a minimum imprisonment sentence of no less than ten years or life imprisonment. The success of the offense (endangered success ) required for the fulfillment of the offense § 13 VStGB lies in a specific war risk for the Federal Republic of Germany . However, there does not have to be a specific risk of war for the Federal Republic of Germany if the war of aggression between other states was actually waged or the act of aggression was actually committed. The offense is punished according to § 1 sentence 2 VStGB even if the offense is committed abroad and the perpetrator is German or the offense is directed against the Federal Republic of Germany.

The offense of § 80a StGB describes an offense and committing offense that does not necessarily result in the cause of war or security threat. Under German law, the offense is only punishable within the territorial scope of the StGB ( § 3 , § 9 StGB).

Legal interest

In addition to the external security of the Federal Republic of Germany, protected legal interest is also the peace between states and peoples protected by the prohibition of violence under Chapter VII of the UN Charter . Both facts are constitutionally secured by Article 26.1 of the Basic Law . The legislature has fully complied with the constitutional requirement to criminalize wars of aggression .

Procedural law

The following special features arise in procedural law:

  • The crime of aggression (§ 13 VStGB) is already being indicted in the first instance before the respective State Security Senate at the Higher Regional Court (OLG) according to § 120 Paragraph 1 No. 8 GVG . If there are several higher regional courts in a federal state , the higher regional court in whose district the state government has its seat is responsible.
  • The incitement to the crime of aggression (§ 80a of the Criminal Code) is recorded in a Higher Regional Court before District Court indicted in the district and the OLG is domiciled ( § 74a para. 1 No. 1 GVG.). If the specific offense under Section 80a of the Criminal Code is of "particular importance" so that the Federal Public Prosecutor takes on the prosecution of the case, the indictment must also be brought before the above-mentioned higher regional court.

There are procedural possibilities to discontinue the criminal proceedings according to §§ 153c and 153d StPO , whose use, however, according to § 153c para. 5 and § 153d para. 1 StPO is only available to the federal prosecutor . In order to be able to stop the criminal proceedings, an overriding public interest must oppose the prosecution of the criminal offenses.

In contrast to most of the other criminal regulations against public order, the stationed armed forces of NATO are not exempt from the offenses of peace, high and state treason under the NATO troop statute.

Deliberate conduct of an attack can also be charged as a war crime before the International Criminal Court (Art. 8 Para. 2 b IV ICC ).

Competitions

Uniform commission of offenses of peace treason with treason is possible, also unity of offenses of § 13 VStGB with high treason (§§ 81–83 StGB) or the endangerment of the democratic constitutional state (§§ 84 ff. StGB).

Web links

Individual evidence

  1. ↑ Thomas Fischer: Tröndle / Fischer, Criminal Code and Ancillary Laws , 51st edition, Munich 2003, Rn. 2 before Sections 80 to 101a, ISBN 3-406-49387-4 .
  2. ↑ Federal Law Gazette 1968 I p. 742 Federal Gazette
  3. ^ A b Claus Dieter Classen in: Munich Commentary on the Criminal Code, 3rd edition 2017, Rn. 5.
  4. ↑ BGBl. 2016 I p. 3150
  5. ↑ Bill of the Federal Government to amend the International Criminal Code BT-Drs. 18/8621 of June 1, 2016.
  6. ↑ Jürgen P. Lang : Conspiracy around § 80: Half-truths about the "war of aggression". In: BR.de. January 2, 2017, accessed January 4, 2017 .
  7. ↑ Thomas Fischer: Tröndle / Fischer, Criminal Code and Ancillary Laws , 51st edition, Munich 2003, § 80 Rn. 6th
  8. ↑ Reinhard Müller: International Criminal Court: Aggression and Influence FAZ , June 23, 2013.