Insidiousness

from Wikipedia, the free encyclopedia

Insidious means in the German language a deceitful malice. B. an insidious being. Similar terms are cunning , guile , malice , deceit , ambush , deception and outwitting and secretly, quietly and clandestinely.

In German criminal law

The treachery is a so-called murder feature in German criminal law . If this feature is present in the case of an intentional homicide, it is not manslaughter ( Section 212 StGB ), but murder ( Section 211 StGB).

The conscious exploitation of the victim's innocence and defenselessness must take place in the direction of the hostile will. Those victims are to be excluded from innocence who are unable to recognize the hostile direction of the attacker (small children and infants, the unconscious and people with intellectual disabilities ). However, it is innocent who is attacked from an ambush or who cannot perceive an attack (for example because of darkness or sleep). Both conditions must always be met, i.e. innocence and defenselessness together.

In 1977 the Federal Constitutional Court made considerable criticism of the interpretation of the attribute “treachery” in Section 211 of the Criminal Code. Various approaches were then discussed: In the literature, a special breach of trust was required to justify the characteristic. The jurisprudence has not followed this and has avoided the dispute by means of the so-called legal consequences solution.

The murder characteristic of treachery is to be interpreted restrictively and based on the principle of proportionality. In the presence of exceptional circumstances, life imprisonment is replaced by a sentence of between three and fifteen years (Section 49 (1) No. 1 StGB). Such special circumstances can exist in the case of severe offense and provocation by the victim or in emergency-like situations. The execution of a life imprisonment can be suspended after fifteen years on probation, if the particular gravity of the guilt does not require further execution and a favorable social prognosis exists.

The term 'treachery' is considered one of the most controversial terms in criminal law and has been revised since May 2014.

In international law

In Article 37 of the first Additional Protocol to the Geneva Conventions of August 12, 1949 on the protection of the victims of international armed conflict, insidiousness is defined as follows:

(1) It is forbidden to kill, wound or capture an opponent with the use of treachery. Insidious are actions by which an opponent, with the intention of abusing his trust, is led to trust that he is entitled to protection or is obliged to grant protection under the rules of international law applicable in armed conflict. The following acts are considered examples of treachery:
a) feigning intention to negotiate under a parliamentary flag or to surrender;
b) feigning incapacity to fight as a result of injury or illness;
c) simulating civil or non-combatant status; and
d) feigning a protected status by using badges, emblems or uniforms of the United Nations or neutral or other states not involved in the conflict.

The use of the opponent's emblems, badges and uniforms is also not permitted (Art. 39, (2) ZP I).

The use of stratagem , however, is permitted and is defined in the second paragraph of Article 37 above:

(2) Rifts are not prohibited. List of wars are acts which are intended to mislead an opponent or to induce him to act carelessly, but which do not violate any rule of the international law applicable in armed conflicts and are not insidious because they are not intended to induce the opponent to rely on the protection resulting from this right . The following actions are examples of war racks: camouflage, piracy, mock operations and misleading information.

In summary, one can say that Article 37 of the Additional Protocol sets an objective limit to the war methods permissible under the international law of war. Since an essential characteristic of hybrid warfare is the concealment of one's own intentions, abilities and actions, the line between permitted stratagems and the prohibition of malicious intent is blurred.

See also

literature

  • Philipp Tolga Mavituna: The treachery - a (presumably) last look at the existing murder law . In: Law Studies & Exams . Edition 4/2016. Tübingen 2016, p. 160-165 ( PDF ).

Web links

Wiktionary: Insidiousness  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Heimtücke duden.de, accessed on September 6, 2016
  2. ↑ BGHSt 9, 385 (390)
  3. ↑ BGHSt 22, 77 (79)
  4. ↑ BGHSt 19, 321 (322)
  5. ↑ BVerfG, judgment of June 21, 1977, Az. 1 BvL 14/76 = BVerfGE 45, 187
  6. ↑ Rudolf Rengier : The murder trait of the treachery according to BVerfGE 45, 187 (I) MDR 1979, pp. 969-974
  7. ^ Rudolf Rengier : The murder trait of the treachery according to BVerfGE 45, 187 (II) MDR 1980, p. 1-6
  8. ↑ Samuel Ju: No reprehensible breach of trust with the murder trait treachery required! on BGH, decision of August 25, 2010 - 1 StR 393/10 , November 20, 2010
  9. ↑ BGH, judgment of May 19, 1981 - GSSt - 1/81
  10. ↑ Albin Eser : The homicides in the case law between BVerfGE 45, 187 and BGH-GSSt 1/81: Part 1 and 2 NStZ 1981, pp. 383–388 and 429–432
  11. ↑ Uwe Scheffler: From temporary lifelong and life imprisonment ( Memento from May 6, 2016 in the Internet Archive ) In: JR . 1996, pp. 485-491
  12. ↑ Uwe Murmann: On the murder feature of treachery. At the same time discussion of the BGH, decision of September 5, 2012 - 2 StR 242/12 = HRRS 2012 No. 1065 HRRS 2014, 442–449
  13. ^ Reform of homicides: Submission of the final report of the expert group in the Federal Ministry of Justice Website of the Federal Ministry of Justice (BMJV), as of June 29, 2015
  14. ↑ Constantin Baron van Lijnden : Draft for the reform of homicides: The life and death of the murderer Legal Tribune Online , March 26, 2016
  15. ↑ Kerstin Herrnkind : Planned reform of the murder paragraph: Why there could soon no longer be "treachery" . In: Stern . April 8, 2016.
  16. ↑ Melanie Amann : The end of life? In: Der Spiegel . 13/2016, p. 33f.
  17. ↑ Florian Schaurer: Old New Wars - Notes on Hybrid Warfare , August 2015
  18. ↑ Theses on hybrid warfare: “A kind of collecting basin” website of the Federal Ministry of Defense , September 3, 2015