International Criminal Code

Basic data
Title:	International Criminal Code
Abbreviation:	VStGB
Type:	Federal law
Scope:	Federal Republic of Germany ; Please note the applicability to acts committed abroad
Legal matter:	Criminal law
References :	453-21
Issued on:	June 26, 2002 ; ( BGBl. I p. 2254 )
Entry into force on:	June 30, 2002
Last change by:	Art. 1 G of December 22, 2016 ; ( Federal Law Gazette I p. 3150 )
Effective date of the ; last change:	January 1, 2017 ; (Art. 3 G of December 22, 2016)
GESTA :	C100
	Please note the note on the applicable legal version.

The International Criminal Code (VStGB) has adapted the national German criminal law to the regulations of international criminal law , in particular to the Rome Statute of the International Criminal Court . In Germany it regulates the consequences of criminal offenses against international law . The law was promulgated on June 26, 2002 and came into force on June 30, 2002.

content

The International Criminal Code contains the following criminal offenses:

Genocide , § 6 VStGB
Crimes against humanity , § 7 VStGB
War crimes , § 8 to § 12 VStGB
Crimes of aggression, § 13 VStGB

In connection with these criminal offenses, violations of the duty to supervise ( § 14 VStGB) as well as failure to report a crime ( § 15 VStGB) by a military or civilian superior are punished ( superior responsibility ).

The law adapts German substantive criminal law to the provisions of the Rome Statute and thus creates the conditions for their prosecution by the German criminal justice system. New penal provisions were created for crimes against humanity, war crimes and civil war crimes, as well as the transfer of genocide offenses from the German Criminal Code (StGB).

According to § 1 VStGB, genocide, crimes against humanity and war crimes are subject to the principle of universal law , i. H. criminal liability under German law exists regardless of where, by whom and against whom it is committed. This also includes acts abroad between foreign nationals.

Criminal procedural accompanying regulations

The federal prosecutor at the Federal Court of Justice is the competent criminal prosecution authority for offenses under the International Criminal Code . In the first instance materially competent courts which are higher regional courts ( § 120 GVG ).

In the case of offenses abroad, the principle of opportunity does not apply in accordance with Section 153c (1) sentence 2 StPO ; The German police and judicial authorities are also obliged to prosecute, prosecute and punish themselves if an international law crime has been committed abroad ( principle of legality ), but the principle of subsidiarity applies : only if the criminal prosecution is carried out by the primarily competent states or an international court of law is not guaranteed or cannot be guaranteed, the fallback jurisdiction of German law enforcement authorities applies. This gradation is justified by the particular interest of the home state of the perpetrator and victim in criminal prosecution as well as the regularly greater proximity of the primary jurisdictions to the evidence.

According to § 153f StPO, prosecution can be waived under the following conditions:

Paragraph 1:
- Act that is punishable under Sections 6 to 12, 14 and 15 of the CCAIL,
- The accused does not reside in Germany and such a stay is not to be expected;
Paragraph 2:
- The offense has no relation to the domestic market (No. 1 and 2),
- The suspect does not stay in Germany such a stay is also not to be expected (No. 3) and
- The offense is prosecuted before an international court of justice or by the directly affected state (No. 4).

The term of the prosecution of the crime is to be interpreted in relation to the whole complex and not to an individual suspect and his specific contribution to the crime. According to a different opinion, it is only legally decisive that no legal proceedings have been opened against the accused.

In the case of foreigners, the refusal to prosecute is also permitted under the conditions of Section 153f (2) No. 2 and 4 StPO if he is resident in Germany but his transfer to an international court of law or extradition to the persecuting state is permitted and is actually intended ( Section 153f (2) sentence 2 StPO).

This has to apply even more if the prosecuting state has unrestricted access to a suspect and extradition is therefore not required.

The same applies to an expected temporary stay in the area of application of the International Criminal Code if investigations are being carried out on the whole complex in the privileged state. In this case, too, those charged would not be evaded criminal prosecution.

practice

Since it came into force, 49 preliminary investigations have been conducted on the basis of the International Criminal Code and one court case has so far been concluded in the first instance (as of April 2016). In response to criminal complaints from the European Center for Constitutional and Human Rights (ECCHR) in 2004 and 2007 against former US Secretary of Defense Donald Rumsfeld et al. a. The Federal Prosecutor's Office has not opened any investigations into allegations of torture in Abu Ghuraibs and Guantanamo Bay . A case against the former colonel in the Bundeswehr Georg Klein and the then Flugleitoffizier Wilhelm on suspicion of war crimes in connection with the airstrike in Kunduz in 2010 to § 170 para. 2 Code of Criminal Procedure set .

FDLR process

With the opening of the main proceedings against two Rwandan nationals for crimes against humanity and war crimes as well as for membership in the terrorist organization Forces Démocratiques de Liberation du Rwanda before the Higher Regional Court of Stuttgart on March 1, 2011, criminal proceedings on the basis of the International Criminal Code came about for the first time . The federal prosecutor responsible for the prosecution of crimes under the International Criminal Code accuses the two defendants of failing to prevent crimes under international law committed by the FDLR in 2009 in the Kivu provinces of the Democratic Republic of the Congo, contrary to an obligation incumbent on them as a superior ( superior responsibility according to § 4 VStGB). Up to August 2015, 317 main trial days had taken place. The sentences were passed on September 28, 2015: Ignace Murwanashyaka for 13 years and Straton Musoni for eight years. The two defendants - former FDLR President Ignace Murwanashyaka and former FDLR 1st Vice President Straton Musoni - have been in custody since November 2009. The Berlin daily taz documents the course of this process with reports on the individual meeting days. Another trial in connection with the Forces Démocratiques de Liberation du Rwanda operating in the east of the Democratic Republic of the Congo began in autumn 2013 before the Düsseldorf Higher Regional Court. The people accused there are charged with having supported the FDLR by drafting press releases and providing financial support. However, this indictment by the Federal Public Prosecutor is not based on the International Criminal Code, but rather accuses the defendants of having made themselves a criminal offense because of membership in a foreign terrorist organization according to § 129a , § 129b StGB.

Reform efforts

At the first review conference on the Rome Statute of the International Criminal Court in Kampala (Uganda) in 2010, the contracting states agreed on a definition of the crime of aggression . Implementation in German criminal law took place through the introduction of the new Section 13 on January 1, 2017. In the previously applicable German criminal law, in accordance with the constitutional mandate of Article 26.1 of the Basic Law, preparing for a war of aggression was punishable under Section 80 of the Criminal Code.

The subject of current legal policy debates is how the often criticized application deficit of the International Criminal Code can be counteracted, for example by dismantling procedural barriers.

literature

Monographs and edited volumes

Albin Eser / Helmut Kreicker (ed.): National criminal prosecution of crimes under international law, Vol. 1: Germany (by Helmut Gropengießer and Helmut Kreicker) , Freiburg i. Br. 2003, ISBN 3-86113-888-3 . See also [1] .

Aziz Epik, The sentencing for offenses according to the International Criminal Code , Mohr Siebeck, 2017, ISBN 978-3-16-155206-9 .

Jutta Hartmann: The German international criminal law , in: Hans-Heiner Kühne , Robert Esser , Marc Gerding: Völkerstrafrecht. 12 articles on international criminal law and international criminal law , p. 121 ff, Julius Jonscher Verlag Osnabrück 2007, ISBN 978-3-9811399-1-4

Julia Geneuss: International Crimes and Persecution Measures . Section 153f StPO in the system of international criminal justice . Nomos Verlag 2013, ISBN 978-3-8487-0354-8 .

Florian Jeßberger / Julia Geneuss (eds.): Ten Years of the International Criminal Code. Balance sheet and perspectives of a 'German international criminal law' , 2013, ISBN 978-3-8487-0279-4 .