Published: 22 June 2020 Authors: Philip Wimmer and Stefan Talmon
In an order of 4 April 2019, the Federal Court of Justice decided on the pre-trial detention of Sarah O., a dual German-Algerian national who was accused, inter alia, of membership of the foreign terrorist organisation “Islamic State” (IS) and war crimes. The Federal Public Prosecutor General alleged that the accused had left Germany in 2013 to join the IS in Syria. After her arrival in Syria, she married an IS fighter of German origin with whom she conducted guard and police duties for the IS. The organization rewarded her services with a monthly salary of about US$118. In January 2014, the accused moved into an apartment in the Syrian town of Jarabulus, which she furnished with loot acquired by IS fighters during the conquering of the area. The apartment served as a hub for newly arriving IS fighters. In June 2014, the accused moved into another furnished apartment in Jarabulus which had been administered by the IS after the rightful inhabitants were killed or evicted.
The Federal Court of Justice ordered the continuation of the pre-trial detention of the accused, who had been under arrest since her return to Germany on 21 September 2018. In its order, the Court examined in great detail the war crime against property as codified in section 9(1) of the German Code of Crimes against International Law (CCAIL), which stipulates:
“Anyone who, in the context of an international or non-international armed conflict, loots or, unless the necessities of armed conflict so demand, extensively destroys, appropriates or seizes by other means and in violation of international law property of the adverse party, that is subject to the authority of his own party, incurs a penalty of imprisonment for a term of between one year and 10 years.”
The Court found that there was strong suspicion that the accused had committed a war crime against property by occupying the furnished apartment in June 2014. The Order is worth quoting at length:
“ (1) […] An appropriation consists in the deprivation of an object without consent or against the will of the entitled person for a not inconsiderable amount of time. It neither requires the offender to transfer the object into his assets, nor does it require such an intention. Both moveable and immovable objects can be the subject of appropriation. In this respect, the same applies as for international criminal law as codified in the Rome Statute of the International Criminal Court (ICC Statute). With the adoption of the German Code of Crimes against International Law the legislator intended to transpose the provisions of the ICC Statute into national law. Accordingly, section 9(1) CCAIL mirrors Article 8(2)(b)(xvi) and (xiii), as well as (e)(v) and (xii) ICC Statute. These provisions cover any kind of property, especially movable as well as immovable objects (cf. ICC, Judgment of 21 March 2016 – Bemba Gombo, ICC-01/05-01/08, No. 115).
 In this case, the occupation of the apartment together with the inventory by the accused and her husband was intended to permanently deprive the entitled persons of these objects against their will. The entitled persons had left behind the apartment and its furnishings only because they were forced to flee from the IS troops. By no means did they intend to surrender their belongings to other persons, especially not to IS members.
 The appropriation is not precluded by the fact that the entitled persons had already fled when the accused […] took possession of the apartment. An appropriation within the meaning of section 9(1) CCAIL does not require the presence of the entitled person or his actual control of the object (cf. ICC, Judgment of 21 March 2016 – Bemba Gombo, ICC-01/05-01/08, No. 116).
 It is also irrelevant, regarding the appropriation of the apartment and its furnishings by the accused and her husband, that the objects had previously been seized by the IS. The concept of appropriation is not limited to the case of first possession of the object against or without the will of the entitled person. Such a limitation cannot be inferred from the wording of section 9(1) CCAIL. Nor does it result from the general language use, according to which appropriation is understood as any kind of taking possession or occupancy. Moreover, a restriction of the scope of application to the first unlawful act of taking possession would contradict the protective purpose of the provision. Section 9(1) aims at the comprehensive protection of private property, which is only guaranteed if not only the first but also every subsequent appropriation is covered. The need for protection of property does not vanish with the first appropriation. […]
 (2) The accused appropriated the flat and its furnishings in the context of an armed conflict.
 The fighting that took place in Syria around the time of the offence between the Syrian Army and oppositional groups, as well as between such groups themselves, was an armed conflict within the meaning of section 9(1) CCAIL and the offence of the accused was related to this. The functional connection required in this respect is established if the existence of the armed conflict was essential for the ability of the perpetrator to commit the offence, for his decision to commit the offence, for the manner in which the offence was committed or for the purpose of the offence; the offence must not be committed merely ‘on the occasion’ of the armed conflict. However, it is not necessary that the offence be carried out during ongoing combat operations or in close proximity to such operations.
 These requirements are fulfilled here. The accused was only able to take possession of the apartment and its inventory because the entitled persons had to flee the IS troops or were driven away by them, and the organization had permitted her and her husband as IS members to use the looted property.
 (3) The apartment and its furnishings were property of the adverse party under control of the own party.
 (a) The term “adverse party” must be interpreted in the same way as in section 8(6) number 2 CCAIL. According to this, the following applies:
 Section 8(6) number 2 CCAIL is based on Article 4(1) of the Fourth Geneva Convention, which protects civilians in times of armed conflict who find themselves in the hands of a party to the conflict or occupying power of which they are not nationals. The convention, which is tailored to international armed conflicts, generally attaches consequences to the nationality of the person under control of a foreign power. Since this formal criterion of distinction no longer suits modern armed conflicts, the International Criminal Tribunal for the Former Yugoslavia and – following the same approach – the International Criminal Court, have adapted the criterion to the new circumstances. According to the jurisprudence of the international criminal courts, it is decisive whether, from a material point of view, the victims can be considered to belong to the adverse party.
 For a non-international armed conflict, which frequently involves non-State actors of the same nationality, nationality does not to prove to be an adequate criterion to determine the scope of protection under international humanitarian law. In order to determine who is to be regarded as an opponent of a party to a non-international armed conflict, it is preferable to focus on the characteristics of the conflict. In the case of an inter-ethnic conflict, for example, ethnicity is the decisive factor; in the case of a religiously motivated conflict the focus must lie on the confessional or ideological conviction. In a complex civil war situation involving a large number of State and non-State actors with a wide range of interests – as, for example, in the case of the Syrian civil war – a person pursuing objectives contrary to the intentions of the conflicting party can be regarded as belonging to an opponent.
 Judged by this criterion, the IS is to be considered an adverse party in relation to civilians who – like the owners of the apartment occupied by the accused – fled from the organization’s troops or were expelled by IS fighters in the course of the conquest of the city of Jarabulus. The conflict within Syria was significantly characterized by the IS’s efforts to bring the maximum amount of territory under its control. In doing so, the organization targeted civilians who did not unconditionally join it or subordinate themselves to its ideology. Thus, the escape or expulsion of the persons concerned demonstrated their opposition to the IS.
 (b) After the entitled persons had fled or had been expelled, their possessions came under the control of the IS and thus the party of the accused.
 (4) By occupying the apartment and its inventory, the accused has also extensively appropriated property.
 The requirement of an extensive degree is to exclude trivial cases from the scope of application of section 9(1) CCAIL. However, this must not be understood in a way that only trivial cases are to be excluded, as, for example, the theft of property of minor value within the means of section 248(a) of the German Criminal Code. Rather the same applies as for the provisions of Article 8(2)(a)(vi), (b)(xiii), (e)(xii) ICC Statute on which section 9(1) CCAIL is modelled according to the conception of the CCAIL.
 An isolated offence against property does not constitute a violation either of Article 8(2)(b)(xiii) and (e)(xii) ICC Statute or of Article 8(2)(a)(iv) ICC Statute which requires ‘extensive appropriation’. Systematically, this follows from the fact that, according to the first sentence of Article 5(1) ICC Statute, the jurisdiction of the International Criminal Court is limited to the ‘most serious crimes’ which are ‘of concern to the international community as a whole’. A single violation of property does not meet these requirements per se.
 It is decisive to evaluate the circumstances of the individual case. In this context, the value of the property in question is as important as the severity of the results of the offence for the victim. Furthermore, it may be relevant whether a few or many people are affected or whether particularly protected and important civilian objects, such as hospitals, are affected.
 In the present case, it is important to note that apartments and houses regularly have a high economic value. Their seizure also touches upon the existential conditions of life and has severe consequences for these conditions. Moreover, the expulsion of the entitled persons in the course of the armed conflict gives the violation of property a dimension of injustice which affects the international community as a whole. For those reasons, the occupation of the apartment and its inventory constitutes an extensive appropriation of property.
 (5) The accused appropriated the property in violation of international law. The criterion of illegality under international law is not fulfilled if there is a general justification under international law or a specific justification under international humanitarian law.
 (6) Finally, there is no sign that the appropriation was demanded by the necessities of the armed conflict.”
The ruling is noteworthy in that it allows a conviction for war crimes against property for the mere use of an apartment. By sanctioning not only the first, but every subsequent appropriation, the Federal Court of Justice ensures extensive protection of property. This rather broad reading of section 9(1) CCAIL has led to convictions of IS returnees in similar cases decided by the Higher Regional Court of Düsseldorf and the Higher Regional Court of Stuttgart. Considering their value, the unlawful appropriation of houses or apartments will always be “extensive” as required under section 9(1) CCAIL. In this way, persons who have helped to solidify the IS’s territorial claim but have not been directly involved in combat actions can be held accountable for war crimes.
Category: International criminal law