Published: 28 February 2023 Author: Stefan Talmon
In a piece for German daily Frankfurter Allgemeine Zeitung, published on 23 February 2023, Federal Minster of Justice Marco Buschmann announced major changes to the German Code of Crimes Against International Law (CCAIL), the German Code of Criminal Procedure, and the Court Constitution Act with regard to crimes against international law. On the same day, the Federal Ministry of Justice issued a four-page Paper outlining proposals for the development of international criminal law in Germany in more detail.
Amendments to the Code of Crimes Against International Law
Minister Buschmann announced that the Code of Crimes against International Law will be amended to ‘close gaps in criminal liability and ensure that the Code is in sync with the corresponding norms of the Rome Statute of the International Criminal Court [ICC Statute].’ He stated:
Thus we will include the offense of sexual slavery, which plays an increasing role in the jurisprudence of the International Criminal Court, under crimes against humanity and war crimes against persons in sections 7 and 8 of the Code of Crimes against International Law. The crimes of using weapons whose fragments cannot be detected by X-rays, as well as the use of permanently blinding laser weapons, which were newly introduced by the most recent amendments to the Rome Statute, are also to be included in the Code of Crimes against International Law.
The Minister referred to the amendments to Article 8 of the ICC Statute that had been adopted by the Assembly of State Parties to the Rome Statute on 14 December 2017 at its twelfth plenary meeting. The amendments provided for new articles concerning:
- weapons the primary effect of which is to injure by fragments undetectable by x-rays in the human body (new Articles 8(2)(b)(xxviii) and 8(2)(e)(xvii) ICC Statute)
- weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices (new Articles 8(2)(b)(xxix) and 8(2)(e)(xviii) ICC Statute)
- weapons which use microbial or other biological agents, or toxins (new Articles 8(2)(b)(xxvii) and 8(2)(e)(xvi) ICC Statute)
While the last amendment was already covered by number 2 of section 12(1) CCAIL, which prescribes the employment of ‘biological or chemical weapons’ as prohibited means of warfare, the other two amendments did not yet find an equivalent in the CCAIL.
On 6 December 2019, the Assembly of State Parties adopted a further amendment to Article 8 of the ICC Statute relating to intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies. This amendment was already covered by number 5 of section 11(1) CCAIL and thus did not require any changes to the Code.
On 8 December 2022, the federal parliament approved the above amendments to the ICC Statute. However, in order for Germany be able to ratify these amendments at the international level, they first have to be incorporated into German domestic criminal law. According to the Federal Ministry of Justice, by incorporating the amendments to the ICC Statute in the CCAIL, ‘Germany will contribute to the formation of customary international law and increase their acceptance in the international community.’
The Minister’s announcement of the inclusion of ‘sexual slavery’ under crimes against humanity and war crimes against persons in sections 7 and 8 CCAIL is more noteworthy. While the ICC Statute expressly employs the term ‘sexual slavery’ in Article 7(1)(g) and Articles 8(2)(b)(xxii) and 8(2)(e)(vi), the CCAIL at present provides that whoever in connection with an international armed conflict or with an armed conflict not of an international character ‘sexually coerces’ a person shall be punished for a crime against humanity or a war crime. In its explanations on the draft of the CCAIL in December 2001, the Federal Ministry of Justice explained the different wording as follows:
In contrast to the wording of the ICC Statute, the element of ‘sexual coercion’ has been added to the formulation (see Section 177 of the Criminal Code). This basic concept guarantees that the elements of ‘sexual slavery’ and ‘any other form of sexual violence of comparable gravity’ mentioned in the ICC Statute are covered by the provision. The inclusion of conduct punishable under German criminal law as sexual coercion among the crimes against humanity also corresponds to international customary law, as shown in particular by the precedents of the International Criminal Tribunal for the former Yugoslavia (Kunarac et al., IT-96-23-T and IT-96-23/1-T, 22/2/2001, par. 436 ff.).
While the act of ‘sexual slavery’ is technically still covered by ‘sexual coercion’, the express mentioning of sexual slavery in the CCAIL as a separate offence is in line with the Federal Government’s policy to give more prominence to the victims of sexual and gender-based crimes in line with its new feminist foreign policy. The announced changes to the CCAIL were already foreshadowed in a speech at the Hague Academy of International Law on 16 January 2023, when Federal Foreign Minister Annalena Baerbock stated:
Since 2002, the International Criminal Court has been able to prosecute rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilisation and any other form of sexual violence of comparable gravity as crimes against humanity and as war crimes.
And what is just as important is that the possibilities for prosecuting these sexualised crimes have continued to evolve since. Because international law is not something static. If we actively work on it. We saw this just recently in the decision by the Appeals Chamber of the International Criminal Court in December 2022 confirming the ruling against the former commander of the Lord’s Resistance Army, Dominic Ongwen.
The Chamber made it clear in this decision that cumulative charges can be brought alongside one another for rape, forced marriage and sexual enslavement – rather than one of these charges also covering the other offences. Because they each protect different legal interests.
The criminalisation of rape, for example, protects every individual from the violation of their sexual autonomy. The criminalisation of forced marriage protects every individual’s right to freely choose their partner. And that is important. Because it makes a difference for the victims when precisely that crime is punished that they themselves have suffered. This is the only way that we can progress on the path of justice. This is the only way that we can progress on the path of reconciliation. Justice for individual victims is the key to lasting peace.
And that is why the German Government, too, continues to work constantly on this issue. It is important for us to be able to prosecute IS crimes in Syria in our courts here in Germany under the principle of universal jurisdiction. What can be prosecuted in these proceedings is anything that constitutes a crime against humanity. But when we hold these proceedings, it is equally important for us to become more aware of who the victims of rape and abduction are. In most cases they are women and children, people who need particular protection.
When it comes to punishing the crimes that were committed against them, too, it is important to take an unflinching look and to keep the victims in mind. For the prosecution, it may be easier to charge IS fighters with terrorism. We do precisely that in Germany, too. For the many enslaved Yazidi women and children, however, that by itself does not bring justice. For them, it is crucial for charges to be brought and sentences to be passed that concern their enslavement, the systematic sexualised violence as part of the genocide of the Yazidis.
International law, international criminal law, in the national context too, is not static. International law must correspond to the realities of the twenty-first century. Our legal standards must keep pace with the times, and it falls to us to constantly continue developing them. I am dwelling on this point because the ongoing development of international law is at its heart also a political issue. And of course one of the main counter-arguments, regarding the separation of powers, is always: That has nothing to do with the law. That’s politics. But of course the law, international law, is sustained by the responsibility that the world’s states and therefore governments take on together as an international community.
Including sexual slavery in the CCAIL as a distinct offence is thus also a legal policy decision by the Germany Government. It will allow German criminal courts to follow the lead of the International Criminal Court, which held that sexual slavery is different in terms of conduct, ensuing harm, and protected interests from other sexual crimes. It will also allow for cumulative convictions for the crime of sexual slavery and other sexual and gender-based crimes such as forced marriage and rape. The amendment of the CCAIL will also contribute to the development of international criminal law and facilitate the establishment of sexual slavery as a separate crime against humanity and war crime under customary international law.
Changes to the Code of Criminal Procedure
Federal Foreign Minister Baerbock had repeatedly highlighted the plight of the victims of genocide, war crimes and crimes against humanity and, in particular women and children, and advocated a victim-centred approach to international criminal law. This was now followed up by the Federal Minister of Justice who announced several victim-focused amendments to the Code of Criminal Procedure with regard to proceedings concerning international crimes.
Minister Buschmann announced that in future victims of crimes against humanity and war crimes against persons were – with certain unnamed exceptions – to be given the opportunity to join a public prosecution as private accessory prosecutor. This goes well beyond the rights of participation of victims before the International Criminal Court. Whenever such victims join a public prosecution, they were, upon application, also to be assigned a lawyer as their assisting counsel, irrespective of the requirements for legal aid. If two or more private accessory prosecutors were pursuing similar interests, the courts were to be able to appoint or assign a joint lawyer to assist them. This joint representation was to ensure the efficient conduct of the proceedings in case of tens or even hundreds of victims. If each victim were to participate in the proceedings with their own counsel this could make trials unworkable. Furthermore, upon application, such victims were to be provided with psychological counselling and assistance during the proceedings without any further requirements. Psychological counsellors may be present during the questioning of the victim and the trial.
These amendments are intended to empower victims of war crimes and crimes against humanity and to encourage them to go through with criminal proceedings. They also recognise that one of the purpose of criminal proceedings is to bring about justice for the victims. It is important that the victims are given a voice in the proceedings. Foreign Minister Baerbock stated that ‘the focus is not on the perpetrators but above all else on justice for the victim.’ However, this is true not just for the victims of war crimes and crimes against humanity but also for the victims of genocide. The prohibition of genocide, like the prohibition of war crimes and crimes against humanity, is ultimately to protect the human rights and personal interests of individuals. The right to join a public prosecution as private accessory prosecutor should therefore also be extended to the victims of genocide. The prohibition of aggression, on the other hand, protects the sovereignty and territorial integrity of the State. There is thus no room for private accessory prosecutions by individuals.
Changes to the Courts Constitution Act
In recent years, the German judiciary has played a pioneering role in the prosecution of crimes under international law. In particular, the conviction of an Iraqi member of the Islamic State terrorist organisation for the crime of genocide, and the conviction of two employees of the Syrian secret service for crimes against humanity have developed international criminal law in a historical manner. In order to promote the reception and dissemination of important international criminal law trials in Germany, the Courts Constitution Act is to be amended allowing media representatives who do not have a command of the German language to use interpretation during the trials. This is to ensure that foreign and non-German-speaking media outlets can report first-hand on these trials. In future, the courts may also authorise audio and video recordings of hearings, including the pronouncement of judgments and rulings, for academic or historical purposes if an international criminal law trial is perceived to be of paramount historic significance. In addition, the Federal Ministry of Justice will have significant judgments on international criminal law translated into English. All these measures are aimed at contributing to the further development and strengthening of international criminal law, and its application by national and international courts.
Category: International criminal law