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I. Introduction [1] The attention being given to the trial, in Belgium's national courts, of Rwandans suspected of participating in the Hutu led genocide in 1994, overlooks the fact that such proceedings (that is to say, universal jurisdiction being applied to prosecute violations of international criminal law in an otherwise unconnected, third-party state's national courts) are not without precedent, especially in Europe.(1) Germany's Strafgesetzbuch (StGB [German Federal Criminal Code]) has long contained provisions criminalizing and thus permitting German criminal proceedings against the authors and perpetrators of genocide, war crimes and crimes against humanity.(2) German courts have not shied away from exercising this authority. A number of National Socialist criminals have faced such charges in German criminal courts, long after the Allies closed the Nuremberg International Military Tribunal. Germany has, more recently, applied these provisions of its domestic law to participants in the war and terror that has plagued the former Yugoslavia over the last decade.(3) [2] Now, Germany's Federal Ministry of Justice is sending legislation to the German parliament, which, if passed, will establish (as part of German law) the Völkerstrafgesetzbuch (VStGB [International Law Criminal Code]) � a new criminal law regime dealing exclusively with crimes arising under international law. The proposed legislation obviously invokes Germany's National Socialist past; engaging (actually embracing and improving on) the spirit of the Nuremberg Trials. At the same time, the legislation is forward-looking, serving as another example of Germany's leadership, whether in Europe or the wider international community, in the unmistakable movement toward inter- or supranationalism.(4) [3] The 70 page Begründung (explanation), which accompanies the Justice Ministry's otherwise slender legislative proposal, makes clear that the Völkerstrafgesetzbuch is meant to fulfill obligations Germany undertook when it ratified the Rome Treaty that serves as the basis for the International Criminal Court.(5) The International Criminal Court is intended to serve as a complimentary jurisdiction to the enforcement of international criminal law in national courts. The proposed legislation, then, simplifies and clarifies (by organizing the relevant norms in a single, compact regime) the criminal law Germany will enforce when it exercises this responsibility. The concept of the complimentary jurisdiction of the national courts is more than a mere patronizing nod to national sovereignty in the face of an otherwise relentless march towards internationalism. Responsible nations will be expected to carry part of this burden, if for no other reason, because, as the German Federal Constitutional Court recently recognized with respect to the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court will lack the resources to go it alone.
[4] Germany's ratification of the Rome Treaty has necessitated other reforms, the most dramatic of which has been the recent amendment of the constitutional prohibition on the extradition of Germans (in Article 16 of the Basic Law) to permit their extradition to the International Criminal Court.
[5] The proposed legislation contains seven Articles. Where those Articles address substantive criminal law, the legislation generally follows the blueprint of the Statute of the International Criminal Court, with minor adjustments that reflect concessions to German legal tradition (especially to achieve compliance with the German constitution) or improvements on the already dated Rome Treaty (especially by codifying norms of customary international law that have emerged only since the Rome Treaty was finalized). Article I of the proposed legislation consists of the new International Criminal Code. Article II of the proposed legislation contains changes to the (normal) German Federal Criminal Code that will be necessitated by the creation of the Völkerstrafgesetzbuch. Article III of the proposed legislation contains changes to the (normal) German Federal Code of Criminal Procedure that will be necessitated by the creation of the Völkerstrafgesetzbuch. The remaining Articles (IV to VII) of the proposed legislation involve specific (and relatively minor) changes to other relevant statutory regimes. This report briefly describes the first three Articles of the proposed legislation.
II. Article I � Völkerstrafgesetzbuch [6] Article I of the proposed legislation would establish, as part of Germany's general criminal law, a separate and distinct International Law Criminal Code, which establishes the general rules governing the application of international criminal law (First Part � Paragraphs 1 through 6) and defines the substantive crimes (Second Part � Paragraphs 7 through 15) including: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) other special crimes.
A. VStGB � First Part [7] The First Part of the proposed Völkerstrafgesetzbuch establishes, in clear terms, the general rules that will govern the application of international criminal law in the German courts, inter alia creating universal jurisdiction over the relevant crimes (Weltrechtsprinzip)(6) and providing for jurisdiction over the relevant crimes without a statute of limitation (Unverjährbarkeit).(7) German case law has already recognized universal jurisdiction over the previous manifestations of these criminal provisions in the general criminal law,(8) and the principle of universal jurisdiction in international law has only been strengthened in recent years.(9) The explanatory materials also note that the absence of a statute of limitations is not exceptional in German criminal law as murder and genocide have long been free of a statute of limitations.(10) The explanatory materials further suggest that the absence of a statute of limitations is not really more exceptional than the 20 or 30 year statute of limitations applying to a number of other criminal provisions, which establish, de facto, a limitless opportunity to prosecute.(11) [8] The First Part of the proposed Völkerstrafgesetzbuch also outlines the terms under which a justification defense (self-defense) against charges arising out of international criminal law may be invoked (Notwehr).(12) The proposed provision makes especially clear that mere participation in a military defense action does not, alone, qualify as self-defense.(13) [9] Paragraphs 4 and 5 of the First Part of the proposed Völkerstrafgesetzbuch address two sides of the same coin, namely, the assignment of guilt or criminal responsibility within a command structure. In § 4 the proposed legislation excuses those acting under binding orders from criminal responsibility under these criminal provisions, to the degree that "the actor did not know that the command or order was illegal and that the command or order is itself not obviously illegal."(14) At the same time, § 5 of the proposed legislation makes a military or civilian commander guilty as a principle to the crime when he/she refrains from hindering the commission, by one of his/her subordinates, of one of these crimes.(15) B. VStGB � Second Part [10] The Second Part of the proposed Völkerstrafgesetzbuch contains the substantive crimes, detailed in three chapters: The First Chapter outlines Genocide (VStGB § 7) and Crimes Against Humanity (VStGB § 8); The Second Chapter deals with War Crimes (VStGB § 9 - 13); and The Third Chapter makes provision for two classes of "Special Crimes" (VStGB § 14 and 15).
[11] The substantive crimes of the proposed Völkerstrafgesetzbuch are, on the whole, patterned after the substantive criminal provisions of the Statute of the International Criminal Court (Rome Treaty). This is true with respect to both the categorization of the crimes and the elements of the specific crimes. The most dramatic difference between the proposed Völkerstrafgesetzbuch and the substantive criminal law of the Rome Treaty is the detail with which the crimes (and their constituent elements) are defined in the proposed code. Repeatedly, in the explanatory materials that accompany the proposed legislation, the panel of experts responsible for drafting the code note that the brevity of the criminal provisions of the Rome Treaty (sometimes consisting of only two or three words)(16) risked a violation of Germany's constitutional mandate that crimes be specifically and clearly defined (Bestimmtheitsgebot -- Article 103(2) of the Basic Law). That the drafters of the Völkerstrafgesetzbuch felt it necessary to more deeply and definitively cast the terms of these crimes serves as an endorsement of (probably unwittingly) the common criticism that international law in general, and the international criminal law that has been deployed in Nuremberg, Tokyo, The Haag and Rwanda, are perilously indefinite, loosely thrown together political and ethical norms that mock the nature and meaning of positive law. Whether or not the Völkerstrafgesetzbuch will be enlisted to the service of such criticism, there is little cause to level such attacks against the VStGB itself, in which the drafters sought to more narrowly develop the elements and the operative definitions of the crimes.
1. Second Part -- First Chapter (Genocide and Crimes Against Humanity) [12] The proposed Völkerstrafgesetzbuch, at § 7, establishes the crime of genocide, closely corresponding to the former version of the crime as codified in the general criminal code.(17) The roots of the codification also lie in the 1948 Genocide Convention and § 6 of the Rome Treaty.
[13] The new crime of genocide under the proposed Völkerstrafgesetzbuch has one fundamental difference with the former German provisions (§ 220a StGB) and the Rome Treaty. The new provision permits a charge of genocide even if there has only been one victim (e.g., "killing a member of the group" at VStGB § 7(1)(1)); the previous versions of the crime required numerosity with respect to victims (e.g., "killing members of the group" at ICC Statute § 6(a)).
[14] The proposed Völkerstrafgesetzbuch, at § 8, outlines the crimes against humanity, closely corresponding to § 7 of the Rome Treaty and drawing upon the post-war tradition of this field of international criminal law, beginning with Article 6c of the Statute of the Nuremberg Military Tribunal and tracing then through Article 5c of the Far East Military Tribunal, Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia and Article 3 of the International Criminal Tribunal for Rwanda.
[15] Significantly, the provisions for crimes against humanity in the proposed Völkerstrafgesetzbuch apply to acts undertaken whether in peace or war time.
[16] The new provisions for crimes against humanity in the proposed Völkerstrafgesetzbuch differ from the terms of those crimes in § 7 of the Rome Treaty primarily only where changes were needed to bring the crimes into compliance with the German constitutional requirement of specificity.
[17] Paragraph 8(1) of the proposed Völkerstrafgesetzbuch establishes the two elements of a crime against humanity: (a) the Gesamttat (requirement that the act arise out of a broader context of actions); and (b) the singular, illegal acts (actus reus).
[18] The first of these elements draws the distinction for the application of the concept "crimes against humanity", and therefore international (though now domestic) criminal law norms, for acts that are also punishable as general crimes. The central distinction from "normal" criminal acts is that crimes against humanity occur as "part of a widespread or systematic attack against a civilian population."(18) The explanatory materials to the proposed Völkerstrafgesetzbuch advise that this (first) element focuses on attacks undertaken in the interest or support of a Political State or an organization which has the advancement of the interests of a Political State as its objective. The explanatory materials simply state that "a collective must stand behind the attack."(19) [19] The first of the two elements of a crime against humanity, under the proposed Völkerstrafgesetzbuch, also requires that a crime be the product of a considerable degree of planning (systematic) and that a large number of civilians be affected (in order to constitute a civilian population).
[20] The second element can consist of any of the following acts:
-- § 8(1)(1) cause the death of a person, -- § 8(1)(2) intentionally destroy/exterminate, in whole or in part, a group of people,(20) -- § 8(1)(3) to treat a person as a slave or to otherwise exercise property/ownership rights over a person, especially a woman or child, -- § 8(1)(4) deport or forcibly transfer a person who is rightfully in an area, -- § 8(1)(5) to torture a person who is in your care or under your special control, -- § 8(1)(6) force a person to have sex or to rape a person, force a person act as a prostitute, to ruin a persons ability to procreate, or to force a pregnancy upon a person out of racial or ethnic grounds, -- § 8(1)(7) enforced disappearances, -- § 8(1)(8) severely physically or emotionally harm another person, -- § 8(1)(9) falsely imprison someone, -- § 8(1)(10) deprive a group of their fundamental rights.
2. Second Part � Second Chapter (War Crimes) [21] In §§ 9 to 13, the proposed Völkerstrafgesetzbuch domesticates international humanitarian law, mostly modeling the Rome Statute with its roots in the various Geneva Conventions. The proposed Völkerstrafgesetzbuch creates five categories of humanitarian crimes: (a) war crimes against the person (§ 9), (b) war crimes against property and special rights (§ 10), (c) war crimes against humanitarian operations and emblems (§ 11), (d) war crimes involving the implementation of prohibited methods of making war (§ 12), and (e) war crimes involving the implementation of prohibited means of making war (§ 13).
[22] The proposed Völkerstrafgesetzbuch deviates from the Rome Treaty, setting down additional terms of humanitarian law where Germany is bound by other treaties, for example the terms of II. Protocol (1999) to the 1954 Convention for the Protection of Cultural Heritage in Armed Conflicts. The explanatory materials note that the proposed Völkerstrafgesetzbuch also sought to codify developments in customary humanitarian law and relied, to this end, on the uniform practice of states (especially as reflected in training and regulatory materials of national armed forces) and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the Rwanda Tribunal (the statutes of which served as a codification of existing custom at the time they were created). An example of the codification of customary humanitarian law is the proposed Völkerstrafgesetzbuch's expansion of the coverage of humanitarian law to include, not just international conflicts, but also domestic conflicts.
3. Second Part � Third Chapter (Special Crimes) [23] In §§ 14 and 15, the proposed Völkerstrafgesetzbuch establishes two special crimes, both of which have make efforts to evade prosecution for the violation of other international crimes a crime itself. Paragraph 14 finds a crime where a military or civilian commander fails to exercise his or her obligation to supervise the actions of his or her subordinates and prevent the subordinate from committing another of the provisions of the proposed Völkerstrafgesetzbuch, if the commander had advance warning/knowledge of the subordinate's criminal actions. Paragraph 15 punishes a military or civilian commander for failing to bring, to the attention of the officials responsible for investigating or prosecution of such acts, information regarding an act of one of his or her subordinates that is potentially in violation of one of the provisions of proposed Völkerstrafgesetzbuch.
III. Articles II and III � Völkerstrafgesetzbuch [24] The Second and Third Articles of the proposed legislation primarily make minor textual changes to the general German Federal Criminal Code and Federal Code of Criminal Procedure, to reflect the changes rendered by the establishment of a separate and distinct International Law Criminal Code.(21) There are, however, a pair of provisions that will be enacted by Articles II and III of the proposed legislation that merit discussion here.
[25] First, Article II formally repeals § 220a of the Strafgesetzbuch (StGB (German Federal Criminal Code). Paragraph 220a criminalized genocide, which will now be criminalized under Paragraph 7 of the new International Law Criminal Code. The repealed paragraph 220a played an important role in Germany's post-war democratic development, serving as one of the primary mechanisms by which Germany confronted, and thereby demonstrated its commitment to breaking with, its Nazi past.(22) More recently, § 220a has served as one of the primary mechanisms by which Germany has reasserted an international role for itself, characterizing the nature of the role Germany sees for itself in the international community and articulating its perspective on western, democratic values.(23) [26] Second, Article III adjusts Germany's Legalitätsprinzip (the principle that the prosecution must seek an indictment for all crimes) to accommodate the unique nature and circumstances associated with initiating, pursuant to universal jurisdiction, international law criminal proceedings against suspects who are not to be found in Germany or whose crimes did not have a direct impact on German interests.
[27] The Legalitätsprinzip is set down in § 152 of the Strafprozessordnung (StPO [German Federal Code of Criminal Procedure]):
(1) The office of the state's attorney has the authority to raise public charges .
(2) Except as otherwise provided by law, the office of the state's attorney is obligated to take action against all prosecutable criminal acts, provided there is sufficient factual evidence.
[28] The Legalitätsprinzip imposes not only an obligation to prosecute, but an obligation to open an investigation in every case for which there is a suspicion of criminal circumstances.(24) The Legalitätsprinzip, as a basic rule, ensures "uniformity in the application of the law" and "equality before the law", without which the prosecutor's monopoly over the indictment process would be unjust.(25) [29] A number of exceptions to the Legalitätsprinzip exist, however, providing the flexibility needed to manage the administration of justice on a large scale. These exceptions (known as the Opportunitätsprinzip [the principle that the prosecution has the opportunity to refrain from bringing some charges]), which normally require the approval of a judge (and therefore still fall well short of the unchecked prosecutorial discretion enjoyed by American prosecutors) are outlined in §§ 153a through 153e of the StPO.
[30] The proposed legislation creating the Völkerstrafgesetzbuch will add a § 153f, pursuant to which the prosecution can refrain from bringing charges arising under the VStGB, if the accused is not present in Germany and his/her presence in Germany is not expected. This exception may be applied, when the suspect is German, only if the prosecution will be brought before an international tribunal or in a court in the territory where the crimes occurred. Interestingly, the proposed legislation imposes a limitation on the exercise of the Opportunitätsprinzip in VStGB cases. Where, in every other provision of § 153 StPO, the prosecution "may refrain" from bringing charges, new § 153f at Paragraph 2 instructs that the prosecution "should refrain" from bringing charges if: (a) there is no suspicion against a German; (b) a German is not a victim; (c) the suspect is not to be found, or is not expected to be found, in Germany; and (d) the case will be pursued in an international tribunal or in a court in the territory where the crimes occurred. The control the new legislation will impose in these cases over the limited discretion the prosecution normally acquires from § 153 StPO is aimed at preventing a politicized and sensational use of the VStGB, as exemplified by the international law criminal charges brought in Spain against former Chilean dictator Augusto Pinochet.
