Reform of the International Criminal Law Framework in Germany – Successful Changes and Missed Opportunities: Part I

[Isabelle Hassfurther is a legal advisor in the International Crimes and Accountability program at the European Center for Constitutional and Human Rights (ECCHR). The ECCHR submitted a statement on the draft bill and participated in the expert hearing in the parliament’s legal committee.]

[The text has also been published in German in a slightly shorter version on Verfassungsblog.]

On 6 June 2024, the German parliament [Deutscher Bundestag], passed the ‘Act on the Further Development of International Criminal Law’ [Gesetz zur Fortentwicklung des Völkerstrafrechts], which serves to reform the German legal framework for the prosecution of international crimes (BT Drs. 20/9471, 20/10015, 20/10131 No. 1.21, as amended by the Legal Affairs Committee, 20/11661). The declared aims of the legislative amendments are to “close gaps in criminal liability, strengthen victims’ rights and improve the broad impact of international criminal law judgments”. Accordingly, the reform of covers a broad scope – important changes provided for by the law concern both substantive and procedural aspects in the German Code of Crimes against International Law [CCAIL], the German Criminal Code [CC], the German Code of Criminal Procedure [CCP], the Courts Constitution Act [CCA] and the Federal Criminal Police Office Act.

This reform was long overdue. The German Code of Crimes against International Law has been in force for more than 20 years and, after a long time without application, a legal practice with international significance has developed in recent years. German courts and prosecution authorities have written legal history with successful proceedings on Syrian state torture and crimes by the so-called Islamic State [IS]. At the same time, this practice has shown gaps in the legal framework. Against this backdrop, international criminal law scholars and civil society organizations have been campaigning for a revision for years. The European Center for Constitutional and Human Rights [ECCHR], for example, has repeatedly pointed out the need for improvement (e.g. here, here and here).

In line with the stated objectives, the reform indeed closes gaps in criminal liability (Part I). The extent to which international criminal proceedings will become more accessible for survivors and civil societies affected by international crimes is, however, at the discretion of the courts and remains to be seen (Part II).

Important Steps Forward: Closing Gaps in Criminal Liability and Improving the Broad Impact of International Criminal Law Judgments

The law contains a number of welcome changes to the legal framework, closing gaps in criminal liability and potentially improving participation opportunities:

1. Closing Gaps Concerning Sexual and Gender-based Violence

The amendments to the provisions on sexual and gender-based violence are particularly positive. On the one hand, sexual violence as a crime against humanity (Section 7(1) no. 6 CCAIL as amended) and as a war crime (Section 8(1) no. 4 CCAIL as amended) have been adapted to the standards of the Rome Statute of the International Criminal Court [ICC]). In their old version, the German provisions did not mirror Art. 7(1)(g), (2)(f) and Art. 8(2)(b)(xxii), (e)(vi) Rome Statute comprehensively. Under the revised law, sexual slavery has been included. Moreover, the confinement of a person forcibly made pregnant is no longer only punishable if it is undertaken with the intention of affecting the ethnic composition of a population, but also if it is done to commit other international crimes included in the CCAIL. The ICC’s judgment against the rebel leader Dominic Ongwen, who was convicted of forced pregnancy, holding pregnant women captive in order to force them to live as his ‘wives’ and to be able to continue raping, torturing, and sexually enslaving them, illustrates the gaps in criminal liability without this second from of intent (for further examples ECCHR, p. 19).

Furthermore, the provisions previously criminalized “sexual coercion”, presupposing an element of compulsion, which has long been outdated even in German criminal law. Its replacement with the notion of “sexual assault” – and thus with a focus on the opposing will of those affected – constitutes an important step towards a modern, human rights-based understanding of the right to sexual self-determination (see also Leonie Steinl/Tanja Altunjan). Due to this amendment, cases of sexual violence covered by the catch-all provision in the Rome Statute (“any other form of sexual violence of comparable gravity”, Art. 7(1)(g), (2)(f), Art. 8(2)(b)(xxii)) but not criminalized by the narrow notion of “sexual coercion” can be prosecuted. This is confirmed with welcome clarity by the German parliament’s Legal Committee’s Explanatory Memorandum on the amended version of the law. It refers to the ICC Office of the Prosecutor’s Policy on Gender-Based Crimes and foresees a context-sensitive interpretation of the provision in accordance with international law. Accordingly, depending on the individual case, forced nudity or the forced removal of a veil could form the basis of criminal liability (Explanatory Memorandum of the Legal Committee, p. 15).

Finally, the clarifying inclusion of persecution on grounds of sexual orientation as a crime against humanity (Section 7(1) no. 10 CCAIL as amended) and the call for an intersectional approach in the interpretation of the provision (Explanatory Memorandum of the Legal Affairs Committee, p. 15) are milestones. It is to be hoped that these reforms will inform the practice of prosecution authorities in the future (see critically Alexandra Lily Kather/Alexander Schwarz on the proceedings concerning genocide, crimes against humanity, and war crimes against a Yazidi girl and her mother before the Frankfurt Higher Regional Court, in which persecution for religious and gender grounds was not prosecuted).

2. Partial Alignment of Framework on Enforced Disappearances

Similarly overdue was the reform regarding the crime of enforced disappearance. Thereby, Germany – finally – at least partially implements its obligations under the International Convention for the Protection of All Persons from Enforced Disappearance [ICPPED] (see the UN Committee on Enforced Disappearances’ reprimand).

In the provision on enforced disappearance as a crime against humanity (Section 7(1) no. 7(a) CCAIL as amended), the requirement for an – often highly risky and pointless – inquiry into the whereabouts of the disappeared was removed. Civil society has been calling for this reform for years. In the Al-Khatib trial on state torture in Syria before the Higher Regional Court of Koblenz, this requirement prevented a conviction for enforced disappearance as a crime against humanity, even though it constitutes an emblematic crime of the Syrian regime (see ECCHR). The previously required intention to deprive someone of the protection of the law “for a longer period of time” equally exceeded the ICPPED. It was replaced with the intention to do so “not only for a short time” to clarify that no specific duration of the enforced disappearance must be intended (Explanatory Memorandum of the Legal Committee, p. 15). Moreover, a separate offense of enforced disappearance was finally introduced in Section 234b CC in order to reflect the specific injustice of this crime in line with the international framework (on this necessity Kai Ambos). However, Section 7(1) no. 7(a) CCAIL continues to stipulate the requirement of a deprivation of liberty “in a serious manner”, contradicting Germany’s obligations under the ICPPED (German Institute for Human Rights, p. 5). It is incomprehensible why this amendment was ignored – especially as a rejected proposal by the Christian Democratic Union/Christian Social Union parliamentary group indicates that the deletion was discussed (BT Drs. 20/11668).

3. Non-Applicability of Functional Immunity

A key improvement is the clarification that foreign state officials cannot invoke functional immunity before German courts in proceedings for international crimes regardless of their rank (Section 20(2) CCA as amended). While this was already the case before the reform (see Federal Court of Justice, Decision of 21 February 2024, AK 4/24, para. 53; see similarly e.g. Paris Cour d’Appell on 6 June 2024), it was up to the courts and law enforcement authorities to justify this circumstance referring to customary international law. Recognition by the legislator therefore leads to legal certainty – and hopefully also to the German government taking a clearer stand internationally against functional immunity for international crimes than it has done to date (for a critical view of the German position on the ILC Draft Articles on Immunity of State Officials see ECCHR, Keine Immunität für Völkerstraftaten).

4. Broadening of the Scope of War Crimes against the Environment

Another amendment concerns war crimes against the environment. Military attacks which the perpetrator definitely anticipated to cause widespread, long-term and severe damage to the natural environment that is disproportionate to the concrete and direct overall military advantage expected are now also punishable in non-international armed conflict (Section 11(1) no. 8 CCAIL as amended). However, the extension of the scope of application cannot conceal the fact that the subjective requirements for the offense are so high, unclear, and also associated with such difficulties of proof that prosecution only appears possible in exceptional cases (see Anne Dienelt). These prerequisites are mirroring the Rome Statute (Art. 8(2)(b)(iv)). The German government should thus follow the suggestion of the Legal Committee, to work towards an amendment with ICC States Parties (Explanatory Memorandum of the Legal Committee, p. 16) to create a solid legal basis for lowering the threshold for criminal liability under domestic law.

5. Improved Options for Documentation and Outreach on Trials

Two further alterations, which are particularly important in international criminal proceedings, relate to documentation and the facilitation of linguistic participation. Proceedings for international crimes that violate the fundamental values of the international community have significance beyond Germany. It is therefore crucial to record them and make them accessible internationally – especially to members of civil society in the country where the crime took place, where legal accountability can support political and social transformation processes. Against this background, Section 169(2) sentence 1 CCA as amended clarifies that courts may allow recordings of proceedings of “outstanding contemporary significance” for historical and academic purposes without requiring a relevance for Germany (which the law did before the reform).

On the other hand, media representatives who do not speak German may make use of interpretation and the court may provide them with existing interpretation (Section 185(4) CCA as amended). This takes into account the case law of the German Federal Constitutional Court in the Al-Khatib proceedings on state torture in Syria, according to which a right to equal and real participation in reporting opportunities on court proceedings must be taken into account (Decision of 18 August 2020, 1 BvR 1918/20, para. 11).

Both Sections 169(2) and 185(4) CCA are discretionary provisions, it thus remains to be seen how willingly the courts will apply them in practice – in any event, the legislator has clarified that this should regularly be the case, provided there are no important reasons to the contrary (Explanatory Memorandum of the Legal Committee, p. 19, 21).

Furthermore, the intention of the Federal Ministry of Justice to have judgments translated into English, is a welcome initiative in this context, which should be extended to multilingual press releases on other procedural developments of public interest. This is the only way to effectively meet the information needs of the affected society and the international community.