Germany’s Attitude Vis-à-vis International Crime and its Prosecution by Domestic Courts

Abstract

International and national immunities prevent prosecution. They must therefore be observed ex officio. In the case of a subordinate Afghan military officer and his acts relevant under international criminal law, the highest German criminal court, by ruling of 28 January 2021, found that customary international law does not contain such immunities, if the accused officer committed Rome Statute offences abroad against non-German victims. The finding reinforces the principle of global jurisdiction according the Rome Statute. The court defined the legal war crimes element of torture. Torture does not necessarily require the use of physical force; injuries suffered are therefore an indicator. The concept of torture is also satisfied if an atmosphere of violence is created that may influence the victim’s right to self-determination in the intention of the torturer. An additional crime element consisted in the violation of post-mortem dignity of human beings, which demands respectful treatment of dead opponents. A public display of dead adversaries for the purpose of propaganda runs counter this.