Are German courts responsible for IS crimes?

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Defendant A. before the Frankfurt Higher Regional Court, November 20, 2021

Photo:

FRANK RUMPENHORST / POOL / EPA

We know some pictures from Mr. A. They show a person holding a criminal record in front of his face. Sometimes he wears sweatpants and a sweatshirt, sometimes a shirt and jeans. The file is sometimes black, sometimes red. "Bild" complains: "Feige is hiding behind a folder." The idea of ​​what "Bild" means by courage is apt to generate sympathy for A. But let's leave that aside here. The name of Mr. A's wife is Mrs. W. She comes from Lohne, has intensely embellished fingernails, also holds a criminal file in front of her face and was sentenced to ten years imprisonment by the Munich Higher Regional Court - not legally binding - for aiding and abetting attempted murder.

These pictures are, you have to admit, big and colorful, but not really exciting if you disregard the judicial officers and terror attorneys depicted as accessories, who presumably cut them out and save them because it is biographically significant in the »historical process «To have been there. The trial is said to be "historic" because the systematic persecution of Yazidis is supposed to be "worldwide for the first time".

As is well known, Mr A. was sentenced to life imprisonment for murder and genocide on November 30, 2021 by the Frankfurt Higher Regional Court, here acting as the first instance as an exception; The judgment is not final. The act that Mr A. is charged with is the killing of a five-year-old Yezidi girl by long chains in great heat (as a "punishment"). In »Bild« it took place »in the desert« and »at 60 degrees«, in other media »on the window bars in the courtyard« and at 50 degrees, occasionally also at 45 or 55 degrees. That is of course not important in the matter; What is interesting is the range of fantasies in describing the torture.

Now, quite by chance, I remember a picture that I saw for many years in my childhood. It stood in a silver frame on the top of my parents' living room and showed a pale black-and-white photo, six by nine centimeters, of a young man in SS uniform. He was a dear relative and the sight of him a source of sadness, having "stayed in Russia". Over the years it became clear to me that he had been a member of the SS Totenkopf Division. My mother knew how to tell about his dagger, with which the brave had to defend themselves against the onslaught of Bolsheviks of all ages and genders. Because of the grace of the post-war birth, I was spared the acquaintance. I heard, however, that he was a lovely boy and a good person, albeit a seductive one. But always dutiful, fond of children anyway.

Oh yes!

How many terrorist wives and good-natured child butchers were tried at the Frankfurt Higher Regional Court between 1949 and 1989?

And where are all the other fanatical fellow murderers and their criminal lovers?

Most, I assume, lead a silent existence as black and white pictures on the dressers and in the albums of their dear heirs.

This may or may not be interpreted as a good sign.

Past!

Let's pull ourselves together: at least in retrospect, we want to do what is just.

At least on our enemies if they fall into our hands.

Genocide and others

The Higher Regional Court of Frankfurt has found the accused A. guilty: of genocide in unity with a crime against humanity resulting in death, a war crime against persons resulting in death, aiding and abetting of a war crime against persons in two incidents and with bodily harm resulting in death.

That sounds complicated, but in the end it is just a bit confusing because the penal norms used are very clear and therefore a bit cumbersome.

The "genocide" is the crime that is in the foreground here.

It used to be at the front of the "Special Part" of the Criminal Code (Section 80, old version).

Since 2002, following the “Roman Statute of the International Criminal Court”, it has faded to the shadows in the Criminal Code and instead moved to Section 6 of the then new “International Criminal Code” (VStGB).

Because not all readers are familiar with the applied regulations, they are cited in excerpts.

Section 6 (1) VStGB reads:

(1) Anyone who intends to destroy, in whole or in part, a national, racial, religious or ethnic group as such,

1. kills a member of the group,

2. inflicts severe physical or mental damage on a member of the group, in particular of the type specified in Section 226 of the Criminal Code,

3. places the group under living conditions that are suitable to bring about its physical destruction in whole or in part,

4. Take measures to prevent births within the group,

5. forcibly transferring a child from the group to another group,

is punished with life imprisonment.

Section 7 (1) number 1 of the VStGB reads:

(1) Anyone who, as part of an extensive or systematic attack against a civilian population, 1. kills a person,

(...)

is punished in the cases of numbers 1 ... with life imprisonment (...).

And § 8 paragraph 1 number 1 VStGB reads:

Section 8 War crimes against persons

(1) Anyone in connection with an international or non-international armed conflict

1. kills a person who is to be protected under international humanitarian law, (...)

is punished in the cases of number 1 with life imprisonment ...

I leave out the other rules that have been applied, otherwise it will be too confusing. What I strongly recommend, you can read the regulations on the BMJV's website “Laws on the Internet” under “VStGB”. This is very instructive for several reasons: On the one hand, you can see how difficult and cumbersome it can be to "translate" international legal requirements into national law - trusting that the international law partners will do the same. On the other hand, one can test one's ability to be imaginative by imagining the actions listed in Sections 6 to 8 of the VStGB vividly and concretely. If you want to and if you dare, you can also undertake a subsequent »subsumption« of the various war adventures handed down in the family. After all, you canwith §§ 6 to 8 VStGB in the back of your mind, classify the unimportant-sounding empty phrases from "Tagesschau" to "Foreign Minister" a little better.

Here, in the case of the Frankfurt Higher Regional Court, the perpetrator A., ​​a fighter from the "Islamic State", had bought a young woman (the co-plaintiff) and her five-year-old daughter as "slaves"; he used his wife as a servant in his household, which he ran with his wife, who came from Germany. Both victims were persistently and repeatedly mistreated, humiliated and tortured; the defendant inflicted serious injuries on them. The background to the enslavement was the fact that the victims were Yazidis, i.e. members of a non-Islamic religious community. In the ideology of the organization "Islamic State" these are regarded as infidels and inferior; their submission, killing and annihilation as an ethnic group are supposedly divinely permitted and worth striving for.Sadistic fantasies of omnipotence do not presuppose a strong belief in one's own divinity; but it is useful to them.

procedure

The defendant A. is a foreigner.

He committed the act against the foreign victims abroad.

It is therefore not a matter of course that the German criminal justice system should be appointed and authorized to prosecute his acts.

The answer results from Section 1 (1) sentence 1 of the VStGB, which is a German law, not an "international law", and therefore applies to the German judiciary:

"This law applies to all criminal offenses against international law specified in it, for offenses under Sections 6 to 12 even if the offense was committed abroad and has no connection to Germany."

And the jurisdiction of the OLG as a court of first instance results from Section 120 (1) No. 8 of the Courts Constitution Act (GVG).

So everything is clear.

Of course, one can / must ask what concerns the German courts when foreigners commit crimes against foreigners abroad. That cannot be answered simply by referring to a regulation text. Because the states are, as we know, a little tricky with their sovereignty and the persecution of their citizens by foreign powers. If the Taliban, which recently once again turned from a "terrorist gang" into a state apparatus, wanted to try a German citizen in Kabul for insulting an Indian imam in France, our Foreign Minister, 55, would immediately speak into a camera that If this does not stop immediately, he will ask the Federal President, 65, to consider examining a number of possible sanctions,whether he might not be able to mention them in his next New Years address.

However, one has to admit that it would probably not come to that, if only because of the urgency of other official business. The acting foreign minister, who, in view of the recent, completely surprising victory of the Taliban state in Afghanistan, a very remote part of the world, informed us that he would soon be personally exporting around 80,000 "local workers", including children and adults, to the safe city of Berlin Calculated once, so that fortunately the number of needy helpers halved, and then recently reported that the first 500 were already there. So there will still be a lot of work to be done for the upcoming international lawyer.

Back to topic: Why international criminal law? Why international jurisdiction? You have to say: These are extremely thick boards that have been drilled with unusually thin drills for so long that many of those involved already believe that the most important goal is not the hole, but continuing to drill until retirement. A look at the International Criminal Court in The Hague also shows us the way to Washington, Moscow and Beijing. "Nada" is the answer there, if you're lucky: You don't even go to such events. If anyone dares to bring Americans to court for war crimes, the Navy Seals come with Matt Damon as the low-flying colonel, Mickey Rourke as the corrupt kitchen cop and Willie Nelson as the medicine man and get the boys out of Holland, theAs you know in Washington, it is a very pretty little town near Brussels.

Stress, relief, overload

What are the complaints about ?, you will (hopefully) ask: Better one in a million is caught than none at all. Good point. It's similar to shoplifters or underage stoners, only in the area of ​​serious crime. Although the "Islamic State" sees the crime issue a little differently than the OLG judge in Frankfurt. This brings us to the question of the constitutive or declaratory effect of the classification of an "organization" as a "terrorist organization abroad" (see § 129b StGB): become a "terrorist abroad" because the Federal Court of Justice says so, or vice versa ? And how do you become, like the poor Taliban, first freedom fighter, then state, then terrorist,then a negotiating party under international law and then again the state? On the other hand, we naturally ended up with Gustav Radbruch's essay: "Statutory injustice and supra-statutory law" ("Süddeutsche Juristenteitung", 1946, page 105). Hopefully every citizen knows that natural law, which had been reanimated in the short term, broke ground against the un-German demon, which, with the next surge, after 40 years, finally enabled us to bring the henchmen of a German unjust state in an exemplary manner to supra-legal justice.after 40 years finally enabled to bring the henchmen of a German unjust state in an exemplary manner to supra-legal justice.after 40 years finally enabled to bring the henchmen of a German unjust state in an exemplary manner to supra-legal justice.

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Thomas Fischer

Sex and Crime: About Intimacy, Morality and Punishment

Published by Droemer HC

Number of pages: 384

Published by Droemer HC

Number of pages: 384

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Now that we are halfway at peace with our own genocidal past, we unfortunately have globalization at our fingertips, including international criminal law, and a thousand or three thousand murdered children a day out there in the deserts from which the oil, copper and euro flow to us . The question arises as to which of the genocides we want to arrest, persecute and try, and which victims we allow as co-plaintiffs.

That's a strange question.

She is, of course, cynical when she thinks it is better to do nothing than to use a little arbitrary symbolism hand in hand with "image".

But she is also cynical when she pretends that a stream of philanthropic justice flows from Germany into the deserts of the world.

Are there actually Yazidis among the fence besiegers on the border with Poland?

War, peace, law

As we know, the war has changed its face greatly over the past 200 years. As is well known, the Germans were at the forefront of progress in its industrialization (WK I) and totalization (WK II), but since then, with Joschka Fischers and the baron to Guttenberg's help, have mutated into a robust peacekeeping force, to whom the war actually only happened by chance happens, which is then resolutely lost.

At the moment the barbarians of the steppe are gathering around the outer wall, sometimes in smaller, sometimes in larger groups, scratching with cruise missiles and inflatable boats, pipelines and proxy mass murder.

In here, on the castle keep, the judges sit and check whether the warrior of God in northern Iraq had a conditional annihilation intent and his pious wife had a duty to guarantee the life of her slaves from previous illegal activities. Thanks to the excellent German criminal law doctrine, the answers are not difficult for the time being. especially since we ask the questions at the level of absolute safety and from a great distance.

The rest is foreign policy.

Only the really big ones can do that.