German International Criminal Law and ICC Cooperation

The Völkerstrafgesetzbuch (VStGB)

The German Code of Crimes against International Law (Völkerstrafgesetzbuch, VStGB) was enacted in 2002, entering into force on 30 June 2002, and represents the German implementation of the Rome Statute of the International Criminal Court (ICC). The VStGB codifies the core international crimes under German domestic law: genocide (Völkermord, § 6), crimes against humanity (Verbrechen gegen die Menschlichkeit, § 7), war crimes (Kriegsverbrechen, §§ 8–12), and since 2024, the crime of aggression (Angriffskrieg, § 13, as amended to align with the Kampala Amendments). The VStGB is significant not only as an implementation statute but as a landmark in the development of universal jurisdiction. Section 1 VStGB provides that the Code applies to all felonies under the Act — including those committed abroad with no connection to Germany — thereby establishing universal jurisdiction (Weltrechtspflegeprinzip) for the core international crimes. The Federal Court of Justice (Bundesgerichtshof, BGH) confirmed in the Syrian Intelligence Service case (BGHSt 66, 1) that universal jurisdiction under the VStGB is not subsidiary to the jurisdiction of territorial states or the ICC, and that German prosecutors may investigate and prosecute crimes falling within the scope of the VStGB regardless of where they were committed or the nationality of the perpetrator or victim, subject only to prosecutorial discretion under § 153f of the Strafprozessordnung (StPO).

Universal Jurisdiction in Practice

The exercise of universal jurisdiction under the VStGB has been shaped by the principle of subsidiarity (Subsidiaritätsprinzip) codified in § 153f StPO. The provision, introduced as a procedural counterpart to the substantive universal jurisdiction, directs the Generalbundesanwalt (Federal Public Prosecutor General) that proceedings under the VStGB may be discontinued if the offence is being prosecuted by an international court, the territorial state, or the state of the perpetrator’s nationality, or if the accused is not present in Germany and their presence cannot be expected. The Schlussstrichgesetz (closure provision) of the VStGB has been subject to intense academic criticism as a mechanism that undermines the universal jurisdiction principle. However, the BGH has held that § 153f StPO does not impose a hierarchical priority but rather requires the prosecutor to exercise discretion guided by the gravity of the crime, the availability of evidence, and the willingness and capacity of other states to prosecute. The Syrian Intelligence Service case (2021) marked a significant shift: the Generalbundesanwalt brought charges against two former members of the Syrian intelligence service for crimes against humanity committed in Syria, the first trial under the VStGB to proceed on the basis of universal jurisdiction without any traditional nexus to Germany. The Federal Ministry of Justice (Bundesministerium der Justiz, BMJ) has subsequently strengthened the VStGB unit within the Generalbundesanwalt and allocated additional resources to VStGB investigations.

Genocide and Crimes Against Humanity: Elements

The VStGB defines the core crimes in terms closely aligned with the Rome Statute but with certain important differences. Genocide under § 6 VStGB follows the definition in Article II of the Genocide Convention: the intentional destruction, in whole or in part, of a national, ethnic, racial, or religious group through killing, causing serious bodily or mental harm, imposing destructive conditions of life, preventing births, or forcibly transferring children. The BGH has held that the group must be identified by objective characteristics and that the genocidal intent (Vernichtungsabsicht) requires proof that the perpetrator acted with the specific purpose of destroying the group as such. Crimes against humanity under § 7 VStGB require conduct — including murder, torture, rape, enslavement, persecution, or enforced disappearance — committed as part of a widespread or systematic attack directed against any civilian population. The BGH has interpreted the “widespread or systematic” threshold as disjunctive: either the attack involves a large number of victims (widespread) or it follows a pattern of organised planning (systematic). War crimes under §§ 8–12 VStGB cover grave breaches of the Geneva Conventions, violations of the laws and customs of war applicable in international armed conflict, and serious violations of Common Article 3 applicable in non-international armed conflict. The war crime of using prohibited methods of warfare under § 11 includes intentionally directing attacks against the civilian population, civilian objects, humanitarian personnel, or cultural property. The 2024 amendment introduced the crime of aggression, defining it as the planning, preparation, initiation, or execution of an act of aggression that by its character, gravity, and scale constitutes a manifest violation of the UN Charter.

Cooperation with the International Criminal Court

Germany’s cooperation with the ICC is governed by the Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof (IStGH-Gesetz, IStGHG) of 2002, which implements Part 9 of the Rome Statute on international cooperation and judicial assistance. The IStGHG regulates the arrest and surrender of persons to the ICC, the execution of ICC requests for evidence and witness testimony, the freezing and forfeiture of assets, and the enforcement of ICC sentences in German prisons. Germany was one of the first states to conclude an enforcement of sentences agreement with the ICC, under which persons convicted by the ICC may serve their sentences in German prisons, subject to the conditions that the sentence is compatible with German constitutional principles and that the convicted person has consented. The Bundesministerium der Justiz acts as the central authority for ICC requests (§ 3 IStGHG), and the Generalbundesanwalt executes requests for arrest and surrender, which are then reviewed by the Oberlandesgericht (Higher Regional Court). The Al Bashir litigation (OLG Karlsruhe, 2012) addressed the obligation to arrest a sitting head of state on an ICC warrant; the Court held that the IStGHG provides no exception for heads of state and that the absence of domestic enforcement mechanisms implementing the Rome Statute obligation would constitute a breach of Germany’s international obligations. Germany also contributes €16 million annually (as of 2024) to the ICC’s budget, making it the fifth-largest contributor to the Court, and provides seconded prosecutors, judges, and legal officers to the ICC’s organs.

Enforcement and Recent Cases

The enforcement of VStGB judgments and ICC sentences in Germany follows the general provisions of the Strafvollzugsgesetz (StVollzG), supplemented by the IStGHG for ICC prisoners. Germany has accepted the transfer of several ICC convicts to serve their sentences in German prisons, including individuals convicted of war crimes in the Democratic Republic of the Congo and the Central African Republic. The VStGB’s Tatzuständigkeit (jurisdiction over the act) has been exercised in several significant cases: the Syrian Intelligence Service trial before the Oberlandesgericht Koblenz (2021–2022) resulted in the conviction of two defendants for crimes against humanity, the first conviction under the VStGB for crimes committed in Syria. The Al-Khatib case before the Oberlandesgericht Koblenz (2022) resulted in a life sentence for crimes against humanity and war crimes committed in Syria. The Faust case (Oberlandesgericht Stuttgart, 2023) involved a German national convicted of war crimes for participating in attacks on civilians in Iraq as a member of a foreign terrorist organisation. The Generalbundesanwalt currently has over 50 open investigations under the VStGB, targeting individuals suspected of crimes in Syria, Iraq, Afghanistan, Yemen, Myanmar, and Ukraine, reflecting Germany’s commitment to the principle that there is no impunity for the core international crimes.