Germany’s government likes to consider itself a global pioneer in the field of international criminal law, and yet the German Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) contains a gender bias that hampers the prosecution of sexual and gender-based violence in armed conflict in accordance with the Statute of the International Criminal Court. Civil society actors have long demanded a reform to this law, and last year, for the first time, a defendant was convicted in Germany of sexual violence as a crime against humanity. But what gaps in criminal liability remain above and beyond those addressed in the key issues paper recently released by the German justice ministry?
Sexual and gender-based violence in armed conflict
Sexual and gender-based violence is one of the cheapest and most socially destructive weapons of war. It is primarily directed towards women and girls, but men and boys are targeted too. This type of violence is usually embedded in binary, heteronormative, gendered lifestyles. Rape, sexual slavery, forced pregnancy and sexual torture cause the victims immeasurable physical and psychological suffering. Many of them are subsequently severely traumatised. These forms of violence are also used to destabilise or destroy families, the political opposition or ethnic groups. In patriarchal societies, men use sexual and reproductive violence as a way of asserting their power. Documentation from the Bosnian War shows that women were raped and only sent back to their families once they became pregnant. In patriarchal societies, latent sexual and gender-based discrimination can quickly escalate into direct use of violence in situations of armed conflict. United Nations Security Council Resolutions 1325 and 1820 call on UN members to take action against sexual and gender-based violence in armed conflict.
Gender bias in the CCAIL
Since 2002, the German Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) has determined what offences in connection with an internal armed conflict or war constitute crimes against humanity (Section 7) or war crimes (Section 8). Thanks to the principle of universal jurisdiction, those who have committed an offence against international law can be prosecuted and convicted in Germany even if the offence took place in another state and neither victim nor perpetrator has German citizenship. The CCAIL was created to enable Germany to become a state party to the Rome Statute of the International Criminal Court (Rome Statute). The offences classified as crimes in the CCAIL are essentially the same as those covered by the Rome Statute. The German government’s express objective in passing the law was to ensure that all offences punishable in accordance with the Rome Statute should be prosecutable in Germany. To this day, the government considers itself a progressive pioneer in this regard.
However, there are gaps in the CCAIL with respect to the prosecution of offences concerning sexual and gender-based violence. Firstly, unlike Article 7(1)(g) and Article 8(2)(b)(xxii) of the Rome Statute, the CCAIL contains no reference at all to sexual slavery. That means that this crime cannot be prosecuted in a manner that reflects the particular gravity of the offence. Secondly, part of the definition of forced pregnancy has been drastically curtailed because one of the ways in which the crime may be committed has simply not been incorporated into the CCAIL. If Dominic Ongwen had been prosecuted in Germany rather than in the International Criminal Court, he would have found a safe haven with regard to the crime of forced pregnancy. Thirdly, the catch-all provision contained in the Rome Statute was replaced in the CCAIL by the offence of sexual coercion, which is foreign to international criminal law, and it was pointed out that this alternative offence should be interpreted with recourse to the German Criminal Code (Strafgesetzbuch, StGB), specifically to Section 177 of the StGB then in force. This approach stands out conspicuously in comparison with how the other elements of the offence were incorporated into the CCAIL and leads to unnecessary difficulties in the interpretation of the law. That is because the norms of the CCAIL should generally be interpreted according to international standards. When it comes to cases of universal jurisdiction in particular, this is the only appropriate way to uphold the principle of legal certainty in international law.
One can only speculate about the reasons behind the gaps in criminal liability. What is striking is that the restrictions correspond to the gender-based discrimination that was inscribed into the StGB up until the 2016 reform. Section 177 of the StGB, whose concept of sexual coercion was linked to the CCAIL, had to be reformed in 2016 because it was contrary to international law and violated the Istanbul Convention. The ongoing criminalisation of abortion in Germany, which is also contrary to international law, will hopefully be abolished within the next few years.
German civil society fighting to end gender bias
A network of feminist civil society actors in Germany have long called for the CCAIL to be interpreted in accordance with international standards and to be brought into legislative alignment with the Rome Statute. Specifically, they have demanded that sexual coercion in Section 7(1)(6) of the CCAIL be interpreted in accordance with the catch-all provision in Article 7(1)(g) of the Rome Statute and to relevant case law of the International Criminal Court. They have further urged that all elements of the offence be brought into line with the Rome Statute. Their general aim is to break up the culture of impunity surrounding gender-based violence in armed conflict, including in international criminal proceedings in Germany. Up until 2022, there had not been a single conviction in Germany under Section 7(1)(6) or Section 8(1)(4) of the CCAIL.
The first criminal trial worldwide on torture in Syrian detention facilities, which took place before the Koblenz Higher Regional Court, was initially a continuation of the culture of impunity described above. Although the prosecution knew that sexual violence was used in systematic ways, this offence was treated as isolated cases in the original indictment and not charged under Section 7(1)(6) of the CCAIL. It was not until after several joint plaintiff representatives, who were in close contact with the aforementioned civil society actors, filed a motion on 19 November 2020 to include the norm in the charges that the incidents of sexual violence were prosecuted as crimes against humanity. The Federal Prosecutor’s Office accepted the legal arguments and confirmed in its closing statement the interpretation of sexual coercion in Section 7(1)(6) of the CCAIL in accordance with international standards. From the standpoint of transnational norm-generating processes, this clarification represents an important milestone in the struggle for the full criminal prosecution of gender-based violence in Germany pursuant to the Rome Statute.
Thanks to the legal interventions requesting a subsequent inclusion of charges under Section 7(1)(6) of the CCAIL, and thanks to the rigorous legal arguments made to the court, the first conviction in Germany involving sexualised violence as a crime against humanity was handed down by the Koblenz Higher Regional Court on 13 January 2022. However, as legal certainty is a fundamental principle of criminal law, and that rightly so, it is also clear that only a reform of the CCAIL could eliminate the gender-based discrimination written into the code. The European Center for Constitutional and Human Rights (ECCHR) issued a corresponding statement in March 2022.
Key issues paper of the German justice ministry and further necessary reforms
On 23 February 2023, the German justice ministry published a key issues paper on the reform of the CCAIL. The paper only calls for the alternative offence of sexual slavery to be incorporated into Section 7(1)(6) of the CCAIL. In view of the extensive pioneering role mentioned in the key issues paper, deliberately maintaining gender-based discrimination in the CCAIL is not only politically unfortunate, but is also a violation of Germany’s obligation to eliminate gender-based discrimination under Article 3(2), second sentence, of the German Basic Law (Grundgesetz, GG) and under the UN Convention on the Elimination of All Forms of Discrimination against Women.
More detailed information can be found in: Theurer, Karina: Das deutsche Völkerstrafgesetzbuch als Austragungsort transnationaler Kämpfe um die Ahndung sexualisierter Gewalt in bewaffneten Konflikten, Femina Politica – Zeitschrift für feministische Politikwissenschaft, 2-2022, pp. 41 –56.