scholarly journals Desecration of Corpses in Relation to § 8(1) no. 9 German Code of Crimes Against International Law (VStGB): The Judgment of the German Federal Court of Justice (Bundesgerichtshof) of July 27, 2017–3 StR 57/17

2021 ◽  
Vol 22 (2) ◽  
pp. 276-287
Author(s):  
Vanessa Bergmann ◽  
Franziska Blenk ◽  
Nathalie Cojger
Keyword(s):  
International Law ◽  
International Conflict ◽  
Federal Court ◽  
Criminal Court ◽  
The Body ◽  
Humanitarian Law ◽  
Frankfurt Am Main ◽  
Court Of Justice ◽  
Syrian Civil War ◽  
Federal Court Of Justice

AbstractAs a reaction to the killing and beheading of two soldiers in the Syrian Civil War, the German Federal Court of Justice (BGH) set a milestone in the interpretation of § 8(1) no. 9 of the German Code of Crimes against International Law (VStGB). The judges confirmed the conviction of a young German citizen with Syrian roots, Aria L., who had been tried and convicted before the Higher Regional Court of Frankfurt am Main (Oberlandesgericht (OLG) Frankfurt am Main). Within the certiorari, the BGH reviewed whether the statute conformed with the principle of legality found within the Grundgesetz (GG), Germany’s constitution. The Court held that the corpse of a person killed is protected from desecration under humanitarian law pursuant to § 8(1) no. 9 VStGB, the equivalent to Article 8(2)(b)(xxi) and (3)(ii) of the Rome Statute for the International Criminal Court (ICC). Reviewing this particular decision, it was determined that under the circumstances of a non-international armed conflict, beheading someone, placing the head on a metal rod, and taking pictures afterward in order to upload them onto social media is gravely humiliating and degrading. The head is incomparably the part of the body that identifies a person. Furthermore, it is irrelevant whether the perpetrator had any physical influence over the person. In addition, war crimes can be committed in a non-international conflict, which should, however, be treated equally as an international conflict. This outcome triggered diverse reactions amongst legal scholars, especially due to the extension of the understanding of a “person” who is to be protected under humanitarian law.

scholarly journals The Constitutionality of § 89a of the German Criminal Code (StGB) and the Concept of a Serious Act of Violent Subversion: The German Federal Court of Justice (Bundesgerichtshof), Judgement of 8th May 2014 - 3 StR 243 / 13

2017 ◽  
Vol 18 (3) ◽  
pp. 631-646
Author(s):  
Christopher Ohnesorge ◽  
Julia Wilkes ◽  
Marius Eichfelder ◽  
Jinnus Rastegar ◽  
Matthias Derra ◽  
...  
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Legal Certainty ◽  
Frankfurt Am Main ◽  
Court Of Justice ◽  
Actus Reus ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
German Parliament ◽  
Terrorist Acts

As a reaction to the increasing terrorist threat in Europe, the German Parliament (Bundestag) passed a law penalizing the preparation of terrorist acts endangering the state: § 89a German Criminal Code (StGB). The Regional Court of Frankfurt am Main (LG Frankfurt) was the first to apply this section to a case where a young man was accused of building a pipe bomb. Upon his conviction, the defendant appealed to the German Federal Court of Justice (BGH), claiming § 89a StGB to be unconstitutional. The BGH reviewed whether the statute was in conformity with the principles of the German Constitution (GG), including the principle of legal certainty and appropriateness. It held that these principles were fulfilled, if stricter requirements are applied regarding the mens rea in order to counterbalance the broad actus reus. It decided that the Regional Court had not fulfilled this particular requirement and quashed the conviction insofar. This case and § 89a StGB caused ripples amongst legal scholars, especially due to the unusual penalization of preparatory acts and the broad scope of the statute's application. This case also produced an unprecedented change within the judge's bench.

Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case

2021 ◽  
pp. 0003603X2199702
Author(s):  
Anne C. Witt
Keyword(s):  
Data Collection ◽  
Competition Law ◽  
Federal Court ◽  
Digital Platforms ◽  
High Profile ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Constitutional Right ◽  
Abuse Of Dominance

In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.

Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law

2020 ◽  
Vol 25 (1) ◽  
pp. 53-79
Author(s):  
Emma J Marchant
Keyword(s):  
Precautionary Principle ◽  
Armed Conflict ◽  
Federal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Precautionary Principle ◽  
Lack Of Information ◽  
Operational Application ◽  
Federal Court Of Justice ◽  
Insufficient Knowledge

Abstract The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.

Freiheit der Advokatur

2021 ◽  
Author(s):  
Philipp Heinrichs
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Selection Procedure ◽  
Federal Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
The Subject

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

Die Prüfung der Zahlungsunfähigkeit mittels Algorithmen

2022 ◽  
Author(s):  
Thomas C. Fallak
Keyword(s):  
Artificial Intelligence ◽  
Statistical Methods ◽  
Federal Court ◽  
Digital Analysis ◽  
Medium Term ◽  
Insolvency Law ◽  
Accounting Data ◽  
Court Of Justice ◽  
Federal Court Of Justice

Even after various decisions of the German Federal Court of Justice on the concept of illiquidity under insolvency law, the methodology of the test remains unclear. This also applies to the justiciability of business forecasts. The thesis examines whether and within what limits testing for illiquidity can be performed by digital analysis of accounting data. It also describes the extent to which short- and medium-term liquidity planning can be supported by quantitative forecasts. Statistical methods as well as approaches from the field of artificial intelligence are described.

Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law

2012 ◽  
Vol 81 (4) ◽  
pp. 537-584 ◽  
Author(s):  
Jeremy Sarkin
Keyword(s):  
International Law ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
International Convention ◽  
Historical Developments ◽  
Jus Cogens

This article examines the question whether jus cogens includes the prohibition of enforced disappearances, and why this is important. It surveys the meaning, context, development, status and position of jus cogens as well as enforced disappearance in international law, including their relationship to each other. It surveys the status of enforced disappearance in international law in general, as well as in international human rights law, international humanitarian law and international criminal law. The article scans the historical developments of international law, including developments over the last few decades, to indicate that the prohibition against enforced disappearance has attained jus cogens status. The legal framework is examined, including the jurisprudence that has emanated from a variety of sources. Specific treaties that deal with enforced disappearance are reviewed including the Declaration on the Protection of All Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court (ICC) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICED). What jus cogens is, what the controversies are that surround it, the different ways that it is understood within different schools of thought, and how these issues impact on whether the prohibition of enforced disappearance has attained jus cogens status are studied. The historical developments around enforced disappearances are examined in some detail to determine what its status is, particularly in relation to state practice, so as to determine whether it is jus cogens.

scholarly journals Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany

2021 ◽  
pp. 203228442110602
Author(s):  
Kerstin Eppert ◽  
Viktoria Roth
Keyword(s):  
Criminal Liability ◽  
Federal Court ◽  
Political Agency ◽  
Dominant Male ◽  
Scholarly Research ◽  
Institutional Practices ◽  
The Past ◽  
Court Of Justice ◽  
Federal Court Of Justice

In the past, scholarly research in extremism and terrorism studies tended to analyse women’s engagement with violent ideology-based groups from a normative angle, framing female commitment to radical ideologies and violence as cases of inherent victimization or as instigated by a dominant male. Particularly in the negotiation of women’s transnational support of terror organizations in Syria, gendered frames of political agency have been reproduced in the institutional practices of the judiciary. Taking the case of Germany and four appeals lodged at the Federal Court of Justice between 2015 and 2017 as examples, this article analyses gendered conceptions of agency in argumentation with respect to criminal liability in the context of extremist engagement in Syria. It identifies, first, the gendered construction of defendants before the courts and inherently gendered assumptions about agency and second, a formal organizational understanding in the terrorism clauses as the two underlying problems and suggests that current concepts in terrorism norms at national, EU und international levels deflect the focus on the wider conflict dynamics where civilians’ support to violence is concerned.

The new International Criminal Court: A preliminary assessment

1998 ◽  
Vol 38 (325) ◽  
pp. 671-683 ◽  
Author(s):  
Marie-Claude Roberge
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Major Step ◽  
International Crimes ◽  
Set Up ◽  
New Institutions

After years of relentless effort and five weeks of intense and difficult negotiations, the Statute of the International Criminal Court (ICC) was adopted and opened for signature in Rome on 17 July 1998. This historic event represents a major step forward in the battle against impunity and towards better respect for international humanitarian law. For too long it has been possible to commit atrocities with total impunity, a situation which has given perpetrators carte blanche to continue such practices. The system of repression established by international law clearly has its shortcomings, and the time has come to adopt new rules and set up new institutions to ensure the effective prosecution of international crimes. A criminal court, whether at the national or international level, does not put a stop to crime, but it may serve as a deterrent and, consequently, may help reduce the number of victims. The results achieved in Rome should thus be welcomed, in the hope that the new Court will be able to discharge its mandate to the full.

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