Practice Relating to Rule 156. Definition of War Crimes
Germany’s Military Manual (1992) provides a list of grave breaches (“in particular”) of IHL.
Germany’s Soldiers’ Manual (2006) states: “Grave breaches of international humanitarian law can be punished as war crimes.”
In 2008, in the Kurdish Refugee case, Germany’s Higher Administrative Court for the Federal Land of Bavaria found that a Kurdish refugee claimant from Turkey was to be excluded from refugee protection inter alia because there were serious reasons for considering that he had committed war crimes during involvement with the Kurdistan Workers’ Party. The Court held:
According to §8 of the International Crimes Code and Art. 8 para. 2 of the  Rome Statute, war crimes can be committed both in an international armed conflict and in purely domestic confrontations … At least this is the case if the duration and intensity of a non-international armed conflict exceeds the internal disturbances, tensions, riots and isolated acts of violence listed in Art. 8 para. 2 sub-paras. d and f of the Rome Statute. … [T]he fighting between the Turkish State and the PKK [Kurdistan Workers’ Party] in the time period between 1987 and 1991 amounted to a “civil war” (and thus exceeded the type of conflict mentioned in Art. 8 para. 2 sub-paras. d and f of the Rome Statute) …
According to Art. 27 para. 1 sentence 1 of the Rome Statute, perpetrators capable of committing war crimes … do not only include persons who exert an official function within a State. This is because the opportunity to suppress such wrongs cannot depend on whether the perpetrator acted as a representative of the State, or on whether pertinent crimes are being committed by forces opposing the State, as is often the case in reality. The view that the crimes listed in Art. 1 F para. a GFK [of the 1951 Refugee Convention] can only be perpetrated by persons who have a high position within the power structure of a political system, a State or a State-like entity can only be sustained as regards crimes against peace.
In 2010, in the Chechen Refugee case, Germany’s Federal Administrative Court was called upon to decide whether a Russian refugee claimant from Chechnya had to be excluded from refugee protection because there were serious reasons for considering that he had committed a war crime in Chechnya in 2002 by killing two Russian soldiers and taking a Russian officer hostage. In examining who can be the victim of a war crime, the Court held:
In defining crimes against peace, war crimes and crimes against humanity, § 3 para. 2 sentence 1 no. 1 AsylVfG refers to “the international instruments drawn up to make provision in respect of such crimes”. As the Senate stated in its judgment of 24 November 2009 (BVerwG 10 C 24.08) … , the question of whether war crimes or crimes against humanity exist in the sense of § 3 Abs. 2 Satz 1 Nr. 1 AsylVfG must be primarily determined in light of the elements of these crimes as set out in the Rome Statute of the International Criminal Court of 17 June 1998 … This reflects the current state of the criminalization of violations of international humanitarian law.
In defining war crimes, Article 8 para. 2 ICC Statute distinguishes between acts in international armed conflicts (paras. a and b) and non-international armed conflicts (paras. c to f). Regarding international armed conflict, para. c ties in with the grave breaches of Article 3 common to the four Geneva Conventions relative to the Protection of Victims of Armed Conflict of 12 August 1949. This provision inter alia
criminalizes violence to life and person and the taking of hostages who are not directly participating in hostilities, including members of the armed forces who have laid down their weapons and persons who have been placed hors de combat
by illness, injury, capture or any other reason. This provision thus also considers acts as war crimes which are directed against soldiers. Para. e covers other violations of the laws and customs of war applicable in internal armed conflict. Numbers IX–XI of para. e cover the protection of enemy combatants in case of perfidious killing or injury, the declaration that no quarter shall be given and the physical mutilation of persons who are in the power of an adverse party.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the death of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General also stated:
Criminal liability under the International Crimes Code (VStGB)
The International Crimes Code applies in the present case because the characteristic element of the crimes listed in paragraph 2 of the Code (“war crimes”), namely the connection with an armed conflict, in this case a non-international armed conflict, are fulfilled. However, Colonel (Oberst) Klein does not incur criminal liability under the International Crimes Code because his conduct did not fulfil the other elements of the crimes.
The airstrike of 4 September 2009 was carried out “in the context of the non-international armed conflict” in Afghanistan. The necessary functional context with the conflict … is fulfilled because the dropping of the bombs was ordered by Oberst (Colonel) Klein in his capacity as commander of the PRT [Provincial Reconstruction Team] in pursuance of his military mission in the context of the conflict with the Taliban and not solely on the occasion of the confrontations with the insurgents.
In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court stated:
There is the strong suspicion that the members of the FDLR operating in the DRC have committed crimes against humanity under § 7 para. 1 numbers 1 and 6 VStGB [Germany’s International Crimes Code], war crimes against persons under § 8 para. 1 numbers 1, 3, 4 and 5 VStGB and war crimes against property and other rights under § 9 para. 1 VStGB, for which the accused is criminally liable as superior under § 4 VStGB.
The Court further stated:
30. An individual is criminally liable for war crimes against persons under § 8 para. 1 VStGB if he or she in the context of an international or non-international armed conflict committed one of the acts described in numbers 1 to 9 [of this provision]. In contrast to crimes against humanity under § 7 VStGB, it is not necessary here that the acts are part of a widespread or systematic attack against the civilian population.
31. The fighting between the FDLR and the Congolese or Rwandan troops in the Eastern DRC constitutes an armed conflict in the sense of § 8 para. 1 VStGB. …
32. In order to evaluate the punishability of an act under § 8 para. 1 VStGB it is not necessary to examine whether the confrontations between the FDLR and their opponents in the Eastern DRC are to be considered an international or non-international armed conflict. In this respect the German legislator refrained from using the distinction in the  ICC Statute between war crimes in international armed conflict and in civil war or non-international armed conflict as a fundamental structural principle of the law.
33. It must be strongly suspected that in the context of the armed confrontations, members of the FDLR killed civilians who are to be protected under international humanitarian law (§ 8 para. 1 no. 1 VStGB), treated them cruelly or inhumanely by inflicting substantial physical or mental harm (§ 8 para. 1 no. 3 VStGB), sexually coerced or raped them (§ 8 para. 1 no. 4 VStGB) and enlisted children under the age of 15 years in the FDLR and used them to participate actively in hostilities (§ 8 para. 1 no. 5 VStGB). The acts correspond to the FDLR’s war strategy; they therefore occurred in the functional context of the armed conflict and did not merely happen “on the occasion” of the conflict.
In 1993, during a debate in the Sixth Committee of the UN General Assembly, Germany stated:
Articles 22 and 26 of the draft statute [for an international criminal court] contained criteria for jurisdiction. First, the court would have jurisdiction over the crimes defined in international treaties as set forth in article 22 [containing a list of crimes including, inter alia
, genocide, grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I, apartheid and related crimes, crimes against internationally protected persons and hostage-taking and related crimes]. The treaties listed in article 22 covered most of the crimes which called for international prosecution. It was somewhat surprising, however, that the crime of torture as defined in article 1 of the [1984 Convention against Torture] was not included in the list. Second, the court would be competent to try crimes under general international law as stipulated in Article 26(2)(a) of the draft statute [providing for the possibility of special acceptance of jurisdiction by States in respect of other international crimes not covered by Article 22]. The German Government shared the Working Group’s concern that the prosecution of certain crimes which were outlawed by international customary law but not covered by article 22 might be excluded from the jurisdiction of the Court. However, the principle nullum crimen sine lege
required clarity and precision in the definition of crimes in the statute.