Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
In 2008, in the Kurdish Refugee case, Germany’s Higher Administrative Court for the Federal Land of Bavaria found 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 his involvement with the Kurdistan Workers’ Party. The Court held:
1.2 … [T]he fact that the claimant participated “in any other way” in acts which fall under all offences listed in §3 para. 2 sentence 1 AsylVfG [Asylum Procedure Code] and in Art. 1F GFK [1951 Refugee Convention] (with the exception of crimes against peace) while he belonged to the armed forces of the PKK between 1987 and 1991 opposes the granting of protection from expulsion under §60 para. 1 AufenthG [Law on Residence] and the recognition of refugee status.
1.2.1 Krech (The Civil War in Turkey 1978–1999, 1999, p. 51) summarizes the PKK’s conduct since Turkey’s conclusion of the agreements with Iraq and Syria in 1984 and 1987, respectively, whose purpose was the suppression of the PKK, and since the beginning of the Gulf War on 2 August 1990 as follows: “The PKK continued to escalate the terror by targeting Turkish teachers, business managers, [and] Kurdish village protectors and their families. It unscrupulously murdered hundreds of civilians, including women, children and even babies.”
1.2.2 These acts fulfil the requirements of all three alternatives of §3 para. 2 sentence 1 AsylVfG and Art. 1 F GFK [which include war crimes].
In order to specify the elements of the crimes listed in these provisions, the “Guidelines on International Protection: Application of the Exclusion Clauses – Art. 1 F of the 1951 Convention on the Status of Refugees” published by the High Commissioner for Refugees (UNHCR) on 4 September 2003 can be taken into account. …
188.8.131.52 Already according to the wording of §3 para. 2 sentence 1 no. 1 AsylVfG and Art. 1 F para a GFK, when specifying the notions “war crimes” and “crimes against humanity” used in these provisions, reference must be made to the international agreements addressing the prosecution of such crimes. The Rome Statute of 17 July 1998 of the International Criminal Court … can be considered the most recent body of rules in this respect … Further, the four Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War are relevant … In addition, all crimes listed in §§8 to 12 of the International Crimes Code can lead to exclusion [from refugee protection] under Art. 1 F para. a GFK …
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.
According to Art. 27 para. 1 sentence 1 of the Rome Statute, perpetrators capable of committing war crimes and crimes against humanity 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 or a State or a state-like entity can only be sustained as regards crimes against peace.
It cannot be shown that the claimant participated in a criminal law sense in even one of the crimes listed in §3 para. 2 sentence 1 AsylVfG and Art. 1 F GFK committed by PKK activists in the time period between his accession to the organisation and his arrest on 11 June 1991. In particular, it cannot be shown that he positively knew that one of the messages … which he passed on for the PKK or one of the weapons which he transported for the PKK facilitated or made possible the commission of such a crime, or that the franc-tireurs, whom he assisted in navigating the area, were about to commit such a crime. In light of the pertinent provisions of international law, the notion of participating “in any other way” in one of the acts listed in §3 para. 2 sentence 1 AsylVfG, which is used in §3 para. 2 sentence 2 AsylVfG, must be understood as encompassing any active collaboration with a group which plans acts listed in §3 para. 2 sentence 1 AsylVfG if the person in question knew the group’s general intent, if his contribution is objectively designed to further such acts, and if the act of support is undertaken in the knowledge that it may objectively support a crime listed in §3 para. 2 sentence 1 AsylVfG.
In principle, UNHCR rightly requires in this context that a person can only be held account for acts listed in Art. 1 F GFK which were committed by an organisation if the person in question was a voluntary member of this group …
By stating in Art. 12 para. 3 QRL [Council Directive 2004/83/EC of 29 April 2004, the so-called Qualification Directive,] that Art. 12 para. 2 QRL inter alia applies to persons who participate “in any other way” in the acts listed in Art. 12 para. 2 QRL, the Community legislator also intended to include conduct which goes beyond the criminal law concept of aiding, abetting and otherwise assisting [in the commission of a crime]. This is because the wording of the English and French version of Art. 25 para. 3 sub-paras. c and d of the  Rome Statute … shows that not only the German version but also the other two official languages of the European Community make a terminological distinction between the criminal law concept of participation regulated in Art. 25 para. 3 sub-para. c and the criminal law concept of “in any other way” contributing to a crime regulated in Art. 25 para. 3 sub-para. d [Rome Statute]. If the Community legislator had intended to solely include the criminal law concept of aiding, abetting or otherwise assisting under Art. 12 para. 3 QRL, it would have made sense to use the non-German terms available to describe the notion of aiding, abetting or otherwise assisting; this is precisely what was not done.
The PKK’s terrorist activities and the fact that members of this organisation were committing war crimes and crimes against humanity between 1987 and mid-1991 must have been known to the claimant already at that time. …
The acts which he undertook for the PKK since 1987 until his arrest on 11 June 1991 were designed to support or facilitate such crimes. At the same time, his past acts fall within the concept of participation in Art. 25 para. 3 sub-para. d no. i of the Rome Statute. Since the commission of terrorist acts, war crimes and crimes against humanity characterized the conduct of the PKK’s armed wing in Southeastern Turkey at the time (and thus in the region in which the claimant was active for the organisation in the same period), these acts must be attributed to the claimant. This is also in line with UNHCR’s views, as shown in numbers 19 and 26 of its Guidelines of 4 September 2003. If, as his statement suggests, he was working first as a messenger for different guerrilla units when he began his activities for the PKK between 1987 and 1989 and if he accompanied the PKK franc-tireurs as a local familiar with the area, he must have anticipated that such acts did not only further the PKK attacks against Turkish armed forces, the gendarmerie or other organs of the Turkish State who opposed the PKK in a way similar to combatants. Rather, he must have constantly assumed that the unit which he was guiding through the area familiar to him was on its way to perpetrating an act which is to be qualified as a terrorist act, a war crime or a crime against humanity, or that the message or weapon which he transported assisted in the perpetration of such a crime. This must have been particularly apparent to him because he was in possession of a hand grenade when he was arrested. According to his statement, he was supposed to transport this hand grenade for the PKK. Such weapons may also be used in hostilities against armed forces and the gendarmerie of the Turkish State. However, the use of explosive devices such as hand grenades, designed to kill or injury the highest possible number of people, is a classic instrument of terrorists … Moreover, the PKK did in fact use hand grenades during the massacre in Pìnarcìk. Therefore, the claimant could never have been sure that he was not supporting a terrorist act when transporting such weapons.
By way of a remark that complements the aforesaid, it is to be noted that §3 para. 2 AsylVfG and Art. 1 F GFK do not strictly require showing that a person did indeed commit any of the acts which hinder recognising him or her as a refugee. Rather, according to these provisions it suffices that there are serious reasons to make an assumption to this effect. Since §3 para. 2 sentence 2 AsylVfG refers to §3 para. 2 sentence 1 in its entirety, it is not necessary to show with certainty that incitement, aiding and abetting or another act of assistance for acts in the sense of sentence 1 occurred, at least in cases in which it is highly likely that the person in question objectively supported war crimes, crimes against humanity or (other) terrorist activities and that he was aware that the organisation for which he acted was planning acts listed in §3 para. 2 sentence 1 AsylVfG or Art. 1 GFK and that his contribution could further the perpetration of such an act.
It does not follow from the fact that the claimant was not yet of age during some of the period before 11 June 1991 during which he belonged to the PKK that the exclusion clauses of §3 para. 2 AsylVfG and Art. 1 F GFK cannot be applied. In number 28 of the Guidelines of 4 September 2003, UNHCR assumes that the exclusion clauses apply to minors if, as was the case for the claimant regarding the PKK, they obtained the age of criminal responsibility and had the mental capacity to be held to account for a crime.
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. The Court held:
2. According to § 3 para. 2 sentence 1 no. 1 AsylVfG [Asylum Procedure Law], an alien is not a refugee if there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes (§ 3 para. 2 sentence 1 no. 1 AsylVfG). This also applies to aliens who have instigated others to commit such crimes or who have participated in such crimes in other ways (§ 3 para. 2 sentence 2 AsylVfG).
The appealed judgment violates federal law because it presumes that the requirements of § 3 para. 2 sentence 1 no. 1 AsylVfG are only met if one of the crimes listed in this provision is directed against the civilian population. At the very least this is not the case for the war crime to be considered in this case [treacherous killing]. The ground for excluding an individual from refugee protection under § 3 para. 2 sentence 1 no. 1 AsylVfG can also be fulfilled if the victim of the war crime is a soldier.
3. 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 [of the present court] 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 para. 2 sentence 1 no. 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 conflict (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 covers 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.
The lower court [i.e. the Higher Administrative Court for the Federal Land of Saxony-Anhalt whose judgment was appealed] did not decide whether the requirements of the crimes set out in Article 8 para. 2 of the ICC Statute, which can also be directed against soldiers, are fulfilled. The Senate cannot itself decide this matter because the facts established by the lower court are insufficient. Therefore, and pursuant to § 144 para. 3 sentence 1 no. 2 VwGO [Administrative Procedure Code], the case is returned to the lower court which must carry out renewed proceedings and take a decision.