Deceased Persons as Protected Persons Within the Meaning of International Humanitarian Law
2018; Oxford University Press; Volume: 16; Issue: 5 Linguagem: Inglês
10.1093/jicj/mqy061
ISSN1478-1395
Autores Tópico(s)Historical and Contemporary Political Dynamics
ResumoThe defendant, a German national, travelled to Syria in March 2014 to participate in the ‘armed Jihad’ against the Assad regime. The case at hand refers to an incident where the defendant, with other members of his group, detained two Syrian soldiers, beheaded them and impaled the severed heads on metal poles to publicly expose and ridicule them (see Section 2.A). After returning to Germany the defendant was arrested and sentenced to two years’ imprisonment by the Frankfurt Higher Regional Court [Oberlandesgericht, OLG] on 12 July 2016 for the war crime of treating a protected person in a gravely humiliating and degrading manner pursuant to § 8(1) no. 9 of the German Code of Crimes against International Law [Völkerstrafgesetzbuch, VStGB]. The conviction and sentence was upheld by the German Federal Supreme Court [Bundesgerichtshof, BGH] on 27 July 2017 for the reasons described below (see Section 2.B). The key issue of the case was whether a person to be protected under international humanitarian law (IHL) within the meaning of § 8(1) no. 9 VStGB also includes a deceased person. Both the OLG and the BGH answered this question in the affirmative but this view fails to convince since the concept of person in the VStGB and the underlying IHL is limited to living human beings. Thus, to interpret ‘person’ broadly would violate the prohibition of analogy (lex stricta) to be understood strictly under German law (see Section 3).
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