On the Relationship Between German International Criminal Law and Counter-terrorism Criminal Law

Abstract

In many cases, and, in particular, in cases concerning crimes committed in the Syrian conflict, an overlap can be identified between international criminal law and counter-terrorism criminal law. The reason for this is the approximative and normative intertwining of these two areas in German criminal law. By way of counter-terrorism criminal law, Germany implemented an organizational crime of membership in an organization whose objective or activities are directed towards the commission of, inter alia, genocide, crimes against humanity, and war crimes, as well as murder. As a consequence, non-state armed groups active in a non-international armed conflict are considered terrorist groups. While this allows for cumulative prosecution, charging, and conviction, in this article an argument will be made that the increasing intertwining of German international criminal law and counter-terrorism criminal law has a problematic side. It blurs the historical, conceptual, and normative differences between the two areas of criminal law. Eventually, this further deepens the asymmetry in the prosecution of state and non-state actors for international crimes.