No case studies in 2020.

This chapter is concerned with Germany’s perspective on the foundations and functions of international law. It is structured in two parts: international law in general and sources of international law. The second part examines Germany’s view of the Joint Comprehensive Plan of Action (JCPoA) that sought to limit Iran’s nuclear programme. It is argued that the political aims of Germany do not justify the twisting of international law. The Federal Government portrayed the document as a binding international treaty. It did so by speaking of an ‘agreement’, from which the US had decided to ‘withdraw’ and by depicting the participants as ‘parties’. Further, Germany argued that Iran is bound by ‘obligations’ under the JCPoA. Germany also spoke of ‘Articles’ in the JCPoA and asserted that the document was ‘signed’. Moreover, Germany argued that the JCPoA became international law through the endorsement of the UN Security Council. However, the UN Security Council never marked its endorsement as a binding decision. Four and half years after the adoption of the JCPoA, Germany admitted that the JCPoA constitutes only a record of mutual political commitments and is therefore ‘soft law’.

Chapter 5 offers new insights into the drafting of the criminal responsibility rules in the Rome Statute. Specifically, the chapter argues that it would be simplistic to present the restrained approach to the assessment of criminal responsibility exhibited in the Rome Statute as the triumph of sovereign states, seeking to shield their nationals from convictions, over non-state actors, such as legal scholars, and non-governmental organizations, aiming to expand the scope of criminal responsibility provisions to enable easier convictions for the perpetrators of mass atrocities. In fact, authoritative legal experts were among the most ardent proponents of the proposal to codify in detail the general principles of criminal responsibility in the RS, instead of granting discretion to the future judges at the Court to develop the rules of criminal responsibility. From the perspective of those legal experts, the inclusion of a ‘General Part’ in the Statute marked the progress that ICL had made since its early days towards a coherent penal system. Thus, the politics of the legal field, that is, the promotion and contestations of different understandings of the law, are crucial for understanding how the principled approach to criminal responsibility became influential in Rome.

The chapter covers inter-State political and economic relations and transactions. Five chapters span diplomatic and consular relations, diplomatic and consular protection, unilateral coercive measures short of the use of force, the law of treaties and international economic law. The first examines the closure of Germany’s Pyongyang embassy, Germany’s call to protect the US embassy in Iraq, Germany denouncing the arrest of the UK ambassador to Iran, the agrément of the German ambassador to Poland, the difference between summoning and inviting an ambassador, Iran condemning the German ambassador, the request of the German embassy in Bangkok for protection, co-locating diplomatic premises and Indonesia declaring a German diplomat a persona non grata. The third looks at the implementation of the Libyan arms embargo and Germany’s enforcement of sanctions against North Korea. The fourth addresses Germany appealing to Iran not to execute persons who were minors at the time of the crime and the German Chancellor’s remarks on breaching international law. The fifth comprises Germany’s proposals in the Vattenfall arbitration and Germany’s support of reforming the Energy Charter Treaty.

Chapter 9 explores the legal and political dilemmas arising from the assessment of individual criminal responsibility in two ICC cases, which ended in convictions: Ntaganda and Ongwen. This chapter observes that in those two cases the ICC judges have followed the same line of legal reasoning, premised on a restrained application of the modes of liability, as in the Bemba and Gbagbo and Blé Goudé cases discussed in Chapter 8. However, unlike the Bemba and Gbagbo and Blé Goudé cases, which ended in acquittal, the persons standing trial in Ntaganda and Ongwen had been actively involved in the hostilities, which have resulted in the commission of numerous crimes. The accused’s proximity to the crimes and their willingness to engage in criminal conducts convinced the judges in their criminal responsibility for the crimes, which they had committed personally, as well as the crimes, which they had committed ‘indirectly’, through their troops. Apart from two appeals judges, who expressed some concern with the reliance on the ‘control over the crime’ theory in Ntaganda, the meticulous assessment of the facts in the judgments left little room for contestation of the trial outcomes within the ICL field.

No case studies in 2020.

Chapter 10 discusses the main findings of this book concerning the politics of international criminal law practice and explores the question whether the norms and practices associated with the assessment of individual criminal responsibility are likely to continue changing in the future. This chapter presents a pluralist understanding of ‘legalism’, as a concept that entertains a range of different visions of international criminal justice. Next, this chapter highlights the importance of understanding the normative dynamics taking place inside the international criminal justice field, namely the battle of different visions of legalism over the construction of criminal responsibility rules, for analysing trial outcomes at the Court. Finally, Chapter 10 observes that it is possible that the restrained approach to criminal responsibility, displayed at the Bemba Appeals Chamber Majority and the Gbagbo and Blé Goudé Trial Chamber Majority, can create a backlash within the international criminal justice community, even if that backlash does not end up prompting reform at the ICC in the short term.

This chapter deals with the German position on States and their organs. It is divided into five parts; territorial sovereignty, political independence, Statehood and recognition, organs of the State and their status and State succession. The first part deals with the legal consequences of Germany’s non-recognition of the Russian annexation of Crimea while distinguishing the same from sanctions policies, Germany’s position on the international legal status of Nagorno-Karabakh, which is a disputed territory between Armenia and Azerbaijan, Germany’s views on the presence of Thailand’s king in and his conduct of State affairs from Germany and Germany’s position on Israel’s annexation plans in the Occupied Palestinian Territories. The second part addresses Germany’s response to the new Hong Kong national security law, and Germany’s position on Taiwan. The third part, statehood and recognition, encompasses Germany’s opinion on Palestine not being a State party to the Rome Statute of the International Criminal Court, Germany’s non-recognition of the ‘Nagorno-Karabakh Republic’, and Germany’s support of Taiwan’s participation in the World Health Assembly as an observer.

The conclusion stresses the need for pragmatism and balance as responses to the grave threats to international peace and prosperity in the current world. It emphasizes that overly ambitious projects undermine international law, but pathways to cooperation and legal entrenchment still exist.