BGH_3_StR_564-19_KORE303842021

As can be seen from the operative part of the judgment, the Federal Public Prosecutor’s appeal is partially successful in seeking to have the defendant also found guilty of the war crime of torture and to have the dictum of the penalty annulled in its entirety. [...] 25 of the German Basic Law (cf., regarding Article 20 of the old version of the German Judicature Act, Federal Court of Justice, judgment of 26 September 1978 – VI ZR 267/76, NJW 1979, 1101; see also note verbale of the Permanent Mission of the Federal Republic of Germany to the United Nations of 6 April 2017, 190/2017). [...] Contrary to the view taken by the Higher Regional Court, the treatment of the prisoners is to be regarded as torture within the meaning of Article 8(1)(3) of the International Criminal Code, and therefore at the same time as a war crime within the meaning of international law. [...] The question answered in the negative by the earlier court as to whether the treatment is relevant within the meaning of the provision is a legal question which can be decided by the Division on the basis of findings free of errors in law. [...] The basis for this is that they are directed ‘at the vital interests of the international community’, are international in nature and – in accordance with the preamble of the International Criminal Court Statute – relate to the ‘most serious crimes of concern to the international community as a whole’ (cf.