Federal Administrative Court - Decision 10 C 7.09

Asylum Procedure Act Section 3 (1), (2) Sentence 1 No. 1 and 2, (2) Sentence 2
Residence Act Section 60 (1) Sentence 1
GCR Article 1 F
ICC Statute Article 8, Article 9, Article 25, Article 30, Article 31
Code of Administrative Court Procedure Section 108 (1) Sentence 1, Section 137 (2), Section 144 (3) Sentence 1 No. 2
Directive 2004/83/EC Article 4 (4), Article 12 (2)
Geneva Conventions of 12 August 1949 Article 3
Additional Protocol I of 8 June 1977 Article 37, 44
Additional Protocol II of 8 June 1977 Article 13

Headwords:
Reason for exclusion; standard of proof; refugee status; functional connection; internal armed conflict; fighter; combatant; war crime; treacherous killing; non-political crime; separatism; terrorism; international criminal law; civilian.

Headnote:
1. A civilian may be the perpetrator of a war crime within the meaning of Section 3 (2) Sentence 1 No. 1 of the Asylum Procedure Act in conjunction with Article 8 (2) of the ICC Statute. But there must be a functional connection between the act and the armed conflict. A connection between the perpetrator and one of the parties to the conflict is not needed.

2. In an internal armed conflict, it is possible to commit war crimes not only against the civilian population but also against combatants of the adversary party.

3. A prerequisite for the war crime of treacherous killing of a combatant under Article 8 (2) (e) (ix) of the ICC Statute is that the perpetrator must have deceived the adversary as to the existence of a situation of protection under international law.

4. The question of whether a serious crime of a non-political nature within the meaning of Section 3 (2) Sentence 1 No. 2 of the Asylum Procedure Act exists depends crucially on the perpetrator's actual motivation.

Decision of the 10th Division of 16 February 2010 - BVerwG 10 C 7.09 (German Version)