Principle of protection in criminal law
Definition and classification
Das Protection principle is one of the internationally recognized principles under international law to determine the scope of a state’s criminal law in an international context. It stipulates that a state may also apply its criminal laws to acts committed abroad if such conduct affects or endangers an essential interest of the state, in particular its security or functionality. The protection principle complements the territoriality principle, the nationality principle, and the universality principle when determining the spatial scope of criminal law norms.
Legal bases of the protection principle
Foundations in international law
The protection principle is not an inherently domestic norm, but stems from international legal practice. It is generally recognized as a permissible basis for extraterritorial criminal prosecution. The standard is that the national integrity or its core interests are substantially affected.
Implementation in German criminal law
In German law, the protection principle is anchored in Section 5 of the Criminal Code (StGB). According to this provision, German criminal law also applies to acts committed abroad if they are directed against a significant legal interest of the Federation or its institutions listed in the law. Examples include offenses against internal or external security, against German currency, tax, or economic interests, as well as attacks on domestic bodies.
Scope of application of the protection principle
Protected legal interests
The protection principle particularly covers the following interests:
- State sovereignty and security (e.g. high treason, treason against the state)
- Constitutional institutions
- Function of state institutions
- Economic interests (for example, violations of foreign trade laws)
- Security of the monetary and tax systems
Groups of cases and examples
Typical applications of the protection principle include:
- Attacks on embassies or consulates outside domestic territory
- Offenses against public officials or representatives of the state abroad
- Distribution of counterfeit money denominated in a national currency
- Foreign offenses directed against the state’s security interests
Criminal liability exists in these cases irrespective of whether the act is also punishable at the place where it was committed (so-called ‘double criminality’ is not required).
Distinction from other principles
Territoriality principle
In contrast to the protection principle, the territoriality principle is based on the commission of the offense within the territory of the state and thus represents the standard case. The protection principle expands this framework by safeguarding particularly protected national interests even outside this territory.
Personality principle and universality principle
The personality principle (reference to the nationality of the perpetrator or victim) and the universality principle (prosecution of particularly serious international crimes, e.g., genocide) differ in that they do not specifically emphasize national legal interests but instead provide other points of connection.
Significance and function in international criminal law
The use of the protection principle serves to safeguard core state interests. However, it is limited under international law by the sovereignty principle of other states and the principle of ‘ne bis in idem’ (prohibition of double jeopardy). Conflicts arising from competing jurisdictions of several states are resolved by international treaties or the so-called ‘prior tempore, prior iure’ principle.
Critical appraisal
The application of the protection principle can lead to conflicts with other states, for example, when there are differing assessments of interests or protected legal interests. For this reason, a restrictive interpretation is advisable, and internationally recognized standards should be observed.
Summary
The protection principle in criminal law is an important instrument by which states can protect their core interests beyond their own borders. It is recognized under international law, but is subject to clear conditions and limitations to avoid abuse and international conflicts. In German criminal law, its implementation is regulated especially by Section 5 StGB and limited to cases of fundamental threats to state interests. The interaction with other principles of jurisdiction allows for a differentiated control of state criminal jurisdiction in the international context.
Frequently asked questions
What role does the protection principle play in the system of international criminal law jurisdiction?
Alongside the territoriality, personality, and universality principles, the protection principle is one of the key connecting factors for applying German criminal law beyond the country’s borders. It allows the application of German criminal law to foreign acts if these impair or endanger German state interests or legal interests. Within the system of international criminal law jurisdiction, the protection principle is especially significant where other attribution principles do not apply—particularly in cases involving attacks on supra-state community interests or important state interests such as national security, currency interests, or the executive authority of German agencies. Thus, the protection principle functions as a supplementary mechanism, offering both preventive and punitive options against certain high-intensity foreign offenses.
How is the protection principle implemented in the German Criminal Code?
The protection principle is codified in particular in Section 5 StGB. According to this provision, certain offenses committed abroad are subject to German criminal law if they touch upon a particular state protection interest of Germany. Typical offenses include attacks on German state bodies, forgery of German official documents, currency offenses, or activities that threaten the security of the German state. Section 5 StGB precisely lists the relevant categories of offenses. The legislature thereby aims to protect state and supranational interests beyond national borders and to ensure effective prosecution in the case of specific foreign offenses.
What conditions must be met for the application of the protection principle?
Usually, several conditions must be cumulatively met for the application of the protection principle: First, the act committed abroad must be capable of seriously impairing a German state interest or a specifically protected community interest. Secondly, in certain cases, it is a prerequisite that at the time of the act, the perpetrator was not German or is evading prosecution in Germany. Furthermore, the relevant offense must be explicitly listed in Section 5 StGB or be punishable under German law. The application of the protection principle is often subject to additional former codified restrictive conditions such as the requirement of dual criminality (§ 7 para. 2 no. 2 StGB) or special international law obligations.
Which categories of offenses are typically covered by the protection principle?
The protection principle primarily covers offenses that affect state sovereignty, functionality, or international operational interests. Typical examples include false accusations against German state bodies, offenses against Germany’s internal or external security, espionage, attacks on German currency and financial systems, forgery of German official documents, and offenses against protected interests of international organizations headquartered in Germany. The scope of offenses is definitively regulated by law and generally extends to those offenses where there is a recognized particular need for international prosecution in the interest of the Federal Republic.
Are there limitations to the application of the protection principle abroad?
Yes, the protection principle is not unlimited in its application. A major restriction arises from the requirement to respect the sovereignty of other states and the provisions of international law. It may only be applied to counter significant threats to essential interests of the German state or the international community. In many cases, dual criminality is also required; that is, the act must also be punishable in the state where it was committed. In practice, there may also be restrictions on extradition, requirements for international legal assistance, and other procedural hurdles that may impede enforcement.
How does the protection principle differ from the universality principle?
While the protection principle aims to secure specific state or supranational interests of Germany abroad, the universality principle is focused on prosecuting crimes of particular international concern, such as international criminal law, independently of the protection of a specific German interest. The universality principle enables prosecution on general, i.e., worldwide, legal norms—for example, in cases of war crimes, genocide, or human trafficking—even if neither German perpetrators nor victims are involved or German interests are affected. In contrast, the protection principle remains limited to offenses that expressly serve the protection interests of the Federal Republic and are thus strictly catalogued by law.
