Without a Doubt

On 21 February 2024, the German Federal Court of Justice (Bundesgerichtshof) issued a decision in which it announced in unequivocal terms: “The general functional immunity of public officials does not apply to crimes under international law, regardless of the status and rank of the perpetrator. The exclusion of this functional immunity of foreign state officials in the case of international crimes is, without a doubt, part of customary international law.” This decision comes against the backdrop of a long-standing ambiguity in the German government’s position on the exclusion of functional immunity for crimes under international law and sends a strong signal to Berlin, but also internationally: The Federal Court of Justice has no doubts whatsoever about the current state of customary international law. We, like many others in the academic literature, agree with this conclusion – the German government would be well advised to embrace it.

Follow-up-decision

The Court’s clear-cut statement concerns the review of pre-trial detention of a member of the Syrian National Defence Forces, a paramilitary group within Assad’s regime, for war crimes but also crimes against humanity. It is a follow-up decision on a previous ruling by the Court on functional immunity. In 2021, the Federal Court of Justice stated that, under customary international law, functional immunity does not bar domestic courts from exercising jurisdiction over former “lower ranking” foreign state officials for war crimes, in that case a former lieutenant of the Afghan National Army (see, e.g. A. Epik, Journal of International Criminal Justice 19 (2021) 1263–1281). However, at that time, the Court hesitated to go “all in” and confined its judgment to the exclusion of functional immunity in cases of war crimes. It further qualified its declaration on the exclusion of functional immunity by limiting it to “subordinate” or “lower ranking” state officials – carefully avoiding taking any decision beyond what was necessary to determine the particular case at hand. While this approach was consistent with the logic of an appeals court, ensuing ambiguities had been noted in academic scholarship which led to some guesswork regarding the Court’s legal argument and methodology. Given the legal situation the restrictions were also unnecessary: customary international law does not differentiate between lower-ranking, higher-ranking, or high-ranking state officials so far as functional immunity is concerned, nor does it differentiate between the different core crimes under international law.

The Law on Functional Immunity at a Glance

The applicability of immunities is an old debate in the realms of international criminal law and has occupied international courts and tribunals as well as domestic courts on a regular basis. In order to better understand the legal situation, it is imperative to distinguish two types of immunity afforded to natural persons: Functional immunity (also referred to as immunity ratione materiae) and personal immunity (immunity ratione personae). While the former is granted to any state official, regardless of their rank within the state apparatus, for any official act committed during their term of office, the latter is conferred on a strictly limited group of high-ranking state officials – in particular heads of state, heads of government, and foreign ministers – during their term of office. Personal immunity therefore protects ‘state officials whose freedom of action in international intercourse is especially important to the functioning of the state’ (G. Werle and F. Jeßberger, International Criminal Law, 4^th edn., para. 833). For this reason, it applies universally in foreign domestic courts – even if the protected person is accused of crimes under international law. This position is settled and generally recognised. With regard to functional immunity, however, there used to be a long-standing consensus that foreign state officials are not protected from foreign domestic prosecution in cases where crimes under international law are concerned, even though the doctrinal reason for this exclusion is controversial (C. Kreß, in: K. Ambos (ed.), Rome Statute of the International Criminal Court, Article 98 para. 24). While the identification of customary international law is a rather intricate task and rarely uncontroversial, there is an unmistakeable chain of state practice and opinio juris starting from the Nuremberg Trials against Nazi officials, the adoption of the Nuremberg Principles which included Principle III (“The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law”), the prosecution of atrocity crimes before national courts during the cold-war era, several domestic criminal trials following the Yugoslavian civil war and the Rwandan genocide and, more recently, trials against former Afghan, Syrian or Iraqi state officials in the arena of domestic courts. In fact, it was the very recognition of the exclusion of functional immunity for crimes under international law that enabled the successful establishment of international criminal law as a tool to fight state-sponsored crimes on a global scale in the first place. If functional immunities applied to crimes under international law, domestic courts would be limited to prosecuting non-state actors – leaving those acting within an apparatus of state power unpunished. (On the already ongoing asymmetrical enforcement of state and non-state actors in international criminal law, see J. Geneuss, Journal of International Criminal Justice 21 (2023) 839–856). The very idea of international criminal law at its inception was, however, to bring those to justice who abuse their positions of power, in particular as state officials, in order to commit grave violations of basic principles of international law. The principle that the official capacity of a person is irrelevant in cases where they stand accused of crimes under international law is therefore inextricably linked to international criminal law as a concept and constitutes one of its essential cornerstones. In other words: The recognition of individual criminal responsibility for crimes under international law and of international criminal law as a concept cannot be separated from rejecting functional immunity for such crimes (Kreß, supra, Article 98 para. 37).

The Immunity Exception Under Attack

More recently, however, the consensus on the functional immunity exception has been called into question, most notably by members of the International Law Commission (ILC) as well as state representatives. In 2017 the ILC (provisionally) adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction. Article 7(1) stipulates that immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the crime of genocide (a), crimes against humanity (b), war crimes (c), the crime of apartheid (d), torture (e), and enforced disappearance (f) – not the crime of aggression though. As consensus within the ILC could not be reached, a roll-call vote – a very rare exception – was held with a clear majority of commissioners voting in favour of Draft Article 7 and, thus, in favour of an exception to functional immunity for crimes under international law. Draft Article 7 and the fifth report by Special Rapporteur Concepción Escobar Hernández were then debated in the Sixth Committee of the United Nations General Assembly. The reactions of state representatives varied from approval to selective criticism, e.g. regarding the inclusion of the crime of apartheid, torture and enforced disappearance as separate grounds for excluding functional immunity, and even strict rejection. Interestingly, the German representative also gave a decidedly critical statement on the proposal. The criticism addressed in particular the underlying methodology and blurred lines and ambiguities in the portrayal of the work of the commission as codification of existing customary international law or as its progressive development. At the same time, the statement raised doubts whether it was possible to prove customary international law exceptions to functional immunity. In its 2021 judgment the Federal Court of Justice mentioned the ILC debate in general and the German statement in particular. Regarding the latter, the Court stated that the German comment was itself ambiguous as it was not clear whether it referred to specific parts of Draft Article 7 – and if so, which parts – or Draft Article 7 in its entirety. Given that the latter interpretation would be in contradiction with other statements of German officials – and, one might add, the practice of German courts, first and foremost in the highly praised Al-Khatib trial before the Higher Regional Court of Koblenz against two former members of the Syrian secret intelligence for crimes against humanity – the Court came to the conclusion that the German doubts did not embrace the exclusion of functional immunity at least for war crimes. The Court also took the position that the exclusion of functional immunity in cases of crimes under international law constitutes long standing and firmly established customary international law such that critical statements by individual members of the ILC or even state representatives cannot affect the current state of international law so long as they do not surpass the high threshold for changing existing customary international law. Still, in 2023, on the occasion of the adoption of the draft articles on immunity, the German government again expressed doubts regarding the existence of exceptions to functional immunity for crimes under international law: while acknowledging that the exception to functional immunity under customary international law for the most serious crimes under international law is a “conditio sine qua non” for domestic prosecution of such crimes and mentioning “thousands of national court judgments” in this regard, the German government still came to the conclusion that the exceptions are “in status nascendi”, that is a trend and emerging rule of customary international law, but not yet there. There are some speculations as to why Germany took this vague position. In any case it is clear that Germany thereby again and consciously contradicted repeated public statements in support of the effective enforcement of international criminal law by German officials and judicial practice. Germany’s official vagueness was harshly criticized in German international criminal law scholarship and some suggested the legislator to implement a norm in the German Code of Crimes Against International Law (Völkerstrafgesetzbuch) that explicitly states that functional immunity does not apply to the crimes under international law.

A Strong Statement with Far-Reaching Implications

At the time, the 2021 Court’s judgment was perceived as a landmark in the face of the debate at ILC, over the state of customary international law. But in view of the indicated doubts, ambiguities and contradictions, it must be welcomed that the Federal Court of Justice has now clarified its position in unequivocal terms. No more qualifications, no careful self-imposed restrictions, no lengthy discussion. To back its position the Court, short and sweet, refers to well-known and often-cited jurisprudence of international and national courts (IMT, ICTY, Israeli Supreme Court) as well as (mostly German) scholarship. In contrast to the long and carefully argued 2021-judgment, no reference is made to opposing views. This can be regarded as a bold move by the Court – although it must be taken into account that this is not a final judgement, but a decision on pre-trial detention, and that the Court also refers to the 2021-judgement and its long legal reasoning. First and foremost, however, it is an accurate summary of the current state of customary international law. Given the ongoing conflicts involving state actors, the statement of the Federal Court of Justice could prove very relevant in the near future. In the long run, the Court’s decision – which will likely be adopted in future judgments – serves as an important piece of evidence in determining the customary international law on functional immunity. In its 2023 comment the German government referred to the 2021 judgment, emphasizing that “[t]he judgment by the Federal Court of Justice is the highest-ranking judicial decision in Germany on the issue of immunities of State officials from foreign criminal jurisdiction in recent times. It constitutes important German State practice and has a significant bearing also on the German government’s position on the present topic.” This, of course, is equally true for the recent decision: the exclusion of functional immunity of foreign state officials in the case of international crimes is without a doubt part of customary international law. Hopefully, the positioning of the Federal Court of Justice will be unreservedly embraced by the German government which has far too long left room for speculation on its position.