I very much appreciate Just Security’s bringing to your readers’ attention the German extradition request to Lebanon for Syria’s General Jamil Hassan, who is under suspicion of committing war crimes and crimes against humanity. I was also grateful to learn of the statement made by the U.S. Department of State in support of this request and to be illuminated by the observations on that subject matter by a number of highly distinguished American public international lawyers.

For a German citizen, it was encouraging to read of an instance of U.S. support for a decision made by a German authority. To say that the expression of such a favorable opinion does not appear to have been a clear pattern of recent U.S. foreign policy could sound like an understatement to some observers. But instead of entering into, as it could seem, somewhat troubled waters of the more recent bilateral relations between the U.S. and Germany, please allow me to add a few reflections from a perspective of public international law and policy as they have come to my mind upon reading your most instructive report.

It is all too well known that there are no immediate prospects for criminal proceedings either before Syrian courts or before an international criminal tribunal for genocide, crimes against humanity and war crimes committed in Syria over the past few years. In this situation, the domestic exercise of extraterritorial foreign criminal jurisdiction is the only available avenue for the application of international criminal law stricto sensu. It should perhaps be emphasized that such a situation is by no means exceptional when the punitive authority of the international community itself is at stake.

I therefore agree with my distinguished U.S. colleagues that the German extradition request, assuming it has been well prepared, constitutes a sound instance of the exercise of universal jurisdiction. In conformity with the spirit underlying Section 153 f of the German Code of Criminal Procedure, which constitutes the procedural complement to Section 1 of the German Code of Crimes under International Law, the German authorities do not appear to have claimed any jurisdictional priority – neither vis-à-vis a more closely connected domestic jurisdiction nor vis-à-vis a competent international criminal tribunal. The German authorities rather seem to have taken action in the absence of any such a more convenient forum – as fiduciaries of the international community’s rightful authority to prosecute (ius puniendi).

By necessary implication, I also concur with the view articulated by my distinguished U.S. colleagues that the U.S. Department of State is to be commended for having voiced its support for this German exercise of universal jurisdiction. This support is particularly noteworthy for two reasons. First, in this case, Germany has not exercised its universal jurisdiction for the purpose of denying a person suspected of committing crimes under international law a safe haven in Germany. Instead, the case demonstrates that there are times where it may be valuable for domestic authorities to conduct investigations for crimes under international law in absentia. (Conducting trials in the absence of the accused is an altogether different matter and is not at issue in the present case.) Second, the exercise of universal jurisdiction in question is not directed against a non-State actor or a person placed at the lower end of the State hierarchy. The suspect rather is a high-ranking State official allegedly carrying a more comprehensive responsibility for patterns of crimes in Syria. The exercise of universal jurisdiction in question would therefore seem to be situated at precisely that level where the enforcement of international criminal law is in most dire need, if it is to fulfill its expressive function within the international community.

Crucially, the fact that the German extradition request is directed at a foreign State official acting in his official capacity also places an international legal issue other than universal jurisdiction in the spotlight – an issue that has not been commented upon by my distinguished U.S. colleagues: whether there exists an international criminal law exception to the traditional customary international law right of immunity ratione materiae (or: functional immunity). I do not possess sufficient knowledge about the proceedings in question to form a view about whether the actions taken by Germany and the U.S. imply that they have taken the position that such an exception exists. For from a technical legal perspective, it is perhaps also possible to argue that the question of immunity arises only when the State in possession of this right invokes it – and I do not have information regarding Syria’s formal position vis-à-vis these proceedings.

That said, I am not here primarily concerned with this narrow technical legal issue. My point is that the proceedings in question provide us with an important reminder of the fact that the existence of a right to immunity ratione materiae would pose a fundamental obstacle to the application of international criminal law. Just consider the possibility of President Assad invoking Syria’s right to immunity ratione materiae with respect to General Hassan tomorrow. It is difficult to take the view that it would be a satisfactory international legal situation if, then, Germany had to withdraw its extradition request, Lebanon was prevented from granting it and the U.S. State Department was required to abandon any support for the German proceedings.

The German extradition request constitutes not only an important but also a timely reminder of the vital importance of the question of immunity ratione materiae. For no less an eminent  body than the International Law Commission will shortly return to this question in the context of two of its current projects, both of which having reached a fairly advanced stage. Article 7 of the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction states that immunity ratione materiae does not apply in cases of, inter alia, genocide, crimes against humanity and war crimes. This proposition, however, has given rise to a remarkably strong controversy within the Commission. A minority of the members of the Commission remains opposed to the international criminal law exception from immunity ratione materiae as a matter of existing customary international law. Even more importantly, there is presently also no agreement among States on Draft Article 7 as their comments accompanying the Commission’s work have revealed.

In its second important project, the formulation of a Draft Convention on Crimes against Humanity, the Commission has taken a provisional position to avoid the issue. Draft Article 6, paragraph 5, as adopted on first reading, stipulates that each State Party to the future Convention shall ensure, in its domestic legislation, that the holding of an official position shall not be considered a ground for excluding criminal responsibility. But as the accompanying commentary emphasizes (p. 69), this provision on the applicable substantive law leaves open the question as to whether immunity ratione materiae operates as a procedural bar to the extraterritorial foreign criminal jurisdiction in case of an alleged crime against humanity.

In view of the existing divergence of views regarding the state of customary international law, it indeed seems tempting for the Commission to avoid the issue in its Draft Convention on Crimes Against Humanity. Yet, the proceedings in question are just another reminder of how beneficial it would be if the existing divide could be overcome. In fact, a bridge between the two conflicting views on the lex lata is perfectly conceivable. To this end, the validity of two conflicting considerations underlying the controversy must be acknowledged. First, if the history of international criminal law is duly considered, it is hard to deny that immunity ratione materiae strikes at the heart of the enforcement of the ius puniendi of the international community in cases of crimes under international law. But second, it also should not be ignored that the indirect enforcement of this ius puniendi by States is prone to political abuse as long as, regrettably, procedural fairness and judicial independence remain unfulfilled promises in many places in the world.

Professor Georg Nolte, the German member of the Commission, who belongs to the minority regarding Draft Article 7, has suggested the formula “prosecute or waive” in order to bridge the gap. This would give jurisdictional priority to the State to which the official belongs. In the event of its unwillingness or inability to proceed, however, that State would be under the obligation to waive its immunity right for the purposes of an extra-territorial exercise of jurisdiction. I do not share Professor Nolte’s starting point on the lex lata and as I cannot resume the debate here, I only wish to refer to the extremely rich analysis of the problem, as recently published by Professors Hervé Ascensio and Béatrice I. Bonafé. Yet, quite irrespective of my disagreement with him on the lex lata, I believe that Professor Nolte deserves great credit for having outlined a very promising direction for a procedural compromise that duly considers the conflicting considerations that lie at the heart of the matter. I only wish to add to his proposal, that the formula “prosecute or waive” is not the only possible way out of the impasse. Instead of according jurisdictional priority to the State of the official, one could, as I have indicated together with Professor Sévane Garibian in somewhat greater detail elsewhere, also make the exercise of extraterritorial jurisdiction over a foreign State official conditioned on the existence of a viable ex ante or ex post mechanism to ensure the fairness of any such proceedings.

This letter is not the place to elaborate on the issue any further. But please allow me to take this occasion to make an appeal to the distinguished members of the International Law Commission. May they now deploy their formidable skills to the search for a well-balanced procedural solution along the lines just outlined as part of their work on the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction. This solution should then be incorporated in the Draft Convention on Crimes Against Humanity – a Convention, which should ultimately be extended in scope so as to comprise an update of the Genocide Convention.

It may well be that such an additional investment of intellectual energy would require the Commission to take a little longer with the conclusion of its work on the two projects in question and, in particular, with that on Crimes Against Humanity. But while it is no doubt desirable to have a modern Convention on the Prevention and Punishment of Genocide and Crimes Against Humanity as soon as possible, the Commission’s main ambition must not be the speedy adoption of such a Draft Convention. It should rather be the submission of a draft, which is well thought through especially on those points that matter most in practice. Only if a future Convention on the Prevention and Punishment of Genocide and Crimes Against Humanity includes a viable legal regime regarding the extraterritorial exercise of criminal jurisdiction over foreign State officials, will it allow for an advance of real significance in the application of international criminal law at the domestic level.

Photo credit: International Law Commission holds special commemorative event (UN Photo/Patrick Bertschmann)