[Editor’s note from Ryan Goodman: In light of this major decision by Germany’s highest criminal court, Professor Claus Kress has graciously agreed to write this preliminary note about the oral pronouncement of the judgment by the Court’s presiding Judge. Professor Kress will write a more comprehensive article for Just Security once the written opinion is publicly available.]
Last Thursday, Germany’s Federal Court of Justice issued a potentially landmark judgment in a case that pits the immunity that foreign state actors enjoy in criminal proceedings against efforts to achieve accountability for war crimes. The court rejected the idea that “functional immunity” under customary international law precludes criminal proceedings against organs of a foreign State for international crimes. This was the presiding Judge’s core message when, last Thursday, he orally pronounced his criminal chamber’s decision on a case against a former Afghan soldier involving a war crimes allegation under the German Code of Crimes under International Law (Völkerstrafgesetzbuch).
The judgment had been eagerly awaited by many observers. That is in part because the ruling has implications for significant ongoing German proceedings against former Syrian officials involving the allegation of crimes against humanity in the form of torture. More fundamentally, the judgment had been highly anticipated in view of the very future of Germany’s exercise of extra-territorial jurisdiction in proceedings for crimes under customary international law under the Völkerstrafgesetzbuch.
As of yet, the written judgment is not available (and its production may well require a few more weeks) such that circumspection is called for at this moment as regards the decision’s precise reach and, even more so, as regards the specifics of its reasoning. But there are a few items worthy of note.
The presiding Judge devoted a significant amount of time to the functional immunity issue in the course of the judgment’s pronouncement. In doing so, the presiding Judge referred to the relevant practice of States at some length, including the Nuremberg judgment and the judgment of the Supreme Court of Israel delivered in the Eichmann case. Reference was then also made to the ongoing work of the International Law Commission on the topic of “Immunity of State officials in foreign criminal jurisdiction” and to recent statements made by Germany’s President and Foreign Minister at the occasion of the commemoration, in November last year, of the opening of the Nuremberg trial 75 years ago.
Taken together, these elements of the oral pronouncement of the decision suggest that the written judgment might offer a landmark judgment of the highest criminal court in Germany on a question of customary international law, whose importance for the national enforcement of international criminal law stricto sensu can hardly be overstated. This general topic also recently captured quite some attention because of a controversy that had arisen within the International Law Commission as regards Draft article 7 on immunity of State officials from foreign criminal jurisdiction. The judgment will surely inform how the Commission members and international lawyers more general consider the proper legal boundaries.