On Feb. 1, 2021, I informed Just Security’s readers that, on Jan. 28, 2021, Germany’s highest court in criminal matters, the Federal Court of Justice, had pronounced a major judgment on the immunity of foreign officials in proceedings for international crimes. Last Friday, the Court’s written judgment was published, which opens the door to analyzing the key elements of its reasoning.
In short, the Court determines that State officials, at least to the extent that they hold subordinate positions, do not enjoy functional immunity under customary international law in foreign criminal proceedings for war crimes or certain other crimes of concern to the international community as a whole (paras. 11, 13, 23, and 35 of the judgment). The Court explicitly leaves open the question whether, in the case of alleged torture, the same conclusion also results from the 1984 United Nations Convention Against Torture (para. 60 of the judgment).
As a threshold matter, the Court recognizes that functional immunity under customary international law – if applicable — would constitute an obstacle to Germany’s jurisdiction, which the Court is bound to observe ex officio (para. 12 of the judgment). In fact, in the case at hand, the Defense had not raised the immunity issue, yet the Court nevertheless considered it necessary to ascertain whether the accused, a former Afghan soldier, enjoyed functional immunity under customary international law. While the Court has proceeded that way as a matter of German law, the point bears mentioning in view of the International Law Commission (ILC)’s current Draft Article 10 on immunity from foreign criminal jurisdiction (p. 314, n. 1474; yet to be provisionally adopted), which, on a surprisingly thin basis of State practice and opinio iuris, suggests that functional immunity must be invoked by the State of the official before the foreign State is bound to observe such immunity.
The Court affirms that States enjoy immunity for acta iure imperii under customary international law (para. 17 of the judgment). Likewise, the Court accepts the International Court of Justice (ICJ)’s finding in its 2012 judgement in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) that this sovereign immunity does not allow an exception even in cases of ius cogens violations (para. 43 of the judgment). But the Court emphasizes that the question of functional immunity of a State official in criminal proceedings is a distinct legal issue (para. 17 of the judgment) and refers to the 2012 ICJ judgment in support of the need to draw this distinction (para. 43 of the judgment).
In dealing with the legal issue before it, the Court carefully avoids determinations beyond what is strictly necessary to decide the case at hand, which concerned the commission of torture as a war crime. More specifically, the Court does not enter into the debate about the rationale underlying functional immunity of State officials under customary international law. As a consequence, the Court never clarifies whether such functional immunity is inconsistent with the nature of international crimes or whether its inapplicability rather follows from the emergence of an international criminal law exception to the functional immunity rule (for a discussion, see paras. 31 ff. of my commentary on Article 98 of the ICC Statute in Ambos (ed.), The Rome Statute of the International Criminal Court, 4th ed. forthcoming June 2021). Instead, the Court deems it sufficient to state (para. 18 of the judgment) that, under the general practice of States accepted as law, functional immunity is not applicable to State officials who hold subordinate positions when they are prosecuted in foreign criminal proceedings for war crimes (as well as “certain other crimes of concern to the international community as a whole,” as the Court puts it). In view of the debate that has arisen in the course of the ongoing ILC project on immunity of State officials from foreign criminal jurisdiction and, in particular, in connection with its Draft Article 7, the Court’s detailed analysis of the practice of States and their opinio iuris (paras. 19 to 43 of the judgment) is of quite considerable interest.
In conformity with the ILC, the Court omits the prologue to international criminal law stricto sensu from its analysis. It therefore does not rely on the rich body of State practice in the course of the Paris peace negotiations after the Great War in support of its conclusion. Instead, the Court begins its scrutiny of the relevant State practice and opinio iuris at Nuremberg. Article 7 of the London Charter is seen as a rejection of functional immunity in cases of crimes against peace, war crimes and crimes against humanity. Contrary to the ILC in the course of its ongoing work, the Court attaches considerable weight to this ‘Nuremberg Principle’ also in the context of national criminal proceedings. The Court does not suggest that the precedential value of the London Charter and the Nuremberg judgment against functional immunity in proceedings for the just-mentioned crimes could be limited to international criminal proceedings. In that context, the Court refers to the affirmation of this ‘Nuremberg Principle’ by the UN General Assembly (para. 24 of the judgment).
Contrary to the ILC, the Court also considers as relevant and weighty the numerous foreign criminal proceedings conducted against (former) German and Japanese State officials for international crimes and, in particular, war crimes after the Second World War (para. 20 of the judgment). In that connection, the Court singles out the Eichmann judgment delivered by Israel’s Supreme Court (para. 27 of the judgment). The Court acknowledges that the Supreme Court referred to the concept of ‘act of state’ instead of using the term ‘functional immunity,’ but it holds that this terminological nuance does not justify the sidelining of this judgment in the present context. Importantly, and other than sometimes suggested in the scholarly literature, the Court does not consider that this body of State practice could be irrelevant for the identification of the customary law rule in question because the State of the officials concerned had not raised the immunity issue in order to foreclose the proceedings. Rather, the Court observes that the Supreme Court of Israel held that the application of the act of state doctrine would be at variance with the very idea of international criminal law stricto sensu.
As regards the most recent judicial practice of States, the Court, apart from referring to a previous line of judgments delivered by German Courts (paras. 21, 34 of the judgment), refers to judicial decisions rendered in The Netherlands (para. 28 of the judgment), Belgium (para. 29 of the judgment), Spain (para. 30 of the judgment), Italy (para. 31 of the judgment), Switzerland (para. 32 of the judgment), and France (para. 33 of the judgment). In addition, the Court attaches great significance to the legal view adopted by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Blaskic (para. 25 in conjunction with para. 15 of the Court’s judgment, citing para. 41 of the Blaskic judgement).
The Court then acknowledges that the first Special Rapporteur of the ILC on immunities of State officials from foreign criminal jurisdiction had taken the view that the functional immunity of State officials acting in their official capacity extended to proceedings for international crimes. The Court also recognizes that the second Special Rapporteur, while having identified a ‘clear trend’ to the contrary, had not gone so far as to unambiguously consider the inapplicability of functional immunity under customary international law in proceedings for international crimes to constitute existing law. The Court also mentions that the comments having recently been voiced by States in the Sixth Committee of the United Nations General Assembly do not display a consensus on this issue (para. 36 of the judgment).
Yet, the Court held that the ongoing work of the ILC on immunity from jurisdiction has not had, at least not yet, the effect to change the state of customary international law to the effect that functional immunity from foreign criminal jurisdiction extends to proceedings for international crimes allegedly committed by (subordinate) State officials (para. 35 of the judgment). It bears special attention how the Court deals with the work of the ILC on immunity of State officials from foreign criminal jurisdiction and with the verbal practice of States related thereto. While the Court accepts that the ILC’s work leading to the adoption of Draft Article 7 and the comments of States on this draft article reveal a lack of unanimity among both ILC members and States, the Court is of the view that this is insufficient to conclude that customary international law has changed. While the Court does not mention any specific date, it is very apparent from its reasoning that the Court believes that, well before the ILC began its work on immunity from foreign jurisdiction, there existed a general practice of States accepted as law in support of the Court’s main conclusion (for the same view, see paras. 65 ff. of my commentary on Article 98 of the ICC Statute in Ambos (ed.), The Rome Statute of the International Criminal Court, 4th ed. forthcoming June 2021).
The Court believes that the clearly predominant view among scholars is in support of its conclusion (para. 38 of the judgment). At the same time, the Court recognizes that there is currently no scholarly consensus to that effect and it explicitly mentions the critical views recently expressed by current and former ILC members Georg Nolte, Sean Murphy and HUANG Huikang (paras. 36, 38 of the judgment). However, on the basis of its analysis of the relevant practice of States and the corresponding opinio iuris the Court is convinced that these divergent scholarly views do not give rise to serious doubts regarding the Court’s conclusion (para. 56 in conjunction with para. 38 of the judgment). It was important for the Court to reach a finding of ‘no serious doubts’ because if it had been otherwise the Court would have been required to request the Federal Constitutional Court for an identification of the state of customary international law (para. 54 of the judgment).
Interestingly, the Court explicitly states that it finds its conclusion consistent with that of the German government (para. 37 of the judgment). In that context, the Court specifically refers to the statement made by Germany in the Sixth Committee of the United Nations General Assembly in 2017 (para. 37 of the judgment). The Court reads that statement so as to express concerns about the list of crimes in ILC Draft Article 7, but not about the inapplicability of functional immunity under customary international law in proceedings for war crimes and certain other crimes of concern to the international community as whole. To buttress this understanding, the Court refers to Germany’s 2016 statement in which Germany had explicitly recognized the inapplicability of functional immunity under customary international law in proceedings for certain crimes of concern to the international community as a whole.
The Court’s judgment is of considerable importance, but due to its cautious reasoning its immediate reach is limited with respect to both the relevant crimes and the relevant State officials. Regarding the crimes, the Court is specific only with respect to war crimes. In addition, it uses the term ‘certain other crimes with concern to the international community as a whole’ (paras. 23, 35 of the judgment). Apparently, the Court did not wish to enter into the debate about the list of crimes in ILC Draft Article 7 and the conceptual questions surrounding this debate. Yet, the repeated emphasis on ‘the international community as a whole’ suggests that the best way to understand the judgment’s reach is that it includes all, but only, crimes under customary international law, in other words: international criminal law stricto sensu (for such a view, see paras. 49 ff. of my commentary on Article 98 of the ICC Statute in Ambos (ed.), The Rome Statute of the International Criminal Court, 4th ed. forthcoming June 2021).
With respect to the relevant State officials, the interpretation of the judgment’s reach poses more significant difficulties. The Court explicitly confines its conclusion to officials in a subordinate position without going into any detail of what ‘subordinate’ (in German: nachrangig) means. In paragraph 40 of the judgment, the Court contrasts ‘subordinate’ officials with incumbent Heads of States, Heads of Governments and Foreign Ministers and recognizes the latter official’s personal immunity. But what about former Heads of States, Heads of Governments and Foreign Ministers and what about, say, an acting General? None of those enjoy personal immunity under customary international law, but it is impossible to qualify them as ‘subordinate’ State officials. Importantly, the Court does not rule out that customary international law functional immunity is also inapplicable to high-ranking State officials in proceedings for crimes under customary international law. This is not only implicit in the reasoning, but at times the words ‘in any event’ (in German: jedenfalls) are explicitly added to the word ‘subordinate’ (paras. 23, 35 of the judgment). The Court has thus left undecided whether a significant number of (current and former) State officials enjoy customary international law functional immunity from foreign jurisdiction in proceedings for crimes under customary international law.
The cautious wording of the judgment leaves room for essentially three possibilities to deal with this important remaining issue. First, the Court has left open the possibility that customary international law functional immunity might not extend at all to official acts of subordinate State officials (para. 17 in conjunction with para. 48 of the judgment). Second, the judgment could also allow that all State officials generally enjoy functional immunity under customary international law, but not if they are a subordinate State official who has allegedly committed a crime under international law. Third, the Court’s reasoning leaves room for the view that functional immunity, while as a rule applying to the official acts of all State officials, is completely inapplicable in proceedings for crimes under international law. At least by the explicit terms of its reasoning, the judgment does not lean in any of the three directions. Yet, the Court’s reasoning does not contain any indication why customary international law functional immunity might not extend at all to official acts of subordinate State officials (first possibility). Also, the Court does not suggest at any point that its analysis of the relevant practice of States and opinio iuris could support a determination that there exists a customary international law rule on the inapplicability of functional immunity in proceedings for crimes under customary international law that is limited to the acts of subordinate State officials (second possibility). It is therefore fair to conclude that the Court’s reasoning implicitly suggests that functional immunity, while as a rule applying to the official acts of all State officials, is completely inapplicable in proceedings for crimes under customary international law. At the same time, it bears repeating that the Court has stopped short of explicitly activating that potential.