Published: 12 January 2018 Author: Stefan Talmon
On 8 January 2018, the spokesperson of the Federal Foreign Office confirmed that Iranian Ayatollah Mahmoud Hashemi Shahroudi had been receiving medical treatment at a private hospital in Germany since 21 December 2017. The spokesperson declared that “due to a serious illness Mr. Shahroudi had sought further treatment in Germany” and that “this request was granted after credible health reasons had been given.”
At the time of his treatment, Ayatollah Shahroudi was the head of Iran’s Expediency Discernment Council, a body tasked with the resolution of disputes between Iran’s parliament, the Majlis, and a constitutional watchdog known as the Guardian Council. He was also First Deputy Chairman of Iran’s Assembly of Experts, the body empowered to designate and dismiss the Supreme Leader of Iran. From 1999 to 2009, Ayatollah Shahroudi was the head of Iran’s Judiciary. As head of the judiciary, he appointed all public prosecutors, the provincial heads of the judiciary and the prison wardens across the country. He also determined the composition of the Supreme Court which he also presided over. The Supreme Court decides on the execution of the death penalty. During his time in office, some 2,000 persons had been executed, including minors and persons who had been minors at the time of their crimes. He had also endorsed the amputation of limbs as fair punishment, as well as flogging, stoning, burning at the stake, and the falling from a height without administration of anaesthetics.
When Ayatollah Shahroudi’s presence in Germany became public, Germany’s leading mass-circulation tabloid Bild ran the front-page headline “Death judge in Iran, luxury patient in Germany”. Prominent Green Party politician Volker Beck and several Iranian opposition groups filed criminal complaints with the Federal Public Prosecutor General of the Federal Court of Justice and local prosecutors, accusing Ayatollah Shahroudi of “crimes against humanity” during his decade at the helm of Iran’s judiciary.
Under Germany’s Code of Crimes against International Law, German courts have universal jurisdiction for genocide, crimes against humanity, and war crimes. Since 1 January 2017 German courts also have jurisdiction for the crime of aggression, if committed abroad by a German national or if the act of aggression is directed against the Federal Republic of Germany. Offences under the Codes of Crimes against International Law fall within the special jurisdiction of the Federal Public Prosecutor General, who is generally obliged to take action in relation to such offences, provided there are sufficient factual indications. A prosecution may only be dispensed with if the offence has been committed outside Germany and the accused is not resident in Germany; or, if the accused is resident in Germany, the case is intended to be transferred to an international court or tribunal.
With Ayatollah Shahroudi being present in Germany the Federal Public Prosecutor General was under an obligation to examine whether the alleged offences fell within the scope of crimes against humanity. On 8 January 2018, the Federal Public Prosecutor General opened a preliminary examination into whether to start a formal criminal investigation. The purpose of such a preliminary examination was to establish on the facts whether the Federal Public Prosecutor General was competent to prosecute. Depending on the outcome of such a preliminary examination the Federal Public Prosecutor General decides either to open a formal criminal investigation or to close the file for lack of jurisdiction. In response to calls for the arrest of Ayatollah Shahroudi, the spokesperson of the Federal Prosecutor General’s office declared on 10 January 2018:
“A death sentence, as much as it may appear to be utterly inhuman by our moral values, is not automatically a crime against humanity as a matter of law. It only becomes such if it is carried out ‘as part of a widespread or systematic attack directed against any civilian population’. Whether this is the case requires clarification. At present, the findings available to us on the matter are insufficient to ground a request for an arrest warrant against Mr Shahroudi. However, we continue to investigate the matter [irrespective of his whereabouts]. In the case of the issuing of an arrest warrant, Mr Shahroudi could face arrest internationally. If he was then to be arrested abroad, we would request his extradition to Germany.”
The next day, Ayatollah Shahroudi left Germany for Iran. Considering the early stage of the preliminary investigation it was probably wrong to say that he was “fleeing” the country. He was rather trying to save the host country from further embarrassment.
It was reported that Ayatollah Shahroudi had entered Germany on a diplomatic passport. This raised the question of whether he enjoyed diplomatic immunity. Green Party politician Volker Beck, who had filed a criminal complaint with the Federal Public Prosecutor General, said: “It would be a big mistake if the Federal Government provides diplomatic immunity here to the organizer of mass murders through Iran’s justice system. We should not be a health resort for human-rights violators, rather they should be held accountable.” The Federal Foreign Office tried to escape the question by stating that the “question of whether Mr Sharoudi enjoys immunity, if raised, is to be determined independently by the competent judicial authorities.” A diplomatic passport does not automatically entitle the holder to diplomatic immunity. As Ayatollah Shahroudi had not been notified to the German Federal Foreign Office as a member of Iran’s diplomatic mission to Germany he also did not enjoy the immunities of a diplomatic agent under the Vienna Convention on Diplomatic Relations. While Ayatollah Shahroudi entered Germany with a visa on his diplomatic passport issued by the German Embassy in Tehran, this did not necessarily mean that the Federal Government consented to him being on a “special mission” to Germany. Under customary international law, persons engaged upon a special mission enjoy absolute personal immunity equivalent to the immunity of members of permanent diplomatic missions under the Vienna Convention. As a consequence, according to section 20, paragraph 2, of the German Courts Constitution Act, German jurisdiction does not apply to persons on special missions.
One of the leading cases worldwide on the immunity of persons visiting a country on a special mission is the case of Dr. Sadegh Tabataibi, a member of the political leadership of Iran who, in January 1983, was arrested at a German airport when opium was found in his luggage. Dr. Tabatabai claimed immunity from criminal prosecution as he was on a secret special mission to Germany and other Western European countries. The Federal Supreme Court held that “there is no general rule of international law which effectively guarantees immunity to a special envoy, where that immunity does not protect any function and is merely granted ad personam.” However, the agreement between the sending and receiving States on the specific questions to be dealt with by a special mission or the specific task to be performed may be quite general in nature. The task to be performed by the special envoy need not be the main purpose of the visit; rather it may also be understood as a “mission en passant“. According to the Federal Supreme Court, the “establishment of a special mission does not require a specific form in the sense that this mission has to be fixed in writing by at least one of the contracting parties. It can also be agreed upon tacitly”. A special mission can even “be established ex post facto, after the entry of the envoy.” While a mission purely to receive medical treatment would not qualify as a special mission, a planned meeting with German Government officials incidentally during the medical treatment could have made Ayatollah Shahroudi’s hospital stay a special mission. The question of immunity thus depended on whether or not there was an agreement between the German and Iranian governments. Therefore, the question of immunity would ultimately have depended on the position of the Federal Government. This, of course, opens the institute of the special mission up to abuse.
The criminal complaints concerned official acts undertaken by Ayatollah Shahroudi as head of Iran’s judiciary. State officials are generally entitled to functional immunity for their official acts. However, under customary international law there is no functional immunity for official acts constituting international crimes. For example, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held in Prosecutor v. Plaskic:
“The general rule [of functional immunity] under discussion is well established in international law and is based on the sovereign equality of States (par in parem non habet imperium). The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity.”
Thus, if the alleged acts of Ayatollah Shahroudi had constituted crimes against humanity there would have been no bar to criminal prosecution in Germany.
As indicated by the spokesperson of the Federal Prosecutor General, the crucial question was thus whether the alleged acts constituted crimes against humanity. Judicial death sentences in accordance with Iranian criminal law would have had to amount to “murder” and had to have been carried out “as part of a widespread or systematic attack directed against any civilian population.” This latter phrase was interpreted by the ICTY Appeals Chamber as encompassing five elements: (i) there must be an attack, (ii) the acts of the perpetrator must be part of the attack, (iii) the attack must be directed against any civilian population, (iv) the attack must be widespread or systematic, and (v) the perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such a pattern. In addition, the “attack” would have required a multiple commission of murders “pursuant to or in furtherance of a State or organizational policy to commit such attack.” It seems questionable whether the factual and legal requirements of crimes against humanity could be established by the Federal Prosecutor General.
Category: International criminal law