Published: 3 July 2018 Author: Stefan Talmon
On 23 May 2018, a 14-year-old German girl named Susanna Maria Feldman was reported missing. Two weeks later her body was found a few kilometres from her home. She had been raped and strangled. The person accused of her murder was Ali Bashar, an Iraqi asylum seeker, who had arrived in Germany at the height of the refugee crisis in 2015. His request for asylum had been rejected in December 2016 but he had not been deported pending an appeal. On 7 June 2018, the police announced that an arrest warrant had been issued for Ali Bashar. The suspect, however, managed to flee to his home region in Iraqi Kurdistan before being arrested. The case stoked a heated public debate in Germany over the Government’s policy to open the borders and receive more than one million asylum seekers.
German police quickly traced the suspect to the Kurdistan region of Iraq. On 8 June 2018, Ali Bashar was detained by Iraqi Kurdish security forces in northern Iraq at the request of the German federal police. The arrest was announced by the German Federal Minister of the Interior who stated:
“Ali B., who is accused of the murder of Susanna F., was arrested tonight on 8 June 2018 at around 2 a.m. by Kurdish security forces in northern Iraq at the request of the federal police. This success is a result of the good cooperation between the Kurdish security authorities in Iraq and the German federal police. […] The question of extradition is now being dealt with in accordance with international rules.”
However, no formal request for extradition was made. This may be explained by the fact that there was no extradition treaty between Germany and Iraq. Even if such a treaty had been in place, the suspect – an Iraqi national – could not have been extradited as Article 21, paragraph 1, of the Iraqi Constitution of 2005 provided that “no Iraqi shall be surrendered to foreign entities and authorities.” More specifically, Article 358, paragraph 4, of Iraq’s Criminal Procedure Code stipulated that “extradition is not permitted […] if the person requested is of Iraqi nationality.”
On the date of Ali Bashar’s arrest a senior official in the autonomous Kurdistan region of Iraq stated that the authorities were working to transfer Bashar, who had confessed to the killing, quickly back to Germany to face trial. The next day, the head of the German federal police, who reportedly had close relations with the authorities of the Kurdistan Regional Government (KRG), travelled together with federal police officers to the Kurdistan region of Iraq on a scheduled flight operated by Germany’s national air carrier Lufthansa. While the head of the federal police “for reasons of protocol” met with Iraqi Kurdish officials at Erbil International Airport, the federal police officers did not leave the plane. The Iraqi Kurdish security forces delivered Ali Bashar right to the door of the Lufthansa plane and handed him over to the German federal police officers. The German Government considered this to constitute a “deportation”. According to the federal police, the suspect was handed over without being handcuffed or otherwise restrained, and boarded the plane voluntarily. The federal police officers were present only to ensure aviation security. Ali Bashar arrived in Frankfurt late on 9 June 2018 and, the next day, was brought before an investigating judge who ordered his pre-trial detention.
On 13 June 2018, the spokesman for the Iraqi Foreign Ministry issued the following statement:
“The Ministry of Foreign Affairs reiterates that the handover of suspect Ali Bashar to German authorities by the Kurdistan Region of Iraq constitutes a violation of the law because there is no treaty between the two countries for the extradition of wanted persons.
Baghdad considers the handover illegal both on the part of the side that handed over the wanted person and on the part that received him as the extradition of wanted persons is a sovereign authority vested in the Federal Ministry of Justice.
At the same time, Iraq affirms its keenness to achieve justice and punish the perpetrator, but within the legal and constitutional framework that does not violate national sovereignty.”
Iraq did not submit a formal protest to the German Government, let alone ask for the return of Ali Bashar.
In Germany, several voices in the media and academia argued that the repatriation constituted a violation of Article 2, paragraph 1, of the United Nations Charter, the territorial sovereignty of Iraq and the European Convention on Human Rights and, more generally, called into question the application to the present case of the long-standing international law principle of male captus, bene detentus (badly captured, well detained) which permits the trial of an improperly seized defendant.
The customary international law principle of non-intervention protects the right of every sovereign State to conduct its affairs without outside interference. While not, as such, spelt out in the Charter, the principle is a corollary of the principle of the sovereign equality of States contained in Article 2, paragraph 1. While the terms non-intervention and non-interference are often used interchangeably, not every interference in the internal affairs of a State constitutes a prohibited intervention. It has been pointed out that “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the State intervened against of control over the matter in question. Interference pure and simple is not intervention.” Thus, intervention requires an element of coercion. The forcible abduction of Ali Bashar from Iraq by German federal police would clearly have constituted a wrongful intervention. However, Ali Bashar was not abducted or otherwise forcible removed from Iraq but was handed over voluntarily by Iraqi Kurdish security forces. Due to the lack of coercion of the Iraqi Kurdish authorities there was thus no unlawful intervention in the internal affairs of Iraq.
The presence of – probably armed – German federal police at Erbil Airport also did not violate the territorial integrity or political independence of Iraq as the German police officers were there at the invitation or with the consent of the KRG authorities. In terms of international law it is thus irrelevant of whether the German police officers left the Lufthansa plane or not. State organs may exercise sovereign authority in the territory of another State with the consent of the latter. The federal police officers stayed inside the plane because the German Federal Police Act lays down special requirements for the federal police to act in other States which were not fulfilled in the present case.
The consent of the KRG authorities was sufficient as a legal basis for the presence and actions of the German federal police in Iraq, irrespective of whether the KRG is considered a local de facto government or an autonomous region of the State of Iraq in accordance with Article 117, paragraph 1, of the Iraqi Constitution. In the first case, the KRG authorities were competent to give consent in their own right; in the second case, the KRG authorities could give consent as organs of the State of Iraq. Germany does not recognize the Kurdistan region of Iraq as an independent State or as a local de facto government but treats the Kurdish areas of northern Iraq as a federal region of Iraq. According to the Iraqi Constitution legislative, executive and judicial authority lies with the regions, except if the Constitution expressly provides for the exclusive authority of the federal government, or if competencies are shared between the federal authorities and the regional authorities. The federal government has exclusive authority in matters of foreign policy and the conclusion of international treaties and agreements, including extradition treaties and ad hoc extradition agreements. While the federal government is also responsible for the security of Iraq’s borders and for defending Iraq, the “regional government shall be responsible for all the administrative requirements of the region, particularly the establishment and organization of the internal security forces for the region such as police, security forces, and guards of the region.” It could thus be argued that matters of police cooperation lay within the competence of the KRG. In terms of international law, however, the division of competence between the Iraqi federal government and the regions was irrelevant to Germany as States are not required by international law to uphold or defend the constitutional order of other States against their own authorities. A State need not acquire any knowledge or expertise of the legal or constitutional order of another State in order to deal with it. Thus, the spokesperson of the Federal Ministry of the Interior stated:
“It is obvious that the receiving State must not examine the legal requirements for deportation in the deporting State; you cannot do that, you do not know the legal requirements of the deporting State.”
Iraq, as a rule, cannot rely on its internal law on the international plane. Article 46 of the Vienna Convention on the Law of Treaties provides a limited exception to this rule only with regard to the conclusion of treaties. A State may invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties if that violation was manifest and concerned a rule of internal law of fundamental importance. This establishes a rather high threshold. Considering that under the Iraqi Constitution the KRG was responsible “for all the administrative requirements of the region”, including police, it is difficult to argue that a violation of Iraqi law was manifest to the German federal police authorities. On the contrary, they could presume that the KRG authorities were acting lawfully.
In terms of international law both the Iraqi federal authorities and the KRG authorities are organs of the Iraqi State whose conduct entails its international responsibility. Article 4, paragraph 1, of the Articles on State Responsibility provides that the conduct of any State organ, “whatever its character as an organ of the central Government or of a territorial unit of the State”, shall be considered an act of that State. The conduct of an organ of State is to be considered an act of the State under international law if the organ acts in that capacity, even if it exceeds its authority. The KRG authorities were acting in their official capacity. Their consent to the presence of the German federal police officers in Erbil and the handover of Ali Bashar was thus attributable to the State of Iraq. The German federal police authorities could rely on their consent and the lawfulness of their actions.
The repatriation of Ali Bashar did not violate the European Convention on Human Rights (ECHR). It is generally accepted that the Convention can also apply extraterritorially. The moment Ali Bashar was detained by members of the German federal police inside the Lufthansa aircraft at Erbil International Airport he came within the “jurisdiction” of Germany and fell under the protection of the ECHR. Article 5, paragraph 1(c), provides that no one shall be deprived of his liberty unlawfully. The provision protects persons from arbitrary arrest and detention. Whether an arrest is “lawful” is to be determined by reference to national and international law. However, the national law of the State where a fugitive has taken refuge is only examined by the European Court of Human Rights if the State of refuge is a party to the Convention. As Iraq is not a party to the ECHR, the Court would examine only the lawfulness of the arrest under German and international law. A German court had issued an arrest warrant for Ali Bashar on 7 June 2018. His arrest and detention thus complied with the order of a German court to bring him “before the competent legal authority on reasonable suspicion of having committed an offence.” Even if the arrest warrant had not been executed until Ali Bashar left the aircraft in Frankfurt this does not necessarily mean that the deprivation of his liberty had no legal basis in German law. For example, according to section 4a of the Federal Police Act, the federal police may be employed to maintain or restore safety or order on board German aircraft. To this end, the federal police may temporarily take a person into custody.
With regard to the unlawfulness in terms of international law, the Court requires proof in the form of “concordant inferences” that the authorities of the State to which a fugitive has been transferred have acted extraterritorially in a manner which is inconsistent with the sovereignty of the host State and therefore contrary to international law. This is, for example, the case if the fugitive has been forcibly abducted by State agents in another State without the consent of the latter. Only then will the burden of proving that the sovereignty of the host State and international law have been complied with shift from the fugitive to the Government. The arrest of Ali Bashar was not the result of extraterritorial acts by German federal police officers that violated Iraqi territorial sovereignty or the principle of non-intervention but was the result of cooperation between German and KRG authorities in the absence of any extradition treaty between Germany and Iraq laying down a formal procedure. As the European Court of Human Rights held in Öcalan v. Turkey:
“The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice […].
The fact that a fugitive has been handed over as a result of cooperation between States does not in itself make the arrest unlawful and does not therefore give rise to any problem under Article 5. […].
The Convention contains no provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. Subject to it being the result of cooperation between the States concerned and provided that the legal basis for the order for the fugitive’s arrest is an arrest warrant issued by the authorities of the fugitive’s State of origin, even an atypical extradition cannot be regarded as contrary to the Convention.”
In the Öcalan case, the Court found no violation of Article 5. In that case there was also no extradition treaty and no formal request for extradition was made. The fugitive was apprehended by Kenyan authorities and handed over to the Turkish authorities at Nairobi International Airport by way of cooperation between the two States. The fugitive was deported rather than extradited. In similar cases, the European Commission of Human Rights had held that even if the circumstances in which a fugitive is brought back “could be described as a disguised extradition, this could not, as such, constitute a breach of the Convention.” A problem under Article 5, paragraph 1, could have arisen only in exceptional circumstances, for example, if the deportation amounting to a disguised form of extradition had been designed to circumvent a domestic court ruling against extradition. This, however, was not the case with regard to Ali Bashar.
Considering the recent attempts by the Kurdistan region to gain independence from Iraq and the strained relationship between the regional and the federal authorities approaching the KRG authorities directly rather than channelling the request for cooperation through the federal authorities in Baghdad, this may be considered an unintentionally unfriendly act – it was not, however, an illegal act.
Even if the repatriation of Ali Bashar had constituted an internationally wrongful act, Germany would not automatically have been obliged to return him to Iraq. As the injured State, Iraq would have had to invoke Germany’s responsibility by formally giving notice of its claim to make reparation. The statement of the spokesperson of the Iraqi Foreign Ministry that the handover of the suspect by the Kurdistan Region of Iraq constituted “a violation of the law” did not suffice. The Iraqi Government could also choose what form reparation by Germany should take. The return of Ali Bashar was just one of several options. Other forms of reparation include satisfaction. Iraq could have asked Germany for an acknowledgement of the breach, an expression of regret, or a formal apology.
Iraq claims extraterritorial criminal jurisdiction over its citizens who commit an offence abroad. Ali Bashar could thus have been prosecuted in Iraq for murder and rape. However, in Iraq he could potentially have faced the death penalty for those offences. Both under the German Constitution and the European Convention of Human Rights Germany would have been prevented from returning Ali Bashar to Iraq for trial or from providing any evidence to the prosecution, unless Iraq would have given a binding diplomatic assurance that the death penalty would neither be sought nor imposed. If no such assurance had been forthcoming, Germany would have been entitled under international law to refuse any request for his return as exposing Ali Bashar to the death penalty would have imposed a burden on Germany out of all proportion to the benefit derived by Iraq from the return instead of another form of reparation.
The repatriation of Ali Bashar outside an extradition treaty did not create an obstacle under international law to the exercise of criminal jurisdiction by the German courts. The principle of male captus, bene detentus is a well-established rule of international law. This principle seems to have been called into question in recent years by isolated decisions in some common law countries where courts declined to exercise jurisdiction where the accused had been brought before the court by way of forcible abduction. The courts, however, based their decision not on any new or changed rule of international law but on the “abuse of process” doctrine. In any case, these cases are not of relevance as Ali Bashar was not forcibly abducted but handed over to the German federal police by the KRG authorities. In 2005, the German Constitution Court, referring to the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), ruled obiter that:
“more recent state practice […] indicates that the principle male captus, bene detentus is rejected at any rate if the State of the forum got hold of the prosecuted person by committing serious human rights violations, and if the State whose territorial sovereignty was violated protested against such procedure.”
Again, the facts of the present case differ. The German federal police neither committed serious human rights violations nor violated the territorial sovereignty of Iraq. The case of Ali Bashar is thus not one of male captus, bene detentus at all, but rather a case of bene captus, bene detentus.