No protest, no problem: German court confirms male captus, bene detentus rule

Published: 1 May 2020 Author: Rohan Sinha

On 10 July 2019, the Regional Court in Wiesbaden sentenced Ali Bashar Ahmad Zebari to life imprisonment for the rape and murder of Susanna Feldmann. The criminal trial attracted large public attention in Germany because, following the crime, the accused had fled to northern Iraq, from where he was repatriated to Germany under rather unusual circumstances. After an arrest warrant had been issued against the accused, he was traced to the autonomous region of Kurdistan-Iraq, where he was arrested on 8 June 2018 by Kurdish security forces at the request of the German Federal Police. The next day, the head of the Federal Police himself travelled to Iraqi Kurdistan to bring him back. The head of the Federal Police and two members of his staff met with Kurdish officials at Erbil International Airport “for reasons of protocol” while other federal officers who were accompanying him remained in the plane. According to the Federal Police, the Kurdish security forces delivered the accused right to the door of the plane and handed him over to Federal Police officers. He boarded the plane voluntarily and was brought back to Germany without being handcuffed or otherwise restrained. The Federal Government insisted that the police officers on board were present only to ensure aviation security. The operation was described as a “deportation”, rather than an extradition. The accused arrived back in Germany on 9 June 2018, where he was formally arrested. He was interrogated and brought before an investigating judge who ordered his pre-trial detention. The accused confessed the murder of the 14-year old schoolgirl but denied raping her.

During the trial, the accused challenged the jurisdiction of the court on the ground that he had been illegally removed from Iraq. The defence submitted that the repatriation from Iraq to Germany constituted a bar to prosecution which precluded the rightful conduct of criminal proceedings. In the words of the Court:

“On the first day of the trial on 12 March 2019, the defendant applied to the Court to declare that a procedural bar to criminal proceedings exists. He essentially states that after his escape to the autonomous region of Kurdistan-Iraq in northern Iraq he was detained in the city of Zakho by Kurdish security forces after they were contacted by telephone on 8 June 2018 by the head of the Federal Police, Dr. Dieter Romann. By way of informal assistance, he was then brought to the airport of Erbil by Kurdish security forces on 9 June 2018 and handed over to German security forces in an airplane. The security forces flew with him to Frankfurt where he was arrested after landing and informed about the arrest warrant. Neither an exit permit nor a deportation permit issued by Iraqi or Kurdish-Iraqi authorities exists. A statement which would meet the requirements necessary to assume a sovereign decision of the deporting State has so far not been put on record.”

The Regional Court did not consider these circumstances to constitute an impediment to prosecution. The Court stated:

“Contrary to the view of the defence, the facts submitted by the accused relating to his repatriation do not constitute a procedural bar because the State of Iraq or the autonomous region of Kurdistan-Iraq did not protest against the potentially illegal transfer of the accused who is an Iraqi national. Neither did they demand the return of the accused to Iraq.”

The Regional Court initially found that the repatriation probably did not constitute an illegal act because the Iraqi Government’s reaction was limited to a request for further information. From this reaction the Court inferred a tacit consent to the repatriation, which rules out a violation of Iraq’s territorial sovereignty. The Court found:

“It does not necessarily matter whether the public authorities of Iraq or the autonomous region of Kurdistan-Iraq were informed of the repatriation of the defendant beforehand.

The mere fact that the handover of a fugitive is conducted on the basis of mutual cooperation between the delivering and the receiving State and without an existing extradition treaty does not make the arrest illegal. However, the arrest of a person on the territory of another State violates his right to security guaranteed by Article 5 ECHR if the manner of the arrest violates the sovereignty of the State and is not consistent with public international law (ECtHR, Öcalan v. Turkey [GC], no. 4622/99, 12 May 2005).

In the absence of express consent of the competent Iraqi State organs, it can be assumed in the present case that the Iraqi Government tacitly gave its consent to the transfer of the accused, since it subsequently only requested information.”

The Regional Court went on to find that even if there had been an illegal abduction, public international law would not prevent the lawful conduct of criminal proceedings if the injured State did not lodge a protest. The Court stated:

“But even if the transfer of the defendant was contrary to public international law, this would not necessarily entail an impediment to criminal proceedings because neither the Iraqi government nor the autonomous region of Kurdistan protested or requested his return.

Since there is no extradition treaty or any other relevant international treaty between Iraq or the autonomous region of Kurdistan and the Federal Republic of Germany, an obstacle to prosecution could only arise from customary international law.

However, from a public international law perspective, a violation of a foreign State’s territorial jurisdiction does not affect the penal power of the prosecuting State per se. In this case the principle male captus, bene detentus applies. There is no general rule of international law which would bar criminal proceedings against a person who has been brought into the forum State in violation of a foreign State’s territorial sovereignty. On the contrary, State practice shows that courts generally refuse to conduct criminal proceedings against a person abducted in violation of public international law only when the State injured by the abduction protests against the wrongful treatment and demands the return of the abducted person.”

The Regional Court in Wiesbaden confirmed the doctrine of male captus, bene detentus (“wrongly captured, well detained”), which provides that a State may lawfully exercise judicial jurisdiction over a person within its territory, even if the person has been brought before the court in violation of international law. The Regional Court’s order cited three decisions of the Federal Constitutional Court which held that there is no rule of international law according to which the forum State cannot exercise criminal jurisdiction over a person who was obtained in violation of another State’s territorial sovereignty.

The principle male captus, bene detentus is not without controversy. It has been argued that the principle lacks widespread and uniform State practice and opinio juris. However, the large majority of States apply the principle. Isolated decisions by courts in some countries declining to exercise jurisdiction over forcibly abducted persons do not call into question the well-established international law principle of male captus, bene detentus as these decisions were based exclusively on domestic law principles without any reference to international law. State practice supports a rejection of the principle of male captus, bene detentus only if the forum State detained the accused by committing serious human rights violations and the State whose sovereignty was violated in the process protests against the detention operation.

Despite the Regional Court addressing the principle of male captus, bene detentus at length, the principle was not applicable in the case, as the accused had not been “wrongly captured”. He was not detained in violation of the territorial sovereignty of Iraq. This would only have been the case if German officials had exercised sovereign authority inside the territory of Iraq without the consent of the Iraqi State. The Federal Police officers, however, were present in Iraqi territory and received the accused with the consent of the authorities of the autonomous region of Kurdistan. Although it is unclear whether the conduct of the Kurdish authorities was in line with Iraqi law, this is irrelevant from the perspective of international law. According to Article 4(1) of the International Law Commission’s Articles on State Responsibility the “conduct of any State organ shall be considered an act of that State under international law, […] whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.” The authorities of the autonomous region of Kurdistan qualify as organs of the State of Iraq and as such their consent is attributable to the State of Iraq even if they exceed their authority or contravene instructions. The finding of the Regional Court that there was no “express consent of the competent Iraqi State organs” and the treatment of the lack of protest as tacit consent were thus irrelevant as the Kurdish authorities’ consent was sufficient to make the detention lawful in terms of international law.

There was also no need for the finding that “even if the transfer of the defendant was contrary to public international law, this would not necessarily entail an impediment to criminal proceedings because neither the Iraqi Government nor the autonomous region Kurdistan protested or requested his return.” The Court thereby wrongly implied that Iraq could have validly protested the repatriation of the accused. As the Kurdish authorities, acting in their official capacity, consented to the repatriation, the Iraqi Federal Government had to accept the actions of the Kurdish authorities as actions of the State of Iraq. When considering the legality of the detention of the accused, the Regional Court focused solely on the reaction of the Iraqi Federal Government, neglecting the rules of attribution in the Articles on State Responsibility.

Rather than relying on the absence of protest by the Iraqi Federal Government, the Court should have based its decision on the fact that the Iraqi-Kurdish authorities’ consent precluded any question of a violation of Iraqi sovereignty by Germany. Instead of “no protest, no problem” the Court should have adopted the principle of “no breach of sovereignty, no problem”. This would have clearly established that this was not a case of male captus, bene detentus but rather one of “bene captus, bene detentus”.

Category: Territorial sovereignty

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  • Rohan Sinha

    Rohan Sinha is a research assistant at the Institute for Public International Law of the University of Bonn. He studied law at the University of Passau.

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