On 26 July 2019, the Higher Regional Court in Munich sentenced Ahmad Zaheer D., a former officer of the Afghan National Army, to two years’ probation for, inter alia, grievous bodily harm, coercion and attempted coercion, as well as the war crime of outrages upon human dignity. During the non-international armed conflict in Afghanistan between government forces and the Taliban in 2013/2014, the accused had mistreated three captured Taliban fighters during interrogation and had desecrated the dead body of a high-ranking Taliban commander.
Both the accused and the Federal Public Prosecutor General lodged an appeal with the Federal Court of Justice on points of law. The Federal Public Prosecutor argued that the mistreatment of the prisoners during interrogation amounted to the war crime of torture in terms of section 8(1) no. 3 of the German Code of Crimes against International Law (CCAIL). During the proceedings, the Federal Court of Justice on its own initiative and to the surprise of both prosecution and defence raised the question of whether the accused, as an officer of the Afghan National Army, enjoyed functional immunity as a State official.
In its decision of 28 January 2021, the Federal Court of Justice followed the Federal Public Prosecutor and changed the initial verdict to the effect that the accused was found guilty of war crimes against persons for torturing prisoners and for treating a person who was protected under international humanitarian law in a gravely humiliating and degrading manner. The Court held that, according to the general rules of international law, the criminal prosecution of the war crimes of torture and gravely humiliating or degrading treatment by domestic courts was not excluded by the procedural obstacle of functional immunity if the crimes were committed by a foreign low-ranking State official, such as a soldier, in the exercise of foreign sovereign authority. The case was remanded back to the Higher Regional Court in Munich in order for the accused to be sentenced accordingly.
The question of the immunity of foreign States and their officials from the jurisdiction of the German courts is governed by customary international law. The case thus provided the Federal Court of Justice with an opportunity to examine the rules of customary international law on the functional immunity of State officials. The Court started its examination by setting out the principle of State immunity, stating:
“As a starting point, it is generally agreed that as a consequence of the sovereign equality of States, a State is in principle not subject to the jurisdiction of foreign States at least with regard to sovereign acts (acta jure imperii). This can also result in functional immunity for natural persons as an emanation of State immunity, since a State can regularly only act through such persons. However, the subject matter of the present proceedings and thus the point of reference for any immunity is not the sovereign action of a foreign State not involved in the proceedings in general, but the individual criminal responsibility of a natural person for war crimes which that person is alleged to have committed as a subordinate official of a foreign State. A functional immunity to be considered in such a case is to be distinguished from other immunities, especially personal immunity (ratione personae). The same applies to the exclusion of civil liability.”
After identifying an established practice of numerous, but not necessarily all States (“consuetudo” or “usus”) and the conviction of an obligation under international law (“opinio iuris sive necessitates”) as the requirements for the determination of rules of customary international law, the Federal Court of Justice began its determination of the scope of functional immunity under customary international law by examining relevant State practice. It referred to several domestic court cases in which individuals were held criminally responsible for war crimes committed in their function as State officials. The Court stated:
“There is a general State practice showing that criminal prosecution by a national court is possible in situations such as the present one. State organs and courts have often prosecuted and sentenced foreign officials for war crimes, genocide or crimes against humanity.”
After setting out instances of State practice, the Federal Court of Justice proceeded to ascertain a corresponding legal conviction. For this purpose, the Court examined the reasoning of numerous international and national judicial bodies that denied State officials functional immunity for war crimes. Based on an array of jurisprudence, the Court concluded:
“In addition to the corresponding unanimous State practice, there is a general conviction that, according to international law, national courts may prosecute at least low-ranking officials for war crimes or certain other crimes affecting the international community as a whole, even if one were to assume a general rule of functional immunity for sovereign acts of foreign State officials irrespective of their rank.”
The Court held that this result was unimpaired by the current work of the International Law Commission (ILC) on this topic. It stated:
“The recent work of the International Law Commission of the United Nations on criminal immunity has not yet been completed. At the moment, it is impossible to derive from this work a rule of international law granting functional immunity for war crimes. Therefore, this work does not alter the general rule of customary international law, which is supported by uniform practice and conviction, that in any case the prosecution by national courts of foreign low-ranking officials for war crimes or certain other offences affecting the international community as a whole is permissible.
In July 2007, the International Law Commission included the subject of immunity of State officials from foreign criminal jurisdiction in its work programme and subsequently dealt with it regularly, as did the Sixth Committee of the United Nations General Assembly. The Special Rapporteur, who was initially appointed for this purpose, expressed the opinion that the reasons given for exceptions to immunity were not convincing and that there was a lack of uniform State practice to that effect. On the other hand, the subsequent Special Rapporteur of the International Law Commission recognized, after an examination of legal practice, a clear development to consider the commission of international crimes as a limit to the immunity of State officials and contemplated to regard this as a rule of customary international law. In her subsequent report, however, she stated that the question of restrictions or exceptions to immunity was the most controversial and politically sensitive aspect. She summarised the opinions of the State representatives in the Sixth Committee of the General Assembly: in the opinion of two States, international crimes could never be regarded as an exercise of State sovereignty; one State accepted a restriction on immunity as an already existing rule of customary international law; ten States saw a development towards such a rule, while eleven States denied the existence of corresponding customary international law; and eight others – including Germany – did not even affirm a tendency towards such a rule.
Although this could ostensibly indicate that the majority of the States making a statement consider functional immunity to apply even to war crimes, on closer examination this is not generally the case. The official view expressed by Germany in the Sixth Committee of the General Assembly in October 2017 may serve as an example. It is true that, in Germany’s view, the Special Rapporteur’s fifth report suffered of considerable methodological faults. However, the representative of Germany also pointed out that the principle of individual responsibility for international crimes was a great achievement and that Germany staunchly supported efforts to bring perpetrators of international crimes to justice. The detailed criticism is directed, for example, against the list of certain crimes provided for in the draft for which there was to be no immunity; while the crime of aggression mentioned in the Rome Statute was not listed, the crime of apartheid was included. In view of these reservations, it cannot be concluded that, from Germany’s point of view, none of the provisions contained in the draft were recognized as part of customary international law; especially since a statement made in the previous year already advocated exceptions to immunity in clearly defined cases.”
In support of this interpretation of the German position, the Court referred to statements by the Federal President and the Federal Foreign Minister who assumed that a prosecution of war crimes by domestic courts was not precluded by functional immunity. On 20 November 2020, at the ceremony marking the 75th anniversary of the start of the Nuremberg trials, Federal President Frank-Walter Steinmeier stated:
“Without Nuremberg, there would be no principle of universal jurisdiction and national courts would be unable to prosecute those who have violated international law. It would have been extremely difficult to ensure that two former members of the Syrian secret service who had fled to Germany would be tried today in a Koblenz court for crimes against humanity committed in their home country.”
On 28 October 2020, on the occasion of the 20th anniversary of the signing of the Rome Statute of the International Criminal Court, Federal Foreign Minister Heiko Maas delivered a speech in Parliament, in which he said:
“[I]mpunity for the perpetrators of these crimes is not just an affront to the victims; it is also a threat to peace: as we have learnt from numerous conflicts, justice is the key to lasting reconciliation and the stability that follows it. For this reason, Germany is vigorously committed to holding perpetrators to account wherever we can: globally, within Europe, and increasingly here in our own country.
Here in Germany, our courts and public prosecution offices are also leading by example. As of this year, two representatives of the Syrian regime are on trial for torture, murder and sexual violence before the Higher Regional Court in Koblenz for the first time ever. In addition, German courts have been trying IS terrorists for some time. These proceedings reinforce the principle of universal jurisdiction and encourage other states to prosecute crimes against international law at the national level.”
The Federal Court of Justice took note of some dissenting views in the academic community but stated:
“The vast majority of academic literature rejects functional immunities in the case of crimes under international law, at least with regard to subordinate officials – albeit with partly different justifications and distinctions. The concerns expressed against this view are not based on a general conviction of a majority of States or corresponding practice.”
Lastly, the Court examined cases in which State officials were granted immunity and distinguished these cases from the question of functional immunity of subordinate State officials. The Federal Court of Justice stated:
“The fact that, in other contexts, immunity of persons acting on behalf of the State was assumed is of no relevance for the question of functional immunity of subordinate officials, which is decisive for the present case. The charges brought against the defendant are affected neither by the immunity of high-ranking State representatives that may exist in criminal proceedings for war crimes nor by any immunity in civil proceedings.”
With regard to the immunity of high-ranking State representatives in criminal proceedings relating to war crimes, the Court stated:
“It is recognised that certain holders of high-ranking State offices such as heads of States, heads of government or foreign ministers enjoy immunity from the criminal jurisdiction of other States. However, this is initially the so-called personal [immunity] which – irrespective of the other conditions and its scope –does not, in principle, extend to lower-ranking officials. Even if aspects of immunity ratione materiae are also at issue, situations that concern heads of State, heads of government or foreign ministers do not allow for any authoritative conclusions with regard to the functional immunity of a member of the military to be examined here.”
Similarly, the Court dismissed decisions on immunity in civil proceedings, stating:
“To the extent that the European Court of Human Rights has accepted the granting of immunity ratione materiae for official acts of State officials in the context of complaints against unsuccessful compensation claims for torture, it has, on the one hand, expressly noted that it was not concerned with criminal responsibility for torture but with State immunity in civil proceedings for damages. On the other hand, it has pointed out that in view of current developments in international law, the question should be monitored further.
In connection with State immunity in proceedings for compensation, the International Court of Justice has also firmly stressed that it was not called upon to decide whether and, if so, to what extent immunity in criminal proceedings against a State official may have to be observed. The Court’s basic considerations that neither the allegation of serious violations of international humanitarian law and the law of armed conflict, nor the violation of peremptory norms of international law (jus cogens) lead to the loss of immunity, are therefore not immediately applicable to criminal proceedings.”
The Federal Court of Justice’s rejection of functional immunity for subordinate foreign State officials in criminal proceedings concerning war crimes is firmly grounded on an elaborate inventory of State practice and corresponding opinio juris. Its methodological approach can therefore not be faulted.
Nevertheless, the Federal Court of Justice’s judgment contains certain omissions and ambiguities that leave several questions unanswered. Firstly, the judgment does not make it sufficiently clear whether it was tracing the evolution of a rule of customary international law beginning with the Nuremberg Trials, or whether it considered such a rule to already exist with the establishment of the International Military Tribunal and that the Court’s search for State practice and opinio juris served to demonstrate that such a rule had not been changed.
Secondly, the Court remains vague as to whether it views functional immunity to be a priori inapplicable to low-ranking State officials charged with war crimes or whether it adopts the view of the ILC’s provisional draft articles that functional immunity generally exists but charges of war crimes constitute an exception thereto. Subtle formulations in the judgment can be read in both ways. At times, the Federal Court of Justice questions the existence of a rule “granting” immunity in cases of war crimes while in other instances it speaks of “assuming” immunity which however does not preclude the permissibility of prosecuting international crimes. As the Court does not unequivocally state its understanding of the law, its reasoning offers room for speculation.
Furthermore, while noting that opposing views exist, the Court did not properly engage with them. The Court merely brushed them aside by labelling them as “isolated” voices which “are not based on a general conviction of a majority of States or corresponding practice.” However, some of the hushed voices indeed argue on the basis of unclear State practice. It is particularly noteworthy that eight members of the ILC, who act in their personal capacity as international law experts and not as State representatives, voted against the adoption of the provisional draft article that lists exceptions to functional immunity, arguing that there was not sufficient support in State practice and that the adoption would not reflect existing international law.
Lastly, the Court also did not address the rationale of functional immunity and apply it in the context of international criminal law. The judgment may be criticised as somewhat contradictory. The Federal Court of Justice stated at the outset that a State can only act through natural persons and that, for that reason, natural persons acting in their capacity of State officials partake in the immunity of the State. The distinction between the individual criminal responsibility of the State official and the immunity of the State thus seems somewhat artificial and inconsistent. There is a widespread consensus that States enjoy immunity even for war crimes and serious human rights violations. This raises the question of why the same does not apply to the functional immunity of State officials which, after all, is an emanation of State immunity. One would have wished the Court to address the conspicuous disparity between the denial of functional immunity in criminal war crimes trials and the granting of State immunity in civil liability cases against the State concerning the very same war crimes. It is regrettable that the Court did not seize the opportunity to substantiate its findings by taking a firm stand on the significance of international criminal law. Showcasing Germany’s commitment to the fight against impunity, it could have emphasised that international criminal law would amount to a “mockery” if officials responsible for crimes punishable under international law could hide behind their State’s sovereign immunity, “particularly since these heinous crimes shock the conscience of mankind, violate some of the most fundamental rules of international law and threaten international peace and security.”
Instead, the Court merely did what it needed to do to decide the case at hand. This is surprising as it itself recognized that the question of functional immunity bears relevance beyond the individual case. In light of the Court’s cautious and ambiguous formulations, its reluctance to clarify the content of the rule it identified, its disregard for significant opposition and its timidity in taking a firm stand on the significance of international criminal law, it seems a bit of an overstatement to describe the judgment as a “welcome message to the world.” The Federal Court of Justice missed the opportunity to contribute to an important debate in public international law. Very likely, it wanted to avoid too large of an echo which would have prejudiced the ongoing work of the ILC on the topic of functional immunity.
Following the judgment of the Federal Court of Justice, a parliamentary question was raised, asking the Federal Government about its view on the “customary international law rule on the exception to functional immunity in cases of serious human rights violations” and what position the Federal Government adopts in multilateral bodies. On 5 May 2021, the Minister of State at the Federal Foreign Office replied:
“Individual criminal responsibility for serious international crimes is a major achievement. In the fight against impunity, the German courts and prosecutors play an extremely important part in bringing crimes under international law to justice. The United Nations International Law Commission is currently preparing draft articles on the immunity of State officials from foreign criminal jurisdiction in order to identify and further develop the law in this matter. The exceptions to immunity in the case of international crimes are also discussed. The conclusion of this work is necessary for a final assessment by the Federal Government. The decision of the Federal Court of Justice will be taken into account.”
The last word on Germany’s position on the functional immunity of State officials in cases of international crimes may thus not yet have been spoken.
Category: State immunity
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.