Germany and International Criminal Law: Some Additional Reflections in Light of Another Set of Current Developments

In my post of March 12, 2024, on this blog, I offered some reflections on what I called a ‘noteworthy touch of Janus-facedness’ regarding Germany’s position on the issue of functional immunity and international criminal law. To briefly recapitulate, in November 2023, Germany’s Government had informed the International Law Commission (ILC) of its view that the non-applicability of functional immunity in national proceedings pertaining to international criminal law stricto sensu is an emerging rule of customary international law. But in a judgment of 2021, Germany’s Federal Court of Justice had found that functional immunity is inapplicable as a matter of existing customary law ‘at least’ in national proceedings against a subordinate State official for a war crime. In my post, I indicated that the reasoning in the 2021 Judgment goes beyond its fairly narrow ruling and instead extends to international criminal law stricto sensu as a whole and proceedings against higher State officials as well.

The Court confirmed precisely this in an Order of 21 February 2024. (When I wrote my earlier blog, I was not yet aware of this decision. The publication of decisions by the Court takes place only once the reasons have been put in writing and the latter can take some time.) In this Order, the Court specifies that general functional immunity (‘allgemeine Funktionsträgerimmunität’) does not apply in cases of crimes under international law (‘völkerrechtliche Verbrechen’) and that this is true ‘irrespective of the perpetrator’s status and rank’. From this state of customary international law, the Court distinguishes the one regarding personal immunities. The Court explicitly acknowledged that personal immunities of the ‘highest State officials, including Heads of States’ (‘höchsten staatlichen Amtsträgern, etwa Staatsoberhäuptern’) also apply in proceedings for ‘conduct the criminality of which is directly rooted in general customary international law’ (‘Taten, deren Strafbarkeit unmittelbar im allgemeinen Völkergewohnheitsrecht verwurzelt ist’). The latter phrase confirmes the impression, which the Court had clearly conveyed already in the 2021 Judgment, that, in the Court’s view, determination of the inapplicability of functional immunity under customary international law applies to crimes under general customary international law, that is international criminal law stricto sensu. As I mentioned in my earlier post, the German Government had not informed the ILC in its comments of November 2023, ‘that the Federal Court of Justice’s reasoning explicitly leaves room for the possibility that functional immunity is inapplicable in proceedings for crimes under international law not only in case of subordinate officials, but throughout’. One could, therefore, have hoped that the Government would update its November 2023 comments so that the ILC would be aware of the important clarification of the German case law. But the Government did not choose to do so.

Against this background, Germany’s Parliament took action, as had been proposed in German academia before. On 6 June 2024, it adopted a statutory provision which reads as follows: ‘Functional immunity does not hinder the exercise of German jurisdiction in case of the prosecution of crimes under the Code of Crimes Against International Law’ (‘Funktionelle Immunität hindert nicht die Erstreckung deutscher Gerichtsbarkeit auf die Verfolgung von Verbrechen nach dem Völkerstrafgesetzbuch’). In the travaux préparatoires, one finds a reference to the Federal Court of Justice’s 2021 Judgment and a citation to the key passages of the Court’s February 2024 Order. In view of the pre-existing statutory dynamic reference to the applicable international law and in view of the Federal Court of Justice’s case law in point, as clarified by the February 2024 Order, there was no need for Germany’s Parliament to voice its position in the form of a statute. In fact, I would have preferred that the Parliament limited its intervention regarding this complex legal matter to a statement in the travaux préparatoires. Be this as it may, Germany’s Parliament is now on public record with an explicit endorsement of the position taken by the country’s Federal Court of Justice.

These events being noteworthy by themselves, most recently, German developments regarding functional immunity and international criminal law have gone yet one step further. On 6 August, the Federal Court of Justice published its Order of 20 March 2024 in which it essentially rejects the appeal against the Koblenz Regional Court’s judgment of January 2022, the judgment in the second landmark proceedings conducted in Germany in a Syrian case. In this Order, the Court yet again confirms and specifies its case law on the question of functional immunity. In its decision, to be included in the official collection of cases, the Court holds as follows:

‘General functional immunity finds (…) its limits in crimes under international law. This is irrespective of the perpetrator’s status and rank (…). This applies to conduct the criminality of which is directly rooted in general customary international law. This includes crimes against humanity, as relevant in this case (…), as they are codified, as a consolidated body of customary international criminal law in the criminal provisions of the Rome Statute of the International Criminal Court and, correspondingly, in the Code of Crimes Against International Law (…).’

(‘Die allgemeine Funktionsträgerimmunität findet (…) ihre Grenze in völkerrechtlichen Verbrechen. Auf den Status und Rang des Täters kommt es dabei nicht an (…). Dies gilt für Taten, deren Strafbarkeit unmittelbar im allgemeinen Völkergewohnheitsrecht verwurzelt ist. Dazu zählen die – hier in Rede stehenden – Verbrechen gegen die Menschlichkeit (…), so wie sie als gewohnheitsrechtlich verfestigter Bestand des Völkerstrafrechts in den Strafvorschriften des internationalen Strafgerichtshofs und dementsprechend im Völkerstrafgesetzbuch festgeschrieben sind (…).

This clarifies beyond any possible doubt that the Federal Court of Justice’s case law on the non-applicability of functional immunity, irrespective of status and rank, applies to crimes under general customary international law. There was no need for the Court to determine whether there is congruity in each and every respect between the crimes listed and defined in the Statute of the International Criminal Court and in the German Code of Crimes Against International Law, an assumption that seems to underly Germany’s new statutory provision on the inapplicability of functional immunity in proceedings for crimes under the Code of Crimes Against International Law. Interestingly, the Court has used the opportunity of its March 2024 Order to also clarify what it means by speaking of general functional immunity – which constitutes a nuance compared with the 2021 Judgment. The Court is of the view that members of diplomatic missions and consular representations enjoy special functional immunities governed by distinct rules. The Court emphasizes that its case law does not cover those special immunities. 

In its March 2024 Order, the Court, as it did already in its 2021 Judgment, addresses the question of a possible legal requirement to refer the identification of the relevant state of customary international law to the Constitutional Court. Once again, the Federal Court of Justice does not find the matter objectively doubtful to the degree that would make the intervention of the Constitutional Court imperative. At this point of the analysis, the Federal Court of Justice explicitly refers to the German Government’s November 2023 comments. The Federal Court of Justice duly notes the difference that exists between the Government’s recognition of an emerging rule of customary international and the Court’s conviction of the existence of such rule. But in view of the Court, the Government has itself decisively tempered that difference in its comments by acknowledging that:

‘The judgment by the Federal Court of Justice is the highest-ranking judicial decision in Germany on the issue of State immunities of officials from foreign jurisdiction in recent times. It constitutes important State practice and has a significant bearing also on the German government’s position on the present topic.’

Certainly, a decision rendered by Germany’s Constitutional Court, confirming the Federal Court of Justice’s case law, would add another layer of dignity to Germany’s practice on the subject. But, as the German Government has aptly conveyed to the ILC, the Federal Court of Justice’s case law by itself constitutes important German practice. In particular, it cannot be doubted that its latest clarification through the March 2024 Order will meet with the interest of the ILC in preparation for the upcoming second reading of Draft Article 7 of the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction.

The Commission has invited Governments to submit (further) comments on Draft Articles 7 ff. by 15 November 2024. In light of the foregoing, one should be surprised if the German Government would not avail itself of this opportunity to bring the developments, summarized in this brief account, to the Commission’s attention. In addition to that, the German Government could then also signal its full concurrence with the now consolidated case law of the highest-ranking court of criminal justice in the country. The German Government would hereby make any remaining German ‘touch of Janus-facedness’ disappear. It would also ensure consistency with its position that functional immunity shall not apply in proceedings for a Special Tribunal for the Crime of Aggression Against Ukraine ‘whatever its modalities’. Not least, it would also enhance its credibility whenever it – quite correctly – points to the fact, as the Government has done in its Observations of 6 August, submitted as an amicus curiae in the Situation of Palestine, that ‘ground-breaking judgments have been handed down in recent years on crimes against humanity and genocide in various conflict zones around the world’ on the basis of the German Code of Crimes against International Law. To conclude, it would be very good to re-embrace the following principled message that Germany sent out to the ILC in 2016:

‘History has taught us that there are crimes where immunity cannot be upheld. Germany has been at the forefront of this historic experience – the Nuremberg trials being the starting point of the development of international criminal law. Hence Germany has always been and will always be a staunch supporter of this development.’