In its comments of November 2023, Germany informed the International Law Commission of its view that the non-applicability of functional immunity in international criminal law stricto sensu is an emerging rule of customary international law. In a judgment of 2021, Germany’s Federal Court of Justice had, however, found that functional immunity is inapplicable as a matter of existing customary international law in international criminal law stricto sensu ‘at least’ in cases against subordinate State officials. The essay explains the background to this noteworthy touch of German Janus-facedness on a fundamentally important issue of international law and it also situates the November 2023 comments of the German Government in the context of the latter’s current approach to the prosecution of crimes of aggression against Ukraine. From this, a shift in emphasis in Germany’s policy on international criminal law stricto sensu compared with the approach taken during the negotiations on the Statute of the International Criminal Court and with the principles underlying the German Code of Crimes Against International Law becomes apparent.
The Non-Applicability of Functional Immunity in International Criminal Law Stricto Sensu as a Matter of Customary International Law
On 30 September and 1 October 1946, international criminal law stricto sensu came to birth in Courtroom 600 of the Nuremberg Palace of Justice: The International Military Tribunal (IMT) established by the victorious powers of the Second World War delivered its verdict in the trial of the main German war criminals. It took Germany a long time to make peace with the Nuremberg legacy, which had grown out of international criminal law response to the darkest chapter of its own history. But in the second half of the 1990s, the country underwent a remarkable change of position and became one of the most committed supporters of international criminal law. When the International Criminal Court (ICC) was founded in 1998, Germany was at the forefront of those who were strongly in favour of the most effective court possible. Subsequently, the German Bundestag followed up internally on the new international criminal law-friendly course by unanimously adopting the German Code of Crimes Against International Law. Through this Code, which entered into force in 2002, Germany makes use of the permission under international law to exercise universal jurisdiction over genocide, crimes against humanity and war crimes. Throughout all of this, Germany was not deterred by the fact that France, Great Britain and the USA had in the meantime distanced themselves from key parts of their Nuremberg legacy. Recently, however, the German government’s international criminal law policy has been more accommodating with respect to the political preferences of these three states in particular. This recent touch of ‘realpolitik’ is apparent in the German government’s position in the debate on the establishment of a special tribunal to investigate Russian crimes of aggression against Ukraine and in its stance on the question of whether (incumbent and former) state officials enjoy functional immunity from foreign criminal jurisdiction with regard to their official acts, even if they are suspected of having committed a crime under international law.
In that latter respect, the Nuremberg judgement reads as follows:
‘The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. [T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.’
With these words, the IMT rejected the defence’s objection that the defendants enjoyed immunity as former state officials. It is no coincidence that this statement stands at the centre of the beginning of the history of international criminal law stricto sensu. For it was on display in the Nuremberg dock that the criminalisation of wars of aggression, crimes against humanity and war crimes directly under general customary international law was chiefly directed at official conduct of state officials. It was not the international character of the Nuremberg proceedings that was invoked to justify the rejection of functional immunity. Rather, the inapplicability of functional immunity was linked to the very concept of a crime under international law in the Nuremberg judgement. Along the same lines, in List and others, that is in one of the Nuremberg follow-up proceedings, the U.S. Military Tribunal expressed the conviction that:
‘An international crime is such an act universally recognized as criminal, which is a grave matter of international concern and for some valid reason cannot be left to the exclusive jurisdiction of the state that would have control over it under normal circumstances’.
In the judgement in the Ministries case, another Nuremberg follow-up case, the U.S. Military Tribunal stated with respect to crimes against peace which are nowadays called crimes of aggression:
‘To permit such immunity is to shroud international law in a mist of unreality. We reject it and hold that those who plan, prepare, initiate and wage aggressive wars and invasions, and those who knowingly, consciously and responsibly participate therein violate international law and may be tried, convicted and punished for their acts.’
In 1962, the Israeli Supreme Court gave this Nuremberg legacy its most thorough and succinct expression to date in its judgement in the case against Adolf Eichmann. Famously, the relevant passage concludes by saying that if functional immunity applied in proceedings for crimes under general customary international law “the penal provisions of international law would be a mockery.’
There are compelling reasons to assume that the inapplicability of functional immunity in criminal proceedings based on allegations of a crime under general customary international law became part of international law together with international criminal law stricto sensu itself as early as 1946, when the United Nations General Assembly (UNGA) affirmed the ‘principles of international law’ recognised by the Nuremberg Judgement. Even those, however, who ask for further evidence of state practice based on a corresponding legal conviction in order to identify a rule of customary international law to that effect, will find such evidence: As early as in the context of the Paris peace negotiations after the First World War, which formed the prologue to the emergence of international criminal law stricto sensu on the world stage, the representatives of states clearly indicated their conviction that there was no place for the invocation of functional immunity in the prosecution of German war crimes in particular. Nuremberg, therefore, has not come as a big bang. Rather, a path was followed that had already been foreshadowed in earlier multilateral negotiations. These negotiations, by themselves, provide us with meaningful articulations by states of their legal convictions regarding the inapplicability of functional immunity in the case of crimes under international law. Subsequently, in addition to the affirmation by the UNGA, the Nuremberg judgement was confirmed in the Tokyo judgement in the trial against Japan’s main war criminals. A large number of national follow-up proceedings in a variety of states against former German and Japanese state officials further consolidated the corresponding state practice. In 1949, the four Geneva Conventions even went so far as to establish an obligation to exercise universal jurisdiction over grave breaches of the law applicable in international armed conflict, should extradition not be expedient. Since the suspicion of a war crime is typically directed against soldiers, i.e. state officials in uniform, the grave breaches regime can only be understood as an expression of the conviction that suspects of war crimes do not enjoy functional immunity. All this shows that the non-applicability of functional immunity in international criminal law was already customary international law when the renaissance of international criminal justice in the 1990s also led to increased national prosecution of crimes under international law (here, commentary to Article 98). As early as in 1997, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia confirmed this in a landmark judgement in the Blaškić case.
The International Law Commission in Troubled Waters
Against this background, one could have expected the International Law Commission (ILC) to codify, without encountering serious difficulties, the inapplicability of functional immunity in criminal proceedings for crimes under international in the course of its work on immunities from foreign criminal jurisdiction. However, this has not yet happened. In 2022, the Commission indeed adopted, at first reading, a draft Article 7 stating that functional immunity shall not apply in criminal proceedings for genocide, crimes against humanity and war crimes. However, it remained unclear whether this was intended to codify or to progressively develop international law. Moreover, in a contentious vote, some of the members of the Commission have rejected this provision. In addition, draft Article 7 has not yet met with the unanimous approval from UN Member States.
All in all, the Commission’s work on this issue has not been under a favourable star so far. Roman Kolodkin, the first Special Rapporteur had taken a firm pro-immunity stance and, in doing so, he had essentially ignored the distinct development of international criminal law stricto sensu since 1945. With the transfer of responsibility to Concepción Escobar Hernández as the second Special Rapporteur, the tide turned. Nevertheless, neither was the relevant line of development in international criminal law comprehensively set out nor was the teleology underpinning that development articulated with the greatest possible clarity. Moreover, the persuasiveness of draft Article 7 is undermined by two facts: On the one hand, its list of crimes does not include the crime of aggression, despite its having been at the centre of the Nuremberg and Tokyo main proceedings. On the other hand, the list includes apartheid, torture and enforced disappearance when committed outside the context of a crime against humanity, which, as a matter of general customary international law is open to serious argument.
By including the three latter crimes in its list, without specifying whether the legal basis is conventional or customary in nature, the ILC has provided a welcome target for those states that want to push back on the inapplicability of functional immunity in international criminal law stricto sensu. This group of states includes not only China, the Russian Federation, Saudi Arabia and Iran, which are keen on returning to a traditional notion of state sovereignty under international law, but it also comprises Israel and the USA as well as – albeit with considerable nuances – the UK and France. What was true at the birth of international criminal law in Nuremberg equally holds true for the current struggle for the future of international criminal law: the question of functional immunity is at the centre of the debate.
Germany’s Judiciary and Germany’s Government Both Take a Stand
In view of its ambition, as stated in the second half of the 1990s and confirmed multiple times ever since, Germany should actually defend the foundations of international criminal law stricto sensu – and this is indeed the case for Germany’s judiciary. It is true that the Federal Public Prosecutor’s Office was initially rather hesitant in activating the potential of the Code of Crimes under International Law. But for some years now, the prosecutors in Karlsruhe have been tackling their challenging task together with investigators from the Federal Criminal Police Office with vigour and expertise. As the scope of international criminal law now also extends to non-international armed conflicts, they often have to deal with non-state armed groups where there is no question of immunity. However, where applicable, state officials on the other side of the conflict have always been investigated as a matter of principle. It became abundantly clear how central the inapplicability of functional immunity was considered to be for the legitimacy of German international justice when the Federal Court of Justice addressed its basis in international law in criminal proceedings against a former member of the Afghan armed forces. Peter Frank, the then Federal Public Prosecutor General, who has meanwhile been elected Federal Constitutional Court judge, not only submitted a deeply thoughtful submission on the issue in the course of the proceedings, but also subsequently published its essence in German and English. On the substance, the Federal Public Prosecutor General argued emphatically against a procedural obstacle of functional immunity in proceedings for crimes under international law. The Federal Court of Justice essentially agreed with this reasoning in its landmark judgement of January 2021. In its judgement, the highest German criminal court also carefully followed the controversy caused by the work of the ILC, but was ultimately unimpressed by it (here, p. 18-21) . In its view, the legal conviction expressed by a number of states in recent years that functional immunity protection should also be granted with respect to international criminal law stricto sensu had not yet gained the weight that would have been necessary to change the previously established opposite rule of customary international law. However, the Federal Court of Justice very cautiously limited the ratio decidendi of its judgment by ruling that the functional immunity does not apply in proceedings for a war crime in the case of a subordinate state official.
Perhaps this judicial caution is to be partly explained by the fact that the German government’s stance on the functional immunity issue was rather unclear at the time of the judgment. In 2016, the German government had declared in its comments, with explicit reference to the Nuremberg legacy, that ‘(h)istory has taught us that there are crimes where immunity cannot be upheld’. In the spirit of its decidedly favourable approach to international criminal law since the late 1990s, the government even added that Germany ‘has always been and will always be a staunch supporter to this legal development’. However, just one year later, this conviction of the Federal Government was nowhere to be found in its statement to the Commission. Instead, there were now serious doubts as to whether it was possible to prove customary international law exceptions to functional immunity. The Federal Court of Justice politely hinted at the inconsistency of the Federal Government’s comment, but did not allow itself to be swayed by the resulting uncertainty. Soon afterwards, German criminal courts gained a high international reputation with their exercise of universal jurisdiction over genocide, crimes against humanity and war crimes. Two judgements handed down by the Koblenz Higher Regional Court in 2021 and 2022 against former intelligence service employees of the Syrian Assad regime for crimes against humanity received particular attention. In both cases, the defendants had acted as state officials in an official capacity, which meant that the proceedings could only be conducted on the basis of a denial of functional immunity. The first of these two Koblenz judgements was handed down shortly after the Federal court clarified the immunity issue, and this latter court has meanwhile confirmed the first of the two Koblenz judgments. At a meeting of the UN Security Council, France spoke of a ‘procès historic’. Germany’s judiciary has thus indeed proved to be a staunch defender of the foundations of international criminal law stricto sensu. At the same time, however, the Federal Government has given Germany a strong hint of Janus-facedness since 2017.
The November 2023 Comments of Germany’s Government to the ILC
For this reason, in particular, it was extremely interesting how the Federal Government would react to the draft articles on immunity, as adopted by the ILC at first reading. The German reaction, which was due by 1 December 2023, was especially sensitive because it coincided with the critical phase of the international debate on the crime of aggression in connection with the Russian war of aggression against Ukraine. At the moment, there is a serious accountability gap in this respect because the ICC is formally blocked from exercising its jurisdiction. Foreign Minister Annalena Baerbock has repeatedly argued against closing this gap by establishing a special international tribunal. Instead, the Foreign Minister is campaigning for the establishment of an internationalised tribunal that is ultimately rooted in the jurisdiction of Ukraine (here, here and here). As the defendants in proceedings before such a tribunal are likely to be high-ranking Russian state officials, Baerbock’s plan is only viable under international law if the persons concerned would not enjoy functional immunity before a special Ukrainian tribunal. In the Federal Government’s answer to a parliamentary question from MP Dr Günter Krings on 21 November 2023, it is explained that the Federal Government is of the legal opinion that ‘public officials who would be held accountable before a special tribunal for the crime of aggression against Ukraine could not invoke their functional immunity under customary international law’. This would apply ‘regardless of the issue of the modalities of such a tribunal’. In view of this statement, one would have expected that the Federal Government had now overcome the doubts, it had begun expressing in 2017 as regards the inapplicability of functional immunity in proceedings for crimes under international law. But the relevant passage in the Government’s comments vis-à-vis the ILC, carrying the date of ‘November 2023‘, reads differently: Here it is stated that exceptions to functional immunity under customary international law for the ‘most serious crimes under international law’ are ‘in status (sic!) nascendi’. Hereby, the Federal Government abandoned the position taken since 2017 and moved back into the direction of the one adopted in 2016, which is to be welcomed. However, it has stopped short of an unequivocal statement of the legal conviction that the inapplicability of functional immunity in proceedings for crimes under international law is existing customary international law. This raises serious questions about the consistency of the Government’s position, given the legal conviction declared almost simultaneously with regard to possible criminal proceedings for crimes of aggression before a special Ukrainian tribunal. In addition, Germany’s Janus-face with regard to the legal view of the Federal Government, on the one hand, and that of the Federal Court of Justice, on the other hand, still flickers dimly in the statement. Indeed, the Federal Government explicitly cites the relevant judgement of the Federal Court of Justice in its statement and fortunately describes it as important German state practice. Yet, instead of unequivocally embracing it, the Government concedes no more than that the judgment has ‘a significant bearing’ on its position. In addition, the Government does not inform the ILC about the fact that the Federal Court’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.
A Tricky Shift in Emphasis in Germany’s Recent International Criminal Law Policy
One wonders what prompted the German government to give Ukraine reason to doubt the consistency of the German position on the issue of a special tribunal, and why at the same time the opportunity was missed to finally give Germany’s judiciary full backing in its exercise of universal jurisdiction under the German Code of Crimes under International Law. These questions are all the more pressing as the comments to the ILC – now returning to the language of 2016 – explicitly acknowledge that the inapplicability of functional immunity constitutes a ‘conditio sine qua non’ for the application of international criminal law at national level, and as the same comments for the first time expressly refer to a significant part of the relevant state practice as mentioned earlier. It may be asked whether the Federal Government’s decisive phrase – “in statu nascendi” – could merely have been intended to reaffirm its conviction that not all offences for which functional immunity shall not apply according to draft Article 7 can be classified as crimes under general customary international law. In this case, however, it would have been quite simple to clearly draw the relevant distinction in the comments. However, the use of the phrase “in statu nascendi” does not distinguish accordingly. An alternative explanation could be that the German government’s caution is based on the fear that a clear commitment to the inapplicability of functional immunity in international criminal law stricto senso would weaken Germany’s position in Jurisdictional Immunities, a case pending before the International Court of Justice (ICJ). This case concerns claims for damages that are being pursued with a certain tenacity in Italy against Germany for German war crimes committed during the Second World War. In this respect, Germany has always invoked its state immunity under customary international law. However, in its comments to the ILC the Federal Government emphasises with all desirable clarity what had already been said by the ICJ as well as by the Federal Court of Justice: that a distinction must be made under international law between state immunity on the one hand and the functional immunity of state officials in criminal proceedings on the other. In view of this, the most plausible reason for the timid ‘in statu nascendi’ is political consideration for France, Great Britain and the USA, which – as noted above – have distanced themselves from their Nuremberg legacy on the issue of functional immunity, if not turned away from it altogether. It must be assumed that the German government was keen to avoid giving the impression of too much of a rift within the G7 when making its statement. The Federal Government’s reference in its answer of 21 November 2023 to another parliamentary question by Dr Günter Krings, Member of Parliament, that it was ‘in international consultations’ on the subject strongly points in this direction.
In contrast to the German government, Austria, the Czech Republic, Estonia, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, the Netherlands, the Nordic countries, Poland, Portugal, Romania and Ukraine maintained in their most recent statements to the ILC that functional immunity has no place in current international criminal law stricto sensu. France, however, only sees a trend pointing in this direction and one which, in France’s view, does not encompass the crime of aggression. The UK has expressed a rather sceptical view altogether about exceptions under customary international law to functional immunity, and the USA even firmly insists on the applicability of functional immunity, allowing only for exceptions in certain undefined situations. The resulting picture shows a revealing congruity with that which emerges with regard to the approach to the allegations of crimes of aggression in connection with the Russian war of aggression against Ukraine. While numerous European states support Ukraine in its call for the establishment of a special international tribunal, France, the UK and the USA fear the strong precedential effect that would be associated with international criminal proceedings. After all, when it comes to the crime of aggression, these three states are at odds with their Nuremberg legacy just as they are with respect to the inapplicability of functional immunity. Accordingly, although France, the UK and the USA now support the establishment of a special tribunal, this support is subject to the condition that it is anchored in Ukrainian jurisdiction. As mentioned above, the German government supports this G7 position.
At this point, the more precise contours of the shift in emphasis in Germany’s international criminal law policy mentioned at the beginning of this article comes to light. In the course of the negotiations leading to the adoption of the ICC Statute in Rome in the summer of 1998, Germany deviated significantly from the French and British line of negotiation, and in the dramatic end game about the reach of the Court’s jurisdiction, even powerful pressure exerted by USA was calmly resisted. With its Code of Crimes under International Law, Germany then committed its own criminal justice system much more decisively to the service of the emerging global system of international criminal justice than France, Great Britain and the USA did. In addition, the German Government persistently argued in favour of allowing the ICC to exercise its jurisdiction also over crimes of aggression, despite the opposition of these three states. In terms of rhetoric, there has been no lack of enthusiastic expressions of commitments by German politicians to international criminal law even lately. Numerous further utterances of such kind are imminent when the German Bundestag will soon adopt the draft ‘Act on the Further Development of International Criminal Law’, as initiated by Federal Minister of Justice Marco Buschmann. But this cannot conceal the fact that the German Government was recently willing to make significant concessions of realpolitik in order to ensure the greatest possible unity within the G7. This is a delicate balance. Certainly, unity within the G7 has a high political value, especially in a difficult state of world affairs. But in international criminal law, the key currency is legitimacy. The decisive factor for the future of international criminal law will be whether a critical mass of states is prepared to robustly defend its basic principles, even when this is politically inconvenient.
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