Authored by Ansh Priy Srivastava, second year student at Chanakya National Law University, Patna
The International Law Commission has reached a pivotal phase during its evaluation of state officials’ immunity from foreign criminal jurisdiction. The ILC begins its focus on draft article 7, which details functional immunity exclusions for international crimes following the second reading of draft articles 1, 3, 4, and 5. State sovereignty faces significant challenges when attempting to reconcile its sovereign rights with international law accountability for crimes that include slavery, torture, arbitrary killing, apartheid, war crimes, and genocide.
The ILC is poised to address these critical questions by presenting its findings on this diverse topic. Public discourse about functional immunity continues to grow as governments evolve their practices and judges reinterpret existing laws, particularly within German institutions. The recent German Federal Court of Justice (FCJ) decisions, alongside legislative changes, have highlighted three key points regarding the nature of opinio juris and domestic judicial opinions in international law and the German Federal Constitutional Court (FCC) review effects. These developments underscore the broader implications for customary international law and the prosecution of international crimes.
Ambiguous Opinio Juris of the Legislator
The International Law Commission’s (ILC) Tenth Conclusion on the Recognition of Customary International Law emphasizes that national legislation often reflects political choice. However, If legislation is specifically formulated to implement or reflect customary international law, it may serve as proof of advancement of such a law by a state. The explanation offered by the Legal Committee about the statutory immunity exception does not meet these conditions.
With its votes on June 6, 2024, the German parliament incorporated the ‘Act on the Further Development of International Criminal Law’. This law renewed the legal apparatus for the sanctioning of international crimes. In its fiscal sense, it enters into force on the 3rd of August, 2024. The reform includes the following/users’ summary under section 20(2) of the Courts Constitution Act (CCA):
“There is no functional immunity prohibition on the extension of German jurisdiction to prosecute crimes under the Code of Crimes against International Law [CCAIL].”
As the two cited FCJ’s case law, it was customary to exclude from functional immunity foreign offenses. In its 2021 decision, the FCJ confined functional immunity exclusively to ‘subordinating’ State actors and the violations of war crimes and ‘cruel, inhuman or humiliating treatment’. In 2024, FCJ carried forward this law to all foreign government officials, irrespective of rank or status, and all international crimes.
Nonetheless, the FCJ ruling can be traced back to the Legal Committee’s interpretation of the statutory immunity exception. It does not explicitly mention customary international law under which the provision was implemented or to which the provision gave effect.
Dubious Worth of the FCJ’s Jurisprudence as an Ancillary Resource
The codified FCJ case law may be challenged as a secondary source because of problems with the application of positive autonomy, which FCJ has identified concerning ‘customary international law.’ Decisions of national courts can provide valuable indications of the existence of a customary rule. However, their usefulness depends on the quality of reasoning, especially its basis on evidence of widespread practice accepted as law.
Even though the 2024 FCJ order was ‘short and sweet’, it failed to pass these standards. Only four court judgments have been quoted, which are its 2021 judgment and two international tribunals, namely the International Criminal Tribunal for the former Yugoslavia, Blaskic and Supreme Court of Israel, 29 May 1962 [Eichmann]; International Military Tribunal. Following the citations, FCJ merely refers to ten scholarly pieces, nine of whom happen to be German-speaking academics and professionals, among them one FCJ senate judge who issued the judgment. The citation to FCJ’s 2021 judgment and its ‘prolix legal argumentation’ does not redeem these methodological mistakes since it was inapplicable to lay down customary international law.
The assessment did not cover many common types of evidence, like immunity statutes to affirmations of state immunity by the states in foreign jurisdictions. As the ICJ pointed out in a similar situation of State immunity (Jurisdictional Immunities, para. 55), these types of evidence are most relevant to the formation of customary international law. Instead, the FCJ relied nearly exclusively on judgments of courts. Moreover, this study was also criticized for being incomplete as it did not consider the opposite State practice, that is, the decision to abstain from prosecutions.
Besides that, lack of clarity about the categories of legal argument in which the FCJ has found it appropriate to rely upon the evidence of bureaucratic decisions and legal jurisprudence, but not in others. It denies the value of evidence and ancillary means assumed when it comes to individual immunity and immunity against legal actions, but distinguishes between criminal responsibility, crime establishment, and crime prosecution according to their jus cogens status.
This underlines the necessity of assessing State claims (and their probable modification) as time goes on. Therefore, one could quite appropriately criticize the ILC Special Rapporteurs’ First Report, which predates 2022 (when the first draft articles were considered), for paying attention only to the state comments.
Implications of a Potential Ruling by the FCC
The mistakes with Customary International Law as a system were made both in FCJ’s case law and in the statute that enshrines CIIL. The situation could be changed by the FCC decision, which conforms to the Constitution and international law. Because of such future case law alongside the statutory immunity exception, the FCC will be forced to undertake judicial review. This is because, according to Article 100(2) of the German Basic Law, lower standards of admissibility of an FCC judgment after a judicial referral make it more likely that someone will file a constitutional complaint since the court did not refer the same to the FCC.
In the case of objective doubts concerning a principle of customary international law, either arising or in extent, this constitutional referral obligation is triggered, regardless of the opinions of the court itself. The FCC is the only authority that can resolve such uncertainties.
The FCJ, in its 2021 judgment and 2024 detention order, dismissed independently substantial concerns based on the elucidation of the innovations in functional immunity norms, notwithstanding the constitutional mandate for it to refer to any matter that raises an objective concern. In the judgment in 2021 (para. 12) it overlooked its duty despite the objective grave doubts touching on the international law principles of the rules relating to the determination of functional immunity ex officio where there is no invocation at all especially since the FCJ is different from the Ivorian case of the ICJ in Djibouti V. France.
A decision by the Federal Constitutional Court (FCC) regarding traditional exceptions to functional immunity for transnational offenses could increase the relevance of German law in shaping new customary international law. This is particularly relevant since German practice is based on opinio juris, which goes beyond mere domestic norms. The opinio juris of the federal government has occasionally differed from the Federal Court of Justice’s (FCJ) findings, as seen with debates in the Sixth Committee in 2023.
In Germany, the State practice and opinio juris could be reconciled with the exceptions under functional immunity if there was an FCC decision that becomes a source of law (sec. 31(2) AFCC). Due to earlier discrepancies in German practice, its evidentiary value is in the deterioration of the status of international legal rules (see ILC Conclusion 7(2)).
Conclusion
The Federal Constitutional Court (FCC) may have a chance to correct the loopholes in the Federal Court of Justice’s (FCJ) interpretation of functional immunity following international law. This could include drafting thorough regulations and a systematic framework for consistently recognizing international law, particularly through opinio juris. Such developments could clarify and strengthen the legal framework for functional immunity. A ruling by the FCC may further increase the political weight of Germany’s actions towards the formation of customary international law.
It would strengthen still more what the federal government has presented as the result of ‘the Pioneering Role of Germany in the Prosecution of International Crimes’ (for example, the draft bill CCAIL reform, p 14). Such types of cases, which are alleged with selective targeting and bias and other such injustices, could get such weight from an FCC judgment.
There are requests for reform concerning the competencies of the Federal Ministry of Justice in which directives from outside to the General Prosecutor would make some concerns of political influence lighter. Although the principle of the sovereign equality of States is inapplicable to prosecutorial discretion since the latter is not fully open to judicial review, it is barely possible to determine to what extent it respects the sovereign equality of States.
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