Centre news
02.06.2020

What counts as state practice? The Koblenz trial and functional immunity

In the Just Security blog, Alexander Skander Galand, postdoctoral researcher at the Centre for Fundamnetal Rights, reflects on the German embrace of universal jurisdiction as State Practice in the context of the Koblenz Trial.

In Koblenz, Germany a landmark trial began on 23 April. The trial seeks accountability for some of the many international crimes perpetrated in Syria since 2011. For the first time, two former members of Bashar al-Assad’s regime are being tried for crimes against humanity perpetrated in Syria.

The two accused, Colonel Anwar Raslan and Eyad Al Gharib, both worked for Department 251, a “notorious” intelligence directorate prison in Damascus from 2011 to 2012. Raslan was allegedly head of investigations and Al Gharib was allegedly a member of a subdivision that arrested civilians to deliver to Department 251. The prosecution charged Raslan with domestic formulations of the crimes against humanity of killing, torture and deprivation of liberty contrary to international law under the German Code of Crimes against International Law. These charges are predicated on accusations that Raslan was involved in the torture of “at least” 4,000 detainees, 58 of whom ultimately died, at Department 251 between April 2011 and September 2012. Al Gharib is alleged to have aided in the commission of some of Raslan’s crimes by participating in the pursuit, arrest and transfer to Department 251 of at least 30 protestors who were “severely abused” during their detention.

This is a case made possible thanks to Germany’s embrace of universal jurisdiction over international crimes. The crimes the two accused are charged with were not committed in Germany, the victims were not German nationals, nor are Raslan and Al Gharib. Germany is one of the few States that allows for the exercise of pure universal jurisdiction, in that the suspect’s presence in German territory is not required for an investigation to commence (it is required for a trial, however). The Koblenz trial concerns two accused who were not only present in Germany, but had gained lawful residence there by attaining refugee status.

One element that has been missing from the Koblenz trial thus far has been a complete lack of consideration whether Raslan and Al Gharib might enjoy immunity from foreign criminal jurisdiction, due to the fact that at the time of the alleged crimes they worked for the Syrian government. This is significant not because these two particular accused might be protected from being prosecuted, but rather because the failure to engage this subject on the part of the court may lead to doubts as to whether the trial should count as a form of State practice relating to holding former State officials to account for international crimes in foreign criminal jurisdictions. In my view, the Koblenz proceedings should be counted as State practice concerning the inapplicability of functional immunity to international crimes. To dispel any doubt however, and to draw the attention of prominent institutions such as the International Law Commission (ILC), the court should formally address the issue on its own initiative.

The Functional Immunity Controversy

Customary international law provides that all State officials are entitled to functional immunity (immunity “ratione materiae”) from foreign criminal jurisdiction for the acts they perform in the exercise of State authority. Such immunity continues after the individuals concerned have ceased to be State officials. This is well accepted by the vast majority of scholars and States.

There also seems to be an emerging consensus that the personal immunity (immunity “ratione personae”) of select high-ranking State representatives (in particular, head of States, prime ministers and ministers of foreign affairs) is absolute and covers all acts, private and official, for the duration of the official’s term in office. Once these high-ranking State representatives cease to hold office, however, they are only entitled to functional immunity.

Whether there are exceptions to the functional immunity of State officials is where perhaps the most controversial aspects of immunities from foreign criminal jurisdiction lie. The ILC’s current work on the immunity of State officials from foreign criminal jurisdiction has been engulfed precisely in this controversy. To be sure, there is a significant body of scholarship in favor of the inapplicability of functional immunity to international crimes. Yet, as the late Antonio Cassese showed, the International Court of Justice, in the Arrest Warrant Case, in a sweeping and highly questionable passage at paragraph 61, raised doubts on the existence of such exception. Unfortunately, the ILC, rather than clarifying whether functional immunity is applicable to (or is subject to an exception for) international crimes, has further clouded the picture (see Claus Kress here in Just Security).

The first United Nations Special Rapporteur on immunity of State officials, Roman Kolodkin, took the view that there was no exception to immunity, and that the insertion of further restrictions in the future is not desirable. The second Special Rapporteur on immunity of State officials, Concepción Escobar Hernández, instead found (in her Fifth Report) that “the practice reveals a clear trend towards considering the commission of international crimes as a bar to the application of the immunity of State officials from foreign criminal jurisdiction.” She thus proposed Draft Article 7, which recognizes an “international crimes” exception to immunity. Draft Article 7 received a mixed appraisal by ILC members, who agreed to its provisional adoption only following an exceptional recorded vote, with 21 votes in favor, eight votes against (including the ILC member from Germany, Georg Nolte) and one abstention.

The current version of Draft Article 7 provides in its first paragraph that “[i]mmunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of [specified] crimes under international law.” The second paragraph lists genocide, crimes against humanity, war crimes, apartheid, torture and enforced disappearance as such crimes.

The ILC members who voted against Draft Article 7 argued that there is insufficient State practice to support the limitations and exception to immunity proposed therein. Sean Murphy, for instance, argues that if we look only at the relevant case law, the Fifth Report of the Special Rapporteur cites only one case for genocide, one case for crimes against humanity, four cases for war crimes, five cases for torture and no cases for apartheid or enforced disappearance, as examples of scenarios where immunity has been overcome for the prosecution of enumerated international crimes.

As Adil Haque previously observed at Just Security, while 24 States supported Draft Article 7 at the U.N.’s Sixth Committee (72nd Session, 2017), 18 States opposed it. Many States continue to argue that Draft Article 7 does not reflect customary international law. Curiously, Germany is one such State, having affirmed “that the Commission should not portray its work [on Draft Article 7] as a codification of existing customary international law when there was no sufficient State practice to support that premise.” (para. 91 here)

Which State Practice Counts?

There have been many more cases of international crimes that involved officials from foreign States than the few recounted by Murphy or cited in the Fifth Report of the Special Rapporteur. Indeed, while not counting them as State practice, Special Rapporteur Escobar Hernández observed in her Fifth Report that “it should be borne in mind that national courts have in some cases tried officials of another State for international crimes without expressly ruling on immunity” (para. 114). Hence, she discards various judgments, including the Eichmann and Barbie cases, to name two especially well-known judgments, as being wholly irrelevant to assessing State practice. Indeed, this scenario is precisely the situation underway at the trial of Raslan and Al Gharib in Germany.

It may be argued that Special Rapporteur Escobar Hernández is wrong in not retaining these two cases, both of which do dismiss the relevance of the accused having acted on behalf of a State in entering convictions. But, most importantly for the purpose of the present analysis, her understanding of how to ascertain relevant State practice – an understanding shared by those who voted against Draft Article 7 – risks situating the Koblenz trial as yet another missed opportunity for a judicial body to confirm that under customary international law immunity ratione materiae does not apply to international crimes.

On the whole, the position that there is no exception to immunity ratione materiae for international crimes seems to view many instances of the practice of international criminal law, and the thrust of its normative structure, as irrelevant to the formation of customary international law. At its core, the very idea of international criminal law is to impute individual criminal responsibility for certain (international) crimes. Principle III of the Nuremberg Principles, which states that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law,” demonstrates that from its very inception, the architects of international criminal law specifically envisioned the prosecution of government officials, including for acts done in their official capacity. While it may be argued that not all crimes listed in the Charter of the Nuremberg Tribunal qualified as customary international legal offenses, they all involved some element of State conduct, and thus most defendants acted in an official capacity.

In fact, if anything, it has taken decades for international criminal law to cease focusing almost exclusively on criminal acts inherently involving State conduct. It took years for crimes against humanity to be severed from the requirement of being connected to an armed conflict (the so-called “nexus” requirement), and decades for even a subset of war crimes to be recognized as applicable to non-international armed conflicts (and hence, to non-state armed groups). This heavy emphasis on State conduct is also evident in early prosecutions. While a handful of civilians were convicted by the Nuremberg Tribunal (e.g. the conviction of Julius Streicher, publisher of the anti-Semitic Der Sturmer newspaper) and during the Nuremberg Trials (e.g. the Flick, and I.G. Farben and Krupp trials).

Aside from these exceptions, in most cases international crimes are perpetrated utilizing State powers and apparatus and direct perpetrators act under the color of State authority. It is thus clear that the very idea of international criminal law entails the attribution of responsibility to individuals who acted in an official capacity. It may be contended that there may be a different rule on immunity for international criminal courts compared to national courts. Yet, if such distinction exists, it is in regards to immunity ratione personae, as the International Criminal Court (ICC) Appeals Chamber tells us in its Judgment in the Jordan Referral re Al-Bashir Appeal. The fact that crimes under international law are subject to universal jurisdiction is a further indication that for such crimes there is no immunity ratione materiae from foreign criminal jurisdiction. Both notions cannot coexist, as Akande and Shah demonstrate. The mere fact of exercising jurisdiction over a foreign State official on charges of international crimes, as is happening in the Koblenz trial, should therefore be counted as a form of State practice evidencing that immunities are inapplicable to criminal prosecutions for international crimes.

When should Ratione Materiae Immunities be Considered?

In addition to the substantive issue of whether ratione materiae immunity does or does not apply to international crimes, there is also the procedural question of when this question is to be assessed by a presiding court. Helping provide clarity to this question makes it all the more important that the court actually address jurisdictional issues in the Koblenz trial. Draft Article 10(6), proposed by Special Rapporteur Escobar Hernández states that “the organs that are competent to determine immunity shall decide proprio motu on its application in respect of State officials who enjoy immunity ratione personae, whether the State of the official invokes immunity or not.” Note that immunity ratione materiae is not mentioned. In other words, courts, even if they are aware that an indicted act was potentially committed in an official capacity, do not have an obligation to consider proprio motu whether functional immunity applies until such time as the State an accused is or was an official of affirmatively seeks to invoke such immunity.

From this perspective, functional immunity only arises when the State of the official invokes it. While the right to invoke or waive immunity belongs to the State, more often in actual practice it will be the accused official that will first claim immunity from exercise of jurisdiction. In such scenarios, the forum State would then inquire with the State of the official to ascertain whether or not it is invoking immunity. Under this view, only when the latter invokes the said immunity (“in writing and clearly”), does the forum State court have to decide whether the claimed immunity applies to the charges.

One thing that is clear in the Koblenz trial is that the accused will not claim immunity. Both fled Syria after defecting from its General Intelligence Directorate. Raslan even joined the Free Syrian Army fighting against the Assad regime for a number of years before obtaining asylum in Germany – and naively turning himself in to German police for protection. A trial in Germany is certainly in their best interest – unless one argues that they are entitled to immunity but cannot be removed to Syria on grounds of non-refoulement.

Syria, at the same time, does not seem to be interested in invoking immunity for these small cogs, especially after Raslan spent time fighting against the regime. The odds are that if immunity is invoked – especially unlikely given that it would entail Syria formally recognizing that the alleged conduct was performed under its authority – that same immunity would then possibly be discarded for falling within the international crimes exception. The Koblenz trial risks becoming – per the ILC’s current, but incorrect understanding – yet another example of a case (mistakenly) deemed irrelevant as potential evidence of a trend toward recognizing that functional immunity does not apply to international crimes.

One potential solution to this paradox would be that domestic courts determine, proprio motu, regardless of its invocation, whether functional immunity applies to charges of international crimes. This, at least, would help elucidate whether or not courts believe that functional immunity applies in all cases where a foreign official is involved, regardless of whether a particular accused’s home State is interested in knowing the answer. If such procedure was followed, it is quite plausible that the Koblenz trial would side with its General Federal Prosecutor who, in 2014, issued a memo stating, contrary to Germany’s view at the U.N. Sixth Committee, that immunity ratione materiae “does not extend … to international crimes (genocide, crimes against humanity, war crimes).”

One final point, the Prosecutor, by commencing proceedings against Raslan and Al Gharib, along with in other cases where arrest warrants against Syrian State officials were issued, has already at least implicitly taken the position that functional immunity does not apply to the charged international crimes and thereby set German State practice. It is up to the court now to make this implicit position explicit, by putting it on record.

 

This piece first appeared on 27 May on the Just Security blog.

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