5 min read Justice Policy
To Each His Own – Immunities in International Law
German Federal Court of Justice: By ComQuat - Own work, CC BY-SA 3.0, Wikimedia

To Each His Own – Immunities in International Law

On February 21, 2024, the German Federal Court of Justice (BGH) issued a decision on the prolongation of the pre-trial detention of Ahmad H. The Syrian national is indicted for crimes against humanity, war crimes against persons and property and other acts under domestic criminal law committed in Syria as a member of the National Defense Forces (NDF) in At-Tadamon in Damascus. In its decision, the BGH also examined any relevant procedural obstacles to exercising jurisdiction over the case, including the question of whether Ahmad H. enjoyed functional immunity which it rejected “without a doubt”. This article describes functional immunity (as well as personal immunity) and examines how it may deprive national courts of jurisdiction to prosecute Syrians accused of atrocity crimes.

Functional Immunity for Official Acts

Functional immunity applies when a state official commits crimes during his or her duty in their official capacity. It shields the state agents from foreign prosecution for such crimes even beyond the term of office. The BGH clarified that functional immunity does not apply however when the most serious crimes are committed, such as crimes against humanity. The court held that this was a rule of customary international law (CIL) which makes it legally binding all over the world. In support of this ruling, it referred to a number of international and national trials against high-ranking state officials (such as the Eichmann case and the Arrest Warrant case before the International Court of Justice (ICJ).

The court also cited its own landmark decision from January 28, 2021 where the chamber rejected functional immunity for the Afghan National Army officer, Ahmad Zaheer D., who was convicted of torture as a war crime committed in his official capacity. In 2021, the BGH ruled that a low-ranking member of the army such as Ahmad Zaheer D. did not enjoy functional immunity, but it left open the question of whether a higher-ranking member could enjoy the same immunity. In its decision of February 2024, it took a clear position, finally rejecting functional immunity for international crimes “independent of the status or rank of the perpetrator” (para. 53).

Based on the argument that functional immunity does not apply for international crimes, several experts have suggested to explicitly codify the exclusion from such immunity in the reformed bill for the Code of Crimes under International Law in Germany (CCAIL) currently underway. Referring to the Nuremberg trial and the Statute of the International Military Tribunal (IMT), many legal scholars and the German judiciary note that if functional immunity applied, the Nazi leaders could have not been prosecuted. The BGH decision therefore aligns with the historical development of international criminal law reasserting Nuremberg and customary international law.

Functional immunity must be clearly distinguished from personal immunity (ratione personae) which only shields a limited circle of individuals from prosecutions, i.e. foreign heads of states, heads of governments, and ministers of foreign affairs, and that only during their time in office. The International Criminal Court as a supranational institution, is currently the only permanent criminal authority with the power to prosecute sitting heads of state, government, and foreign ministers. Thus, personal immunity generally prevents the domestic prosecution of heads of state regardless of the severity of charges.

Combatting Opinions

The decision by the BGH in 2021 was significant for several reasons. At the time, the Syrian nationals Eyad A. and Anwar R. who stood trial in Koblenz were state officials. Had the BGH decided to recognize functional immunity for the Afghan army member, the two defendants could have raised the jurisdictional objection, and the case would likely have stopped before the German court. In addition, the decision was issued just before the highest French court, the Cour de Cassation, confirmed functional immunity for state torture in Guantánamo Bay. This latter trial concerned two French nationals who had been detained and allegedly tortured in the US controlled prison in Cuba. The French court, in contrast to the German court, held that US state agents enjoyed functional immunity for the (charged torture) acts performed during office, no matter how serious the crimes.

An Arrest Warrant for Syria’s Assad

In parallel, in November 2023, a French Magistrate Judge issued an arrest warrant against Syrian President Bashar al-Assad, his brother Maher al-Assad, and two senior officials, General Ghassan Abbas and General Bassam al-Hassan, based on the chemical weapons attack on Douma and Ghouta in 2013. Both functional and personal immunity are at issue in the case. Lawyers involved in the case admit that the prosecution of Assad in France is unrealistic but aim to set a precedent by challenging immunity for sitting heads of states before national courts for international crimes. In times of increased normalization agreements with the Syrian government, the arrest warrant is an important reminder of the atrocities committed by the Assad-led government. Nonetheless, the bulk of legal precedent does not support the argument against personal immunity in the case.

As the Guantánamo case demonstrated, the French judiciary has maintained functional immunity for international crimes even for lower-ranked state agents and is now being asked to reject personal immunity for acting heads of states. Although the French Court of Appeal is still to rule on the legality of the arrest warrant, prior decisions suggest that it will not be upheld. Still the deeper issue is the lack of jurisdiction to prosecute Bashar al-Assad by the ICC, due to Russia’s veto of a UNSC referral of the situation to the court. As an international court, Assad would not enjoy personal immunity at the ICC and that remains the most suitable venue for his prosecution.

Omar Hassan Ahmad Al-Bashir, former President of the Republic of Sudan, was the first sitting head of state for whom the ICC issued arrest warrants in 2009 and 2010. He is still at large, travelling freely in several African states who refuse to execute the arrest warrant. The damage to the trust in the ICC and the international legal order is difficult to estimate. But an arrest warrant against al-Assad by France raises expectations by those who have suffered the crimes – despite the fact that personal immunity most likely renders the warrant invalid. Even if an arrest warrant is sustained in the case, few states are likely to enforce it, and Assad won’t be brought into French custody. Therefore, a trial, if any, would be in absentia.

Issues of head of state immunity however need not concern Ahmad H. His trial will proceed as the Federal Court of Justice has held that he does not enjoy functional immunity. Hearings will be before the Hanseatic Higher Regional Court in Hamburg and will be monitored by SJAC. While there are signs that the customary rule of functional immunity is eroding for the most serious international crimes, the law is still not settled in this regard. As the law stands now, however, personal immunity will continue to serve as a barrier to national prosecutions of some of those most responsible for atrocity crimes in Syria absent a significant shift in international law.

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