No Functional Immunity for Crimes under International Law before Foreign Domestic Courts

Abstract

Abstract For some time now, there seemed to be consensus that functional immunity does not protect (former) state officials from criminal prosecution by foreign domestic courts in cases where they are suspected of having committed or participated in crimes under international law. Recently, however, this has been called into question not only by scholars but also by members of the International Law Commission as well as a considerable number of state representatives. It is against this backdrop that the German Federal Court of Justice has issued a landmark judgment confirming the exclusion of functional immunity in cases of crimes under international law. This article provides a summary as well as a legal analysis of the Court’s main arguments. It focuses on the main question of immunity while also touching upon the Court’s application of the substantive law concerning war crimes under the German Code of Crimes Against International Law.