Through the dark aisles of war crimes, on 30 September and 1 October 1946, international criminal law’s stricto sensu was born in historical Courtroom 600 of the Nuremberg Palace of Justice.
The International Military Tribunal (IMT) established during the Second World War by the victorious regimes, delivered its historical verdict in the trial of the main German war criminals.
Though Germany painstakingly made peace with the Nuremberg legacy, in the second half of the 1990s, the country underwent a remarkable paradigm shift and became one of the most committed supporters of international criminal law.
When the International Criminal Court (ICC) came to the foray in 1998, Germany came out in full support. The German Bundestag followed in the footsteps 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 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 concerning the political preferences of these three states in particular.
Non-applicability of functional immunity in international criminal law stricto sensu as an emerging rule of customary international law is close to Germany’s stance.
Functional immunity arises from customary international law and treaty law and confers immunities on those performing acts of the state as a foreign official. Such a person who, in performing an act of state, commits a criminal offense is immune from prosecution.
On the converse 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.
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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 International Law Commission (ILC) expectedly should seek to codify, the inapplicability of functional immunity in criminal proceedings for crimes under foreign criminal jurisdiction. This overture, however, is still pending.
In 2022, the Commission adopted, at first reading, a draft of Article 7 stating that functional immunity shall not apply in criminal proceedings for genocide, crimes against humanity, and war crimes.
Some of the members of the Commission have rejected this provision and the draft Article 7 has not yet met with the unanimous approval from UN Member States.
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