Foreign officials’ lack of immunity in war crimes trials

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[Editor’s note from Ryan Goodman: In light of this major decision by Germany’s highest criminal court, Professor Claus Kress has graciously agreed to write this preliminary note about the oral pronouncement of the judgment by the Court’s presiding Judge. Professor Kress will write a more comprehensive article for Just Security once the written opinion is publicly available.]

Last Thursday, Germany’s Federal Court of Justice issued a potentially landmark judgment in a case that pits the immunity that foreign state actors enjoy in criminal proceedings against efforts to achieve accountability for war crimes. The court rejected the idea that “functional immunity” under customary international law precludes criminal proceedings against organs of a foreign State for internationally crimes. This was the presiding Judge’s core message when, on last Thursday, he orally pronounced his criminal chamber’s decision on a case against a former Afghan soldier involving a war crimes’ allegation under the German Code of Crimes under International Law (Völkerstrafgesetzbuch).