Functional Immunity of Foreign State Officials

The text of the relevant part of the judgment of the Court commences on the following page.4

[The following is a summary of the statement of facts made by the Higher Regional Court (paragraphs 3–10 of the judgment).]

3. I. The accused was enlisted as a senior lieutenant in the Afghan army on one of its bases. In late 2013/early 2014, Taliban insurgents fired on a group of soldiers near the base. The next day, the accused noticed that three insurgents were captured and brought to the barracks with hands tied and eyes blindfolded with scarves. When the accused heard shouting in the deputy commander's office where the detainees had been led, he went there. When he entered, the deputy commander struck the detainees, who were still shackled and blindfolded (sitting on the floor in a manner conforming with custom in Afghanistan), with a piece of a water hose about a metre long and an inch thick. At the request of the deputy commander, the accused recorded the subsequent interrogation in writing, and another soldier filmed it. The purpose of the interrogation was to obtain information about a Taliban leader and weapons caches. The accused and the deputy commander cooperated during the interrogation based on a joint decision to use threats and mild to moderate force to elicit statements from the detainees.

4. The co-perpetrator threatened the first prisoner saying that he would “tear him apart”, after which the accused stated to the first detainee in Dari that he would “connect him to electricity”, which the deputy commander translated to the Pashto-speaking detainee. The accused then pulled the hair of the detainee leaning against the wall of the room and hit his head against the wooden wall four times in quick succession. The deputy commander then hit him twice on the head from above with the loose ends of the water hose folded in the middle.

5. The accused then pulled the second detainee's hair for about 30 seconds and demanded that he confess. When a different soldier in the room declared he had arrested the detainee in the house from which the rockets in the insurgent attack had been fired, the detainee started crying. The accused gave the second detainee a light blow to the face with the palm of his hand and told him to stop crying.

6. The deputy commander then hit the third detainee twice with the back of his hand against the area of his forehead, pulled him to the ground by the shoulder, and hit him on the head with his fist from above. After the detainee answered a question and straightened up again, he was hit in the face with the palm of his hand. Due to the abuse, and unlike the other two detainees, he gave information about the whereabouts of the Taliban and weapons.

7. The interrogation, which had lasted for four minutes, ended when a security officer arrived to pick up the detainees. Overall, the beatings were delivered with mild to moderate intensity and occasioned mild to moderate pain. At most, the abuse with the water hose produced redness of the skin on the top of the head and mild pain. There were no more external injuries or psychological consequences.

8. II. At a point in the first quarter of 2014, the accused found the corpse of a wanted, high-ranking Taliban commander after a shootout. He was ordered by his superior to take the body away to a butcher in a military vehicle.

9. In the process, the corpse was placed on the rear of a Humvee-type vehicle in such a way that the arms and legs dangled downward. Before the drive commenced, a police officer punched the corpse three times and made waving gestures with one of the corpse's arms. The subsequent drive to the butcher was filmed with the knowledge of the accused. During the drive, the policeman and a soldier sitting on the vehicle's roof struck the corpse several times with an assault rifle. During a brief stop, the accused attached the corpse to a meat hook. He then had the corpse driven to a three-metre-high protection wall and pulled a noose of rope around the neck of the corpse, by which it was pulled up and attached to a metal grate at his behest and with his support. Then, in a filmed speech, he declared that they had taken the body “like that of a donkey and hanged it”; if they caught such people (referring to the Taliban) attacking their people again, they would kill them. In hanging him on the protective wall, he and those under his command aimed to present the corpse as a trophy and to desecrate the body, as well as to promote his professional career by falsely claiming that he had killed the Taliban leader himself.

10. III. At the time of the commission of these crimes, there was a war in the form of a non-international armed conflict between the Afghan government forces supported by international troops on the one hand and the Taliban and other non-State armed groups on the other, which had been ongoing since the end of 2001.

[The Federal Court considered the applicability of functional immunity, which would constitute an obstacle to its jurisdiction, from paragraph 11 of the judgment as hereunder.]

11. A decision on the merits of the case is not precluded by the procedural obstacle of functional immunity, which must be examined ex officio. According to customary international law, former military officials like the accused are not exempt from German criminal jurisdiction concerning war crimes (II.). Since there are no serious doubts in this respect, the Senate can rule on this without first obtaining a decision from the Federal Constitutional Court (III.) Consequently, there is no need to clarify whether functional immunity would be excluded on other grounds (IV.) In all other respects, too, German criminal jurisdiction is established (V.).

12. I. The Senate must decide on the existence of any immunity, although it has not been invoked in the present proceedings. German jurisdiction is a general procedural requirement; its existence and its limits are to be examined and taken into account ex officio as questions of law at any time...