State immunity
State immunity is a principle of international law that states that the sovereign acts of one state cannot be reviewed by the courts of another state. Based on the independence and equality of sovereign states, no state is permitted to sit in court over another state: par in parem non habet iudicium . However, this only relates to sovereign action by the state, not to its activities under private law. Differences of opinion between states may have to be brought before international courts, e. B. the International Court of Justice .
State immunity is the inviolability of the head of state of a country abroad . The head of state is not subject to imprisonment , arrest , prosecution or other coercive measures by the host country. The same applies to incumbent heads of government and ministers of governments of other states and their officially accompanying relatives and their other entourage during visits in an official capacity. While the immunity for acts in the exercise of the office continues after the end of the term of office, it ends with the end of the term of office for private acts.
Recent developments in international law increasingly restrict the head of state's immunity to the core crimes of international criminal law and ius cogens ( genocide , crimes against humanity , war crimes and crimes of aggression ). Criminal proceedings against incumbent heads of state are also permissible in international courts. Serbian President Slobodan Milošević was charged before the International Criminal Tribunal for the former Yugoslavia . Charles Taylor , President-in-Office of Liberia at the indictment, has been tried in the Special Court for Sierra Leone . Investigations against the incumbent Sudanese President Umar al-Bashir are currently pending before the International Criminal Court (as of June 2015).
development
State immunity was understood until around the First World War as an absolute prohibition to cast doubt on the effectiveness of the acts of another state domestically ( act of state doctrine ). The affected state was only entitled to take countermeasures, including through diplomatic channels. Even in antiquity, the principle of par in parem non habet imperium (an equal has no power over an equal) applied.
With the world shrinking closer and closer together, countermeasures in response to hostile acts by a foreign power were increasingly viewed as threatening world peace. The Act of State doctrine has largely been abandoned. The international community came to the conclusion that it was necessary to question state action and to measure it against overriding international law.
Verifiability of foreign sovereign acts
Acts of sovereignty made abroad (so-called acta iure imperii ) are generally not subject to review by domestic courts as such. In principle, they cannot be revoked by domestic courts.
This must be distinguished from the question of whether foreign sovereign acts have legal effects in Germany (e.g. in order to be able to enforce a judgment issued abroad on payment of a sum of money in Germany by domestic enforcement bodies such as the bailiff ). As a rule, this can only be assumed if domestic authorities have confirmed the foreign act. The standard of acceptance for recognition is public policy . It states that a state is entitled to regard the act of another state as being ineffective in Germany if it contravenes its own substantive legal principles, in Germany for example basic rights (cf. Section 328 (1) No. 4 ZPO). The same restriction applies to the recognition of decisions by foreign family courts , for example on the custody of minors ( Section 109 (1) No. 4 FamFG).
Even foreign laws are only to be observed by domestic courts if they are compatible with public policy . The public policy has primarily in family law considerable importance. According to the rules of international private law , domestic courts are obliged to apply foreign law, for example in the event of a divorce between two foreign nationals living in Germany ( Art. 17 in conjunction with Art. 14 EGBGB). However, this does not happen if the foreign law contradicts fundamental German legal principles ( Art. 6 EGBGB).
The same applies to the (rather rare) cases in which domestic authorities have to apply foreign law. Here, too, family law offers an example of application: The marriage of two foreign nationals is basically based on their home law ( Art. 13 EGBGB). However, a foreign citizen cannot enter into another marriage before a German registry office on the basis of the polygamy permitted in his home country . Foreign law does not apply in this respect. The German legislature does not have to respect decisions of foreign legislators if they run counter to their own fundamental legal principles (here: the prohibition of polygamy, Section 172 of the Criminal Code).
This blocking effect is continued in the right of residence: the other spouse does not receive a residence permit for family reunification in Germany if the marriage has already been concluded abroad ( Section 30 subs. 4 of the Residence Act). In this respect, the second marriage concluded abroad is not recognized in Germany.
Sovereign acts of foreign states in Germany
Sovereign acts of foreign states in Germany (e.g. the sovereign activities of embassies and consulates in the host country) are subject to state immunity. These measures are not subject to the jurisdiction of the host country. Disputes of an employee about the existence of an employment relationship concluded with the consulate, which, according to its content, originally has consular tasks as the subject matter, cannot be heard in a labor court in the host country; the defendant state as a party to the labor court proceedings is subject to state immunity.
Military action - serious violations of human rights
State immunity is sometimes called into question for acts that involve serious human rights violations. The highest Greek court, the Areopagus , denied Germany's immunity to states with regard to claims for compensation from the relatives of the victims of the Distomo massacre ( Greece ), which was based on the following facts: After 18 members of the SS were ambushed and killed by Greek partisans, surrounded their comrades visited the nearby village of Distomo on June 10, 1944, and killed 218 villagers indiscriminately and in a particularly cruel manner. On May 5, 2000, the Areopagus confirmed a decision of the lower court, according to which Germany was obliged to pay the equivalent of 29 million euros in compensation. There was subsequently no enforcement in Greece because enforcements against foreign states in Greece require the consent of the Greek Minister of Justice, which was however refused. Instead, the creditors tried to enforce their titled claims in Italy.
The decision of the Areopagus was often viewed as a violation of state immunity, because the exclusions from immunity applicable to human rights violations always affect individuals and their criminal responsibility, but not an entire state and its civil liability. Under international law, reparation claims from war events are also due to the injured state and not to individuals.
With regard to the convictions of Germany by Italian courts, u. a. the Italian Court of Cassation to compensation for war atrocities of the German Wehrmacht in 1944 in Civitella in Val di Chiana ( Italy ) and authorizing enforcement in the Villa Vigoni , and in terms of the awarded compensation in the Distomo case presented the International Court of Justice in The Hague found a violation of state immunity. The ICJ upheld Germany's action by judgment of February 3, 2012 and declared the Italian court decisions to be contrary to international law. Civil law suits for grave human rights violations or grave violations of international humanitarian law have not found recognition in state practice, so that an exception to state immunity cannot be regarded as valid customary international law , according to the Court of Justice in its judgment. The international law admissibility of criminal prosecution of crimes against international law and human rights is not restricted by this judgment.
Domestic activities under private law in foreign countries
With the expansion of international trade among states, there was a move towards submitting acts by which the state has placed itself at the private level to national jurisdiction. The emerging state trade in the Comecon countries contributed in particular to this . The economy of the German Democratic Republic (GDR) was almost completely nationalized and transferred to state-owned companies (VEB). Here it seemed unfair to exclude disputes about the delivery of goods and services from judicial control only because the contractual partner was a state body due to the nature of the system. In general - also outside of trade with Comecon states - acts in which the state has acted as a trading partner in business are not subject to state immunity as acta iure gestionis .
This also applies if the private law action takes place in a sovereign environment. The Federal Constitutional Court did not see a violation of state immunity in the handling of a payment claim by a craftsman against Iran before a German court for a repair to the heating system of the Iranian embassy in Bonn , because this contract was not to be assigned to the sovereign activity of the Iranian state, even if it was ultimately it served.
The most frequent problems lie in the correct classification of the behavior of the state in one of the two areas.
Essentially, there is clarity if the transaction can only be carried out in a sovereign form ( administrative act , contract under public law ), for example in the case of a contract to set up joint weapons testing. If a contracting party does not fulfill its obligations, it can oppose the legal claim against the state immunity. It is different when he buys food or equipment from another state. Here he acts like a private person and is subject to national jurisdiction in the event of a dispute. The fact that the business also serves public purposes (e.g. supplying the population in the event of natural disasters) is irrelevant. In this respect, it is not the purpose behind the business that matters, but the objective nature of the business. When buying groceries, the private law character of the legal transaction is in the foreground.
The problem is with goods that private individuals typically cannot trade (e.g. when buying military equipment). The actions of the state-dependent institutions, e.g. B. from state banks and state companies . Here it must be checked in each individual case whether there is sovereign or private law activity.
The mere criminal act of representatives of foreign states in Germany is also generally problematic. Examples include traffic accidents and private disputes (particularly bodily harm) in which diplomats are involved. As acts, which are often not directly related to official activities, referring to the national courts for a claim for damages by the injured party does not stand in the way of state immunity. Diplomats, however, enjoy a special diplomatic immunity that goes beyond the effects of state immunity: Due to the personal immunity they are entitled to for both official and off-duty areas ( Art. 29 , Art. 31 WÜD), criminal prosecution before national courts is generally possible not and a civil law only allowed to a very limited extent (for details see main article diplomatic status ). The lawsuits directed against the home state instead of against the diplomat are generally unsuccessful because the diplomat's home state does not have to be blamed for his private misconduct.
Delimitation between judgment and enforcement proceedings
Even if a state permissibly in a knowledge process is convicted, it does not mean that even in the assets of the state readily enforced can be. In this respect, too, a distinction must be made as to whether the assets are to be assigned to the sovereign activity of the state (e.g. when the assets of an embassy account are attached ) or whether they are objects that the state holds as the treasury .
State immunity in European and international contract law
The countries of Europe have with the European Convention on State Immunity (also from 16 May 1972 Basel Convention called) made a first attempt, the previously saved status of international law concerning the immunity of a State in the judicial recognition procedure should be codified. The agreement came into force on August 16, 1990 for Germany ( Federal Law Gazette 1990 II p. 34 ), on June 11, 1976 for Austria and on October 7, 1982 for Switzerland . Other contractual partners so far are only Belgium , Luxembourg , the Netherlands , the United Kingdom and Cyprus .
The United Nations have on 2 December 2004, the United Nations Convention on Jurisdictional Immunities of States and their property from the jurisdiction adopted, which you can pick for signature. The agreement has not yet entered into force because it must have been ratified by at least 30 states, but currently (as of June 5, 2018) only 22 states have ratified it.
Further example cases on state immunity
Al-Adsani case
Al-Adsani was a Kuwaiti soldier who also had British citizenship . According to his (unproven) information, the following happened: When Iraq occupied Kuwait in 1991, he decided to return to Kuwait and fight Iraq as a pilot in the Kuwaiti Air Force. After the successful invasion, he continued to fight in the resistance movement. During this time, several video cassettes had fallen into his hands, which showed a Kuwaiti sheikh in sexually compromising situations. The videos were made public in unexplained circumstances. The sheikh, who is a relative of the emir and an influential figure, blamed Al-Adsani for this. After the liberation of Kuwait, the sheikh broke into Al-Adsani's house and took him to a state prison at gunpoint in a state-owned vehicle, where he spent three days and was beaten several times by the guards. Two days after his release, the sheikh again brought him to the palace of the emir's brother at gunpoint. There he was immersed in a swimming pool with corpses swimming in the water. He was then taken to a room with gasoline-soaked mattresses that were set on fire. He suffered severe burns in the process.
Upon his return to England, he sued the Sheikh and the State of Kuwait in a British court for damages for the bodily harm he had suffered. A default judgment was issued against the sheikh, which could not be enforced in England due to the sheikh's lack of attachable property. The London High Court refused to serve the application on the State of Kuwait . The appeals court allowed the action to be served. Kuwait requested that the procedure be canceled. The High Court approved this motion because Kuwait was entitled to immunity under British law. The appeal brought appeal was rejected. The House of Lords decided not to allow a revision . Attempts by Al-Adsanis to obtain compensation through diplomatic channels failed.
The human rights complaint against the British court decisions , in which Al-Adsani argued that the protection of human rights obliges Great Britain to help one of its citizens to obtain effective legal protection and that it enjoys priority over state immunity, also failed. In its judgment of November 21, 2001, the ECHR took the view - with an extremely narrow majority of nine to eight votes - that despite the outstanding importance of the prohibition of torture, international law has not yet recognized that states in the event of civil law suits for damages because of outside the contracting state torture committed could no longer require state immunity. This applies all the more since the prohibition of torture contained in Article 3 of the European Convention on Human Rights (ECHR) and the right to effective legal protection granted in Article 6 (1) ECHR in accordance with the other rules of international law, of which these articles are an integral part, but that also includes state immunity to be interpreted.
Pinochet case
The Chilean head of state and government Augusto Pinochet , who was in office from 1973 to 1990, was granted the position of senator for life after the transfer of power to a democratic government . Between 1994 and 1997 he visited Great Britain several times with the rank of special ambassador . He was granted normal diplomatic privileges .
When he returned to the UK with diplomatic status in September 1998 to undergo an operation, the London Public Prosecutor's Office issued an arrest warrant for Pinochet. The arrest warrant was issued following an extradition request from Spain . Spain accused Pinochet of involvement in genocide , torture and hostage-taking in Chile and other states during his tenure as head of state.
The House of Lords , called against the arrest, decided that Pinochet was not entitled to immunity. Pinochet could not be prosecuted for the acts committed during his tenure as head of state because of his official immunity, which in principle continued even after his term of office; However, the protection of the head of state, which flows from state immunity, was given by the Convention of December 10, 1984 against torture and other cruel, inhuman or degrading treatment or punishment, which also came into force for Chile on October 30, 1988 ( Federal Law Gazette 1990 II p. 246 ) One restriction: Article 5 (2) of this article obliges the contracting states to take the necessary measures to establish national jurisdiction over the offenses prohibited by the agreement. In this wording, the House of Lords saw an international treaty waiver of Chile's immunity for allegations committed after October 30, 1988.
Arrest warrant case (Congo ./. Belgium)
Another example of the effects of state immunity made ultimately discharged before the ICJ conflict between Belgium and Congo over a by a Belgian investigating judge issued arrest warrant against the former Congolese Foreign Minister Abdoulaye Yerodia Ndombasi .
The basis for this was a Belgian law from 1993 which provided for the punishment of serious violations of the Geneva Convention and Additional Protocols I and II, including for offenses committed outside Belgium. The scope of the law included genocide and crimes against humanity .
The Congolese Foreign Minister was accused of making public appearances against the Tutsi population before taking office, leading to hundreds of lynchings , executions and arbitrary arrests . Congo invoked the state immunity of its foreign minister.
Although the Belgian arrest warrant expressly excluded Yerodia's official visits to Belgium from its validity, on 14 February 2002 the International Court of Justice found the Belgian law and the arrest warrant to be a violation of state immunity. The immunity due to an incumbent foreign minister serves to enable him to fulfill his representative duties during international negotiations and conferences. To this end, he is entitled to personal immunity under customary international law for both sovereign and private actions. This immunity protects the Foreign Minister from any interference by other states that would hinder him in the performance of his duties. Belgium's objection that immunity does not protect the foreign minister from being prosecuted for genocide or crimes against humanity was not accepted by the ICJ because there was no rule under international law stating that incumbent foreign ministers should be denied immunity before national courts. In particular, this does not follow from the Pinochet case . Prosecution before the courts of the home country is possible. After the end of office, criminal prosecution in foreign courts is possible for actions that occurred before taking office or after the end of office, and for private actions, including those committed during the term of office. During and after the current term of office, there is the possibility of prosecution before international courts, but not before a national court. Belgium had to overturn the warrant and change its national law.
Honecker case
After the Basic Treaty between the Federal Republic of Germany and the German Democratic Republic came into force in 1972, the government of the GDR had been considering a state visit by the head of state and party Erich Honecker to Bonn , particularly since the early 1980s . The plans were not only postponed because of the global political situation; its implementation was also delayed because of the unclear status of Honecker in West Germany . The GDR feared that because of the constitutional situation in the Federal Republic of Germany , the GDR would not be recognized as a foreign country if Honecker did not enjoy the immunity of a foreign head of state. In fact, at that time there were several criminal charges against Honecker, which, in the absence of immunity, raised the fear of his arrest. Honecker's visit to the Federal Republic was only possible when the Bundestag, in the second law amending the Federal Central Register Act of July 17, 1984 ( Federal Law Gazette I p. 990 ) inserted the still valid Section 20 (1) GVG (the so-called Lex Honecker ) 1987 finally take place.
literature
- Karl Doehring : international law. 2nd, revised edition, CF Müller, Heidelberg 2004, ISBN 3-8114-0834-8 .
- Knut Ipsen : International Law. 5th, completely revised edition, CH Beck, Munich 2004, ISBN 3-406-49636-9 .
- Reinhard Böttcher, Ottmar Breidling , Wolfgang Siolek and Ulrich Franke: The Code of Criminal Procedure and the Courts Constitution Act, Large Commentary Volume 7. De Gruyter Law, Berlin 2003 (on § 20 GVG).
- Helmut Kreicker: The decision of the International Court of Justice on State Immunity - Effects on (international) criminal law? (PDF), comments on the judgment of the ICJ of February 3, 2012 from a criminal law perspective. Journal for international criminal law dogmatics (ZIS) 2012, pp. 107–123.
Individual evidence
- ^ Doehring: Völkerrecht , § 12 Rn 658 (p. 285); Ipsen / Epping: international law , § 26 marginal number 16.
- ↑ See also the explicit exclusion of immunity in Article 27, Paragraph 2 of the Rome Statute of the International Criminal Court .
- ↑ Federal Labor Court , ruling v. May 16, 2002 - 2 AZR 688/00 - AP No. 3 to § 20 GVG.
- ↑ Ipsen / Epping, Völkerrecht , § 26 Rn 22 with further references.
- ^ Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99. (PDF; 491.5 kB) In: icj-cij.org. International Court of Justice, February 3, 2012, accessed May 15, 2019 .
- ^ The Hague strengthens Germany's immunity , FAZ of February 3, 2012, accessed on February 26, 2012.
- ↑ a b Fundamental BVerfG, decision of April 30, 1963 - 2 BvM 1/62 -, NJW 1963, 1732 ff.
- ↑ Examples taken from Doehring, Völkerrecht , § 12 marginal number 662 (p. 287).
- ↑ See BVerfG, decision of April 12, 1983 - 2 BvR 678/81, 2 BvR 679/81, 2 BvR 680/81, 2 BvR 681/81, 2 BvR 683/81 - regarding arrest orders from several foreign creditors against the National Iranian Oil Company, a state-owned company of Iran (state immunity denied)
- ↑ Decision on the attachment of rental debts for the embassy building, BVerfG , decision of December 13, 1977 - 2 BvM 1/76 -, NJW 1978, 485 ff.
- ↑ See also the memorandum of the (German) Federal Government on the Basel Convention in BT-Drs. 11/4307 , p. 30 ff. (PDF; 2.12 MB), accessed on February 20, 2012.
- ↑ Text of the UN Convention of December 2, 2004 (PDF; 426 kB), accessed on February 26, 2012.
- ^ Status of the ratification of the UN Convention of December 2, 2004 on the website of the United Nations Treaty Collection.
- ↑ ECHR, judgment of November 21, 2001 - 35763/97 - , short version in German with a link to the long English version (PDF; 230 kB); accessed on March 12, 2015.
- ↑ House of Lords, ruling v. March 24, 1999
- ↑ Six to One Against Pinochet , Latin America News, April 1999, accessed February 20, 2012.
- ↑ Catching the storm with a glass of water - Foreign Minister Luis Michel visits a colleague who is being sought by the own judiciary for inciting genocide , report from Friday of July 28, 2000, accessed on February 26, 2012.
- ↑ IGH, judgment of February 14, 2002 (PDF; 3.9 MB) Retrieved March 9, 2019 (English, French). Printed in German translation in EuGRZ 2003, 563.
- ↑ Böttcher / Breidling / Siolek / Franke, Criminal Procedure Code and the Courts Constitution Act , excerpt from Google Books on Section 20 GVG, accessed on February 20, 2012.
Web links
- Bardo Fassbender : The sovereign equality of states - a contested basic principle of international law , in: Aus Politik und Zeitgeschichte , B 43/2004 ( Federal Agency for Political Education , October 15, 2004)
- Current term: State immunity ( Memento from April 15, 2015 in the Internet Archive ) (PDF; 88 kB), specialist information from the Scientific Service of the German Bundestag , No. 18/09 (March 5, 2009)
