The Role of Domestic Courts in the Prosecution of International Crimes: Why Functional Immunity of Foreign State Officials Is Not an Obstacle to the Jurisdiction of National Courts

The non-applicability of immunities for international crimes before international criminal tribunals has long been settled. The question of the relevance of immunities for international crimes before domestic courts remains more contentious, with the general agreement that functional immunity of foreign State officials should in principle not apply in national jurisdictions. However, there is no consensus when it comes to the legal basis under which immunities are deemed inapplicable. Previous claims that an exception to the rules of immunity arises from the jus cogens nature of the prohibition of torture or genocide misrepresent the nature of immunity and create a sense of legal ambiguity. Immunities are themselves an exception to the dominating principle of jurisdiction. Instead, the inapplicability of functional immunity in domestic proceedings stems from the customary principle of individual criminal responsibility and international treaties requiring the prosecution of international crimes under the basis of universal jurisdiction. The Federal Republic of Germany has used this basis in order to increase its efforts to end impunity for international crimes irrespective of where they were committed. The actions of Germany highlight that international law clearly promotes a role for all domestic courts in the fight against impunity that started with the case of Pinochet.