(State) Immunity for Palestine?

On December 11, 2023, the Berlin Public Prosecutor’s Workplace determined to discontinue investigations in opposition to Mahmoud Abbas, the President of the Palestinian Nationwide Authority. The declared cause for doing so lies in his immunity pursuant to Part 20 para. 1 of the German Courts Structure Act (GVG). The choice is instructive with regard to Germany’s understanding of sovereign immunity and Palestine’s position in worldwide relations.

The background to the case at hand

In a joint convention with Olaf Scholz in August 2022, – and thus lengthy earlier than the beginning of the present battle – Abbas had in contrast Israel’s conduct in Palestinian villages to the Holocaust. Within the aftermath, two felony fees had been filed in opposition to Abbas, based mostly on Part 130 para. 3 of the German Legal Code (StGB). The Public Prosecutor’s Workplace thought of the factors of Part 130 StGB fulfilled (approving, denying or trivializing an act dedicated beneath the rule of Nationwide Socialism). But, each the Public Prosecutor and the International Workplace (whose report the previous relied upon) held that Abbas enjoys immunity. Because of this, all fees in opposition to him had been dropped.

The relevance of Part 20 para. 1 GVG

Part 20 para. 1 GVG reads: „German jurisdiction additionally shall not apply to representatives of different states […] who’re staying within the territory of utility of this Act on the official invitation of the Federal Republic of Germany” (emphasis added). It’s essential to notice that this provision will not be straight relevant, on condition that Palestine’s statehood is disputed. At this level, nevertheless, the Public Prosecutor’s Workplace resorts to an analogy. Below German legislation, the 2 preconditions for such an analogy are the existence of an unintended regulatory hole and a state of affairs of comparable pursuits. Insofar, the Prosecutor argues that the aim of Part 20 para. 1 GVG is to maintain contacts between topics of worldwide legislation on the highest stage of presidency free from issues arising from felony prosecution. Within the Prosecutor’s opinion, this can be a state of affairs indirectly regulated by legislation however corresponding to these explicitly regulated.

The stance of German Courts on the statehood of Palestine

After Palestine’s admission to the UN as an observer state, the ICC was instrumental in fostering the popularity of Palestine’s statehood: In 2015, Palestine was acknowledged as a state get together to the Rome Statute – although solely states could accede to it (Article 125 para. 3 of the Statute). To this present day, Germany has not acknowledged the statehood of Palestine. Likewise, German courts, particularly the executive courts, have up to now strictly rejected the statehood of Palestine.

An alleged breakaway determination was rendered on January 19, 2021: In a household legislation case, a divorce decree from Palestine was acknowledged as a „state of origin determination.“ Nonetheless, in a non-public worldwide legislation context, „state of origin“ is to be understood in a useful sense, that means that solely the precise train of jurisdiction issues, not the popularity of a state beneath worldwide legislation. As Talmon describes, the rationale lies within the variations between private and non-private worldwide legislation: „[Nationality in private international law] is predicated not on  State sovereignty however on the train of jurisdiction; that’s, the capability to make and implement the legislation. It doesn’t govern the relations between States, however the authorized relations between personal people“ (emphasis added). Therefore, the German authorized system apparently makes a transparent distinction between the train of jurisdiction in a broader, useful sense and state sovereignty stricto sensu.

Thus, for higher or worse – the German courts stick with their place: Palestine will not be a state.

Again to the fundamentals: Unintended regulatory hole and comparable pursuits?

The choice of the Public Prosecutor’s Workplace is, in precept, according to the courts’ place. As Palestine lacks statehood and Sections 18 and 19 GVG aren’t relevant, the one possible possibility to shut the investigations in opposition to Abbas was an identical utility of Part 20 GVG. Nonetheless, it’s questionable whether or not the 2 necessities for an analogy to exist are met: The existence of (1) an unintended regulatory hole and (2) a state of affairs of comparable pursuits.

(1) The origin of Part 20 GVG lies in its present paragraph two, which explicitly grants immunity based on the final rules and agreements beneath Worldwide Legislation. At the moment’s first paragraph was explicitly launched into the GVG in 1984 to grant immunity to Erich Honnecker, the pinnacle of state of the German Democratic Republic (GDR). This transfer was mandatory for the reason that Federal Republic of Germany didn’t acknowledge the GDR as a „overseas“ state at the moment, wherefore Part 20 GVG – in its unique model – was inapplicable to Honnecker, at the very least within the opinion of some commentators.1) The brand new paragraph 1 of Part 20 GVG was thus meant to make sure that Honnecker however loved immunity as a consultant of the GDR. The wording was therefore modified from „head of state“ to „representatives of different states.“ Because of this, Part 20 para. 1 GVG is repeatedly known as „lex Honnecker.“

Whereas, by way of authorized historical past, that is extra of a person case legislation method, the requirement of the „state“ has not been deserted. For instance, it might have been conceivable to grant immunity to worldwide representatives basically to whom an official invitation had been issued. Towards this backdrop, it’s not a foregone conclusion that there’s an unintended regulatory hole. Nonetheless, one could argue that the Federal Republic didn’t foresee the long run implications of this provision, on condition that the controversy on statehood and subjectivity beneath worldwide legislation was not as superior as it’s at the moment.

(2) Nonetheless, even when one holds {that a} regulatory hole exists, it’s extremely questionable whether or not „comparable pursuits“ exist. A state of affairs of “comparable pursuits” is assumed to exist each time the state of affairs not expressly regulated by legislation is one to which the authorized precept in query (additionally) applies (in precept) on account of its similarities.2) The assertion of the Public Prosecutor’s Workplace that the immunity regime established by Part 20 GVG serves to „preserve contacts between topics of worldwide legislation […] free from the issues arising from felony prosecution,“ reads as if Part 20 GVG is a mechanism to facilitate peaceable worldwide relations. As turns into clear in Part 20 para. 2, the immunity provision of the GVG establishes, initially, a hyperlink with the general public worldwide legislation on immunity. It ought to thus be requested: Does the opinion of the Public Prosecuter coincide with the prevailing understanding of sovereign immunity in worldwide legislation?

State immunity might be probably the most incontrovertible pillars of worldwide legislation, which has additionally been confirmed by the ICJ. The doctrine goes again to the maxim „par in parem non habet imperium„, i.e. no state could exalt its authority over one other. Based on the prevailing opinion in public worldwide legislation, immunity arises from the equality, independence, and dignity of states throughout the worldwide neighborhood.3) This precept can also be mirrored in Article 2 para. 1 of the UN Constitution (sovereign equality of states). The sovereign immunity, in flip, is expressed in several varieties. Importantly, the pinnacle of state derives his/her immunity straight from the state itself. He/she is the personification of the state, and therefore, his/her official acts are to be thought of the acts of the state. This very conception is the supply of immunity ratione materiae and ratione personae. In distinction to non-public worldwide legislation, which builds on the train of useful jurisdiction, public worldwide legislation derives immunity straight from the existence of the state – and, in the identical vein, state sovereignty – itself. Along with defending and upholding the sovereign equality of states, immunity – although at instances a controversialtopic – serves to guard the dignity of the pinnacle of state. Crucially, it’s as soon as once more the dignity of the sovereign state that’s likewise protected, albeit in a mediated kind.4) There are not any indications in public worldwide legislation that immunity is mostly meant to facilitate the graceful operating of worldwide relations.

To renew: Public worldwide legislation clearly distinguishes between states and non-states by way of immunity. Therefore, the 2 circumstances are hardly „comparable.“ Granting immunity regardless of the existence of a state will not be required beneath worldwide legislation. Due to this fact, arguing that an analogy to Part 20 para. 1 GVG is important given the dedication of the Fundamental Legislation to worldwide legislation would additionally not be conclusive. On this respect, it might be essential to additional elaborate on whether or not and to what extent an „extreme implementation“ of the immunity guidelines, as carried out by the Public Prosecutor’s Workplace, is to be deemed acceptable beneath public worldwide legislation.

Conclusion

From a proper perspective, the Public Prosecutor follows the earlier line of jurisprudence that Palestine will not be a state beneath worldwide legislation. On the identical time, the choice to discontinue investigations in opposition to Mahmoud Abbas exhibits the constraints of public worldwide legislation (on immunities) within the context of advanced political realities. Though Palestine has not formally been granted statehood, the Public Prosecutor’s Workplace understands the Palestinian territories as a „topic of worldwide legislation.“ But, what sort of topic and what follows from that is unclear. The standing of Palestine stays extremely disputed, each politically and legally. Nonetheless, merely holding that „Palestine will not be a state“ gained’t do anymore. Towards this backdrop, the choice made by the Public Prosecutor’s Workplace raises essential questions: How a lot “state” will we legally attribute to a “quasi-state”? And doesn’t this merely conceal the inconsistencies in coping with Palestine? In spite of everything, each the International Workplace and the Public Prosecutor thought it flawed to not grant state-like immunity to the pinnacle of the Palestinian Autonomous Territory.