On 10 December 2025, the German Federal Courtroom of Justice (Bundesgerichtshof, BGH) delivered its order (StB 60/25, English press launch out there right here) within the legal case in opposition to Serhiy Okay., accused of collaborating within the destruction of the Nord Stream 1 and a pair of pipelines in September 2022. Okay.’s defence raised practical immunity as a procedural bar, arguing that Okay. acted as an officer of the Ukrainian armed forces on official orders through the ongoing armed battle with Russia.
The case centres on the sabotage of the Nord Stream pipelines on 26 September 2022, which has already been scrutinized on this weblog by Hartmann and Lott. In keeping with the BGH’s findings on the “pressing suspicion” threshold, Okay., a high-ranking officer in a Ukrainian particular forces unit, coordinated a workforce of six—a skipper, an explosives skilled, and deep-sea divers—who chartered the crusing yacht Andromeda in Wiek on Rügen utilizing cast id paperwork. The crew sailed to the neighborhood of the Danish island of Bornholm and carried out deep-sea dives to connect 4 expenses of military-grade hexogen (RDX) and octogen (HMX) to 3 of the 4 pipeline strands at a depth of roughly 70–80 metres. The detonations on 26 September 2022 destroyed each strands of Nord Stream 1 and one strand of Nord Stream 2, rendering all three completely non-functional. Okay. was arrested in Italy in August 2025 pursuant to a European Arrest Warrant and transferred to Germany in November 2025. A second suspect, Volodymyr Zhuravlov, was arrested in Poland however a Warsaw court docket refused extradition in October 2025, ruling that the request had failed to think about that the alleged sabotage was performed in the midst of a “simply battle” in opposition to Russia (choice out there right here, in Polish). The divergence between the Warsaw court docket and the BGH in itself alerts the doctrinal stakes.
This put up analyses the BGH’s choice on practical immunity. It argues that, though the Courtroom presents its reasoning as an software of settled customary worldwide legislation (CIL), it in actual fact develops the legislation progressively. Specifically, it decouples the exception to practical immunity for covert state violence from the locus of the act and as an alternative grounds it within the sovereign pursuits of the affected state. This put up additional argues that by grounding the immunity exception within the sovereign pursuits of the affected state relatively than the bodily location of the act, the BGH considerably narrows the practical immunity that international intelligence operatives would ordinarily retain—with significantly acute penalties for state-directed cyber operations, which by their nature produce results on the goal state’s territory with none bodily presence of the operatives.
Purposeful immunity: the choice and its limits
The court docket’s most consequential evaluation considerations practical immunity. The BGH accepted, appropriately, that the place a state official acts on behalf of a international state in a functionally sovereign capability, that official enjoys immunity ratione materiae from the legal jurisdiction of different states—an immunity derived from state immunity and recognised as CIL (para. 24). It additional accepted that there was a excessive likelihood Okay. had acted below international state instruction, regardless that Ukraine neither acknowledged having ordered the operation nor formally claimed immunity on Okay.’s behalf. On these premises, the BGH recognised {that a} possible immunity bar should be addressed even on the arrest-warrant stage, “[f]or the place a procedural bar (of immunity below worldwide legislation) most likely exists, the pressing suspicion of a prosecutable offence required for an arrest warrant is missing.”
The Courtroom nonetheless discovered an exception. It held that practical immunity doesn’t apply to “intelligence-directed acts of violence that have an effect on the sovereignty of one other state in opposition to which such acts are directed” (para. 26). The underlying logic is that practical immunity, as a corollary of state sovereignty, lacks legitimacy the place the covert act in query itself impacts the sovereignty of one other state (para. 27). The BGH recognized two grounds of infringement of sovereignty. First, Germany was a “pipe-laying state” below Articles 58, 79, 87, and 112 of the UN Conference on the Regulation of the Sea (UNCLOS), conferring sovereign rights and obligations over the pipelines irrespective of personal possession. Second, the legal act manifested on German territory, because the pipelines kind a practical entire whose German-situated sections had been rendered ineffective by the detonations in Danish and Swedish unique financial zones.
The BGH noticed this exception as nicely grounded in state apply, citing the Rainbow Warrior affair (France’s use of brokers to sink a Greenpeace vessel in Auckland harbour in 1985) and the Lockerbie bombing (Libya’s use of brokers to destroy a civil plane in 1988) as instances the place the prosecuting states—New Zealand and the UK—declined to recognise the immunity of the state-directed perpetrators. Helmut Kreicker’s 2007 treatise on CIL exemptions from immunity in legal legislation supplies the principal scholarly help, which isn’t shocking, as Kreicker was additionally one of many three judges on the bench.
Within the Courtroom’s view, the deciding issue for the existence of an exception to practical immunity is the covert use of violence by state officers with out the discussion board state’s consent. The BGH identifies the rationale for practical immunity within the safety of state sovereignty in relations between equals. Nonetheless, as covert intelligence operations with out the discussion board state’s consent represent disrespect for that state’s sovereignty, there is no such thing as a respectable purpose for safeguarding the appearing state’s sovereignty via practical immunity.
Whereas seemingly counting on established state apply, the BGH’s strategy is extra novel than the Courtroom acknowledges. The place the BGH views as reflecting CIL—established in each the Khurts Bat judgment ([2011] EWHC 2029) and the ILC’s commentary to the Draft Articles on Immunity of state Officers from International Legal Jurisdiction (A/77/10, p. 241, para. 27)—anchors the sovereignty exception to the fee of the act on, and the official’s bodily presence in, the discussion board state’s territory with out its consent. The ILC notably excluded such instances from its record of crimes that do no appeal to immunity; not as a result of the exception was uncertain, however as a result of it thought-about territorial presence so clearly decisive as to require no additional elaboration (A/77/10, p. 241, para. 27). That reasoning presupposes territory because the operative criterion. It must be famous that some authors have argued that this territorial exception applies solely to civil, not legal, jurisdiction (see Ruys and Mora in: Buchan and Navarrete (eds), Immunity of State Officers from International Legal Jurisdiction, 2022, 388ff.), thus questioning whether or not the present apply is ample to ascertain a customary “territorial exception” to legal jurisdiction (a query the Khurts Bat court docket additionally struggled with). The BGH doesn’t handle this distinction in any respect. As a substitute, the court docket substitutes the criterion of the territoriality of the act with a broader two-pronged inquiry: the primary asks whether or not the act infringed sovereign rights (Souveränitätsrechte) that the discussion board state can invoke and depend on—on this case derived from UNCLOS—whereas the second asks whether or not the act produced results throughout the discussion board state’s territory. The Courtroom treats these as two various, not cumulative, grounds: both is ample to displace practical immunity. This strategy kinds a doctrinal leap and a progressive growth of the legislation, not merely an articulation of an current precept.
In a primary step, the court docket inquired whether or not the covert act has affected German sovereign rights and pursuits below UNCLOS. It argued that Articles 58, 79, 87, and 112 confer sure “sovereign rights and duties” on pipe-laying states with respect to such pipelines. The destruction of Nord Stream 1 and a pair of severely hindered the train and pleasure of these rights, thus negatively affecting German sovereignty and, within the court docket’s conclusion, triggering the exception to practical immunity. The issue with this argument is twofold. First, it rests on a class error, as a result of whereas the listed UNCLOS articles confer a common proper to put cables and pipelines within the excessive seas and EEZs of different states, they don’t confer territorial jurisdiction, nor do they equate pipelines with territory over which the laying state workouts sovereignty. Sovereign rights in relation to an object aren’t the identical as territorial sovereignty over the house by which the item is positioned (for a dialogue of the train of jurisdiction over pipelines at sea, see this put up by Ruys and Bamnios). Second, by substituting a sovereign-interest inquiry for the territorial-presence criterion established by the ILC and Khurts Bat, the court docket departs from the CIL it purports to use: it’s exactly the impact on territorial sovereignty that triggers the exception to practical immunity and never any impact on sovereign rights and pursuits a state might have outdoors of its territory.
In a second step, the court docket inquired whether or not the covert act has produced results on German territory. Crucially, the BGH didn’t depend on the truth that parts of the alleged crime—the renting of the Andromeda, the loading of the explosives onto the yacht, the beginning of the mission in Wiek—all happened on German territory. Moderately, the figuring out issue was that the practical results of the pipelines’ destruction manifested themselves in German territory. Within the view of the court docket, all sections of the pipeline, the landfall stations on the finish of the pipelines and many others. kind a practical entire, which is affected in its entirety even when solely a portion of the pipeline outdoors of the German territorial sea has been destroyed. Such an effects-based strategy broadens the ‘territorial exception’ to doubtlessly embrace conditions with a far weaker connection to the discussion board state’s territory than these envisaged by the ILC—the place presence within the territory, not merely results upon it, was the operative criterion.
Implications for cyber operations
The BGH’s reformulation of the sovereignty exception has implications that reach nicely past submarine pipelines. State-directed cyber operations focusing on vital infrastructure—energy grids, monetary methods, communications networks—are by their nature performed remotely, from the territory of the attacking state or via third-country infrastructure, and virtually by no means contain bodily presence within the discussion board state. Underneath the standard territorial exception to practical immunity, operators conducting such assaults from overseas would ordinarily retain their immunity from international legal prosecution on account of a scarcity of presence within the discussion board state’s territory. Underneath the BGH’s sovereign-interest framework, the correct of the discussion board state to train legal jurisdiction over state officers appearing overseas is significantly widened.
If the relevant take a look at is just not the presence of the actor and the fee of the crime within the territory of the discussion board state, however whether or not the operation produces results on the discussion board state’s territory or infringes its sovereign rights or pursuits (and cyber assaults on vital infrastructure paradigmatically do precisely that), then the practical immunity of intelligence operatives concerned in vital cyber assaults is considerably narrowed. Many states determine a violation of sovereignty the place a cyber operation causes bodily injury or lack of performance to infrastructure positioned on the goal state’s territory: the BGH’s reasoning maps instantly onto that commonplace. A state that may set up each {that a} international intelligence service directed a cyber assault and that it prompted lack of performance to infrastructure on its territory would, on this logic, have a foundation for prosecuting the operatives accountable with out encountering a practical immunity bar.
The implications could be much more pronounced if the second floor of the BGH’s reasoning—the violation of sovereign pursuits—had been to search out widespread help past Germany. Already states resembling Israel and Austria are elevating the query whether or not state sovereignty may embody information and cloud infrastructure positioned overseas, because of the state’s sovereign pursuits in such information and infrastructure. If “covert state violence” in opposition to sovereign pursuits had been sufficient to dispense with practical immunity, such immunity would successfully stop to be a bar to prosecution in instances of cyber operations, that are sometimes covert. Whether or not states will act on this foundation is a separate query, however the BGH has provided the doctrinal structure.
Conclusion
StB 60/25 is a fastidiously reasoned however doctrinally bold choice. Its central contribution lies in re-conceiving the covert violence exception to practical immunity as grounded within the affected state’s sovereign pursuits relatively than the situation of the act. This strategy is extra novel than the Courtroom acknowledges, resting on thinner state apply than the assured CIL framing suggests. The UNCLOS-based sovereign curiosity floor specifically is troublesome to maintain as presently argued. Most importantly, the choice’s implicit extension of the sovereignty exception to effects-based hurt, relatively than bodily presence, opens a line of reasoning that can inevitably be invoked in debates about accountability for state-sponsored cyber operations. For these causes, it deserves shut consideration nicely past the speedy information of the Nord Stream case.
Picture credit score: Steffen Prößdorf, CC BY-SA 4.0
