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INTERNATIONAL
COURT OF JUSTICE
Study Guide
Topic A Jurisdictional Immunities of
the State (Germany vs. Italy)
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Table of Contents
Germany vs Italy ................................................................................................................................................................... 2
1. Introduction ................................................................................................................................................................... 2
1.1 Historical background .......................................................................................................................................... 2
1.2 The national proceedings ................................................................................................................................... 3
1.3 The application before the ICJ .......................................................................................................................... 5
2. Legal Issues .................................................................................................................................................................... 6
2.1 Jurisdiction ....................................................................................................................................................................... 6
2.2 Analysis of German claims ....................................................................................................................................... 6
2.3 Italy’s counterclaims ................................................................................................................................................... 7
3. Conclusions .................................................................................................................................................................... 9
3.1 Issues presented ........................................................................................................................................................... 9
3.2 Questions a Judgment should answer ................................................................................................................ 9
Bibliography ........................................................................................................................................................................ 10
Further Reading ................................................................................................................................................................. 10
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Germany vs Italy
In 2004, the Italian Court of Cassation declared Germany
responsible for Human Rights violations during the Second
World War. More specifically, several Italian nationals were
caught by the German occupation forces and deported to German
concentration camps where they were forced to hard labor for
more than a year. Following the aforementioned judgement, the
case was brought to the attention of the International Court of
Justice. From a legal perspective, the central issue concerns the
complex and delicate balance between the principle of ’’State
Immunity’’ and the binding norm of ’’jus cogens’’.
The revolutionary Italian approach was to declare
Germany responsible for all Human Rights infringements and
demand reparations for said damanges because of a new, Customary Law whose legitimacy
was to be found in the juridical practice of several States. According to the aforementioned
Law, the weight of the ’’jus cogens’’ would be so significant that it could overrule even the
International Law principle of Jurisdictional State Immunity.
On the other hand, “Germany requests the Court, in substance, to find that Italy has
failed to respect the jurisdictional immunity which Germany enjoys under international law by
allowing civil claims to be brought against it in the Italian courts, seeking reparation for
injuries caused by violations of international humanitarian law committed by the German
Reich during the Second World War; that Italy has also violated Germany’s immunity by taking
measures of constraint against Villa Vigoni, German State property situated in Italian
territory; and that it has further breached Germany’s jurisdictional immunity by declaring
enforceable in Italy decisions of Greek civil courts rendered against Germany on the basis of
acts similar to those which gave rise to the claims brought before Italian courts.’’ (Source: ICJ
Summary of the Judgement on February 3rd, 2012).
1. Introduction
1.1 Historical background
Between 1943 and 1945, several, severe violations of human rights were perpetrated by
German soldiers against Italian nationals in the occupied territories of central and northern
Italy.To begin with, when the Second World War broke out in September 1939, Italy, led by
Mussolini, had declared a neutral position.
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Only in June 1940, after a series of battles won by the Nazis, did Italy enter the war.
Mussolini reckoned that Germany was to win definitively and rapidly. As this projection turned
out to be unrealistic, in the following three years the situation of Italian troops on all fronts
became desperate, especially after the Russian campaign in January 1943. After the landing of
the Allies in Sicily in July 1943 and the subsequent conquest of Southern Italy, Mussolini’s
regime was overthrown and Italy accepted an armistice with the Allied forces on the 8th of
September 1943.
After the official government of Italy changed coalition, a great part of Central and
Northern Italy was occupied by the Fascists via the German Nazi: the occupied territory was
named “Repubblica Sociale di Salò” (Social Republic of Salò) and a strong resistance against
this regime proliferated. From that moment on, and until the definitive expulsion of the Nazi
Fascists on the 25th April 1945, the Resistance was countered by the occupying Nazis. Several
cases of massive massacres and slaughters of civilians are recorded as a punishment technique
for every act contrary to the occupying forces or suspected to be helping the Allies that, in
those same months, would go through the peninsula from South to North to free the
populations.
For example, during the total massacre of the population of Civitella and San Pancrazio,
two little towns in the province of Arezzo (Tuscany), were totally burned down and razed,
while 230 civilians were systematically put to death (this is known as “the Milde case”, from
the name of the German soldier allegedly responsible for the crimes).
At the same time, a significant number of Italians were made prisoners and transferred
to concentration camps in Germany were they were subjected to forced labor. More
specifically, on August 4, 1944, an Italian citizen, Luigi Ferrini, among others, was seized by
Nazi forces in the territory of Arezzo (Tuscany) and deported to a lager in Kahla, Thuringia - a
German region (this is known as “the Ferrini case”).
The same kind of massacres and deportations were carried out by Nazis in occupied Greece,
more specifically in Distomo, within Beotia/Voiotia on June 10th, 1944, where more than 200
men, women and children were killed.
1.2 The national proceedings
The aforementioned facts clearly constituted a serious violation of the international
humanitarian law, the law applicable in case of conflicts, id est war crimes, among which:
"murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave
labor camps, the murder or ill-treatment of prisoners of war, the killing of prisoners, the
wanton destruction of cities, towns and villages, and any devastation not justified by military,
or civilian necessity" [Solis, Gary D., The Law of Armed Conflict: International Humanitarian Law
in War].
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In particular, forced labor and deportation, as well as systematic murders, are considered
crimina juris gentium. This means that the individuals responsible for those horrible crimes
were to be arrested and subjected to a due process in a State tribunal or, if necessary, in an
international tribunal, after which they would have been punished for their crimes.
Unfortunately, this was not possible, because the responsible soldiers were never singularly
pinpointed and sued.
In fact, the German courts never received penal proceedings in this field until the 90s, when
a number of cases were analyzed. The Distomo case was brought before German courts in 1996
and it arrived up to the Bundesgerichthof, the highest ordinary court in Germany, in 2003
(BGH, decision of 26 June 2003, III ZR 245/98, published in NJW 2003, 3488 et seq) and, in
2006, to the Bundesverfassungsgericht, the German Supreme Constitutional Court
[Bundesverfassungsgericht (BVerfG – Federal Constitutional Court), 2 BvR 1476/03 (February
15, 2006),
http://www.bundesverfassungsgericht.de/entscheidungen/rk20060215_2bvr147603.html.
Nevertheless, in all of those cases no one was found guilty and no compensation was provided
to the victims from the Federal Republic of Germany because State immunity prevailed.
As the decades passed, the only resort left to the victims or their heirs appeared to be a shift
to the civilian tribunals and a request for reparations (in particular, monetary compensation -
as defined in art. 34 of the ILC Draft Articles on State responsibility).
In fact, that is exactly what Mr. Ferrini did in September 1998, when he started a tort action
against the Federal Republic of Germany, asking the Tribunal of Arezzo to order the German
Government to pay the damages for the physical and psychological injuries suffered during his
deportation.
Immediately, Germany introduced the plea for jurisdictional immunity under customary
international law as totally impairing the possibility of a condemnation and it was followed by
the Tribunal itself that, in November 2000, dismissed the proceeding alleging the lack of
jurisdiction.
This decision was confirmed in appeal by the Court of Appeal of Florence but this did not
halt Mr. Ferrini who challenged this second judgment on the point of jurisdiction in front of the
Italian Court of Cassation, which is the highest-level Court in Italy. The Court of Cassation
eventually, on March 21, 2004, set aside the two previous decisions and affirmed that State
immunity in that specific case was to be denied and, by doing so, sent the acts of the proceeding
back to the Tribunal of Arezzo in order for the merits to be discussed again. The reasoning of
the Court was clear, though highly creative, innovative and in a sense very brave.
The Court acknowledged that the crimes could have been covered by immunity as they
were committed as acta jure imperii. This means that the State was acting in his official
capacity and powers (as opposed to acta jure gestionis, the commercial activity of the State,
that does not give rise to immunity). Nevertheless, the Court questioned the essence of
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immunity as a preliminary question and decided that in comparision with the infringement of
fundamental principles of jus cogens, (protecting universal values, among which today the
international crimes - especially if they were committed in the territory of the judging State -
are universally considered) the latter shall prevail, as results from a newborn rule of
customary international law.
The Ferrini case was only the first of a series of similar judgments of Italian courts
concerning the issue of reparations against torts committed during the Second World War by
German nationals in the territory of Italy. In fact, even though in Italy there is no principle of
stare decisiis, the Court of Cassation has a significant authority over lower-level courts. Said
Court, remains the ultimate responsible for the respect of the norms and the Italian legal
system as a whole.
The most striking case was certainly the Milde case which was resolved in 2008 by the
Court of Cassation that confirmed a sentence that temporarily confiscated a German-owned
property (Villa Vigoni) - a cultural centre located on the shores of Lake Como. This was done in
order to enforce the judgment rendered in 2000 by the Greek Supreme Court (Areopagus,
Court of Cassation) providing a compensation to the heirs of the victims of the Distomo
massacre.
To conclude, Italian courts developed the doctrine that immunity as a customary law is
important because one of the most important grounds for the existence of an international
community is that States are superiores non recognoscentes (they do not recognize any superior
entity). However, immunity is not jus cogens, so it cannot prevail over the customary law of the
protection of human beings which is, by itself, a jus cogens rule: if posed as a question of
internal coherence of the international legal system, jus cogens values must prevail over
procedural issues.
1.3 The application before the ICJ
Due to the proliferation of similar proceedings before Italian courts, for which the Ferrini
judgment had paved the way, Germany started to fear that the amount of compensation
payable to Italy and not only (as Italy had started to claim the right to enforce judgments of
other countries’ courts) was to become unrealistically high.
Consequently, after several attempts to solve the question only by negotiation (as
requested by art. 33 of the U.N. Charter) and other non-judicial means of peaceful settlement of
disputes, Germany filed an application instituting proceedings against Italy before the
International Court of Justice on December 23rd, 2008.
The main argument was that Germany did not recognize the new customary law
establishing the possibility to undermine State immunity. Hence, Germany stated that “[i]n
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recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of
Germany as a sovereign State”.
On December 22nd, 2009, Italy submitted to the Court counter-claims which defended the
doctrine developed by its highest Court over a period of five years.
On January 13th, 2011, the Hellenic Republic filed its application for permission to
intervene.
2. Legal Issues
2.1 Jurisdiction
In the exercise of its jurisdiction in contentious cases, the International Court of Justice has
to decide, in accordance with international law, disputes of a legal nature that are submitted to
it by States. An international legal dispute can be defined as a disagreement on a question of
law or fact, a conflict, a clash of legal views or of interests. Only States may apply to and appear
before the International Court of Justice. International organizations, other collectivities and
private persons are not entitled to institute proceedings before the Court. Article 35 of the
Statute defines the conditions of access to the Court. While paragraph 1 of that Article opens it
to the States parties to the Statute, paragraph 2 is intended to regulate access to the Court by
States which are not parties to the Statute. The conditions of access of such States are, subject
to the special provisions contained in treaties in force at the date of the entry into force of the
Statute, to be determined by the Security Council, with the proviso that in no case shall such
conditions place the parties in a position of inequality before the Court. The Court can only deal
with a dispute when the States concerned have recognized its
jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in
some manner or other consented there to.
2.2 Analysis of German claims
First of all, to solve the issue of jurisdiction, Germany’s Application was filed on the basis of
Article 1 of the European Convention for the Peaceful Settlement of Disputes, under the terms
of which: “The High Contracting Parties shall submit to the judgment of the International Court
of Justice all international legal disputes which may arise between them including, in particular,
those concerning:(a) the interpretation of a treaty; (b) any question of international law;(c) the
existence of any fact which, if established, would constitute a breach of an international
obligation;(d) the nature or extent of the reparation to be made for the breach of an international
obligation.” It must be noted that Article 27, subparagraph (a), of the same Convention limits
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the scope of that instrument ratione temporis by stating that it shall not apply to “disputes
relating to facts or situations prior to the entry into force of this Convention as between the
parties to the dispute”. It also states that the Convention between Germany and Italy entered
into force on April 18th 1961. The Court must determine whether or not the clause in the
above-mentioned Article 27 imposing a limitation ratione temporis is applicable to Germany’s
claims. More specifically, the “facts or situations” which have given rise to the dispute before
the Court consist of Italian judicial decisions that denied Germany the jurisdictional immunity
which it claimed and (by measures of constraint) applied to property belonging to Germany.
Those decisions and measures were adopted between 2004 and 2011, thus well after the
European Convention entered into force between the Parties. The Court therefore, according to
Germany, has jurisdiction to deal with the dispute.
Germany enters the merits of the case by observing that the proceedings in the Italian
courts have their origins in acts perpetrated by German armed forces and other organs of the
German Reich and recognizing that there can be no doubt that this conduct was a serious
violation of the international law of armed conflict applicable between 1943-1945. However it
considers that it is not up to the Court to decide whether these acts were illegal (a point which
is not contested) but whether, in proceedings regarding claims for compensation arising out of
those acts, the Italian courts were obliged to accord Germany immunity. To prove that the
solidity of the customary international rule on State immunity is not contestable, Germany
refers to the acts the International Law Commission which concluded in 1980 that the rule of
State immunity had been “adopted as a general rule of customary international law solidly
rooted in the current practice of States”. It believes said practice shows that, whether in
claiming immunity for themselves or according it to others, States generally proceed on the
basis that there is a right to immunity under international law, together with a corresponding
obligation on the part of other States to respect and give effect to that immunity.
Germany contests that the scope and extent of the doctrine of State immunity can be
restricted as to be excluded in cases of serious breaches of fundamental international rules, as
Italian courts repeatedly affirmed. To synthesize Germany’s thesis, it can be stated that
allowing the violations of jus cogens (although only those related to the particular nature of the
acts, extremely severe violations of human rights) to justify the derogation to immunity would
result in a logical reversion of immunity which is a preliminary question. In every judicial
proceeding there are problems arising before the court may judge the merits, if those
preliminary requirements are not required then the matter is not in the competence of the
Court.
2.3 Italy’s counterclaims
As a preliminary question, Italy not only recognizes the jurisdiction of the Court but it finds
that a definitive judgment of the Court is needed to solve such a complex legal issue. Moreover,
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Italy thinks that the principles laid down in the 1957 European Convention, on which Germany
bases the Court’s jurisdiction in relation to its own claim, also fully establish the Court’s
jurisdiction in reference to the counter-claim submitted by Italy.
First of all, Italy contests the German opinion contending that the law to be applied is that
which determined the scope and extent of State immunity in 1943-1945, i.e., at the time that
the events giving rise to the proceedings in the Italian courts took place, and not, as Italy
maintains, that which applied at the time the proceedings themselves occurred. Accordingly,
Italy asks the Court to impose reparations payments on Germany for the original events.
However, it must be recalled that in accordance with the principle stated in Article 13 of the
ILC Articles on State Responsibility the compatibility of an act with international law can be
determined only by reference to the law in force at the time when the act occurred. We need to
determine, therefore, which are, from a factual point of view, the relevant Italian acts, namely
the denial of immunity and exercise of jurisdiction by the Italian courts, which did not occur
until the proceedings in the Italian courts took place (which is between 2000 and 2008) or the
international crimes committed between 1943 and 1945.
The first Italian claim on the merits is the “territorial tort principle”: according to Italy,
customary international laws no longer require that a State be accorded immunity in
proceedings for torts allegedly committed on the territory of another State by its armed forces
and other organs of the State in the course of conducting an armed conflict. Italy identifies the
grounds of this customary law in Article 11 of the Council of Europe’s European Convention on
State immunity (1972) which sets out the territorial tort principle in broad terms (“A
Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting
State in proceedings which relate to redress for injury to the person or damage to tangible
property, if the facts which occasioned the injury or damage occurred in the territory of the
State of the forum, and if the author of the injury or damage was present in that territory at the
time when those facts occurred” - but see Art. 31 for an exception concerning the armed forces)
and in Article 12 of the United Nations Convention on the Jurisdictional Immunities of States and
their Property which provides: “Unless otherwise agreed between the States concerned, a State
cannot invoke immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to pecuniary compensation for death or injury to the
person, or damage to or loss of tangible property, caused by an act or omission which is alleged
to be attributable to the State, if the act or omission occurred in whole or in part in the
territory of that other State and if the author of the act or omission was present in that
territory at the time of the act or omission”. As none of the two conventions is in force between
the two parties, Italy ventured into proving the creation of a new customary law, highlighting
State practice in the form of national legislation and of the judgments of national courts.
Then, Italy focuses on the subject-matter and circumstances of the claims in the Italian
courts, which is its most innovative and bravest claim, explained above in section 1.2.
identifying an exception to the general rule on immunity based on the gravity of the violations
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and supported by the hierarchical relationship of supremacy of the substantive rule of jus
cogens over the procedural rule of State immunity. Lastly, Italy uses the “last resort” argument,
specifying that although Italy always wanted to maintain good diplomatic relations with
Germany, Italian judges had to deal with a clear dilemma: “to condone a blatant denial of
justice or to render justice to victims of heinous crimes”. To solve it in the only possible, logical
and rational choice for any judicial institution, Italian judges considered that an imperative
obligation of reparations provision existed, and keeping into account that several attempts had
been made to obtain satisfactory reparations from Germany and that all other remedies
seemed to have been exhausted, they felt they had to render justice even at the price of setting
aside the principle of immunity.
3. Conclusions
3.1 Issues presented
The International Court of Justice will be asked to solve the following legal issues:
(i) Whether a State’s failure to respect another State’s jurisdictional immunity entails the
violation of the sovereign immunity of the latter.
(ii) Whether immunity is only a preliminary question or a question on the merits.
(iii) Whether it is possible to balance the procedural rule on immunity with the infringement
of jus cogens rules, as the ones in the context of international crimes.
(iv) Whether the “last resort” argument is applicable: that is, whether it is possible to accept
an exception to the principles on immunity if the responsible State is not willing to
provide reparations and there is no other chance of readressing the grievances.
(v) Whether the Italian Court of Cassation’s approach was admissible and shareable by this
Court in qualifying the actions of the German soldiers as infringement of peremptory
international norms.
(vi) What is the specific impact of the Distomo case on the proceeding between Germany
and Italy and what should be the fate of Villa Vigoni?
(vii) Whether it is possible for national courts and, a fortiori, for the International Court of
Justice, to adopt a creative approach and develop new doctrines to adapt to the
changing cases and times.
3.2 Questions a Judgment should answer
a. Whether the Italian Republic has violated its obligation to respect the immunity which the
Federal Republic of Germany enjoys under international law by allowing civil claims to be
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brought against it based on violations of international humanitarian law committed by the
German Reich between 1943 and 1945.
b. Whether the Italian Republic has violated its obligation to respect the immunity which the
Federal Republic of Germany enjoys under international law by declaring enforceable in
Italy decisions of Greek courts based on violations of international humanitarian law
committed in Greece by the German Reich and its measures of constraint against Villa
Vigoni.
c. In case of an affirmative answer to the two first questions, whether the Italian Republic
must be forced (by enacting appropriate legislation, or by resorting to other methods of its
choice) to ensure that the decisions of its courts and those of other judicial authorities
infringing the immunity which the Federal Republic of Germany enjoys under international
law cease to have effect.
Bibliography
- Carbone, S., Luzzatto, R., Santa Maria, A., (a cura di), Istituzioni di diritto internazionale, 2011,
Giappichelli Editore.
- De Simonis, Paolo, Passi nella memoria, Guida ai luoghi delle stragi nazifasciste in Toscana,
2004, Carocci.
- Dixon, Martin, Textbook on international law, 2007, Oxford University Press.
- Orakhelashvili, A., Peremptory norms in International Law, Oxford, Oxford University Press,
2006
- Solis, Gary D., The Law of Armed Conflict: International Humanitarian Law in War, 2010,
Cambridge University Press
- Villiger, Mark, Commentary on the 1969 VCLT, 2009, Martinus Nijhoff publishers
Further Reading
- Distomo, Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/ 2000 (Hellenic
Sup. Ct May 4, 2000)
- Ferrini, Judgment No. 5044/2044, 11 march 2004, Rivista di diritto internazionale 87 (2004),
p. 539; English translation : International Law Reports (ILR), Vol. 128, p. 659.
For comments see Pasquale De Sena/Francesca De Vittor, State Immunity and Human Rights:
The Italian Supreme Court Decision on the Ferrini Case, 16 EUROPEAN JOURNAL OF
INTERNATIONAL LAW 89 (2005): http://docenti.unimc.it/docenti/francesca-de-vittor/tutela-
internazionale-dellindividuo/la-tutela-dei-diritti-umani-davanti-al-
giudice/7%20ejil%20ferrini.pdf
- Milde judgment (Italian Court of Cassation, Judgment No. 1072/2008, 9 October 2008):
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http://www.icrc.org/ihl-
nat.nsf/39a82e2ca42b52974125673e00508144/938e2cb397e8da36c1257561003a1c4d/$FI
LE/Italy%20v.%20Milde%202008.pdf
- Germany’s application instituting proceedings in front of the ICJ (23 December 2008):
http://www.icj-cij.org/docket/files/143/14923.pdf
- Italy’s counter memorial (22 December 2009): http://www.icj-
cij.org/docket/files/143/16017.pdf
- Hellenic Republic’s application for permission to intervene (13 January 2011): http://www.icj-
cij.org/docket/files/143/16304.pdf
- ILC Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the
International Law Commission on the Work of its 53rd Session, GAOR, 56th Session, Supp. No.
10, (A/56/10).
- Text of the Council of Europe’s European Convention on State immunity (1972)
http://conventions.coe.int/Treaty/en/Treaties/Html/074.htm
- 1947 Peace agreement between Italy and the Allies (see especially art. 77, IV):
http://www.istrianet.org/istria/history/1800-present/ww2/1947_treaty-italy.htm
- State Liability for Violations of International Humanitarian Law - The Distomo Case Before the
German Federal Constitutional Court
http://www.germanlawjournal.com/pdfs/Vol07No07/PDF_Vol_07_No_07_701-
720_Developments_Rau.pdf