Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)

This case summary is being revised and will be updated soon

Court	International Court of Justice, The Netherlands
Case number	2012/2
Decision title	Judgment
Decision date	3 February 2012
Parties	Federal Republic of Germany Italian Republic Greece
Categories	Crimes against humanity, War crimes
Keywords	jurisdiction, immunity, reparation, World War II
Links	Judgment Summary
Other countries involved	Germany Greece Italy

Summary

Between 2004 and 2008, Italian courts had issued a number of judgments in which plaintiffs, victims of war crimes and crimes against humanity committed by the German Reich during WWII, were awarded damages against Germany.

Ultimately, in 2008, Germany filed an application instituting proceedings against Italy before the International Court of Justice (ICJ), arguing that "[i]n recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State", thus violating international law. Italy disagreed, stating that the underlying acts were violations of jus cogens and therefore gave it the right to strip Germany from its immunity. Greece joined the proceedings as one of the Italian judgments concerned a declaration of enforcability by an Italian court of a Greek judgment that ordered Germany to pay compensation to victims of the Distomo massacre (in Greece). This declaration led to measures of constraint on German property in Italy.

The Court rejected Italy's claims and fully agreed with Germany's points. State immunity is part of customary international law, and the fact that the underlying acts (the WWII crimes) were violations of jus cogens did not deprive Germany from its jurisdictional immunity.

Importantly, though, the Court notes that while the current judgment confirms jurisdictional immunity of states, this does not in any way alter the possibility to hold individuals criminally responsible for certain acts.

Procedural history

On 23 December 2008, Germany filed an application instituting proceedings against Italy before the International Court of Justice, arguing that "[i]n recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State", thus violating international law.

By an Order of 4 July 2011, the Court authorised Greece to intervene in the case as a non-party, in so far as this intervention was limited to the decisions of Greek courts which were declared as enforceable in Italy.

Legally relevant facts

In multiple civil suits between 2004 and 2008, Italian courts have found Germany responsible for crimes against humanity and/or war crimes committed by the German Reich during WWII, thereby ordering Germany to pay compensation to Italian plaintiffs, who had fallen victim to such crimes. Reference is made to, among others, Ferrini v. Germany (Supreme Court, Italy, 11 March 2004); Mantelli v. Germany (Court of Cassation, Italy, 29 May 2008); and The Prosecutor v. Max Josef Milde (Supreme Court, Italy, 21 October 2008). Additionally, concerning the Distomo massacre that was committed in Greece, the Florence Court of Appeal had declared enforceable a judgment rendered by the First Instance Court of Livadia, Greece that ordered Germany to pay compensation; hence, it allowed the Greek claimants to enter a legal charge against Villa Vigoni, property of the German State in the province of Como, Italy.

Germany did not dispute the substance of the facts. However, it did consider that Italy had violated international law. By exercising jurisdiction over Germany, Italy had violated the principle that one state cannot and should not exercise jurisdiction over (the acts of) another state. This principle is based on the notion of sovereignty and, thus, the (legal) equality of all states.

Italy, on the other hand, emphasised that the underlying crimes - crimes against humanity and war crimes - are violations of jus cogens, law that is binding upon states regardless of any treaty. And since jus cogens rules always prevail over any inconsistent international law rule, and considering the principle of jurisdictional immunity of states does not have jus cogens status, the latter rule of immunity must give way. Additionally, Italy was of the standpoint that state agents, including state armies, do not join immunity for torts or delicts occasioning death, injury or damage committed on the terrirory of another state.

Core legal questions

Do states enjoy full jurisdictional immunity before foreign domestic courts for acts committed by their armed forces in the course of conducting an armed conflict?

Specific legal rules and provisions

Art. 38 of the ICJ Statute.
Art. 11 of the European Convention for the Peaceful Setttlement of Disputes.
Art. 12 of the UN Convention on Jurisdictional Immunities of States and Their Property.

Court's holding and analysis

The Court commenced with Italy's argument that there is a "territorial tort exception" in international customary law that excludes state acts from jurisdictional immunity if they take place on the territory of another state. This claim is rejected, as the Court could not find any support for it in both (the history of) treaty law and international customs.

Then the Court turned to the other argument, holding that the underlying acts were violations of jus cogens and that they, thus, allowed for denial of immunity. This claim was rejected as well:

Firstly, though the Court acknowledged that the facts were indeed grave violations of international law, there it found no support for denying state immunity. It emphasised that this says nothing about individual criminal responsibility and the possibility to deny individual immunity (paras. 81-91).
Furthermore, while the underlying facts are of jus cogens character, this does not conflict with the (international customary law) principle of state immunity: the former addresses the (un)lawfulness of certain conduct, the latter concerns procedural, jurisdictional issues (paras. 92-97)
And finally, the Court considered that "it cannot accept Italy's contention that the alleged shortcomings in Germany's provisions for reparation to Italian victims entitled the Italian courts to deprive Germany of jurisdictional immunity".

Hence, the Court rejected Italy's claims and held that the judgments ordering Germany to pay compensation violated the principle of jurisdictional immunity.

Regarding the constraining measure on Villa Vigoni that was filed by the Greek claimants, the Court stated that it was unlawfully awarded as well.