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INTERNATIONAL COURT OF JUSTICE Study Guide Topic A Jurisdictional Immunities of the State (Germany vs. Italy)

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Page 1: Study Guide Topic A - MILMUN – Milan International … Guide Topic A Jurisdictional Immunities of the State (Germany vs. Italy) 1 – info@milmun.org, ecj.ecj@milmun.org Table of

INTERNATIONAL

COURT OF JUSTICE

Study Guide

Topic A Jurisdictional Immunities of

the State (Germany vs. Italy)

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1 http://www.milmun.org – [email protected], [email protected]

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