On 3 February, the International Court of Justice (ICJ) gave its judgment in Jurisdictional Immunities of the State, a case brought by Germany against Italy about the alleged failure by Italy to respect the immunity owed to Germany under international law.
As anticipated, Germany won and did so emphatically with the Court deciding in Germany's favour on the main issue by 12 votes to 3. The judgment has been described by Paul Stephan of the University of Virginia as 'a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system'.
The case arose out of a number of civil claims brought in the Italian courts by individuals seeking reparation for injuries caused by violations of international humanitarian law committed by the German Reich during the Second World War. In 1998, Luigi Ferrini, an Italian national, who had been arrested in August 1944 and deported to Germany where he was detained and forced to work in a munitions factory until the end of the war, instituted proceedings against the Federal Republic of Germany.
In February 2011 an Italian court ruled that Germany should pay damages to the claimant on the basis that immunity is not absolute and cannot be invoked by a state in the face of acts by that state which constitute crimes under international law. This reasoning was followed in a number of other cases in the Italian courts including some originating in the Greek courts. The claimants in the latter proceedings had been awarded damages by a Greek court in 1997 for the massacre of relatives by the German armed forces in June 1944 during the occupation of Greece. Having failed to have the judgment enforced in both Greece and Germany, the claimants sought enforcement through the Italian courts and in 2007 registered a legal charge over Villa Vigoni, a property of the German State near Lake Como.
The Court found that Italy had violated its obligation to respect Germany's immunity under international law by allowing civil claims to be brought against Germany in the Italian courts. This will undoubtedly come as a disappointment to those who wanted to see the development of an exception to State immunity for serious international crimes. Nevertheless, it would be very difficult to argue that it is anything other than soundly based on current State practice.
What law was applicable? The Court decided that since there were no relevant treaties in force between Germany and Italy, the question of immunity must be governed by customary international law. In its judgment, however, the Court frequently referred to the 2004 United Nations Convention on the Jurisdictional Immunities of States and Their Property ('the UN Convention'), noting that such treaties can be useful in ‘recording and defining rules deriving from custom, or indeed in developing them'.
These were the main points of the Court's decision.
i) The acts of the German armed forces and other State organs, which were the subject of the disputed Italian proceedings, clearly constituted acts carried out in the exercise of sovereign authority; it was agreed by the parties that States are generally entitled to immunity in respect of such acts. The fact that the acts were illegal (this had been admitted by Germany) did not alter this fact.
ii) Customary international law requires that a State be accorded immunity for all acts committed on the territory of another State by its armed forces in the course of an armed conflict, and it was therefore unnecessary for the Court to decide the question of whether or not there is an exception to immunity for sovereign acts committed in the forum State.
iii) Under customary international law, as it presently stands, a State is not deprived of immunity because it is accused of serious violations of international human rights law or the international law of armed conflict. In other words a State's entitlement to immunity is not dependent upon the gravity of the act of which it is accused or the peremptory nature of the rule which it is alleged to have violated.
iv) The argument that rules on immunity must give way to superior rules having the status of ius cogens assumes a conflict between them which makes no sense, as the two types of rule address entirely different matters. The rules on immunity are procedural and do not bear on the question of whether or not the acts concerned are lawful or not.
v) The rules on immunity exist independently of any duty on the wrongdoing State to make reparation or any rules concerning the means by which such reparation may be effected and cannot, therefore, constitute a derogation from a ius cogens rule.
vii) There is no basis in State practice, from which customary international law is derived, for the proposition that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.
In its pleadings, Italy had combined the arguments relating to the serious nature of the offences alleged, the conflict with ius cogens and the duty of reparation and unavailability of alternative remedies, and argued that their cumulative effect was to justify the removal of immunity. The Court decided that none of the various strands of argument could of itself justify the action of the Italian courts and was not persuaded that they could have that effect even when added together. It was not for national courts to engage in a balancing exercise to assess the weight of various factors justifying the exercise of jurisdiction. It would appear, therefore, that, for the ICJ, there can be no ‘margin of appreciation’ for national authorities in determining whether or not a foreign State is entitled to immunity. If such immunity exists, they must give effect to it, unless a waiver can be obtained.
As regards the measures taken against German property in Italy, the Court noted that immunity from enforcement against State property on foreign territory is more extensive than the jurisdictional immunity enjoyed before foreign courts; the property in question was clearly being used for non-commercial purposes falling within Germany’s sovereign functions. So the registration of a legal charge on the German property constituted a violation by Italy of its obligation to respect the immunity owed to Germany.
As for the decisions declaring Greek judgments enforceable in Italy, the Court noted the terms of Article 6, paragraph 2 of the UN Convention which clearly indicated that proceedings of this kind (for the enforcement of a foreign judgment against a third State) were capable of falling within the definition of proceedings directed against the State which was the subject of the foreign judgment. The question for the Italian courts was: if they had been dealing with the merits of disputes identical to those the subject of the Greek judgments, would they have been obliged under international law to accord immunity to Germany? On this basis, the Court concluded that Germany’s jurisdictional immunity had been violated for the reasons given in the main part of the judgment.
Finally, the Court emphasized that its judgment was limited to the particular facts of the case before it: there was a clear distinction between the immunity of a State in civil proceedings and that of State officials in criminal proceedings. The latter was not in issue in the present case. Consequently, the Pinochet precedent remains undisturbed.