Name of the Case: Jurisdictional Immunities of the State (Germany vs Italy); Year of the decision: 2012; and Court: ICJ.
Overview: Italian Courts allowed civil claims to be brought against Germany based on violations of international humanitarian law committed by Germany from 1943 – 1945 against Italian citizens. Italian courts also permitted the enforcement of a judgement of the Greek courts in Italy against Germany and took measures of constraint against a German property in Italy. Did Italy’s actions violate the customary international law right of jurisdictional immunity of Germany?
Facts of the Case:
In 1940, Italy entered the Second World War as an ally of the German Reich. In 1943, Italy surrendered to the Allies and declared war against Germany. At the time, German forces occupied significant Italian territory. It committed many crimes against civilians and soldiers, including massacres, deportations and forced labour. After the end of the war, Germany enacted several laws to facilitate the payment of compensation to these victims. However, thousands of former Italian military internees did not fall within these laws and they could not get compensation in Germany (paras 20 – 27). These internees brought civil cases against Germany in Italian Courts to claim compensation. Germany objected to the proceedings on the basis of jurisdictional immunity before foreign courts. Italian Courts held that “…jurisdictional immunity is not absolute…” and that “…in cases of crimes under international law, the jurisdictional immunity of States should be set aside.” (paras 27 – 29).
Greek courts also set aside the immunity of Germany, in a similar situation, and ordered Germany to pay damages. Germany refused to pay on the basis that these “Greek judicial decisions could not be recognized within the German legal order because they have been given in breach of German’s entitlement of State Immunity”. The judgement could not be given effect to in Greece due to a decision of the executive. The Greek claimants then asked Italian courts to enforce the Greek judgement. Italian courts ordered a legal charge over a property of Germany in Italy as a measure of enforcement (paras 30 – 36).
Questions before the Court:
Is jurisdictional immunity available to a State for acts committed by its armed forces in the conduct of an armed conflict? If so, did Italy violate this immunity by allowing civil claims against Germany to be brought before its courts and by enforcing the Greek judgement in Italy? Did Italy violate its international law obligations relating to Germany’s jurisdictional immunities when it took measures of constraint against German property in Italy?
The Court’s Decision:
Italy violated its obligation to respect Germany’s immunity under international law by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, by declaring enforceable in Italy decisions of Greek courts and by taking measures of constraint against German property in Italy.
The Court requested Italy to enact legislation, or resort to other methods of its choosing, to ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which Germany enjoys under international law cease to have effect.
Relevant Findings of the Court:
Did the ICJ have jurisdiction to hear this case?
ICJ’s jurisdiction was on the basis of the European Convention for the Peaceful Settlement of Disputes. Article 27(a) of the Convention states that the Convention did 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”. The relevant year of entry into force was 1961. The Court held that the subject matter of the dispute – the crimes for which reparations are sought – occurred during between 1943 and 1945. However, the “…”facts or situations” which have given rise to the (present) dispute before the Court are constituted by Italian judicial decisions that denied Germany the jurisdictional immunity… and by measures of constraint applied to property belonging to Germany” This occurred between 2004 and 2011. The ICJ had jurisdiction to hear the case.
Is jurisdictional immunity available to a State for acts committed by its armed forces during an armed conflict?
The ICJ affirmed that jurisdictional immunities are available to a State before foreign courts, for acts of its armed forces, which were committed during the conduct of an armed conflict. In coming to this conclusion, the ICJ analysed:
(1) the customary nature of State immunity
State immunity derives from the principle of sovereign equality found in Article 2(1) of the UN Charter. It is “one of the fundamental pillars of the international legal order.” As between Italy and Germany this right is derived from customary international law, in the absence of a treaty to that effect. Based on its analysis of State practice and opinio juris, the ICJ 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.” (paras 55 – 56).
(2) the relationship between jurisdictional immunity and the territorial sovereignty of the forum State
“This principle [of State immunity] has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may [also] represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it” (para 57).
(3) the classification of acts as falling under jus imperii or jus gestionis.
The ICJ discussed jus imperii (law governing the exercise of sovereign power) and jus gestionis (law relating to non-sovereign activities of a State, especially private and commercial activities). A domestic court has to assert the nature of the act (whether imperii or gestionis) before it hears the case; because, this will determine if the State is entitled to immunity before the domestic court (para 59 -60).
“The acts of the German armed forces and other State organs which were the subject of the proceedings in the Italian courts clearly constituted acta jure imperii…notwithstanding that they were unlawful…. To the extent that this distinction (between jus imperii and jus gestionis) is significant for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act, it has to be applied before that jurisdiction can be exercised, whereas the legality or illegality of the act is something which can be determined only in the exercise of that jurisdiction…” (para 60. Emphasis added).
The Court concluded that German enjoyed jurisdictional immunity before foreign courts for acts committed by its armed forces.
Did Italy violate the jurisdictional immunity of Germany by allowing civil claims against Germany before its courts?
Itay argued that Germany was not entitled to immunity or that its immunity before Italian courts was restricted because of the: (1) “territorial tort principle” (see below) and (2) fact that the rules that were violated were of jus cogens nature and, if Germany was to succeed in its claim of immunity, no alternative means of redress was available (para 61).
Italy’s First Argument: Territorial Tort Principle
Italy argued that under customary international law Germany was not entitled to immunity for acts causing death, personal injury or damage to property in the territory of the forum State (in this case italy) – even if the acts in question falls within jus imperii. The ICJ disagreed.
The ICJ based its determination on an analysis of the European Convention on State Immunities, the UN convention on Jurisdictional Immunities, work of the International Law Commission on State Immunity, national legislation and national judicial decisions ( paras 64 -76) and concluded that
“State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State… In light of the foregoing, the Court considers that customary international law continues to require that a State be accorded immunity…”
Italy’s Second Argument: The Jus Cogens Nature of the Crime
Italy argued that Germany was not entitled to immunity because: (1) the acts which gave rise to the claims constituted war crimes and crimes against humanity - i.e. serious violations of IHL; (2) these rules of international law were peremptory norms (jus cogens); (3) these individuals were denied all other forms of redress (for example, before German and Greek Courts) and, therefore, the exercise of jurisdiction by the Italian courts was necessary as a last resort; and in its oral arguments Italy argued that Italian courts could deny Germany immunity because of the combined effect of all three arguments. The ICJ disagreed.
Denial of immunity on the basis that Acts amount to war crimes and crimes against humanity
Italy argued that international law does not give immunity to a State, or at least restricts its right to immunity, when that State has committed serious violations of IHL. The ICJ held that Italy’s argument did not reflect customary international law. This was supported by decisions of courts in Canada, France, Slovenia and the United Kingdom, which rejected similar arguments relating to human rights law, war crimes or crimes against humanity.
The ICJ said that the availability of immunity would not depend on the gravity of the unlawful act or its jus cogens nature. The ICJ said that jurisdictional immunity is preliminary in nature – it determines if a State can be subjected to trial by a domestic court of another country before the domestic court looks at the merits (and the gravity) of the case.
“Consequently, a national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established. If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction… If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim.”
Distinction from Pinochet case
The Court distinguished this case from the Pinochet case. As you would recall in the Pinochet case Lord Brownie-Wilinson said “… the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture convention”
he ICJ, in this case said that:
“The Court does not consider that the United Kingdom judgment in Pinochet is relevant… Pinochet concerned the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages. The distinction between the immunity of the official in the former type of case and that of the State in the latter case was emphasized by several of the judges in Pinochet… In its later judgment in Jones v. Saudi Arabia…, the House of Lords further clarified this distinction, Lord Bingham describing the distinction between criminal and civil proceedings as “fundamental to the decision” in Pinochet (para. 32). Moreover, the rationale for the judgment in Pinochet was based upon the specific language of the 1984 United Nations Convention against Torture, which has no bearing on the present case…. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.”
Denial of Immunity on the Basis of a Violation of a Jus Cogens Norm
Italy argued Germany’s acts constituted violations of IHL rules, which were peremptory norms (jus cogens). Therefore, there was a conflict between jus cogens rules and according immunity to Germany. “Since jus cogens rules always prevail over any inconsistent rule of international law, whether contained in a treaty or in customary international law… and since the rule which accords one State immunity before the courts of another does not have the status of jus cogens, the rule of immunity must give way.” The ICJ said that there was no conflict between jus cogens norms and granting immunity.
“This argument therefore depends upon the existence of a conflict between a rule, or rules, of jus cogens, and the rule of customary law, which requires one State to accord immunity to another. In the opinion of the Court, however, no such conflict exists. Assuming for this purpose that the (relevant) rules…are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.”
The ICJ emphasised that recognizing the immunity of a foreign State does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule.
“To the extent that it is argued that no rule which is not of the status of jus cogens may be applied, if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition. A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application. The Court has taken that approach in two cases, notwithstanding that the effect was that a means by which a jus cogens rule might be enforced was rendered unavailable. In Armed Activities (on the Territory of the Congo case), it held that the fact that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which it would not otherwise possess. In Arrest Warrant, the Court held, albeit without express reference to the concept of jus cogens, that the fact that a Minister for Foreign Affairs was accused of criminal violations of rules which undoubtedly possess the character of jus cogens did not deprive the Democratic Republic of the Congo of the entitlement which it possessed as a matter of customary international law to demand immunity on his behalf The Court considers that the same reasoning is applicable to the application of the customary international law regarding the immunity of one State from proceedings in the courts of another.”
The ICJ analysed national legislation and case law to determine that “even on the assumption that the proceedings in the Italian courts involved violations of jus cogens rules, the applicability of the customary international law on State immunity was not affected.” – a jus cogens norm cannot displace State immunity. [NB: The ICJ avoided a discussion on the jus cogens status of the rules mentioned by Italy].
Denial of Immunity on Basis that Italian Courts were the Last Resort
Italy also argued that the alleged shortcomings in Germany’s legislation in giving reparations to Italian victims entitled the Italian courts to deprive Germany of jurisdictional immunity.
“In addition… national courts have to determine questions of immunity at the outset of the proceedings, before consideration of the merits. Immunity cannot, therefore, be made dependent upon the outcome of a balancing exercise of the specific circumstances of each case to be conducted by the national court before which immunity is claimed. The third and final strand of the Italian argument is that the Italian courts were justified in denying Germany the immunity to which it would otherwise have been entitled, because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed.+
The ICJ held that there is no customary international law that makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.
The Court did not agree with the fact that Germany decided to deny compensation to a group of victims through the operation and interpretation of its legislation.
“Moreover, as the Court recalled that the immunity of State officials from criminal proceedings, the fact that immunity may bar the exercise of jurisdiction in a particular case does not alter the applicability of the substantive rules of international law. In that context, the Court would point out that whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation… It [the ICJ] considers however that the claims arising from the treatment of the Italian military internees… together with other claims…could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue.”
Did Italy violate the customary international law obligation to respect the jurisdictional immunity of Germany when it declared enforceable – in Italy – the judgement of the Greek courts against Germany?
The court held that in this situation, Italy violated its obligation to respect Germany’s immunity. In its findings, the ICJ focused on:
(1) The ability of a national court (Italy) to determine if a judgement of a foreign court (Greece) was made in violation of the jurisdictional immunity of a third State (Germany)
The ICJ said that there is “nothing to prevent” national courts from ascertaining that a foreign judgment has not breached the immunity of a third State, before looking to enforce a judgement against that third state. The ICJ justified this on the basis that, when an enforcement measure is requested against a third state, the national court is itself being called upon to exercise its jurisdiction in respect of the third State. “…in granting or refusing exequatur, the court exercises a jurisdictional power which results in the foreign judgment being given effects corresponding to those of a judgment rendered on the merits in the requested State.”
“…the court seised of an application for exequatur of a foreign judgment rendered against a third State has to ask itself whether the respondent State enjoys immunity from jurisdiction — having regard to the nature of the case in which that judgment was given — before the courts of the State in which exequatur proceedings have been instituted. In other words, it has to ask itself whether, in the event that it had itself been seised of the merits of a dispute identical to that which was the subject of the foreign judgment, it would have been obliged under international law to accord immunity to the respondent State.”
The ICJ held that, in this case, it would not rule on the legality of the decisions of the Greek courts because Greece was not a party to the current proceedings. It would confine itself to the question whether Italy, when declaring enforceable the judgement of the Greek courts, violated international law.
(2) The need for waiver of immunity before enforcement of a judgement
In doing its analysis as mentioned above, the national court may find that the judgement did not violate the immunity of a third State. For example, in certain situations, the third State may waive its immunity before the courts hearing the merits of the case. However, a waiver of immunity at the trial stage does not imply that the State has waived immunity in the exequatur proceedings (enforcement proceedings).
“The rules of customary international law governing immunity from enforcement and those governing jurisdictional immunity (understood stricto sensu as the right of a State not to be the subject of judicial proceedings in the courts of another State) are distinct, and must be applied separately…. Even if a judgment has been lawfully rendered against a foreign State, in circumstances such that the latter could not claim immunity from jurisdiction (NB: for example acts falling under jus gestionis), it does not follow ipso facto that the State against which judgment has been given can be the subject of measures of constraint on the territory of the forum State or on that of a third State, with a view to enforcing the judgment in question. Similarly, any waiver by a State of its jurisdictional immunity before a foreign court does not in itself mean that that State has waived its immunity from enforcement as regards property belonging to it situated in foreign territory.”
Therefore, before taking any measure of constraint against a property of a third State, the court must be satisfied:
(1) that the property in question must be in use for an activity not pursuing government non-commercial purposes, or
(2) that the State which owns the property has expressly consented to the taking of a measure of constraint, or
(3) that that State has allocated the property in question for the satisfaction of a judicial claim
The ICJ held that in the present case the “…property which was the subject of the measure of constraint at issue is being used for governmental purposes that are entirely non-commercial and hence for purposes falling within Germany’s sovereign functions.” The court held that Italy violated Germany’s immunity in this respect.
For a critical analysis of the case see “Should judges be front runners? The ICJ, State immunity and the protection of fundamental human rights” in Max Plank Yearbook on United Nations Law. An analysis of the legal provisions relating to the intervention of Greece can be found in this EJIL Talk post. For a restrictive view on State immunity see “State Immunity, Human Rights and Jus Cogens” by Caplan.
On Heads of State immunity, that is relevant to this post see Pinochet case, “Immunity for international crimes? Development in the law on prosecuting Heads of States in foreign courts”, Chatham House Briefing Paper