Non corrigé
Uncorrected
CR 2011/20
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2011
Public sitting
held on Thursday 15 September 2011, at 10 a.m., at the Peace Palace,
President Owada presiding,
in the case concerning Jurisdictional Immunities of the State
(Germany v. Italy: Greece intervening)
________________
VERBATIM RECORD
________________
ANNÉE 2011
Audience publique
tenue le jeudi 15 septembre 2011, à 10 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
en l’affaire relative aux Immunités juridictionnelles de l’Etat
(Allemagne c. Italie ; Grèce (intervenant))
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presdenkta
Judges Koroma
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Judge ad hoc Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
viceMpra,ident
KoMroMa.
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Crinçade
Yusuf
Greenwood
XuMe mes
Dojnogshue,
jugeGaja,. ad hoc
Cgoffrerr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Federal Republic of Germany is represented by:
H.E.MsSusanne Wasum-Rainer, Ambassador, Di rector-General for Legal Affairs and Legal
Adviser, Federal Foreign Office,
H.E.Mr.Heinz-Peter Behr, Ambassador of the Federal Republic of Germany to the Kingdom of
the Netherlands,
Mr.ChristianTomuschat, former Member and Ch airman of the International Law Commission,
Professor emeritus of Public International Law at the Humboldt University of Berlin,
as Agents;
Mr. Andrea Gattini, Professor of Public International Law at the University of Padua,
Mr. Robert Kolb, Professor of Public International Law at the University of Geneva,
as Counsel and Advocates;
Mr. Guido Hildner, Head of the Public International Law Division, Federal Foreign Office,
Mr. Götz Schmidt-Bremme, Head of the Internati onal Civil, Trade and Tax Law Division, Federal
Foreign Office,
Mr.FelixNeumann, Embassy of the Federal Republic of Germany in the Kingdom of the
Netherlands,
Mr. Gregor Schotten, Federal Foreign Office,
Mr.Klaus Keller, Embassy of the Federal Republic of Germany in the Kingdom of the
Netherlands,
MsSusanneAchilles, Embassy of the Federal Republic of Germany in the Kingdom of the
Netherlands,
Ms Donate Arz von Straussenburg, Embassy of the Federal Republic of Germany in the Kingdom
of the Netherlands,
as Advisers;
Ms Fiona Kaltenborn,
as Assistant. - 5 -
Le Gouvernement de la République fédérale d’Allemagne est représenté par :
S. Exc. Mme Susanne Wasum-Rainer, ambassadeur, directeur général des affaires juridiques et
conseiller juridique du ministère fédéral des affaires étrangères,
S. Exc. M. Heinz-Peter Behr, ambassadeur de la République fédérale d’Allemagne auprès du
Royaume des Pays-Bas,
M. Christian Tomuschat, ancien membre et président de la Commission du droit international,
professeur émérite de droit international public à l’Université Humboldt de Berlin,
comme agents ;
M. Andrea Gattini, professeur de droit international public à l’Université de Padoue,
M. Robert Kolb, professeur de droit international public à l’Université de Genève,
comme conseils et avocats ;
M. Guido Hildner, chef de la division du droit inte rnational public au ministère fédéral des affaires
étrangères,
M. Götz Schmidt-Bremme, chef de la division du droit international en matière civile, commerciale
et fiscale au ministère fédéral des affaires étrangères,
M. Felix Neumann, ambassade de la République fédérale d’Allemagne au Royaume des Pays-Bas,
M. Gregor Schotten, ministère fédéral des affaires étrangères,
M. Klaus Keller, ambassade de la République fédérale d’Allemagne au Royaume des Pays-Bas,
MmeSusanneAchilles, ambassade de la République fédérale d’Allemagne au Royaume des
Pays-Bas,
Mme Donate Arz von Straussenburg, ambassade de la République fédérale d’Allemagne au
Royaume des Pays-Bas,
comme conseillers ;
Mme Fiona Kaltenborn,
commaessistante. - 6 -
The Government of the Italian Republic is represented by:
H.E. Mr. Paolo Pucci di Benisichi, Ambassador and State Counsellor,
as Agent;
Mr. Giacomo Aiello, State Advocate,
H.E. Mr. Franco Giordano, Ambassador of the Italian Republic to the Kingdom of the Netherlands,
as Co-Agents;
Mr. Luigi Condorelli, Professor of International Law, University of Florence,
Mr. Pierre-Marie Dupuy, Professor of International Law, Graduate Institute of International and
Development Studies, Geneva, and University of Paris II (Panthéon-Assas),
Mr. Paolo Palchetti, Associate Professor of International Law, University of Macerata,
Mr.SalvatoreZappalà, Professor of International Law, University of Catania, Legal Adviser,
Permanent Mission of Italy to the United Nations,
as Counsel and Advocates;
Mr.GiorgioMarrapodi, Minister Plenipotentiary, Head of the Service for Legal Affairs, Ministry
of Foreign Affairs,
Mr.GuidoCerboni, Minister Plenipotentiary, Co-ordinator for the countries of Central and
Western Europe, Directorate-General for the European Union, Ministry of Foreign Affairs,
Mr. Roberto Bellelli, Legal Adviser, Embassy of Italy in the Kingdom of the Netherlands,
Ms Sarah Negro, First Secretary, Embassy of Italy in the Kingdom of the Netherlands,
Mr. Mel Marquis, Professor of Law, European University Institute, Florence,
Ms Francesca De Vittor, International Law Researcher, University of Macerata,
as Advisers. - 7 -
Le Gouvernement de la République italienne est représenté par :
S. Exc. M. Paolo Pucci di Benisichi, ambassadeur et conseiller d’Etat,
comme agent ;
M. Giacomo Aiello, avocat de l’Etat,
S. Exc. M. Franco Giordano, ambassadeur de la République italienne auprès du Royaume des
Pays-Bas,
comme coagents ;
M. Luigi Condorelli, professeur de droit international à l’Université de Florence,
M. Pierre-Marie Dupuy, professeur de droit international à l’Institu t universitaire de hautes études
internationales et du développement de Genève et à l’Université de Paris II (Panthéon-Assas),
M. Paolo Palchetti, professeur associé de droit international à l’Université de Macerata,
M.SalvatoreZappalà, professeur de droit international à l’Université de Catane, conseiller
juridique à la mission permanente de l’Italie auprès de l’Organisation des Nations Unies,
comme conseils et avocats ;
M.GiorgioMarrapodi, ministre plénipotentiaire, chef du département juridique du ministère des
affaires étrangères,
M.GuidoCerboni, ministre plénipotentiaire, coordinateur pour les pays d’Europe centrale et
occidentale à la direction générale de l’Union européenne au ministère des affaires étrangères,
M. Roberto Bellelli, conseiller juridique à l’ambassade d’Italie au Royaume des Pays-Bas,
Mme Sarah Negro, premier secrétaire à l’ambassade d’Italie au Royaume des Pays-Bas,
M. Mel Marquis, professeur de droit à l’Institut universitaire européen de Florence,
Mme Francesca De Vittor, chercheur en droit international à l’Université de Macerata,
comme conseillers. - 8 -
The Government of the Hellenic Republic is represented by:
Mr.Stelios Perrakis, Professor of International and European Institutions, Panteion University of
Athens,
as Agent;
H.E.Mr.Ioannis Economides, Ambassador of the Hellenic Republic to the Kingdom of the
Netherlands,
as Deputy-Agent;
Mr.Antonis Bredimas, Professor of International Law, National and Kapodistrian University of
Athens,
as Counsel and Advocate;
Ms Maria-Daniella Marouda, Lecturer in International Law, Panteion University of Athens,
as Counsel. - 9 -
Le Gouvernement de la République hellénique est représenté par :
M.SteliosPerrakis, professeur des institutions in ternationales et européennes à l’Université
Panteion d’Athènes,
comme agent ;
S. Exc. M. Ioannis Economides, ambassadeur de la République hellénique auprès du Royaume des
Pays-Bas,
comme agent adjoint ;
M.AntonisBredimas, professeur de droit internatio nal à l’Université nationale et capodistrienne
d’Athènes,
comme conseil et avocat ;
Mme Maria-Daniella Marouda, maître de conférences en droit international à l’Université Panteion
d’Athènes,
comme conseil. - 10 -
The PRESIDENT: Please be seated. The sitting is open. Judge Skotnikov, for reasons that
have been explained to me, is going to be absent from the morning session today. Today we begin
the second round of oral argument in the case concerning Jurisdictional Immunities of the State
(Germany v. Italy: Greece intervening). Germany will present its second round of oral argument
and will also give its observations with respect tthe subject-matter of Greece’s intervention. I
shall immediately give the floor to the Agen t of Germany, Ambas sador Madame Susanne
Wasum-Rainer.
WMAsSUM-RAINER:
1. Mr.President, distinguished Members of th e Court, we have listened carefully to the
arguments submitted by our esteemed Italian and Greek colleagues. Their expressions of
friendship, co-operation and goodwill between our c ountries are greatly appreciated. The German
Government is grateful for the possibility to settle this dispute in the present proceedings before
this Court. Mr. President, we are well aware that the complex legal nature of these proceedings on
State immunity cannot do justice at all to the hum an dimension of the terrible wartime events for
which Germany has accepted full responsibility. I would like to take this opportunity to emphasize
our deepest respect for the victims, not only here in the courtroom.
I.SUBJECT -MATTER OF THE DISPUTE
2. Over the last two days we have heard manifold arguments concerning and references to
international humanitarian law and human rights la w. Needless to say, Germany fully shares the
commitment of Italy and Greece to those norms. Th is also applies to individual compensation in
the case of breaches of human rights norms and, of course, individual criminal responsibility for all
perpetrators of international crimes as enshrined in the Rome Statute.
However, these issues have nothing to do with our present case. None of the arguments put
forward showed convincingly that the principle of State immunity for acts jure imperii, which is
the subject of our dispute, has been restricted. No compelling legal argument was advanced to
prove that Germany has been rightly subjected to the jurisdiction of other States. Quite the
contrary, neither has international law been cha nged as to allow the abrogation of State immunity - 11 -
in certain exceptional circumstances, as it was put. Nor, even if the criteria proposed by our
distinguished Italian colleagues in their attempt to defend the jurisprudence of the Italian courts
really did exist, would they be met by the f acts of the cases against Germany. The Greek
presentation, although it dealt with so many differenaspects, did not focus on “the interest of a
legal nature” which might be affected by the presen t proceedings as requested by the Court in its
Order on the Greek application to intervene.
Italy relied, when justifying the abrogation of State immunity by her courts, on a denial of
justice in very exceptional circumstances. But ther e is and was no denial of justice. Reparations
were made. The exceptional circumstances referred to simply did not exist.
3. Indeed no national or international jurispr udence that proves the existence of this alleged
trend has been submitted. While the distinguish ed delegate of Greece questioned the general
applicability of the judgment of the Greek Special Supreme Court in the Margellos case, it is
telling that thereafter no single Greek court including the Areios Pagos ever again denied German
State immunity.
Our counsel will elaborate further on this point.
4. Mr. President, Italy has tried again to make the question of alleged outstanding reparations
the subject-matter of the present proceedings. However, facts occurring before the date of the entry
into force of the European Convention for the Peaceful Settlement of Disputes as between Italy and
Germany clearly lie outside the jurisdiction of the Court. As the Court itself expressly noted when
dismissing Italy’s counter-claim, reparation claims do not fall within the subject-matter of the
present dispute and do not form part of the present proceedings.
II.SCHEME OF REPARATIONS AFTER W ORLD W AR II
5. Mr.President, one important purpose of my introduction is to dispel any erroneous
impression that might have been created by our Italian and Greek friends that victims of German
war crimes were deliberately left without compensa tion. At the end of the Second World War, the
victorious Allied Powers proceeded from the conviction that Germany had to face up to her
responsibility by making reparations to all of the c ountries that had defeated the Axis States. The
mechanism that was put in place was a classic in ter-State mechanism. It was a comprehensive - 12 -
scheme for all countries concerned and covering al l war damages. No provision was made for
parallel reparation to individual victims. Italy and Greece were part of this comprehensive classic
inter-State scheme.
The victorious powers demanded that the Germ an Reich’s former allies waive all claims
against Germany arising from the Second World Wa r in their peace agreements with them. And
precisely this was the background to the peace treaty concluded with Italy in 1947. For, prior to
September 1943, Italy had been an ally of Nazi Germany. In contrast, Greece received her share of
reparations through the Paris Inter-Allied Reparations Agency.
6. The framework for reparations was establis hed by the Potsdam Accord of 2 August 1945,
concluded between the victorious Allied Powe rs, and unilaterally imposed on Germany.
Reparations took place in various forms, incl uding removals, primarily of industrial capital
equipment from the different zones of occupation, the confiscation of all German external assets,
and the renunciation of an area of more than 114, 000 sq km, about a quarter of Germany’s pre-war
territory.
7. In addition to this comp rehensive reparations scheme, Ge rmany, on the basis of policy
determinations of her own, put in place a system of compensation for victims of specific Nazi racist
and ideological measures of persecution. As of December 2010, some €70 billion had been paid to
individuals and States in this context. These pa yments continue: €600million are currently paid
each year to victims of Nazi persecution.
8. With regard to Italy and Greece, German y decided to provide compensation both to the
governments and to individual victims.
With your kind permission, Mr. President, I will provide some detail here in order to refute
the arguments based on necessity and on an alleged denial of justice, and to demonstrate that
Germany has indeed shouldered her responsibility.
⎯ At the beginning of the 1960s the Federal Republic of Germany paid DM115 million to Greece
for victims of racial and religious persecution. Germany likewise concluded the two treaties
with Italy referred to in our Memorials, under which a lump sum of DM80 million was paid to
Italy. - 13 -
⎯ Roughly 3,400Italian civilians were compensated for their forced labour by the Foundation
“Remembrance, Responsibility, Future”. The total amount of funds awarded to Italian
individuals by this Foundation was close to €2 million.
⎯ Furthermore, roughly 1,000Ita lian military internees were awarded compensation for forced
labour under the Foundation scheme.
⎯ In addition, numerous Italian and Greek indi viduals received payments under the German
post-war compensation legislation.
9. To sum up, there was a comprehensive repara tions scheme that was fully implemented. It
was based on the premise that lump-sum payments are made to governments to compensate for war
damages and that citizens must turn to their own governments to receive their share. All victims of
war crimes were thus covered by this scheme. Germany further made individual payments to
foreigners on a voluntary basis. These were on the whole paid to victims of specific types of Nazi
racial and ideological persecution, and not genera lly to those who suffered loss and injury due to
war. These collective reparation mechanisms were as comprehensive as possible. To the extent
that recompense can ever be made for such gr ievous crimes, and we know that it cannot, Germany
has honestly tried to do so. The idea that this w hole reparation scheme needed to be subverted in
2004 is unacceptable.
10. The implementation of this reparation scheme was the basis and prerequisite for
democratic Germany’s re-admission into the inte rnational community. It enabled Germany to
become a major pillar of European integration, together with Italy and later Greece. This has been
acknowledged by the Italian Government. For d ecades, the Italian Government considered the
reparations chapter to be closed. It was only when the German Government unilaterally ⎯
together with German industry ⎯ decided to make ex gratia payments to former forced labourers
in the year 2000 that Italy raised the issue of Italia n military internees. It is true that prisoners of
war were not included in this specific scheme. But those military internees who had also been
subjected to racial and/or ideological persecution were entitled to payments. - 14 -
III.D ENIAL OF JUSTICE
11. The allegation that there was a denial of ju stice is mistaken. All plaintiffs had the option
of pursuing their claims before the German courts and, eventually, before the European Court of
Human Rights. In a number of cases the claimants did indeed go to Strasbourg. The Court in
Strasbourg decided that Article 6 of the European Convention on Human Rights, in which the right
to access to justice is enshrined, was not violat ed. We have quoted these judgments in our written
submissions and in our oral pleadings.
Just how erroneous the allegation of a denial of justice is can be seen from the leading case
in which the Italian Corte di Cassazione formulated its new doctrine: the Ferrini Judgment. Here
the plaintiff, Mr.Ferrini, had decided not to lodge his application with the competent German
institution, the Foundation “Remembrance, Responsibility, Future”. Mr. Ferrini was not a prisoner
of war but a civilian who was subjected to forced la bour. In principle, he would have been eligible
for funds from the Foundation. However, he did not apply for compensation from the Foundation,
let alone take his case to German courts. Instead he filed a case in Italy. Therefore, the allegation
of our Italian colleagues that Mr.Ferrini had no other option than to resort to the Italian courts is
simply not true. Consequently, the Corte di Cassazione when delivering its judgment in the
Ferrini case did not refer to denial of justice as submitted by our Italian colleagues.
12. Mr.President, yesterday our Greek colleagues presented in detail an account of the
various proceedings in the Distomo case: before the Greek courts, before the German courts and
eventually before the European Court of Human Rights. How can anyone assume that there was a
denial of the right to access to justice which then forced Italian judges to take such action?
IV.O UTLINE OF THE G ERMAN PRESENTATION
13. Mr.President, with your permission, I will now outline the structure of Germany’s
second intervention.
Professor Tomuschat will first explain why the denial of justice argument cannot justify the
abrogation of Germany’s State immunity by the Italian courts. He will also address the Italians’
attempt to apply retroactively emerging concepts of international law, as well as their grant of an
exequatur to the Greek judgment in the Distomo case that I just mentioned. Professor Gattini will
thereafter refute the alleged applicability of the tort exception of State immunity, and will - 15 -
demonstrate that the Italian waiver contained in the peace treaty concluded with the Allied Powers
cannot be interpreted as narrowly as contended by Ital y. He will further show that there is no way
in which Germany can be said to have committed an abuse of rights. ProfessorKolb will then
comment on aspects of international humanitarian law, jus cogens, the argument of complicity, and
the alleged special character of the Italian cases. Lastly, I will present Germany’s formal
submissions.
Mr. resident, I now respectfully ask you to give the floor to my colleague
Christian Tomuschat.
The PRESIDENT: I thank Ambassador Susanne Wasum-Rainer for her presentation and I
now invite Professor Tomuschat to take the floor.
TMOM. USCHAT:
1. Mr.President, distinguished Members of the Court, a moment ago, MsWasum-Rainer
explained that the core argument of the Respondent, namely that Germany has refrained from
providing any kind of re paration to the victims of breaches of international humanitarian law
committed by the authorities of the Third Reich during the period when Italy was under occupation
from September 1943 to May 1945, is simply not tr ue. Germany has indeed paid compensation to
many categories of Italian victims ⎯ yet not to everyone, which is openly admitted. Indeed, the
German Government is of the view that with regard to specific war damages other modalities of
settlement were resorted to, a fact which theRespondent has chosen to ignore although it has
consistently reiterated that the issue of reparation must be seen within its surrounding context.
I.W AIVER CLAUSES IN RESPECT OF REPARATION CLAIMS ARISING FROM BREACHES OF
JUS COGENS RULES UNLAWFUL ? A GROSS ERROR AND DANGEROUS THESIS
2. Mr.President, taking the observations presented by the Respondent, in particular
Professor Zappalà1, at their face value the whole of Europe would end up anew, 66 years after the
end of World War II, in a state of tensions, enity and distrust. Why am I saying this? Well,
pursuant to the Respondent’s argument all the pe ace settlements reached between the ex-enemies
1
CR 2011/18, pp. 28-30, paras. 13-16 (Zappalà). - 16 -
would to a large extent be null and void. Not a single one of all these complex settlements, some of
which set out in explicit terms, others in some what subtler form, waivers of reparation claims
would survive the surgical stroke of an analysis which handles jus cogens as its multiple-purpose
sword. The contention is: reparation claims resulting from breaches of jus cogens cannot be
renounced. When entering into negotiations for a peace agreement, governments must insist from
the very outset on absolute and unrestricted fulfilment of any entitlements that may have accrued to
them under the law of State responsibility, if and to the extent that such entitlements result from
infringements of hierarchically superior norms.
3. This contention appears strange, very strange indeed. It introduces a novelty into
international law: claims that may never be forgone, which cannot be waived. Yes, it is true that a
State can never enter into an agreement with anot her State that would provide for the violation of
basic rights of the individual. No State can allow another State to torture its citizens, to kill them at
random, to hold them in slavery, to engage in genocidal practices. Such activities running counter
to jus cogens norms or to obligations erga omnes cannot be condoned or permitted, under no
circumstances. And perpetrators of such crimes must indeed be prosecuted. But it is quite another
matter to dispose of financial reparation claims r esulting from such and similar offences. The tort
has been committed. The life and limb of the indivi dual concerned are no more in danger. At that
stage, when the unlawful act was already c onsummated, questions of enforcement and
implementation arise. The realization of responsibil ity can take the most diverse forms. There is
simply no jus cogens rule which provides how breaches of jus cogens must be repaired. Let me
emphasize this sentence again: in matters of financial compensation, no jus cogens exists. The
cautious drafting of Article41 of the ILC Articles on State Responsibility clearly shows that as a
general rule the ordinary ways and means of re paration are available to the States concerned.
Clearly, any State can choose to renounce an entitle ment which it has on grounds which it deems
appropriate. Such grounds may be of the most diverse nature. One of the reasons which may
impel a government to waive certain claims is to establish a firm and durable peace after a period
of armed hostilities that has brought about death and destruction to its people. In any event, it
would appear to be crystal clear that no rule of jus cogens enjoins States to proceed to a settlement
where each and every violation of a rule of hum anitarian law must be taken up and sanctioned by - 17 -
specific reparation measures, pursuant to a bureaucratic list of the relevant violations one by one, in
accordance with complex rules of taking evidence.
4. The model advocated by the Respondent is so far removed from reality that one may even
ask whether it is meant seriously. Let me start by giving just one example. The Two-plus-Four
Treaty of 1990 bringing to a formal end World War II by removing the overall responsibilities still
held by the Victorious Powers of World War II. In the relationship between the former adversaries
of the German Reich and the two German St ates this was the final close of the war, el punto final.
However, what does the Respondent tell us? This settlement, hailed by the entire world as the
achievement of a long process of mutual accommodation is to a large extent null and void since it
does not do justice to the alleged entitlements of millions of persons who suffered injuries during
the war. This is indeed the gist of their su bmissions. States had no right to dispose of the
compensation claims of their nationals.
5. What are the consequences of this outrageous construction? Well, it stands to reason that
they would subvert the entire post-war architecture of peaceful relations between States. Germany
would have to pay compensation to millions of peop le although, at the inter-State level, it made
reparation on a large and unprecedented scale. Germany knows well that World War II caused
death and physical injury to huge, almost indescribable numbers of people. But international law is
a law of reciprocity. Germany is not a pariah St ate, and the enemy State clauses of the Charter of
the United Nations ⎯ Articles53 and 107 ⎯ have become obsolete. In other words: German
victims of war crimes would necessarily be in the same position. I do not have to go into details.
What happened, in particular, when at the end of World War II Germans and ethnic Germans were
expelled from the eastern parts of Germany and fro m other countries of Eastern Europe is well
known. Air raids against Hamburg and Dresden would have to be examined as to their
compatibility with international humanitarian law. I could also give an account of the losses
suffered by my own family, but I abstain from so doing.
6. In other words, the legal stance advocated by Italy would lead Europe back into the
unfortunate past of the years between 1939 and 1945. This time, no armed battles would take
place. But legal battles would be fought, everywhere in Europe. Everyone believing that he or she
suffered damage because of a violation of rules of international humanitarian law could today, - 18 -
66 years after the formal end of World War II, file an action before the courts of his or her country
against the alleged wrongdoing State, notwithstanding the existing settlements concluded between
the States concerned. This is not just a politi cal consideration, without any value on the legal
plane. What I have hinted at shows persuasi vely that the traditional way of coming to terms
through international agreements, where the State that receives compensation then proceeds to the
distribution of the funds received to its nationals, has an inherent logic which is designed to render
peace possible.
7. What counsel for the Respondent suggest as the appropriate and just solution would
amount to a recipe for continued enmity, a state of tension which could never be ended by peaceful
means. Indeed, the Respondent argues that just any individual might object to the definitive
conclusion of a peace agreement. Complete satisf action could never be reached. A veto right
would be granted to everyone wishing to block the road to peace, to a fresh beginning.
II.JURISDICTIONAL IMMUNITY HAS NOT SHRUNK
8. After this introduction, which to some may seem exceedingly dramatic but which is
perhaps not even pessimistic enough, let me come back to the core substance of the present dispute,
which is nothing more and nothing less than juri sdictional immunity. The German team listened
carefully to what was said on Tuesday by Italy about that principle. However, to be frank, not
much was advanced that could lend support to the thesis that jurisdictional immunity has shrunk
below the level to which it receded under the effect of the commercial-question doctrine. It is of
course well accepted today that no State may claim immunity for business transactions. But to
deduce from the transition to the restrictive theory of immunity in respect of acts jure gestionis that
the process continues unabated, affecti ng even immunity in respect of acts jure imperii, is grossly
erroneous. Germany must reiterate its clear stance: general international la w consists of rules of
positive law, rules that have come into existen ce by practice and an overarching legal opinion of
the international community to the effect that the facts as empirically observable constitute binding
precepts. - 19 -
9. Rather vaguely, without proceeding to a clear analysis of the decision of the French Cour
de cassation of 9 March 2011, counsel for the Respondent argued that that decision amounted to a
departure from the former jurisprude nce of the Court, reflected in Bucheron, according to which a
State enjoys absolute immunity in respect of its acts jure imperii . A perusal of the relevant
passages makes clear that the Cour de cassation considered in an obiter dictum that, perhaps, acts
of terrorism might be outside the protective umbrella of immunity, without, however, coming to a
definite conclusion in that regard. In sum, three points should be noted: First of all, the issue was
terrorism and not armed warfare. Second, the case concerns occurrences of 1989 while here
occurrences dating back almost 70years need to be assessed. Third, the Cour de cassation
ventilates an idea which it neither approves nor reject s, just stating that this is an issue which
requires due attention. This is not the piece of concrete, palpable, tangi ble practice that could
become the pillar of a new customary rule. By contrast, the recent decisions which Germany has
put before you are all unequivocal: the rule of State immunity stands and must be respected.
10. Yesterday, the Agent for Greece was in some trouble when he had to explain the scope
and meaning of the Margellos decision of the Special Court under Article100 of the Greek
Constitution. Visibly, he tried to belittle the le gal connotation of that decision. Notwithstanding
his expert knowledge, Germany feels entitled to not e: the Special Court is a court specifically
entrusted in Greece with ruling on the existence and scope of general rules of international law. It
is not just one of many specialized courts with little authority. And the law of implementation,
which was strangely enough not mentioned by Greece, specifies in Article 54 that decisions of the
Special Court are binding on all Greek judicial authorities in respect of the issue that has been
decided. In fact, after the Margellos case ⎯ as already pointed out by Ms Wasum-Rainer ⎯ not a
single diverging judgment has been rendered in Greece. Even the Areios Pagos has heeded the
authoritative determination by the Sp ecial Court. Accordingly, the Margellos decision is of the
highest importance when we talk about the legal position with a view to ascertaining the existing
legal practice in light of Article 38 (1) (b) of the Statute of the Court.
11. Mr.President, distinguished Members of this Court, we should not lose sight of the
essential factual element of the case pending before you. You have to adjudicate a dispute that has
arisen from the occurrences of World War II, a war th at engulfed the whole of Europe in a state of - 20 -
violence for almost six years. And the crucial question is: how can the consequences of armed
conflict be settled, what are the modalities which international law puts at the disposal of the
parties concerned to come to terms with a phe nomenon which, by necessity, entails injuries and
losses, including human lives? What the Respondent suggests is that every victim should be
enabled to pursue an individual reparation claim fo r the damage he or she has suffered. In other
words, any settlement would be privatized and individualized. States would be displaced from
their traditional role as guarantors of the common we al at a stage when many considerations come
into play. On the one hand, after armed conflic t the necessity to make compensation for the losses
sustained becomes an urgent concern. On the othe r hand, the bases must be laid for a fresh start in
the relationship between the former enemies. Therefore, time becomes also an important factor.
Treaties can normally be concluded fairly swiftl y: not always, of course. If each and every
individual case had to be examined separately, swif t action would be rendered impossible. At the
level of implementation, the difficulties would ev en grow into insurmountable obstacles. Why
should any State recognize thousands of judgm ents rendered by judges from another nation
convicting it, so to speak, of wrongdoing? An unfortunate cycle of charges and counter-charges
would begin, each side beginning engaging in judicial practices denouncing the war crimes
committed by the other side.
12. It is for these reasons that internati onal law has evolved, over decades and even
centuries, the rule of jurisdictional immunity, designed to permit a settlement at diplomatic level,
very often by lump-sum agreements where the State entitled to reparation assumes the burden of
distributing the sums received to its nationals. Thus, State immunity has an inherent logic, a raison
d’être which has by no means become extinct. In particular, the classic modes of settlement ensure
that the victims are compensated ac cording to criteria of justice and equality. Otherwise, if we
leave the settlement of war damages to private in itiative, the most clever people, knowing how to
initiate legal proceedings and being fortunate to hire well-versed lawyers, might get the lion’s part,
while the ordinary citizen would remain without any remedy. Thus, the traditional mode of
settlement has also the advantage of a well-ordered default procedure, where strict rules, to be
issued by the victim State, guarantee fairness and equity. This observation shows at the same time
that the mechanical opposition resorted to by the Respondent and yesterday by the intervener, - 21 -
claiming that on the one side there are individual human beings in need of protection while on the
other side there are powerful cold and distasteful States is simply e rroneous: well understood,
jurisdictional immunity ensures good order in interna tional relations, not least to the benefit of the
individual victim citizen.
13. Mr.President, distinguished Members of the Court, Italy has put before us a few cases
which allegedly show that the rule of jurisdictional immunity has become fragile and should not be
observed in the present case. The truth is: none of the cases, not a single one, concerns situations
of armed conflict! There is no new practice that might support the inference that domestic courts
have transgressed the principle of jurisdictional immunity with regard to disputes arising from
reparation claims based on violations of interna tional humanitarian law. Reference has already
been made by me to the recent decision of the French Cour de cassation of March of this year.
This dispute concerned an act of terrorism, an is olated, though, of course, very serious act of
terrorism. And the Canadian case, submitted at a very late stage, during the pleadings of Italy last
Tuesday, concerns an act of torture to the de triment of one person. Yet, individual cases of
wrongdoing cannot be compared to the violati ons that are committed during armed hostilities,
where ⎯ unfortunately ⎯ a mass phenomenon has to be addressed ⎯ and resolved. One must see
these recent cases in the same light as the US case of Letelier, where the American judges seised by
the relatives of ex-minister Letelier of Chile ruled that Chile had to answer the claim and that they
had jurisdiction to go into the merits of the case. This is one class of cases, attacks on the physical
integrity of a person on the soil of the forum Stat e. But: how can one possibly equate these cases
with criminal occurrences during armed conflict? It is the fundamental intellectual duty of lawyers
to distinguish. Already during the first days when we happily arrived at law school for the first
time we were taught to distinguish. Have a careful look at the factual circumstances characterizing
a case and which determine its essence! Do not fall pr ey to false analogies! Do not follow blindly
the abstract terms of a legal provision! This is necessary in our case as well.
14. It is in this sense that the interpreta tion of Article12 of the United Nations Convention
must proceed. My colleague, ProfessorGattini, will scrutinize in more detail the scope and
meaning of Article 12. But let me say already at this stage: it is obvious that Article 12 does not
talk about warfare! It clearly is meant to c over accidental events, not organized violence during - 22 -
warfare. The terms are there, one just has to ta ke note of them. And the drafting history does not
contain a riddle, it is no enigma. The original intention was to cover road accidents and other
insurable risks. This is the gist of Article 12. To apply it to armed warfare is to distort its essential
meaning. There are lim its to any interpretive endeavour. Let me just recall the preamble of the
United Nations General Assembly resolution adopt ing the United Nations Convention and also the
statement by Mr. Hafner, chairman of the Working Group that eventually succeeded in pushing the
Convention over the hurdles where it had lain blocke d for many years. All this has been amply
explained in our written submissions and already clarified by Professor Gattini in his pleadings.
III.C OMPLIANCE WITH JURISDICTIONAL IMMUNITY IN PRACTICE
15. Mr. President, before addressing the erroneous contention that Germany has not provided
any reparation to Italy, let me just make one observation that may seem self-evident but is not
self-evident at all ⎯ but maybe it is self-evident for a law-abiding country. And this observation is
as follows: in Germany, no plaintiff has ever su cceeded in bringing a claim against the States at
the hands of which he ⎯ or she ⎯ suffered injustice, or to put it more mildly ⎯ believed to have
suffered injustice ⎯ during World WarII! Well, of course the courts in Germany are open.
Whoever believes that he or she has a claim against a foreign country can introduce such an action.
Nobody is prevented from so doing. But the releva nt claims have never been successful, not in a
single case. There were cases where persons fo rcefully expelled from a number of Eastern
European States under the most degrading conditions and deprived of their properties without any
kind of reparation filed actions against the relevant States: no way, the claims were deemed to be
inadmissible by virtue of the principle of sovereign immunity.
16. Would it be the ideal solution, as advo cated in principle by Italy and also by the
intervener, that the more recent wars in Iraq and in Afghanistan be settled through individual
actions by persons who might be ab le to argue that they have become the victims of war crimes?
This is by no means to suggest that series of war crimes were committed on a daily basis by the
foreign troops deployed there. On the other ha nd, it is an undeniable fact that war crimes were
committed. Do we know anything about civil actions brought by the local population against the
troop-contributing countries? Not the slightest hi nt of such legal responses has become known in - 23 -
the international legal community. No doubt, the victims should be compensated. But the ways
and means must be carefully devised by the governments concerned. Many channels are open for
that purpose. It is certainly not by accident that no attempt has been made to proceed unilaterally,
imposing domestic judicial decisions on the alleged wrong-doing State.
IV. G ERMANY ’S ALLEGED FAILURE TO PROVIDE REPARATION
17. Mr. President, allow me now to come to an issue which has taken a pivotal role in Italy’s
pleadings but which is, if considered more clo sely, a secondary question, namely the extent to
which Germany has in fact provided redress to the victims. Of course, from the human viewpoint,
reparation and compensation are crucial. Victim s who can be identified should obtain reparation,
no doubt about that. We, as Members of the German team, are shocked like you about the
atrocities committed in the past by German armed forces in some places, in Italy as well as in
Greece. Even though the rules on military repr isals were fairly rough during World War II, the
armed forces of a civilized country should neve r have engaged in a war against civilians as
retaliation against partisan attacks. Our sympathy is with the victims. But the heart of the matter
here is whether Germany enjoys sovereign im munity for acts committed during World War II,
66years ago. Like any other sovereign State, Germany enjoys sovereign immunity after having
shown, for more than six decades after the colla pse, in 1945, of the evil Nazi dictatorship, its
willingness and ability to live as a peaceful partner within the international community of nations.
The misdeeds and crimes of the past are fully acknowledged. However, the dep
lorable
developments of World War II, which brought about a catastrophe not only for Germany’s
neighbours, but also for Germany itself, cannot and do not entail as a consequence that Germany
can be deprived of its attributes as a State that is on a par with all other States.
18. This does not mean that Germany wishes to escape responsibility for the offences which
the authorities of the German Reich perpetra ted in Italy from September1943 to May1945.
Germany notes that the ominous phrase “Immunity cannot mean impunity”, used in the written
submissions of the Respondent with a view to discrediting the German stance and attempting to
taint the invocation of immunity as an ugly ende avour to shed responsibility in a light-handed
manner, has not appeared again in Italy’s pleadings of last Tuesday. Germany is grateful to Italy - 24 -
for having corrected its language. It is clear now th at the debate has not been shifted onto the level
of criminal prosecution, suggesting that the German people should be collectively punished.
19. But coming now to the question of reparation, the legal position should be stated
unambiguously so that no misconception may arise. Two strands of reparation may be taken into
account, reparation to the victims individually, on the one hand, and collective reparation to Italy as
a State. When reading Italy’s pleadings, more often than not there is a definite lack of clarity as to
what was really meant by the speaker. Reparati on is mentioned as a catch-all concept. May I
recall again my concern that lawyers must distinguish. That is their first quality. Reparation on an
inter-State level is not the same thing as reparation to individual victims.
20. May I first address the issue of reparation to individuals. It was pointed out by
MsWasum-Rainer that many groups of persons were granted reparation in an individualized
manner, in particular those persons having suffered persecution on racial grounds. It was a point of
honour for the new Germany to distance itself from the outrageous racial persecution policies of
the Third Reich by providing compensation to the victims of such policies. The sums paid are
considerable.
21. On the other hand, Germany has consis tently taken the view that no individual
entitlements arise from violations of internati onal humanitarian law. ProfessorPerrakis, in
yesterday’s pleadings, has attempted to show that already in 1907 the governments convening at
The Hague agreed in Article 3 of the Fourth Convention on granting reparation claims to individual
victims in case of a violation of rules of international humanitarian law. This attempt has clearly
failed. The relevant practice of the peace trea ties for more than 100years has not confirmed the
thesis advocated by my learned colleague FritsKa lshoven. The issue has been extensively dealt
with in our written submissions so that we see no need to again take up the relevant discussion.
And Germany notes that Italy would seem to be in agreement with Germany in this respect. On
Tuesday, ProfessorZappalà said in paragraph31 of hi s pleading: “[W]hat is at issue here is the
question of State responsibility in its inter-State di mension. ... The question of the right of
victims to individually obtain reparation is not at issue.” 2 Professor Zappalà distinguished, he did.
2
CR 2011/18, p. 35, para. 31 (Zappalà). - 25 -
Well, this closes the debate on whether Germany may have failed to provi de redress to individual
victims. No inference may be drawn to the effect that individuals, seeing their entitlements
frustrated by Germany, had no other avenue than to turn to the courts of their own country.
Germany does not contradict Mr.Zappalà’s observations on this point. But it notes an
inconsistency in Italy’s line of reasoning. Prof essor Dupuy speaks of applicants who have vainly
sought to obtain reparation for 50 years 3. Well, Mr.Ferrini, in particular, as already pointed out,
has never submitted any application to the German authorities.
22. Consequently, the question arises whether Germany has failed to honour its obligation to
provide reparation collectively as it should have done, following Italy’s submissions. Italy’s stance
requires an explanation of the entire system of reparations as it was conceived by the community of
States having declared war on Germany under the leadership of the Three, and later Four, Allied
Victorious Powers: the Soviet Union, the Un ited Kingdom, the United States, later joined by
France. The foundations of that system were laid down at Potsdam, a few months after Germany’s
surrender. The Potsdam Agreement has a chapter on reparations that did not become a dead letter,
but was meticulously executed. It was meant to constitute a comprehensive peace settlement,
subject to further approval by a peace conferen ce that would be conve ned to define the new
boundaries of Germany, after the massive amputations already decided in principle by the
conference, in the absence of Germany as a def eated country. At that time, at Potsdam,
determinations were made as to the quantity of reparations, as to their form and modalities and as
to the countries that should become beneficiaries of the assets to be distributed. Italy was not taken
into account as being entitled to reparations. I ndeed, this determination of principle was
implemented by the Paris Interallied Reparations Ag ency which operated as a centre of computing
and distribution. Accordingly, no payments were made to Italy from those assets. The intention
was to assist the countries that had become victims of the wars of aggression launched by the Axis
Powers. Greece was among those States that were counted as beneficiaries. Of course, and
logically, Germany was only considered as the aggressor that was obligated to make good the
damage caused by it to the greatest extent possible. And Italy was not taken into account as a
3
CR 2011/18, p. 53, para. 8 (Dupuy). - 26 -
beneficiary either, very simply because before jo ining the victorious Allied Powers in 1943 it had
engaged in a similar manner in aggressive policies. Italy could not shed its past. Wisely enough, it
had abandoned its close connection with Nazi Germany at a point in time when the fall of the Third
Reich became a realistic prospect. But for the purpose of the peace settlement it was still
considered an aggressor State. Until September 1943, it had participated actively in the imperialist
subjugation of European peoples. Understandably enough, it was felt that it should provide redress
to its nationals, to its victims, from its own resources.
23. It is hence understandable that Italy had to renounce all claims against Germany by
virtue of Article77, paragraph4, of its Peace Treaty. Both countries, the Third Reich and fascist
Italy, had been accomplices in attempting to estab lish a hegemonic system in Europe, in violation
of the right of self-determination of the peoples not allied with them. Why should one partner of
that unholy alliance be gratified by reparation claims against the other? Article 77, paragraph 4, of
the Peace Treaty is a deliberate sanction imposed on Italy which, under other provisions of the
Peace Treaty, was enjoined to make reparation to the countries occupied by it.
24. Clearly, the Allied Powers, on the strength of the responsibilities which their victory had
brought to them, exerted some kind of discriminati on against Italy. However, as just explained,
this deliberate discrimination had specific reasons . On the whole, the system of reparations
conceived of by the Allied Powers was carefully equilibrated. No State against which the Axis
Powers had conducted military ope rations obtained full compensation for the losses and injuries it
had suffered. The available assets were scarce, and Germany had to be given the chance of
rebuilding a future, in particular for its younger generations. Therefore, some countries particularly
severely hit obtained larger portions of the assets ready for distribution, and some other
countries ⎯ like Italy ⎯ were completely left out of consideration. This discrimination, this
inequality does not mar the established architecture as a whole. It had its intrinsic, well-pondered
reasons. Accordingly, the Respondent cannot claim that it was unfairly treated.
25. In sum, the Potsdam Agreement, which w as eventually confirmed by the Two-plus-Four
Treaty of 1990, established, together with the Paris peace treaties of 1947, a comprehensive system
of reparation applicable to all countr ies that had been enemies of Germany ⎯ like Italy that
declared war on Germany after having denounced its association with the Third Reich as a - 27 -
consequence of the rupture of September1943. Italy cannot possibly contend that the Potsdam
Agreement and the Two-plus-Four Treaty of 1990 ar e not opposable to it. The Victorious Powers
of WorldWarII had established a directorate in Eu rope that was never objected to and had to be
formally accepted by Italy through the Peace Treaty of 1947. My colleague AndreaGattini will
proceed to a further analysis of Article 77, paragrap h4, of that Treaty. It was my task to present
the political, historical and legal context of the wa iver clause which must not be seen as a kind of
accident, a derailing provision which does not fit into the system of international responsibility.
The contrary is true! The waiver clause was de liberately imposed on Italy as a sanction of the
international community for its earlier wrongdoing as an accomplice of Germany during a war
which destroyed the bases of civilization in Europe.
26. Thus, in light of what has just been observed, there can be no question of Germany being
remiss in fulfilling its duty of reparation. German y has paid dearly for the criminal adventures of
the Third Reich. Eventually, in 1990, the last page was written: Germany recognized once and for
all that the territories which at Potsdam had been provisionally placed under Polish and Soviet
administration had become Polish or Russian territory . More than 100,000 sq km became thus the
price the new Germany had to pay for the failings of a criminal government which had not only
breached the peace in Europe, causing millions of losses of human lives in east and west, north and
south, but had also brought about death and destruct ion to the German people. Millions lost their
ancestral homes, their Heimat. But history cannot be rolled back, and not everything can be made
good again after evil has struck. Let us be happy and rejoice about the state of peaceful relations
currently existing in Europe.
27. Given that Germany cannot be faulted with not complying with its duty of reparation, we
see no need to discuss the very strange ne w theory of countermeasures advocated by
ProfessorsPalchetti and Dupuy. Their contention is that, because Germany was in breach of its
obligation to make reparation, th e Italian courts are entitled to rule on the controversial issues,
acquiring jurisdiction by a magic stroke, in tota l departure from the rules elaborated by the
International Law Commission. They are visibly on an erroneous course. - 28 -
V.B REACH OF G ERMANY S IMMUNITY BY DECLARING THE G REEK
D ISTOMO JUDGMENT ENFORCEABLE
28. Mr.President, let me now come to a next point I wish to address in more detail. The
judgment of the Greek Regional Court of Livadia in the Distomo case, which proved to be
inoperative in Greece because of the denial of th e Minister of Justice to give the requisite
authorization to its execution, was declared “enforcea ble in Italy” by virtue of two decisions of the
Court of Appeal in Florence. This was not a rou tine matter. The judges must have been aware of
the origins of the claim enshrined in the judgment of the Court of Livadia, a claim against Germany
derived from the Distomo massacre. Let me emphasize again: this was an abominable crime. We
as counsel for Germany, in the name of Germany, deplore deeply what happened at Distomo, being
ourselves unable to understand how military fo rces may exceed any boundaries of law and
humanity by killing women, children and elderly men. But the issue is a different one here: was
Italy allowed to lend its hand to the execution ofthe controversial judgment? And in fact,
measures of constraint were taken.
29. There can be no doubt that jurisdictional immunity has a wide scope. It protects a State
not only against claims being entertained as to their merits if acts jure imperii are in issue, but also
against the enforcement of judgments having as their subject-matter such acts. PartIV of the
United Nations Convention on Jurisd ictional Immunities of States and Their Property deals with
measures of constraint, allowing them only under very narrow conditions. The main point in issue
here is not mentioned explicitly in the Convention. It does not state that a judgment delivered in
violation of the rule of immunity may not be ex ecuted. But this proposition results unmistakably
from the general rule of State immunity as it is enshrined, inter alia, in Article 5 of the Convention
which embodies general international law. By d eclaring the judgment of the Regional Court of
Livadia enforceable in Italy, the Court of Appeal of Florence assumed jurisdiction over Germany in
a matter where national jurisdiction is excluded. Cl early, the decisions of the Court of Appeal of
Florence stand in the line of the Ferrini jurisprudence of the Corte di Cassazione. Therefore, the
objections raised against theFerrini jurisprudence apply also to the decisions that prepare the
ground for enforcement or order or permit actual measures of enforcement. - 29 -
30. It is significant, in this regard, that the lack of enforceability of the Greek Livadia
judgment is also established under the relevant legi slation of the European Union. The Brussels
Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, incorporated into European Community law, does not comprise claims from
actions of armed forces in the territory of one of the States parties as confirmed by the Court of
Justice of the European Communities in Lechouritou and Others, a judgment of 15 February 2007.
It is for that reason that the Italian State Advocate in Florence recommended to the Court of Appeal
4
to set aside the declaration of enfo rcement delivered at first instance . However, under the impact
of the Ferrini jurisprudence, the Court of Appeal did not heed this appeal. Thus, it emerges again
that a determination must be made on the legal correctness of the Ferrini logic, which in the view
of the Applicant subverts well-established mechanisms of international law for the compensation of
war damages.
31. On the other hand, Germany has duly taken note of the declaration of the Agent for Italy
who recognized on Tuesday that the inscription of a j udicial mortgage in the land register for Villa
5
Vigoni is not in conformity with international law and will accordingly be remedied .
VI. T HE TWO 1961 A GREEMENTS
32. Germany does not deem it necessary, at th is stage of the proceedings, to comment any
further on the two treaties of 1961. They are not at the heart of the present dispute. However, one
observation is called for. In its written submissi ons, Italy has argued that by concluding the two
treaties Germany has renounced any benefits of the waiver clause of the Peace Treaty. This
conclusion is untenable. Germany has consistently maintained that the waiver clause of the Peace
Treaty is fully valid and operative. On the other ha nd, no State is obligated to give up to a limited
extent advantages that have accrued to it. Th e conclusion of the two 1961 Agreements was meant
as a gesture towards Italy, designed to further im prove the relationships between the two countries
in the spirit of friendship that had developed with the establishment of the European Economic
Community in 1958, and to further normalize the ec onomic and financial relations. It was felt that
4
MG, Ann. 22.
CR 2011/18, p. 14, para. 12 (Aiello). - 30 -
States which were partners in the Community s hould strive to settle any divergences still existing
between them. Not the slightest clue can be gleaned from the two treaties in the sense that
Germany wished to forego the benefits derived fro m the waiver clause of Article 77, paragraph 4,
of the Peace Treaty, and indeed the argument was not reiterated during Tuesday’s pleadings.
33. Mr. President, this concludes my part of the second round of Germany’s pleadings. May
I kindly request you now to give the floor to my colleague Professor Gattini.
The PRESIDENT: I thank Professor Christian Tomuschat for his presentation. I now invite
Professor Andrea Gattini to take the floor.
GMAr. TINI:
1. Mr.President, distinguished Members of the Court, in my first pleading on Monday I
demonstrated how the two arguments advanced by the Respondent, in order to justify the denial of
State immunity by the Italian Court of Cassation, that of the tort exception and that of the
jurisdiction by necessity, are devoid of any foundation. Our Italian esteemed colleagues have tried
to counter my arguments respectively on the firstand on the second points. Both attempts were
inevitably doomed to fail.
A. TORT EXCEPTION
2. I will start with the tort exception. Allow me to clarify from the outset a misunderstanding
in which our counterpart has apparently incurred, but surely not you, distinguished Members of the
Court. ProfessorPalchetti believes to have detected a contradiction between my statements, the
statement of ProfessorTomuschat and that of MsWasum-Rainer with regard to Article12 of the
United Nations Convention on State Immunity. There is no such contradiction.
ProfessorTomuschat said that the United Nations Convention “generally” reflects customary
international law, MsWasum-Rainer spoke of “a correct interpretation of customary law as
expressed in Article12”, but obviously in the understanding that, as I have demonstrated, the
correct interpretation is that one which exclud es the activities of foreign armed forces from the
scope of application of the Article. Surely, what I have done, is to instil some doubts whether that
Article12 accurately reflected State practice as it stood at the time of its adoption and, one may - 31 -
add, as it still stands, to the extent that the International Law Commission did not make clear that to
overcome the distinction between activities jure gestionis and activities jure imperii in this matter
entailed an element of progressive development of international law. The arguments presented to
you by ProfessorPalchetti on the scope of the to rt exception prompted me to now add a second
doubt, which you might find relevant, and which rela tes to the fact that under Article12 of the
United Nations Convention the activity must have taken place “in whole or in part” on the territory
of the forum State.
3. You will notice that Article11 of the Eu ropean Convention on State Immunity says that
the facts which occasioned the injury or damage must have “occurred in the territory of the State of
the forum”. Also the pertinent rules in the nati onal statutes which inspired the International Law
Commission when drafting Article12, be it Section1605(5) of the United States Foreign
Sovereign Immunity Act of 1976, or Section 5 of the United Kingdom State Immunity Act of 1978,
limit themselves in saying that the injurious conduct must have occurred in the territory of the
State, without specifying whether in whole or in part. Both articles, however, have consistently
been interpreted by the national courts as requiri ng that the whole injurious conduct took place in
the territory of a forum State. If this is actually the true picture of customary international law with
regard to the tort exception, then this would exclude most of the cases decided to date by the Italian
Court of Cassation, not only all of the IMIs cases, but the Ferrini case as well.
4. Counsel for Italy generously concedes that the tort exception would not apply to the cases
in which the entire activity took place outside the fo rum State, such as the Italian cases of Italian
soldiers who were captured by the Wehrmacht abroad, say in Greece, and brought to Germany.
But it is quite unfortunate that the Italian Court of Cassation was apparently of a different opinion,
when in one of the 11orders of 29May2008, it repeated the usual formula of civil universal
jurisdiction on tort exception also with regard to a Mr.Sciacqua, who was indeed captured in
Kefalonia, Greece, in 1943 and brought to Germany.
5. The fact is that it is only in the recent judgment of 20May 2011 in the Repubblica
Federale di Germania c. Autogestione prefettizia di Voiotia (Corte di Cassazione, prima sezione
civile, No. 11163/11) that the First Chamber of the Court of Cassation, made aware of the dead end
into which the United Sections had manoeuvred themselves, parted way with the concept of - 32 -
universal civil jurisdiction and resolutely took the tort exception path. As I said in my first
pleading, the enthusiastic adherence by the Court of Cassation to the concept of universal civil
jurisdiction in the Ferrini decision was just a logical, one could even say the all-too-logical,
consequence of the whole structure of the Court’s arguments based on the pre-eminence of
jus cogens, as the Court itself plainly affirmed. As you will recall, the main thrust of the Court of
Cassation, indeed, its only demonstration of the alleged correctness de lege lata of its view, was to
affirm a ⎯ in our view totally misplaced ⎯ parallel between the lack of immunity of the individual
organ from criminal jurisdiction because of the commission of a crime against humanity and the
lack of immunity of a State from civil jurisdiction; hence the equation of universal criminal with
universal civil jurisdiction. One cannot just erase a part of a portrait, say the nose, even in a
painting by Picasso in his cubist period, without disfiguring the whole.
6. The late and clumsy rejection of this ki nd of jurisdiction in favour of a tort exception
smacks of a rueful obedience to a co-ordinated and instigated change of st rategy, in the desperate
attempt to break the splendid isolation of the Cour t of Cassation, which with the passing of time is
becoming more and more embarrassing. Mr.Preside nt, distinguished Members of the Court, you
yourselves have been witnesses, surely not victims, of such a strategy on Tuesday, when hearing
ProfessorPalchetti declaring that “we are at a poi nt of convergence of two different tendencies”,
conveying the message that the tort exception would go hand in hand with the possibility of
restrictions to immunity in cases of grave breaches of jus cogens (CR 2011/18, p. 45, para. 20).
This is why, in its most recent decision of 20May 2011, the first Chamber of the Court of
Cassation lays its last hopes in the former House of Lords. In the Jones decision of 2006,
Lord Bingham, while disposing of the Ferrini decision with the felicitous chilling remark that “one
swallow does not make a rule of internationa l law”, as a gesture of politeness had added the obiter
dictum that: “[I]t may be, despite the Court’s closi ng statement to the contrary, that the decision
was influenced by the occurrence of some of th e unlawful conduct within the forum state”. This
seems sufficient in the eyes of the Italian Court of Cassation to now boldly announce that:
“At this point we may already conclude that, when the limiting principle of
locus commissi delicti is taken into account, the Ferrini judgment is by no means out
of step with the international jurisprudence.” (Para. 33 of the Judgment.) - 33 -
7. Now, the Court of Cassation reads a whole dream world into this obiter dictum. The
solution of the Jones case would have been very different, so the Court informs us, if the events had
occurred in the United Kingdom, given the tort exception clause of Section5 of the United
Kingdom State Immunity Act. Now, Mr. President, distinguished Members of the Court, allow me
to express what most of you are probably thinking at this moment: all this sounds like the noise
made by a frightened walker, whistli ng to give himself courage in a deserted street in the dead of
night, rather than a happy-go-lucky whistler on a sunny spring morning. In fact, what the Court of
Cassation apparently ignores is that the United Kingdom, alas, has ratified the European State
Immunity Convention of 1972, and Section16, paragraph2, of the United Kingdom State
Immunity Act expressly says that: “[t]his Part of this Act does not apply to proceedings relating to
anything done by or in relation to armed forces of a State while present in the United Kingdom”,
with the consequence that decisions like Ferrini and all subsequent rulings would be plainly
inconceivable in the United Kingdom.
8. These last remarks lead me to that part of the Italian counsel’s presentation devoted to the
scope of the “without prejudice” clause of Article31 of the European Convention on State
Immunity. The only adjective which comes to my mind is, frankly, outrageous. My learned
colleague wants to make you believe that: “The r eason which led to the inclusion of this clause in
the Convention has nothing to do with the need to shield military activities from judicial scrutiny.”
And he thinks to find support for this thesis in the Explanatory Report of the Convention of
Article 31. Now, this statement, by our esteeme d colleague, is both false and wrong. Why false?
Because paragraph 116 of the Explanatory Report to the European Convention on State Immunity
is formulated as follows ⎯ and permit me to quote it at length:
“The Convention is not intended to govern situations which may arise in the
event of armed conflict; nor can it be invoked to resolve problems which may arise
between allied States as a result of the stationing of forces. These problems are dealt
with by special agreements.” (Emphasis added.)
Then, why wrong? Because, if we look at those special agreements regarding the stationing of
forces abroad ⎯ the so-called SOFAs ⎯ the result exactly confirms our position on the lack of
jurisdiction of a forum State for activities of fore ign armed forces. The general rule, as expressed
in the United Nations Model SOFA (Model status-of-forces agreement for peacekeeping - 34 -
operations) adopted in October1990 (doc.A/45/594 ) is that of exclusive jurisdiction by the
sending State (Art. VI, paras. 46, 47 (b), 48), or else, like in the London Agreement on the Status of
NATO forces of 1951, the rule is that of concurring jurisdiction, with the primacy of that of the
sending State.
9. Now, the Respondent would object that th ese special agreements are concluded between
Allies, or that they concern peacekeeping missions, and therefore that the solution would be
different with regard to situations arising in the ev ent of an armed conflict. But this is exactly the
point in which customary international law enters the scene. The Respondent tries to make a point
by maintaining that the right way to put the ques tion would be “whether international law imposes
on States an obligation to accord immunity for acta jure imperii in cases where the tort exception
applies”, and he comes very quickly to the conc lusion that it does not, because of the formulation
of Article 12 (CR 2011/18, p. 42, para. 12 (Palchetti)). That is a very peculiar way not to put, but I
would say rather to beg the question. The Respondent seems oblivious, totally oblivious, of the
core rule of the entire United Nations Convention, Article5, the very first article of PartII on
general principles, which says:
“A State enjoys immunity, in respect of itself and its property, from the
jurisdiction of the courts of another State, subject to the provisions of the present
Convention.”
The Article could not be clearer: State immunity remains the rule; non-immunity is the exception,
which must be duly proven. And, when coming to the hard facts of State practice, it is no surprise
that the Respondent did not quote a single preceden t, obviously with the by now eternal exceptions
of the Greek Distomo case and the Italian Ferrini jurisprudence, in which the courts of the forum
State had not duly recogni zed immunity to the foreign State fo r the activities of its armed forces,
either for cases of isolated events, or a fortiori for cases of complex armed conflicts. The reason
for this total lack of practice supporting the Ita lian thesis is simple and obvious, and some of you
could probably even find me tedious, if I keep repeating it: post-conflict settlements are the
domain of inter-State relations, not of individuals and their domestic judges.
10. Italian counsel cursorily mentioned two recent decisions, one dated 25January 2011 by
the Superior Court of the Province of Québec in the Kazemi (Estate of) v. Islamic Republic of Iran
case (2011, QCCS, 196), the other dated 9 March 2011 of the First Civil Chamber of the French - 35 -
Cour de Cassation in the case GIE La Réunion Aérienne c. Jamahiriya Arabe Libyenne (09-14743)
(CR 2011/18, p. 40, para. 7 (Palchetti)). Indeed, th e mere mention of the first of the two decisions
is grossly misleading, and not just because it dea lt with the individual case of charter. In the
Canadian case the Plaintiff, Mr.Hashemi, brought a claim on behalf of the estate of his deceased
mother and further lamented the psychological trauma which he had su ffered in Canada after
having been informed of the arrest, detention, to rture and lastly death of his mother while in
custody in Iran. The Superior Court did not intend at all to deflect from the Bouzari decision of the
Ontario Court of Appeal of 2004, and even quoted the Al-Adsani and the Jones decisions as well.
Therefore it rejected the claim on behalf of the estate. On the other side, it did not dismiss the
claim of Mr.Hashemi for personal injury, applying the tort exception as it is formulated in
Section6 of the Canadian State Immunity Act of 1985. But what is rema rkable in that Act,
however, is that it deviates from other domestic statutes to the extent that it does not put as a
pre-condition that the author of the tortious conduc t was present in the Canadian territory at the
time of the occurrence of the facts. Under these ci rcumstances it is a curious endeavour indeed to
mention that case as evidence of a new trend denying foreign State immunity, either under the
heading of tort exception or, as Italian counsel does, under the heading of breach of jus cogens . As
for the French case, which was actually di smissed, the subject-matter as we heard by
ProfessorTomuschat, dealt with the “moral” responsibility of a State for a possible support of
terrorist activities. In conclusion, what remains, is that neither case had anything to do with crimes
related to armed conflicts.
I see, Mr. President, it is already 11.20 a.m. and I terminate the first part of my presentation.
I think it could be a good opportunity to have a break if you so wish.
The PRESIDENT: How much time do you need for continuing your speech?
Mr. GATTINI: About 20 minutes.
The PRESIDENT: Twenty minutes. Thank you, ProfessorGattini. I think, in accordance
with the suggestion by ProfessorGattini, we will have a short break here. Fifteenminutes until
11.35 a.m. - 36 -
The Court adjourned from 11.25 a.m. to 11.40 a.m.
The PRESIDENT: Please be seated. The Court now resumes its session. I do not have to
remind you that the time given to Germany for the second round of the proceedings is two hours
and a half. Professor Gattini, you may proceed.
Mr. GATTINI: Thank you, Mr. President.
B. JURISDICTION BY NECESSITY
11. Mr.President, distinguished Members of the Court, I now turn to the argument of
jurisdiction by necessity, which the Respondent motiv ates by an alleged denial of justice suffered
by Italian citizens in Germany. In my first plead ing I demonstrated that the Respondent’s thesis is
based on an erroneous assumption ⎯ the existence of an individual right to reparation for war
damages and a subsequent individual right of action ⎯ as well as on an erroneous understanding of
the very concept of denial of justice. Professo r Tomuschat has once again set matters right with
regard to these fundamental points, so that I am not going to repeat our arguments for a third time.
Yet, some of Professor Zappalà’s arguments deserve an attentive regard and refutation.
1. The Italian waiver of reparation against Germany in Article 77,
paragraph 4, of the Italian Peace Treaty
12. As we have heard, a large part of Professor Zappalà’s pleading was indeed aimed at
demonstrating that Italy did not waive any right on behalf of his citizens for personal injuries in
Article 77, paragraph 4, of the Peace Treaty of 1947 . Actually, by the very clear language of your
Order of the 6 July 2010, rejecting the Italian counter-claim for lack of jurisdiction, one would
assume that the whole issue of post-war settlement should not have encumbered us in the present
case. Apparently the Respondent held a different view, and Professor Zappalà’s pleadings on the
subject now compel us, as you heard Professor Tomuschat before me and me now, to spend some
time to set the record straight. - 37 -
13. The text of Article77, paragraph4, of th e Peace Treaty is so very clear, that one could
even use the old adage: “in claris non fit interpretatio” . On the contrary, the Respondent has
deployed all imaginable hermeneutic finesse in or der to make the norm just say the opposite of
what it plainly says. Let us read it again:
“Without prejudice to these [i.e., the dispositions in the preceding three
paragraphs] and to any other dispositions in favour of Italy and Italian nationals by the
Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian
nationals all claims against Germany and German nationals outstanding on May the
8th, 1945.” (Emphasis added.]
The norm further specifies that “this waiver shall be deemed to include debts, all
inter-governmental claims in respect of arrangements entered into the course of war, and all claims
for loss or damage arising during the war” (emphasis added). “On behalf of Italian nationals”, “all
claims for loss or damage arising during the war”: the language could not be clearer.
14. Nevertheless the Respondent tries to c oncoct an argument, by lumping together a
miscellany of a priori notions and dubious interpretative tools.
T1he. a priori notion is just a variation of the well-known Respondent’s refrain of the
existence of a peremptory international right of the individual to reparation. The Respondent
claims that, as this was already so in 1947, it follo ws that a State could not have validly waived the
rights of its nationals. I do not need to spend too much time on this argument. It suffices to say,
that for all possible developments of international law in the last 65 years, matters were definitely
not so in the aftermath of the Second World War. There is not a single piece of evidence, neither
State practice, nor judicial decision nor doctrinal authority, pointing in the direction of a right of the
individual to reparation at that time, let alone a peremptory one.
16. By the way, if the Italian argument had any foundation, a systematic interpretation, as
purportedly used by the Respondent (RI, paras. 3.9-3.11), would inescapably lead us to question
the legitimacy of the Italian waiver contained in Article76 vis-à-vis the Allied Powers as well.
That would be indeed a curious outcome of the present case.
17. But, even more worrying than the a priori notion, are the dubious interpretative tools
displayed by the Respondent. Without noticing the inner contradiction of its argument, the
Respondent drew your attention to the broad form ulation of Article76 of this Peace Treaty, with
the intent of persuading you that the more succinct Article 77 must be interpreted more narrowly. - 38 -
In particular, the Respondent points to the nouns “debts” and “all inter-governmental claims in
respect of arrangements entered into the course of th e war”, in order to demonstrate that the parties
had meant to refer “merely to economic relati onships” (CMI, para.5.49; RI, para.3.9,
CR2011/18, p.27, para.8 (Zappalà)), leaving in abeyance the different question of individual
claims for personal injuries.
18. It is not clear whether the Respondent is suggesting to you a peculiar “contextual”
reading different from that of Article31, paragr aph2, of the Vienna Convention on the Law of
Treaties, or an outright escape to the long discarded interpretative maxim of in dubio mitius, i.e., an
a priori restrictive interpretation when dealing with States’ obligations. This latter approach would
perhaps have some chances under an inter-temporal interpretation of the Treaty. The question of
inter-temporal interpretation, however, does not matter at all in our case, if one just sticks to the
fundamental interpretative principle enshrined in Article 31 of the Vienna Convention on the Law
of Treaties, that of good faith.
19. A glance at the documents of the Peace Conf erence clearly shows, that, when confronted
with the draft of what was to become Article77, the Italian Government, while trying to raise an
argument for taking into consideration various kinds of claims, did not say anything with regard to
possible claims arising from personal injuries to its nationals.
20. The Italian Government insisted only on thr ee kinds of claims “so that a fairer solution
may be reached”.
21. On the one hand, the Allied and Associat ed Powers took into account the first claim
made by Italy, which gave rise to Article77, paragraph2, by which identifiable property of Italy
and Italian nationals removed by force and duress from Italian territory to Germany by German
forces or authorities after 3September 1943, were d eclared eligible for restitution. On the other
hand, the Allied and Associated Powers rejected the two other claims.
22. This is the plain reason why Article77, paragraph4, specified that the waiver
encompassed “debts” and “inter-governmental claims with respect of arrangements entered into the
course of the war”. Far from reduc ing the scope of the Italian waiver, the text clearly implies that
these were the only two points of divergence which necessitated a clarification between the parties. - 39 -
23. In conclusion, the travaux préparatoires of Article77 show that Italy was given a fair
chance to express its opinion on the draft article, and that some of its views were accepted. It
would now be a blatant lack of good faith to infer from the text of the paragraph, an implicit
exclusion of personal damages from the scope of th e Italian waiver, when Italy had not advanced
any claim for that purpose. The phrase “all claims for loss or damage arising from the war”, which
referred to Italian nationals, may be more succinct than those used in Article76, but its
comprehensiveness is beyond doubt.
24. Apart from the clear intention of the Italia n Government of the time, it is the “object and
purpose” standard of interpretation which entirely undermines the Respondent’s argument.
Articles76 and77 make up SectionIII (Renunciation of Claims by Italy) of PartVI of the Peace
Treaty (Claims arising out of the war) and you have it in your folder. But partVI includes two
other sections, Section I on reparations, and Section II on restitutions. These Articles must be read
together, and together with those of PartVII on pr operty, rights and interests, in order to gain a
comprehensive view of the peace compact with regard to war reparations in a broader sense.
25. Those dispositions are the result of intensive negotiations between the Allied Powers,
which led to a delicate but nonetheless overall acceptable equilibrium. The Soviet Union, and the
other States, insisted on obtaining monetary reparations summing up to US$360million, in
addition to the seizure or liquidation of property, ri ghts and interests belonging to Italy or Italian
nationals and present in their respective jurisdic tions. On the contrary, the main Allied and
Associated Powers were content to satisfy their cl aims only by this last kind of measures. In
return, Italy had to waive all its claims not only in their regard, but also with regard to her former
ally, Germany, which at the time was administered by the Four Allied Powers.
26. What is even more significant is the s ubsequent Italian practice, which the Respondent
conveniently omitted to mention at all. Whenever the Italian Supreme Court had been asked to
interpret Article77, paragraph4, and until the re versal of jurisprudence of the First Criminal
Chamber in October2008 in the Josef Milde case, it consistently took the view that the Italian
waiver had led to an absolute lack of jurisdiction of the Italian courts to deal with any individual
claim against Germany for facts arising from the war. One could just recall the precedent of
Società Ilvac. Cavinato (Italian Court of Cassation, Unit. Chambers, Judgment No.285 of - 40 -
22February 1953), which the leading repertory of Italian practice of international law quotes as
one of the typical examples of lack of jurisdiction.
27. Being aware of the impossibility of turning upside down the unequivocal
comprehensiveness of the Italian waiver, the Responde nt pulls out a last argument. It argues that
the waiver cannot be seen as a stipulation in favour of Germany itself, but only in favour of the
Allied Powers. For all practical meaning, this ar gument amounts to an attempt to deny Article 77,
paragraph 4, the nature of a provision in favour of a third State.
28. Unfortunately, the Respondent seems to confuse the juridical effect of a norm and the
motives behind its adoption. Whatever the intent of the Allied Powers was, the unmistakable legal
beneficiary of the waiver was, and still is, Germany. To rebut the Italian thesis, it suffices to say
that the ILC in its Commentary on DraftArticle32, now Article36 of the Vienna Convention on
the Law of Treaties, had no doubt in selecting exactly the waivers in the 1947 Peace Treaties as a
typical example of dispositions providing for rights for a third party.
yoIu29. Nuclear Tests (Australia v. France) Judgment of 1974, with regard to unilateral
declarations, you said that their binding character is based on the principle of good faith, and went
on to say “[t]hus interested States may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require th at the obligation thus created be respected”
(I.C.J. Reports 1974, p.268, para.46). This must a fortiori apply for third parties of treaty
obligations, which rely in good faith on the benef its granted to them, as Germany does in the
present case.
2. Abuse of right as a fourth possible basis for jurisdiction of necessity?
30. This last remark on bona fides brings me to a last point I would like to briefly address.
ProfessorCondorelli in his introductory presentation has, with his usual clarity and concision,
listed in four points the reasons why the Respondent is of the opinion that the assumption of
jurisdiction by Italian judges can, indeed must, be exceptionally justified: atrocity of the crimes
committed, recognition by the tortfeasor State of its responsibility, lack of any reparation to the
victims, domestic jurisdiction as the only available means of redress. All other counsel, who took
the floor on Tuesday, repeated the same refrain. We have heard much on the first, on the third and - 41 -
on the fourth arguments. Curiously, we have heard nothing from the Respondent on the second
point: the recognition of responsibility by Germa ny. Indeed, it is well known that the Federal
Republic of Germany has never de nied its responsibility for the activities of the Third Reich, and
has never tried to escape from the heavy burden of its liability. However, as we have heard, Italy
now maintains that Germany did not live up to its obligations towards Italian citizens, and still does
not, cloaking itself in the “unjust privilege” of St ate immunity, as the Respondent chose to qualify
it in its Counter-Memorial.
31. Mr. President, distinguished Members of the Court, in my first pleading three days ago,
as I tried to detect the rationale behind the so-ca lled jurisprudence by replacement advanced by the
Italian counterpart, I pointed at three possible notions, that of countermeasure, that of necessity,
that of an individual right to reparation as such, and discarded each of them. Some discreet but
nonetheless disquieting hints in the Italian Counte r-Memorial and Rejoinder (CMI, paras.4.69;
4.109-4.110) had made me think of a possible four th one, the notion of abuse of rights, but that
appeared to me to be so far fetched that I preferred to leave it aside. The Respondent accused
Germany of “using” its immunity “in order to avoid its responsibility” (CMI, para. 4.67), “as a tool
for exonerating itself from bearing the consequences of its faults” (CMI, para. 4.113), or of hiding
itself behind an “unjust privilege” (CMI, para. 4.22). I hope that our learned colleagues will not be
so inconsiderate as to venture to advance the notion of abuse of rights in the present dispute. I am
confident that, should that be the case, you will firmly oppose any attempt to distort reality so
grotesquely. For all its dexterity, I know th at the Respondent will not succeed in making you
believe that post-war Germany did not live up to its liability and responsibility.
32. Nevertheless, I wish to make our positi on on the point crystal clear. The doctrine of
abuse of rights has a noble pedigree, as an expression of general principles of law, among other that
one according to which nobody can take advantage from his own misdeeds. At first sight, the
doctrine could even seem alluring in cases such as the one at hand, in which the State stripped of its
immunity does not deny the wrongfulness of the acts attributed to it. But, like all others already
advanced by the Respondent, also this concept would miserably fail. - 42 -
33. One cannot but subscribe to what Sir Her sch Lauterpacht wrote in the late 1950s: “the
concept of abuse of rights places a considerable power , not devoid of a legislative character, in the
hands of a judicial tribunal” 6. Therefore, so concluded Sir Hersch, “the doctrine of abuse of rights
is an instrument which, apart from other reasons calling for caution in the administration of
international justice, must be wielded with studied restraint”.
34. You must be aware that the doctrine, which was developed in the 1920s and 1930s of the
last century, and found some support in the jurisp rudence of your predecessor, was tailored only to
the so-called exclusive rights of domestic jurisdiction. There is a profound logic in this limitation.
At a time, like the first half of the last century when the domaine réservé of States was quite broad
and in relation to which States were thought to be free from any international law constraints, the
doctrine of abuse of rights was conceived as an Ersatz for a still lacking legal obligation. It was the
same Permanent Court, and later especially your Court, which progressively succeeded in reducing
the scope of domaine réservé and accordingly the need for the notion of abuse of rights.
Mr.President, distinguished Members of the Court, you will at once have perceived that to speak
of an abuse of rights in our case would literally be out of place in this Great Hall of Justice. The
matter under your scrutiny, State immunity, is obviously not a matter belonging to the domaine
réservé of any State, but is part and parcel of th e very core of international customary norms
regulating and assuring the peaceful intercourse of States.
35. In order to prove such an abuse of rights, the Respondent would have to prove that, first,
Germany has an obligation of reparation towards Italian citizens, and, second, that it is not acting in
good faith. On Monday and again today we demonstrated that the first prong of the argument does
not hold, both as a matter of principle and as a ma tter of fact. The position of the German Federal
Constitutional Tribunal on the lack of any individual right of reparation for damages is shared by
the jurisprudence of most courts all over the worl d, and the German Executive is firmly convinced
that, at any rate, Italy renounced all claims towards Germany, for itself and on behalf of its citizens,
in the Peace Treaty of 1947. Italy might contest the correctness of this view, but all that you could
6
Lauterpacht, The Development of International law by the International Court, London, 1958, p. 164. - 43 -
say in this regard is that the German view could ev entually be mistaken, but surely not that it is an
arbitrary one, for all the reasons exposed this morning.
36. Mr. President, that concludes my remarks. May I respectfully ask you to give the floor to
Professor Robert Kolb.
The PRESIDENT: I thank ProfessorAndreaGa ttini for his presentation and I invite my
colleague Professor Robert Kolb to take the floor.
M. KOLB :
1. Monsieur le président, Mesdames et Messieurs de la Cour, je souhaite aborder devant vous
aujourd’hui les aspects suivants. D’abord, les dispositions du droit international humanitaire et leur
incidence sur le prétendu droit de réparation individuel. Ensuite, l’éternelle question du jus cogens,
qui décidément ne cessera de me hanter, si ce n’est de me poursuivre. J’y ajouterai quelques
brèves considérations sur la notion de complicité à la perpétuation d’un fait illicite international,
que nos honorables contradicteurs ont agitée après l’a voir extraite de nulle part. Enfin, j’aimerais
clore ma marche de ce jour avec un point spécial, que je vous révélerai tout à l’heure. Et voici les
jalons de notre cheminement posés.
2. Avant de plonger in medias res, permettez-moi de rappeler que l’immunité de juridiction
dont jouit l’Allemagne, d’un côté, et le droit intertemporel interdisant la rétroactivité, de l’autre,
suffisent à jeter le sort de cette affaire. Les conseils de l’Italie l’ont si bien senti qu’ils ont tenté de
détourner l’attention de ces aspects cruciaux. Nous voulons bien répondre à leurs arguments. Mais
nous n’aimerions pas que nos débats sur ces aspect s secondaires obstruent ou adultèrent votre vue,
qui doit rester rivée sur le cŒur de notre différend.
A. L ES DISPOSITIONS DU DROIT INTERNATIONAL HUMANITAIRE
3. Que l’on considère cette question sous l’angle du droit en vigueur ou qu’on la considère
sous l’angle des tendances nouvelles, la conclusion qui s’impose est la même : à savoir qu’il n’y a
pas de règle imposant le devoir de réparation indivi duelle (l’emportant de surcroît sur l’immunité)
et qu’on continue à hésiter fortement à admettre une telle règle pour l’avenir. Ni l’une ni l’autre de
ces propositions ne sont sans signification. - 44 -
I. Le droit en vigueur
1. L’article 3 de la convention de La Haye de 1907
4. Dans son contre-mémoire (par.5.7 et suiv .), l’Italie a développé le principe de la
réparation effective de violations graves du droit international humanitaire. Elle y a ajouté le
caractère non dérogeable de ces dispositions. L’ap erçu qu’elle donne du régime traditionnel, tel
que retenu dans l’article3 de la quatrième convention de LaHaye de1907, est quelque peu
étonnant, considérant que l’Italie compte dans ses rangs des éminents spécialistes de la matière. Je
disais étonnant. Etonnant parce que l’exposé est si palpablement anachronique. Nos contradicteurs
ne peuvent ignorer que l’article 3 mentionné a constitué une innovation hardie à l’époque où il a été
inséré dans la convention IV. En tout cas, il se cantonnait uniquement aux rapports interétatiques.
En effet, il n’a pu être adopté qu’au regard du fait qu’il ne disait rien qui puisse déranger les
affaires intérieures des Etats, par exemple, que la compensation «must reach the individual victims
and be satisfactory» (contre-mémoire de l’Italie, par. 5.10). A qui l’indemnité devait revenir n’était
à l’époque pas une affaire de la convention; elle était une affaire intérieure. Tout cela est trop
connu pour qu’il me soit nécessaire d’alourdir mon exposé de citations et d’ authorities, comme
diraient nos confrères anglo-saxons. Je ne puis que m’étonner aussi de l’argument selon lequel
l’article3 mentionné «amounts to an applicatio n to IHL of the broader principle of State
responsibility under general international law». Nos contradicteurs n’ignorent pas que le droit de la
responsabilité internationale des Etats n’était en1899 et en1907 que dans les limbes de sa
gestation. Dionisio Anzilotti venait d’écrire un ouvr age fondamental et pionnier sur la question,
en1902, publié à Florence. Vous trouvez quatre ou cinq pages déjà chez AugustHeffter, au
XIX esiècle, qui traite de la question encore en analogie à certains principes de la lex Aquilia du
droit romain ! Comment l’article3 mentionné pouvait- il renvoyer à un corps de règles sur la
responsabilité des Etats encore largement inexistant ? En réalité, le rapprochement de l’article 3 ici
en cause avec la responsabilité en faveur des i ndividus vient du commentaire à l’article91 du
protocole additionnelI de1977. Mais1977 n’est pas1907; un sept sépare les deux; mais il est
décisif. Regrettablement, le même traitement désinvolte caractérise l’analyse du droit dans
l’ensemble de cette section du contre-mémoire. - 45 -
2. Les articles 51, 52, 131 et 148 des conventions de Genève de 1949
5. On nous cite les articles51, 52, 131 et 148 des conventions de Genève I àIV de1949,
dont le texte est reproduit dans les pièces soumises par l’Italie. Pour mémoire, ces dispositions
traitent de la responsabilité de l’Etat. Ces dis positions communes se réfèrent à l’article précédent :
«en raison des infractions prévues à l’article précédent». Or, quelles sont ces infractions ? Il s’agit
des «infractions graves» aux conventions de Genève. Je rappelle au passage que les «infractions
graves» n’existaient pas avant1949. Il s’ag it d’une nouvelle catégorie de crimes de guerre, pour
ainsi dire conventionnels. Or, les actes ici en cause précèdent l’année1949. Faut-il appliquer
rétroactivement les dispositions mentionnées ? L’article 28 de la convention de Vienne sur le droit
des traités de 1969 dissipe tout doute éventuel à cet égard. Qui plus est, les «infractions graves» ne
codifiaient pas davantage le droit coutumier. Le commentaire du CICR sur les conventions de
Genève précise clairement que les quatre dis positions mentionnées sont nouvelles: «Il s’agit là
d’un article entièrement nouveau...», y est-il écrit (c ommentaire à la convention I, Genève, 1952,
p.419, et analogiquement dans les autres comment aires). Peut-on être plus clair: un article
entièrement nouveau. Qui plus est, l’Allemagne n’a pas été exonérée de toute responsabilité. Au
contraire, elle a fourni les réparations les plus diverses.
3. Les articles 6, 6, 6 et 7 des conventions de Genève de 1949
6. On nous rappelle ensuite le caractère non dérogeable des dispositions du droit
international humanitaire, tel que pr évu dans les articles 6, 6, 6 et 7 des conventions de Genève I
à IV. Je n’insisterai pas sur l’argument de la rétr oactivité, car je ne souhaite même pas le soutenir,
en l’occurrence. Le problème est ailleurs, et il est encore plus radical. Les conventions ne
prévoient pas un droit à la compensation individuelle. Elles ne prévoient qu’une relation d’Etat à
Etat: L’Etat demande la réparation des dommages subis, exactement parce que les individus ne
peuvent pas le faire directement. Le commentaire du CICR précité est très explicite à cet égard.
Dès lors, il n’y a pas d’objet sur lequel le devoir de non-dérogation pourrait se greffer. En réalité,
l’article commun 6, 6, 6 et 7 porte sur les protections reconnues dans la convention, notamment sur
les protections humanitaires, qui ne sauraient être restreintes par accords spéciaux, ni d’ailleurs,
comme le montre la disposition immédiatement su ivante dans les conven tions, par l’aliénation
volontaire de la part des personnes protégées. L’article commun précité ne porte pas sur les - 46 -
réparations post bellum, matière à propos de laquelle les Etats ont toujours gardé la haute main et
un pouvoir certain d’appréciation. Les conve ntions ont pour préoccupation et pour champ
d’application le jus in bello ; elles ne visent pas le droit de la paix, ni le jus post bellum, qui est
aussi un jus pacis. Elles en font une exception pour les situations où le conflit armé se prolonge, en
quelque sorte, à cause de prisonniers toujours détenus ou de territoires toujours occupés.
7. Enfin, je rappelle à la Cour que tout ce que nous venons de dire ici a beau être vrai. Mais
la question de l’immunité juridictionnelle demeur e dans tous les cas. Le droit international
humanitaire ne «déroge» pas à l’immunité des Etats devant les tribunaux de l’un de leurs pairs. Au
fond, toute cette question de la dérogeabilité des «droits subjectifs humanitaires» n’a pas de vrai
objet ni de réelle pertinence. Peut-être aurions -nous donc dû le passer sous silence. Il nous a
toutefois semblé utile d’en éclairer la Cour.
II. Les tendances nouvelles
8. Nous objectera-t-on des évolutions récent es, enfin enclines à rendre plus de justice aux
individus à l’encontre de l’Etat jadis excessiveme nt idolâtré, encensé et protégé? Regardons de
plus près ce volet des choses. De ces tendances récentes, les travaux de l’International Law
Association (ILA), qu’on ne saurait certainement qu alifier d’exagérément conservatrice, sont sans
doute emblématiques. Comme vous le savez, de puis quelques années, sous la direction des
professeurs N. Ronzitti, R. Hofmann et S. Furuya, l’International Law Association a entrepris des
travaux sur le sujet de la «Reparation for Victims of Armed Conflict». Je ne vais pas ennuyer votre
haute juridiction en citant extensivement ces travaux, d’une ex cellente qualité au demeurant.
Qu’est-ce qui en résulte en synthèse, à propos du point sur lequel porte notre intérêt? On notera
surtout une absence ; elle n’est nullement une lacune . En effet, l’International Law Association ne
propose pas de lege ferenda un droit de plainte judiciaire individuel, ni à plus forte raison un droit
de plainte judiciaire individuel enrichi d’une co mpétence civile universelle; encore moins ne
o
reconnaît-elle un tel droit de lege lata. Sa résolution n 2/2010 portant «Déclaration de principes de
droit international sur la réparation en faveur des victimes de conflit armé» ne prévoit
essentiellement qu’une obligation des parties responsables de faire tout effort pour donner effet aux
droits à la réparation des victimes (art.11, par.1); et il est immédiatement ajouté que des - 47 -
programmes et institutions s’occuperont de faciliter l’accès à la ré paration (art. 11, par. 2).
«Programmes et institutions», le commentaire à ce tte disposition le montre, signifie dans l’esprit
des rédacteurs l’adoption de procédures nouvelles et particulières, adaptées à la situation singulière
d’après-guerre. Que les tribunaux ne soient pas l es plus idoines à en traiter est ainsi implicitement
reconnu. Car autrement, il aurait suffi de les mentionner, voire de les recommander. Ce n’est pas
tout. Malgré le caractère peu révolutionnaire de la déclaration, l’article15, paragraphe1, de
celle-ci ajoute, ex abundante cautela , que les «droits et obligations contenus dans la présente
déclaration n’auront aucun effet rétroactif».
9. Notre argument est à cet égard essentiellement le suivant. Non seulement d’éventuelles
nouvelles tendances allant dans le se ns de reconnaître un droit de plainte judiciaire individuel ne
seraient pas opposables à l’Allemagne pour des situations issues de la seconde guerre mondiale, car
ce serait appliquer rétroactivement le droit. Encore, ces nouvelles tendances hésitent à consacrer
des droits individuels, car ceux-ci peuvent facilement s’avérer excessifs et ingouvernables. Votre
Cour voudra-t-elle se montrer moins studieusement prudente que des sociétés savantes telles que
l’International Law Association? Celles-ci ont pourtant une position nettement plus aisée que
votre haute juridiction. Elles n’engagent qu’elles-mêmes, en restant toujours abritées derrière le
filet de sécurité si bonnement lénitif des trava ux scientifiques. Dès lors, si un acteur pouvait
commodément se montrer plus hardi, c’est bien une telle société. Le fait qu’elle ne s’y aventure
pas n’est-il pas fortement révélateur et plein de signification ? Toute cela n’indique-t-il pas à plus
forte raison la voie que vous devriez, nous le croyons, suivre vous-mêmes ?
B. L A QUESTION DU JUS COGENS
10. L’objet de mes remarqu es suivantes est de répondre aux allégations de nos honorables
contradicteurs relatives au droit international impératif. C’est la raison pour laquelle je pourrai être
fort bref, étant donné que très peu d’éléments nouvea ux, et encore moins d’éléments éclairants, ont
émergé des débats de ces derniers jours devant votre prétoire. - 48 -
1. Le conflit entre jus cogens et immunité
11. On vous a dit, en premier lieu, ceci. En cas d’irréductible conflit entre l’immunité
juridictionnelle de l’Etat et la sanction effective d’une norme de jus cogens , comme celle qui
prévoit le droit à une réparation pour crimes internationaux subis, la première doit,
exceptionnellement, regrettablement, céder le pas à la deuxième. Parfois, la mise à l’écart de
l’immunité serait la seule solution au problème du déni, non pas tant d’accès à la justice, mais de
succès des plaintes individuelles en cause. L’argument est presque penaud ; mais en même temps
il est très révolutionnaire. Pour agrémenter cette prise de position, nos éminents contradicteurs se
sont lancés dans une belle envolée ly rique, qui sur le plan esthétique ⎯ mais sur celui-ci
seulement ⎯ n’est pas pour me déplaire. On nous a dit, et j’en ajoute, qu’autrement le jus cogens
ne serait qu’une pétition de principe, le panache fl amboyant d’un vŒu pieu proclamé à haute voix
mais sans effectivité, un mirage sans vie réelle, en somme un ectoplasme diaphane et blafard. Je ne
mets pas en doute que le procédé de mise à l’écar t de l’immunité, si savamment développé, serait
une solution possible au prétendu conflit. Mais il y en a d’autres. Il suffit pour s’en convaincre de
se remémorer nos propres allégations à cet égard. Là où je veux en venir, c’est que les conseils
prodigués par nos honorables contradicteurs supposent que nous, et surtout vous, et en tout cas la
Cour de cassation, peuvent inventer de toutes pièces cette solution en la choisissant parmi une
pluralité d’autres avenues possibles. Il ne s’agit pas de dresser l’inventaire du droit en vigueur. Il
s’agit de le changer pour que la règle de demain soit quelque peu meilleure ⎯ à leurs yeux ⎯ que
celle d’aujourd’hui. Mais pourquoi s’arrêter en si bon chemin à cette mise en balance là, et donc à
cette solution particulière? Si chaque tribunal interne peut inventer sa propre «résultante» selon
les besoins de l’instant, selon les faits et circonstances particuliers des espèces les plus diverses que
la vie charrie devant eux, nous aurons demain la bigarrure la plus prononcée de solutions, dont
l’élément saillant sera le subjectivisme, voire l’op portunisme. Le droit international procède de
consentements entre Etats. Ici, il procède plutôt de libres exercices législatifs concédés à chaque
tribunal interne compétent. J’ai l’impression ⎯ mais je voudrais me tromper ⎯ que la doctrine de
nos éminents collègues de l’autre côté de la barre est que la norme de droit international applicable
d’aujourd’hui est celle selon laquelle cet ordre ju ridique délègue la compétence de délimiter la - 49 -
sphère de l’immunité de juridiction et d’ex écution des Etats étrangers aux tribunaux internes
procédant au cas par cas et au plus près des faits éminemment variables des espèces. La norme de
droit international sur l’immunité aurait ainsi disparu pour céder la place à cette norme-délégation
de pouvoirs législatifs. Il est d’ailleurs superflu de dire que je ne trouve aucune trace d’une telle
norme dans les sources du droit international, en l’occurrence la coutume. Nos honorables
contradicteurs n’en ont pas davantage trouvé. Autrement, auraient-ils manqué de la mentionner ?
12. Il est de surcroît notable que la Partie adverse ait pu suggérer que vous devriez respecter
le droit international de votre Statut (je suppose aussi le droit international restant) par le fait que
vous êtes un organe de la société internationale dominée par des Etats souverains. Ainsi, vous
seriez obligés de tenir scrupuleusement compte d es limites consensuelles à votre compétence, en
dépit du jus cogens. Au contraire, un tribunal interne sera it un organe d’une collectivité publique
intégrée. Sa compétence n’étant pas dépendante du consentement des justiciables, celle-ci pourrait
procéder plus librement aux mises en balan ce nécessaires en cas de conflit entre normes, en
choisissant de donner la priorité à la norme de droit international impératif. Tout cela m’a donné
l’impression que le développement du droit intern ational est en passe de devenir davantage une
prérogative des tribunaux internes que de sujets inte rnationaux ou même de la Cour internationale
de Justice. Vous devez vous en tenir au droit inte rnational. Les juridictions internes, au contraire,
mettent en balance ses règles pour dégager de nouvelles et parfois mirobolantes solutions.
L’organe judiciaire principal des NationsUnies, et j’ai envie d’ajouter du droit international, n’a
pas le pouvoir de légiférer pour améliorer ce dro it; les tribunaux internes, qui ne représentent
qu’un ordre politique partiel de la collectivité humaine, posséder aient exactement ce droit, pour
lequel ils sont si mal armés. Etrange construction. Pour ma part, je préférerais, en cas de choix,
que vous légifériez dans l’ordre juridique que vous connaissez mieux que quiconque et dont vous
êtes l’organe et le serviteur. Mais il est constant que ce pouvoir ne vous revient pas. Il n’est ni de
votre apanage ni, à plus forte raison, de celui des tribunaux internes de tel ou tel Etat. - 50 -
2. La distinction entre règles primaires et secondaires
13. On vous a fait part enfin de ce que la di stinction entre règles primaires et secondaires,
telle que j’ai eu l’occasion de la développer dans ma première plaidoirie, serait artificielle et
largement dépourvue d’intérêt en l’espèce. Référe nce a été faite à cet égard aux articles de la
Commission du droit international sur la responsabil ité des Etats de2001. Il n’est pas nécessaire
que je reprenne ce que je vous ai dit lundi et que j’ai la faiblesse de continuer à croire juste.
L’article 41 montre que seulement certaines conséquences juridiques de la violation de règles de
jus cogens sont admises dans l’ordre juridique in ternational d’aujourd’hui. Celles que nos
collègues italiens tentent d’accréditer auprès de vous n’ y figurent pas. Par ailleurs, les travaux et
commentaires de la Commission du droit intern ational montrent qu’elle s’est studieusement
évertuée à ainsi limiter ces conséquences. Elle était consciente non seulement de se situer déjà sur
un terrain confinant, et souvent ou trepassant, la frontière entre la lex lata et la lex ferenda, mais
encore de risquer autrement d’ouvrir une bo îte que Pandore n’aurait guère dédaignée. Le
paragraphe 3 de l’article 41 n’apporte dès lors au cun soutien à l’interprétation très intéressée qu’en
donnent nos honorables contradicteurs. Elle se voul ait simplement une clause de sauvegarde pour
tenir compte de modifications du droit international. Puis-je ajouter : pour des modifications sûres,
tangibles, canoniques ; non pas pour des modificati ons prétendues, extrapolées d’un seul précédent
n’ayant eu l’heur et l’honneur de susciter des émules.
14. Laissez donc pour l’instant choir le jus cogens. Vous n’en avez pas besoin dans cette
espèce. Or, tout ce qui est inutile est le plus souvent juridiquement nocif.
III. La complicité
15. Nos honorables contradicteurs ont suggé ré que la Cour de cassation italienne se vit
contrainte d’écarter l’immunité de juridiction alle mande. En la maintenant et en la sanctionnant
elle aurait participé selon eux en tant que comp lice à la prolongation dans le temps d’un fait
internationalement illicite. Je dois avouer que l’argument m’a exalté, car il est de ceux que je
n’aurais su trouver. Il fait référence à l’artic le16 des articles sur la responsabilité des Etats
de2001. Voici donc un autre c onflit épique entre normes internationales que nos pauvres juges
italiens de la Cour de cassation se sont vus devoir trancher par un dédoublement fonctionnel. - 51 -
16. Cette construction ne résiste pas à l’anal yse pour deux raisons. Elles sont des plus
simples. Premièrement : s’il n’existe pas (et s’il n’existait pas, en 1945) un devoir d’indemnisation
individuelle pour les cas qui nous intéressent ici, ce devoir n’a pas non plus pu être violé.
Deuxièmement: même si une telle complicité s’était manifestée, c’est-à-dire si un fait
internationalement illicite avait été commis, les c onséquences n’auraient pu être que celles prévues
par les règles secondaires pertinentes, celles relatives à la responsabilité des Etats. Serait ainsi né
par exemple un devoir de cessation et de réparati on. En aucun cas en revanche il ne pouvait en
découler une faculté de mise à l’écart de l’immunité , prévue nulle part par le droit international
actuel. La commission de notre fait illicite putatif ne pouvait pas donner lieu à la commission d’un
autre fait illicite, mais seulement à la liquidation de s conséquences de la violation selon les règles
du droit international en vigueur. Ce que le jus cogens ne daigne, à plus forte raison la prétendue
complicité ne peut.
17. J’avais annoncé au début de ma plaidoirie de ce jour que je voulais parler d’un dernier
sujet, dont je n’avais pas précisé la teneur. Je constate toutefois que si je veux laisser la parole pour
les conclusions à notre agent, je ne puis plus e xposer ce point maintenant ici et je vous demanderai
donc, Monsieur le président, resp ectueusement, de passer la parole à Mme Wasum-Rainer pour la
présentation de nos conclusions.
The PRESIDENT: I thank Professor Robert Kolb for his presentation. I now invite
Ambassador Susanne Wasum-Rainer to make her presentation or her concluding remarks.
Ms WASUM-RAINER: Mr. President, distingui shed Members of the Court, I should now
like to present to you, in accordance with the Stat ute of this Court, our submissions. I will read
them as they have been submitted to you.
SUBMISSIONS
Germany respectfully requests the Court to adjudge and declare that the Italian Republic:
1. by allowing civil claims based on violations of international humanitarian law by the German
Reich during World War II between September 1943 and May 1945 to be brought against the
Federal Republic of Germany, committed violatio ns of obligations under international law in - 52 -
that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany
enjoys under international law;
2. by taking measures of constraint against “Villa Vigoni”, German State property used for
government non-commercial purposes, also committed violations of Germany’s jurisdictional
immunity;
3. by declaring Greek judgments based on occurrences similar to those defined in request No.1
enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity.
Accordingly, the Federal Republic of German y respectfully requests the Court to adjudge
and declare that:
4. the Italian Republic’s international responsibility is engaged;
5. the Italian Republic must, by means of its own choosing, take any and all steps to ensure that
all the decisions of its courts and other j udicial authorities infringing Germany’s sovereign
immunity become unenforceable; and
6. the Italian Republic must take any and all steps to ensure that in the future Italian courts do not
entertain legal actions against Germany founded on the occurrences described in request No. 1.
Mr. President, this brings me to the end of the second round of our pleadings. And I thank
you very much.
The PRESIDENT: I thank Ambassador Susanne Wasum-Rainer for her concluding remarks.
That brings today’s sitting to an end. The Cour t takes note of the final submissions which you,
Madam Ambassador, have now read on behalf of Germany. The Court will meet again tomorrow
at 2.30p.m. to hear the second round of oral ar gument of Italy as well as its observations with
respect to the subject-matter of Greece’s intervention. The sitting is closed.
The Court rose at 12.35 p.m.
___________
Audience publique tenue le jeudi 15 septembre 2011, à 10 heures, au Palais de la Paix, sous la présidence de M. Owada, président, en l’affaire relative aux Immunités juridictionnelles de l’Etat (Allemagne c. Italie ; Grèce (intervenant))