INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY)
MEMORIAL
OF THE
FEDERAL REPUBLIC OF GERMANY
12 JUNE 2009 INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY)
MEMORIAL
OF THE
FEDERAL REPUBLIC OF GERMANY
12 JUNE 2009 1
Subject of the dispute
On 23 December 2008, the Federal Republic of Germany (hereinafter:
Germany) instituted proceedings against the Italian Republic (hereinafter:
Italy) before the International Court of Justice (hereinafter: the Court). In
this Memorial, Germany will set out the reasons which have prompted it to
take this step which may look unusual in the relationship between two
nations which are linked to one another by deep bonds of friendship and
understanding. However, the following submissions will make clear that a
situation has emerged that cannot be resolved by diplomatic negotiations.
Germany is convinced that its sovereign right of jurisdictional immunity has
been infringed by a series of judicial decisions. In quite a number of
submissions to the competent Italian courts, in particular the Corte di
Cassazione, the Italian Government engaged its best endeavours with a view
to persuading those courts that Germany’s jurisdictional immunity had to be
respected. However, those efforts were of no avail. The Corte di Cassazione
insisted that Germany has forfeited its immunity on account of the gravity
of the facts in issue. Thus, the situation has become inextricable. The Italian
Government cannot reverse that strain of jurisprudence. Only an
authoritative finding of the Court may lead out of the impasse.
The critical stage of that development amounting to an infringement of the
jurisdictional immunity of Germany as a sovereign State was reached by the
judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, 1
where the Corte di Cassazione declared that Italy held jurisdiction with
regard to a claim (proceedings initiated in 1998) brought by a person who
during World War II had been deported to Germany to perform forced
labour in the armaments industry. After this judgment had been rendered,
numerous other proceedings were instituted against Germany before Italian
courts by individuals who had also suffered injury as a consequence of the
armed conflict. All of these claims should have been or should be dismissed
since Italy lacks jurisdiction in respect of acts jure imperii performed by the
authorities of the Third Reich for which present-day Germany has to assume
1
Judgment No. 5044/2044, 11 March 2004, Rivista di diritto internazionale 87 (2004), 539;
English translation: 128 ILR 659; ANNEX 1. 2
international responsibility. However, the Corte di Cassazione has recently
confirmed its earlier findings in a series of decisions delivered on 29 May
2008 and in a further judgment of 21 October 2008. Germany is concerned
that hundreds of additional cases may be brought against it.
Repeated representations with the Italian Government have been
unsuccessful. Recourse to the Court is accordingly the only remedy
available to Germany in its quest to put a halt to the unlawful practice of the
Italian courts, which violates Germany’s sovereign rights. The Italian
Government has publicly stated that it “respects” the German decision to
submit the dispute for final determination to the World Court. Also on its
part, it is of the view that a decision by the Court on State immunity will be
helpful for clarifying this complex issue. 2
2
See Joint Declaration, adopted on the occasion of German-Italian Governmental
Consultations, held on 18 November 2008 in Trieste, ANNEX 2. “L’Italia rispetta la
decisione tedesca di rivolgersi alla Corte Internazionale di Giustizia per una pronuncia sul
principio dell’immunità dello Stato. L’Italia, anche come parte contraente, come la
Germania, della Convenzione Europea sulla composizione pacifica delle controversie del
1957, e come Paese che fa del rispetto del diritto internazionale un cardine della propria
condotta, considera che la pronuncia della Corte Internazionale sull’immunità dello Stato
sia utile al chiarimento di una complessa questione.” 3
Outline of Argument
I. Jurisdiction (sections 1-3)
II. Issues of Admissibility (sections 4-6)
1) No need for exhaustion of local remedies (section 4)
2) No need for prior exhaustion of diplomatic negotiations (section 5)
3) No jurisdiction of Court of Justice of European Communities (section 6)
III. The Facts (sections 7-46)
1) Settlement of War Damages (sections 7-12)
2) Judicial Proceedings against Germany (sections 13-46)
a) The Ferrini case (sections 18-22)
b) The subsequent cases (sections 23-28)
c) The Milde (Racciarini) case (sections 29-32)
d) The Distomo case (sections 33-41)
e) The latest cases – Examples (sections 42-45)
f) No consent to Italian jurisdiction (section 46)
IV. The Merits (sections 47-133)
1) Sovereign immunity as a fundamental principle of international law (sections
48-56)
2) The defects and inconsistencies of the case law of the Corte di Cassazione
(sections 57-64)
3) The Distomo precedent overruled (section 65)
4) The United States practice (sections 66-70)
5) The narrow scope of the territorial clause (sections 71-82)
6) Erroneous reliance on jus cogens (sections 83-90)
7) Retroactive application of the doctrine resorted to by the Corte di Cassazione
(sections 91-102)
8) Protection against measures of constraint (sections 103-107)
9) The UN Convention on Jurisdictional Immunities of States and Their Property
(sections 108-111) 4
10) General implications of the doctrine of the Corte di Cassazione (sections 112-
114)
11) Judicial Practice (sections 115-130)
V. Relief sought (section 131)
VI. Requests (sections 132-133)
VII. List of Annexes 5
I. Jurisdiction
1. The application was brought under the terms of the European
Convention for the Peaceful Settlement of Disputes of 29 April 1957
(hereinafter: European Convention). Italy ratified that Convention on 29
January 1960, Germany did so on 18 April 1961. None of the two parties
has denounced it.
2. Article 1 of the European Convention provides:
“The High Contracting Parties shall submit to the judgment of the Interna-
tional Court of Justice all international legal disputes which may
arise between them including, in particular, those concerning:
a the interpretation of a treaty;
b any question of international law;
c the existence of any fact which, if established, would constitute
a breach of an international obligation;
d the nature or extent of the reparation to be made for the breach
of an international obligation.”
In the instant case, the dispute concerns in particular the existence, under
customary international law, of the rule that protects sovereign States from
being sued before the civil courts of another State. Accordingly, the claim
falls ratione materiae within the scope of application of the European
Convention.
3. The applicability of the European Convention is not excluded by
the provisions of Article 27, which enunciate certain time limits. In fact, as
stipulated there:
“The provisions of this Convention shall not apply to:
a disputes relating to facts or situations prior to the entry into
force of this Convention as between the parties to the dispute;
b disputes concerning questions which by international law are
solely within the domestic jurisdiction of States.”
As already indicated when specifying the subject of the dispute, all the
claims which have been introduced against Germany before Italian courts
relate to occurrences of World War II, when German troops committed
3
Council of Europe Treaty Series (CETS) No. 23. 6
grave violations of international humanitarian law. However, the
proceedings instituted against Italy do not deal with the substance of those
claims. Germany’s only objective is to obtain a finding from the Court to
the effect that to declare claims based on those occurrences as falling within
the domestic jurisdiction of Italian courts, constitutes a breach of
international law. The time when that objectionable judicial practice began
can be accurately specified. It is the judgment of the Corte di Cassazione in
the Ferrini case of 11 March 2004 which opened the gates for claims
seeking reparation for injury sustained as a consequence of events situated
within the framework of World War II. The date of 11 March 2004 and the
years subsequent thereto are clearly within the scope ratione temporis of the
European Convention.
II. Issues of Admissibility
1) No need for exhaustion of local remedies
4. Germany does not act in the exercise of its right of diplomatic
protection in favour of German nationals. It acts on its own behalf. Its
sovereign rights have been – and continue to be – directly infringed by the
jurisprudence of the highest Italian courts that denies Germany its right of
sovereign immunity. The claims that have been adjudicated by Italian courts
and are still pending before them are directed against the German State as a
legal entity, not against German nationals. Accordingly, there is no legal
requirement for Germany to exhaust local remedies. On the other hand, if
such a requirement existed, it would have been fully complied with since it
is the Corte di Cassazione, the highest court in civil matters, that has
developed the contested doctrine of non-invokability of sovereign immunity
in cases of grave violations of human rights and humanitarian law.
2) No need for prior exhaustion of diplomatic negotiations
5. Article 33 of the UN Charter does not require States to find
solutions to an actual dispute by all the methods listed therein before turning 7
to the Court. In the Oil Platforms case, this proposition was recently
confirmed. Nor does the European Convention establish any requirement to
that effect. In any event, however, since the delivery of the Ferrini judgment
by the Corte di Cassazione, Germany has been in constant contact with the
Italian authorities, urging them to see to it that the erroneous course
followed by the Italian judiciary be halted. Germany is aware of the efforts
undertaken by the Italian Government with a view to informing its judicial
branch about Italy’s obligations under the rules of general international law
which, in principle, are of direct applicability within the Italian legal order
according to Article 10 (1) of the Italian Constitution. Of course, as in all
the countries parties to the European Convention on Human Rights, Italian
judges are independent and are not subject to any instructions imparted to
them by their Government. Nonetheless, Italy as a whole must shoulder
responsibility for the acts of all its State organs, whatever their nature.
Article 4 (1) of the Articles on Responsibility of States for Internationally
Wrongful Acts, elaborated by the International Law Commission and taken
note of by General Assembly Resolution 56/83 of 12 December 2001, states
unequivocally that conduct capable of entailing responsibility may emanate
from any organ that
“exercises legislative, executive, judicial or any other functions.”
This proposition reflects a rule of customary law. No voices can be found
that would argue that the judiciary does not belong to the institutional
elements for whose actions a State can be made accountable. The
5
commentary of the ILC on Article 4 (1) refers to a rich array of relevant
precedents. It is left to every State to organize its entire machinery in such a
way that violations of international law to the detriment of other States do
not occur.
4ICJ Reports 2003, p. 161, 210, para. 107. For further references see Christian Tomuschat,
comments on Article 36, in: Zimmermann/Tomuschat/Oellers-Frahm, The Statute of the
International Court of Justice. A Commentary (Oxford 2006), p. 649, margin note 115;
Anne Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’, 14
(2003) EJIL 1, at 14.
5
See James Crawford, The International Law Commission’s Articles on State
Responsibility (Cambridge 2002), p. 95, para. 6. 8
3) No jurisdiction of the Court of Justice of the European
Communities
6. The present dispute is not covered by any of the jurisdictional
clauses of the Treaty of Nice (Treaty establishing the European Community,
Article 227 EC). Although disturbances of the proper functioning of the
internal market under the Treaty of Nice – and later of the Treaty of Lisbon
– may result from the contested practice of the Italian courts, it has no direct
link with the operation of the European market regime. The general
relationship between the European nations continues to be governed by
general international law. Every Member State of the European
Community/European Union is obligated to respect the general rules of
international law vis-à-vis the other members unless specific derogations
from that regime have been stipulated. In respect of the dispute in the instant
case, however, no such derogation has been agreed upon. Jurisdictional
immunity belongs to the core elements of the relationship between
sovereign States. Outside the specific framework established by the treaties
on European integration, the 27 European nations concerned continue to live
with one another under the regime of general international law. It should be
added, in this connection, that the special framework of judicial cooperation
that enables individuals to obtain the execution of judgments rendered in
one member State of the European Union in other member States of the
Union does not comprise legal actions claiming compensation for loss or
damage suffered as a consequence of acts of warfare (see below section
127).
III. The Facts
1) Settlement of War Damages
7. In the following, a few observations will be devoted to the
historical background of the dispute. This does not mean that occurrences of
the period preceding the entry into force of the European Convention for
both parties will be included in the subject-matter of the dispute. Germany 9
stresses once again that it challenges solely the judicial practices originated
by the Ferrini judgment of the Corte di Cassazione. However, the historical
context of the dispute cannot be fully understood without at least a summary
description of the unlawful conduct of the forces of the German Reich, on
the one hand, and the steps undertaken by post-war Germany, at the inter-
State level, to give effect to the international responsibility of Germany
deriving from that conduct, on the other.
8. It stands to reason that after World War II, measures had to be
taken to address the issue of war damages caused during the armed conflict.
The first of these measures was the Potsdam Accord of 2 August 1945,
6
concluded between the victorious Allied Powers. This Accord was
unilaterally imposed on Germany, which never became a party to it. It
contained a large chapter (IV.) on “Reparations from Germany”. In the
chapeau to this chapter, the earlier Crimea decision of the Allied Powers
was recalled
“that Germany be compelled to compensate to the greatest possible extent
for the loss and suffering that she has caused to the United Nations and for
which the German people cannot escape responsibility …”.
Accordingly, it was stipulated that reparations should take the form of
removals primarily from industrial capital equipment in the different zones
of occupation. Additionally, a determination was made that all German
external assets should be confiscated. In fact, those confiscations were
carried out over many years. Moreover, for purposes of reparation,
territorial dispositions were made over German territory. Lastly, based on
policy determinations of its own, Germany put in place a system of
compensation for victims of specific injustices committed through the racist
measures of persecution of the Nazi regime. It is hence obvious that
Germany, in order to compensate the victims of World War II, has made
major sacrifices not only of a financial character.
6
Reprinted in: Ingo von Münch (ed.), Dokumente des Geteilten Deutschland (Stuttgart
1968), p. 32. On its legal significance see Jochen Abr. Frowein, Potsdam Agreements on
Germany (1945), in: Encyclopedia of Public International Law, Vol. 3 (Amsterdam et al.
1997), pp. 1087-1092. 10
9. In 1947, Italy, which had been an Ally of Nazi Germany from
June 1940 until September 1943, concluded a Peace Agreement with the
7
victorious Allied Powers. Under Article 77 (4) of that Treaty, it had to
renounce all claims against Germany and German nationals:
“Without prejudice to these 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 8, 1945, except those arising out
of contracts and other obligations entered into, and rights acquired, before
September 1, 1939. This waiver shall be deemed to include debts, all inter-
governmental claims in respect of arrangements entered into in the course of
8
the war, and all claims for loss or damage arising during the war.”
10. After the Federal Republic of Germany had been established as
the authentic creation of the new democratic Germany, differences arose
between the German and the Italian Government about the scope of the
waiver clause of the Peace Treaty. In the governmental memorandum
submitted to the legislative bodies to explain the background of the 1961
Settlement Treaty (see in the following section 11), it was explained:
“Repeated attempts to reach an agreement failed. On the other hand, both
States did not overlook the fact that a settlement of this complex situation,
which affected the friendly relations between them, was in the interest of
both sides. The only viable solution to overcome all differences seemed to
make a single lump sum payment the amount of which could be determined
without any detailed examination of the factual and legal foundations of
each controversial claim by way of compromise. Balancing all the
circumstances to be taken into account for such a compromise, the two
749 UNTS 3, No. 747; ANNEX 3.
8
The French text, which is also authentic, reads:
“Sans prØjudice de ces dispositions et de toutes autres qui seraient prises en faveur de
l’Italie et des ressortissants italiens par les Puissances occupant l’Allemagne, l’Italie renonce,
en son nom et au nom des ressortissants italiens, à toutes rØclamations contre l’Allemagne
et les ressortissants allemands, qui n’Øtaient pasrØglØes au 8 mai 1945, à l’exception de
celles qui rØsultent de contrats et d’autres tions qui Øtaient en vigueur ainsi que de
droits qui Øtaient acquis avant le 1er septembre 1939. Cette renonciation sera considØrØe
comme s’appliquant aux crØances, à toutes les rØclaations de caractŁre
intergouvernemental relatives à des accords conclus au cours de la guerre et à toutes les
rØclamations portant sur des pertes ou des dommagessurvenus pendant la guerre. » 11
governments eventually agreed upon an amount of 40 Million German
marks.” 9
11. This understanding led to the conclusion of two international
agreements, both signed on 2 June 1961. In order to bring about a definitive
reconciliation between the two nations, Germany agreed to make some
payments to Italy, notwithstanding the waiver clause in article 77 (4) of the
Peace Treaty. By virtue of the Treaty on the Settlement of Certain Property-
10
Related, Economic and Financial Questions, Germany paid an amount of
40 Million German Marks to Italy for “the purposes of settling outstanding
questions of an economic nature” (Article 1). On its part, the Italian
Government declared in Article 2 (1) of that Agreement
“all outstanding claims on the part of the Italian Republic or Italian natural
or juridical persons against the Federal Republic of Germany or German
natural or juridical persons to be settled to the extent that they are based on
rights and circumstances which arose during the period from 1 September
11
1939 to 8 May 1945.”
By virtue of the Treaty Concerning Compensation for Italian Nationals
Subjected to National-Socialist Measures of Persecution, Germany agreed
to pay another amount of 40 Million German Marks for the benefit of Italian
nationals affected by national-socialist measures of persecution on grounds
of race, faith or ideology and who, through such measures of persecution,
had suffered deprivation of liberty or health damages. It was left to the
9
German Bundestag, Printed Matter (Drucksache) IV/433, p. 12: „Wiederholte Versuche,
zu einer Übereinstimmung zu kommen, scheiterten. Andererseits verkannten beide Staaten
nicht, dass eine Lösung dieses die freundschaftlichen Beziehungen beeinträchtigenden
Fragenkomplexes im beiderseitigen Interesse lag. Als einzig gangbarer Weg erschien es,
alle Differenzen durch eine einmalige deutsche Pauschalzahlung zu beseitigen, deren Höhe
ohne nähere Prüfung der tatsächlichen und rechtlichen Voraussetzungen jedes einzelnen
strittigen Anspruchs im Wege des Kompromisses bestimmt werden konnte. Unter
Abwägung aller für einen solchen Kompromiss in Betracht zu ziehenden Umstände
einigten sich die beiden Regierungen auf den Betrag von 40 Millionen DM (Artikel 1).“
10BGBl. 1963 II, 669; ANNEX 4. The German title is: Abkommen über die Regelung
gewisser vermögensrechtlicher, wirtschaftlicher und finanzieller Fragen.
11„Die italienische Regierung erklärt, dass alle Ansprüche und Forderungen der
Italienischen Republik oder von italienischen natürlichen oder juristischen Personen, die
gegen die Bundesrepublik Deutschland oder gegen deutsche natürliche oder juristische
Personen noch schweben, erledigt sind, sofern sie auf Rechte und Tatbestände
12rückgehen, die in der Zeit vom 1. September 1939 bis 8. Mai 1945 entstanden sind.“
BGBl. 1963 II, 793, ANNEX 5. The German title is: Vertrag über Leistungen zugunsten
italienischer Staatsangehöriger, die von nationalsozialistischen Verfolgungsmaßnahmen
betroffen worden sind. 12
discretion of the Government of the Italian Republic to decide on the use of
13
those monies. This Agreement contained also a waiver clause. It was
specified in Article 3:
“Without prejudice to any rights of Italian nationals based on German
compensation legislation, the payment provided for in Article 1 shall
constitute final settlement between the Federal Republic of German and the
Italian Republic of all questions governed by the present Treaty..” 14 15
12. It emerges from the conventional instruments cited above that
the entire reparation regime was founded on the premise that reparation
should be sought and made exclusively in a global manner on an inter-State
level. This premise underlay not only the Potsdam Agreement of 1945 and
the Peace Treaty with Italy, but also the two 1961 Agreements between
Germany and Italy. A reparation regime of that kind cannot be subverted
retroactively.
2) Judicial Proceedings against Germany
13. As already hinted in the introduction, Germany is currently
faced with a growing number of disputes before Italian courts where
claimants who suffered injury during World War II, when Italy was under
German occupation after it had terminated its alliance with Germany on 8/9
September 1943 and joined the Allied Powers, have instituted proceedings
seeking financial compensation for that harm. Three main groups of
claimants may be distinguished. On the one hand, there are claimants,
mostly young men at the time, who were arrested on Italian soil and sent to
Germany to perform forced labour. The second group is constituted by
13According to the Italian Presidential Decree No. 2043 of 6 October 1963, ANNEX 6,
also Italian prisoners of war deported to Germany and used as forced labourers were to
benefit from those monies. The monies were in fact distributed and gave rise to a number of
legal disputes, see Corte di Cassazione, judgment of 30 October 1986/2 March 1987,
14NEX 7.
„Mit der in Artikel 1 bezeichneten Zahlung sind zwischen der Bundesrepublik
Deutschland und der Italienischen Republik, unbeschadet etwaiger Ansprüche italienischer
Staatsangehöriger auf Grund der deutschen Wiedergutmachungsgesetze, alle Fragen, die
Gegenstand dieses Vertrages sind, abschließend geregelt.“
15The German „Wiedergutmachungsgesetze“ are legal enactments adopted specifically
with a view to making good injury caused not as a consequence of the armed conflict, but
as a consequence of measures taken by the Nazi regime against racial and other ethnic
minorities or political opponents. 13
members of the Italian armed forces who, after the events of September
1943, were taken prisoner by the German armed forces and were soon
thereafter factually deprived by the Nazi authorities of their status as
prisoners of war, with a view to using them as forced labourers as well.
The third group comprises victims of massacres perpetrated by German
forces during the last months of World War II. Using barbarous strategies in
order to deter resistance fighters, those units on some occasions assassinated
hundreds of civilians, including women and children, after attacks had been
launched by such fighters against members of the occupation forces. In
many of those cases, there was additionally a gross quantitative
disproportionality between the numbers of the German and the Italian
victims.
14. Since the relevant events go back more than 60 years, in many
instances the claimants are the heirs of the victims proper, either the
children or the widows.
15. The democratic Germany, which emerged after the end of the
Nazi dictatorship, has consistently expressed its deepest regrets over the
egregious violations of international humanitarian law perpetrated by
German forces during the period from 8/9 September 1943 until the
liberation of Italy. On many occasions, Germany has already made
additional symbolic gestures to commemorate those Italian citizens who
became victims of barbarous strategies in an aggressive war, and is prepared
to do so in the future. On behalf of the German Government, Foreign
Minister Frank-Walter Steinmeier just recently confirmed that Germany
fully acknowledges the untold suffering inflicted on Italian men and women
in particular during massacres, and on former Italian military internees,
when he visited, together with his Italian colleague Franco Frattini, the
memorial site “La Risiera di San Sabba” close to Trieste, which during the
German occupation had served as a concentration camp. One of the
16
It stands to reason that in an armed conflict none of the two belligerent parties may
deprive combatants made prisoners of war unilaterally of that status. The status of prisoner
of war is regulated by rules of international law over which no party can dispose at its own
free will. 14
conclusions of that meeting was that a joint commission of German and
Italian historians should be established with the mandate to look into the
common history of both countries during the period when they were both
governed by totalitarian regimes, giving special attention to those who
suffered from war crimes, including those Italian soldiers whom the
authorities of the Third Reich abusively used as forced labourers (“military
internees”). In fact, the first conference of that joint commission, which
comprises five eminent scholars from each side, was held on 28 March 2009
in Villa Vigoni, the prominent centre for cultural encounters in German-
Italian relations.
16. A fourth group of disputes must be mentioned separately,
namely the disputes arising from the attempts by Greek nationals to enforce
in Italy a judgment obtained in Greece on account of a similar massacre
committed by German military units during their withdrawal in 1944
(Distomo case). 17
17. In the following, Germany will confine itself to describing in
more detail the leading Ferrini case and some other typical cases, in
particular the Distomo case. Since the legal position is more or less the same
in all of the proceedings, there does not seem to be a real need for setting
out the facts of all cases with their specific features. However, Germany has
attached to this Application a list of all currently pending cases.8
a) The Ferrini case 19
18. By means of an application filed on 23 September 1998, Mr.
Luigi Ferrini, born 12 May 1926, who had been captured by German forces
in the province of Arezzo on 4 August 1944, and subsequently deported to
Germany where he was compelled to perform work as forced labourer in the
armaments industry, instituted proceedings before the Tribunale di Arezzo,
claiming reparation, to an equitable extent, for the injury suffered during the
17
18For details see below sections 33-41.
19ANNEX 8.
See above n. 1. 15
time until his liberation in May 1945 (return to Italy in August 1945). The
Tribunale di Arezzo dismissed the claim (judgment of 3 November 2000),
arguing that it lacked jurisdiction since Germany had acted in the exercise of
its sovereign powers and was accordingly protected by the customary rule of
State immunity.
19. The Corte di Appello di Firenze (Florence Court of Appeal)
dismissed the appeal interjected by Ferrini (judgment of 16 November
2001/14 January 2002). It joined the line of arguments relied upon by the
Tribunale di Arezzo, adding that the claim by the applicant lacked also any
support in human rights law.
20
20. The Corte di Cassazione departed from the grounds upon
which the two lower courts had founded their decisions. There is no need to
reflect in full the observations of the Corte di Cassazione. May it suffice to
draw attention to the main points of that judgment. The Corte di Cassazione
underlines first of all the gravity of the crime of deportation, prohibited
under international humanitarian law. It then insists of the specificity of the
Ferrini case in contradistinction to the McElhinney case adjudicated by the
21
European Court of Human Rights in that the acts alleged to be the root
cause of the injury, namely the arrest of the applicant, took place on Italian
soil. Furthermore, the Corte di Cassazione refers to developments in the
United States where the US Foreign Sovereign Immunities Act was
amended by the addition of the Anti-Terrorism and Effective Death Penalty
Act of 1996, which opened the door for claims against States “sponsors”
of terrorism, if certified as such by the US Government. Lastly, the Corte di
Cassazione argues that if leaders occupying high positions in a State
government may be charged with committing grave crimes, there is no
reason to debar the victims from bringing civil suits against the responsible
State. However, as far as tangible precedents are concerned, the Corte di
Cassazione can point to no more than the judgment of the Areios Pagos, the
highest Greek tribunal in civil matters, which had as the first judicial body
20
21See above note 1.
22McElhinney v. Ireland, appplication No. 31253/96, 21 November 2001.
36 (1997) ILM 759. 16
ever affirmed that State immunity was forfeited by States committing
23
serious human rights violations. In sum, the Corte di Cassazione affirms
that, given the different hierarchical position of the norms that protect
human rights, on the one hand, and the rule of immunity, on the other hand,
the former must prevail (para. 9.1).
21. Germany immediately expressed its strong concerns with the
Italian Ministry of Foreign Affairs (5 May 2004).
22. The case was referred back to the Tribunale di Arezzo.
Subsequently, some delays were caused before the trial court by the recusal
of the competent judge by the lawyer of the claimant. By a judgment of 12
April 2007 the Tribunale di Arezzo found that the claim to reparation of the
damage sustained was time-barred. Remedies were filed against this
decision. The case is currently pending before the Corte di Appello di
Firenze.
b) The subsequent cases
23. After the delivery of the Ferrini judgment, numerous victims of
deportation to Germany, who had also been misused as forced labourers,
instituted proceedings against Germany as well. Two cases should be
specifically mentioned.
24. The first case is that of Giovanni Mantelli and Others, a mass
claim involving twelve applicants. Concerning the relevant facts, the
Mantelli case is also typical of all the others. Mantelli, born 3 October 1921
in Torino, was arrested by German forces in June 1944 and brought to
Germany where he was assigned to work in the factory of Mercedes-Benz in
Gaggenau (Baden). He was liberated after the surrender of the German
Armed Forces in May 1945. Having learned about the outcome of the
Ferrini proceedings, he and the other claimants filed a suit against Germany
on 13 April 2004 before the Tribunale di Torino. In order to clarify the
23Prefecture of Voiotia v. Federal Republic of Germany, judgment of 4 May 2000, English
translation: 129 ILR 514 (see also below sections 31, 59); ANNEX 9. 17
controversial issue of the jurisdiction of the Italian courts, a remedy was
filed by Germany with the Corte di Cassazione before a decision on the
merits of the claim had been issued (“regolamento preventivo di
giurisdizione”). In order to enlighten the Corte di Cassazione about the
applicable legal position, the Procura Generale della Repubblica presso la
24
Corte di Cassazione made a submission on 22 November 2007. In
carefully worded terms, it stated (p. 17) that
“it is not at all easy to contend that in the international legal order
conventional or customary rules have emerged pursuant to which the
jurisdictional immunity yields if the civil responsibility of the State for the
commission of international crimes is invoked”. 25
Accordingly, it concluded that the Corte di Cassazione should determine
that the Italian courts lacked jurisdiction in the case under consideration.
25. Similar facts underlie the Maietta case. Liberato Maietta, born
12 September 1924, was arrested by German forces on 9 September 1943.
Sent to Germany as a forced labourer, his first workplace was in Küstrin,
while at a later stage he was compelled to work in Landsberg (no further
details are given). He filed a suit against Germany on 28 April 2004 before
the Tribunale di Sciacca. In his case, too, the Corte di Cassazione was seized
by Germany with the request that it should make a determination on the
jurisdiction of the Tribunale in the case at hand. The Procura Generale della
Repubblica presso la Corte di Cassazione made again a submission which is
substantially identical to the submission in the Mantelli case.
26. Given the delicate nature of the controversy, the Secretary-
General of the Presidency of the Italian Council of Ministers, in a letter of
26
24 April 2008 to the Avvocatura Generale dello Stato, stated that
Germany’s objections were justified. There was an absolute lack of
24ANNEX 10. The Procura Generale discharges the functions of a legal adviser with the
Corte di Cassazione, comparable to the role of the Advocates General with the Court of
Justice of the European Communities.
25„ … non Ł affatto agevole affermare che nell’ordinamento internazionale si siano formate
regole convenzionali o consuetudinarie secondo le quali l’immunità dalla giurisdizione
viene meno qualora si invochi la responsabilità civile dello Stato per la commissione di
26imini internazionali.”.
ANNEX 11. 18
jurisdiction. In particular, the letter said, the international legal order
recognizes, through customary and conventional rules that have been
accepted almost unanimously by international and national courts, the
“fundamental” requirement to comply with the exemption from the
territorial jurisdiction of States, in order to defend the reciprocal
sovereignties, to promote good relations and to avoid the growing of
conflictive tensions. On this basis, the Avvocatura Generale dello Stato
(Solicitor General of Italy) on 28 April 2008 made indeed an additional
27
submission to the Corte di Cassazione. In a central passage of this opinion
(p. 3), it stated with regard to the Ferrini judgment:
“ … this ruling, which moreover constitutes an unicum in the jurisprudential
panorama, be it national or international, does not seem to be in line with
the current position of international law although it emphasizes some
relevant aspects …” 28
27. The Corte di Cassazione, however, did not heed the advice given
to it by the bodies whose task it is to state their views in order to assist it in
reaching a correct assessment of the cases to be adjudicated by it. In a
number of orders (“ordinanze”) of 29 May 2008, whereby, in addition to
ruling on the Mantelli case and the Maietta case, it made determinations on
11 other cases, it held that the relevant Italian judges enjoyed jurisdiction
with regard to the claims for financial compensation brought against
Germany. In support of its determination, it observed, inter alia, that it was
conscious of the fact
“that, at this time, there existed no definite and explicit international custom
according to which the immunity of the foreign State from civil jurisdiction
with regard to acts performed by it iure imperii (among which undoubtedly
also those, in particular, are encompassed which relate to the conduct of
armed activities …) could be deemed to have been derogated from in
respect of acts of such gravity as to qualify as ‘crimes against humanity’” 30
27ANNEX 12.
28„…tale decisione, la quale peraltro costituisce un unicum nel panorama giurisprudenziale
sia nazionale che internazionale, pur sottolineando aspetti di rilievo, tuttavia non appaia in
linea con lo stato attuale del diritto internazionale …”.
29ANNEX 13.
30„…che non esista, allo stato, una sicura ed esplicita consuetudine internazionale per cui il
principio della immunità dello Stato straniero dalla giurisdizione civile per gli atti dal 19
and that it was also conscious of the fact that
…
“accordingly it contributed to the emergence of a rule shaping the immunity
of the foreign State which is anyhow deemed to be inherent in the system of
31
the international legal order.”
Lastly, the Court summarized its reasoning by stating that
“it could be presumed that a principle limiting the immunity of a State
which has committed crimes against humanity was ‘in the process of
formation’”. 32
In other words, the Corte di Cassazione acknowledged quite openly that the
rule which it applied in the cases before it did not yet exist. Apparently,
however, it felt entitled to develop the law since the positive law in force did
not correspond to requirements of justice as perceived by it.
28. Following the decisions of the Corte di Cassazione, the
proceedings are now pending again before the courts of first instance where
the stage of taking of evidence has begun. The Maietta case is being dealt
with by the Tribunale di Sciacca, and the Mantelli case is under
consideration by the Tribunale di Torino.
c) The Milde (Racciarini) case
29. The case of Max Josef Milde has totally different characteristics.
Milde was charged by the prosecutorial authorities in Italy with
participating in a massacre committed on 29 June 1944 in Civitella, Val di
Chiana, Cornia and San Pancrazio. Members of the division “Hermann
Göring” of the German armed forces killed 203 civilians taken as hostages
medesimo compiuti iure imperii (tra i quali innegabilmente rientrano anche quelli, in
particolare, relativi alla conduzione delle attività belliche …) possa ritenersi derogato a
fronte di atti di gravità tale da configurarsi come ‘crimini contro l’umanità’”.
31„ … di contribuire così alla emersione di una regola conformativa della immunità dello
stato estero, che si ritiene comunque già insita nel sistema dell’ordinamento
internazionale.”
32
„un principio limitativo dell’immunità dello Stato che si sia reso autore di crimini contro
l’umanità può presumersi ‘in via di formazione’”. 20
after resistance fighters had killed four German soldiers a few days earlier. 33
The Military Court of La Spezia convicted and sentenced Milde in absentia
to life imprisonment (“ergastolo”). Some of the relatives of the massacred
persons appeared as civil parties in the proceeding, requesting reparation
from the accused and from Germany for the physical and moral injury
suffered (case of Ricciarini and others). Amounts varying between 200,000
Euros (two claimants), 100,000 Euros (four claimants) and 66,000 Euros, to
be borne by the respondents, were accordingly allocated. Germany was also
ordered to bear the costs of the proceedings.
30. Germany filed an appeal against that judgment, invoking its
immunity and therefore arguing that the judgment of the court of first
instance must be set aside. However, the Military Court of Appeals in Rome,
35
by a judgment of 18 December 2007, dismissed the appeal. On the basis of
lengthy observations, it attempted to show that the legal position had been
clarified through the Ferrini judgment and that, as a consequence, Germany
could not invoke the jurisdictional immunity which is generally applicable
to States that have been impleaded before the courts of another State if the
relevant acts forming the subject-matter of the dispute have been performed
in the exercise of specific sovereign powers. It may be the first time in the
history of international law that a State was found liable before the military
courts of another State to make reparation for war crimes committed by one
of its military agents. The judgment of the Military Court of Appeals is not
only unsatisfactory on account of the wrong result which it reached. It also
reveals a basic misunderstanding of international law. Perusing its many
pages, the reader becomes aware of the Court’s erroneous belief that
infringements of human rights guarantees under international law must be
remedied through national proceedings. The Court, in any event, does not
demonstrate any knowledge of the existence of international procedures of
settlement. Essentially, it argues that such infringements would remain
without any kind of redress if national courts were prevented from
entertaining civil actions seeking reparation.
33
34Originally, two more members of his unit had been indicted.
35Judgment of 10 October 2006, ANNEX 14.
ANNEX 15. 21
31. The remedy of cassation filed by Germany against the finding
regarding its financial responsibility by the judgment of the Military Court
of Appeals was not successful. The Corte di Cassazione dismissed the
remedy by a judgment of 21 October 2008, the text of which became
36
available in January 2009. In this judgment, the Corte di Cassazione
confirms the Ferrini precedent, admitting very openly (section 3) that it
meant an “abrupt virement” (“una svolta netta”) in the pattern of its own
case law and that it amounted to the application of “innovative principles”
(“innovativî principi”). In order to support the legal correctness of that shift,
it first of all refers to its own subsequent decisions, including the decisions
of 29 May 2008, mentioned in para. 27. Without bothering to examine the
relevant international practice on the issue – in fact, not a single foreign
judgment or legislative act is mentioned - the Corte di Cassazione states in a
grand gesture (section 4):
“Moreover, it is particularly important to stress that the solution to the
question here discussed cannot be resolved on a purely quantitative basis, in
other words, it cannot depend on how many rulings supported this or that
position. It should be pointed out in this connection that although it is true
that an examination of the practice of the courts of the various States is a
meaningful way of ascertaining the application of customary rules of
international law, it is equally true that the task of interpretation cannot be
reduced to a mere mat37matical computation of the data inferred from
judicial practice …”
32. The judgment continues emphasizing the value which in our
time the international community attaches to fundamental rights. However,
this is not the question the Corte di Cassazione had to address. In the first
place, it should have dismissed the action against Germany because of
Germany’s jurisdictional immunity. But even its observations on the merits
36ANNEX 16.
37„Peraltro, il punto che sopratutto preme di sottolineare Ł intimamente collegato alla
convinzione che la soluzione della questione dibattuta non possa corrispondere ad un esito
di tipo meramente quantitative e non possa dipendere, perciò, soltanto dal numero,
maggiore o minore, delle decisioni che aderiscono all’una o all’altra posizione. In proposito
deve osservarsi che se Ł vero che l’esame della prassi dei tribunali dei vari Stati costituisce
uno strumento importante per l’accertamento del vigore delle norme consuetudinarie di
diritto internazionale, Ł non di meno certo che ilcompito dell’interprete non può ridursi ad
un computo aritmetico dei dati desunti dalla prassi …”. 22
of the case miss another essential issue. The damage entailed by a breach of
fundamental rules during armed conflict can be repaired in many different
ways, in particular on an inter-State level. To stick to the well-proven
practices of international law does not amount to an interference in the
rights that have suffered injury: compliance with the law in force cannot
amount to a violation of the law. 23
d) The Distomo case
33. The Distomo judgment of the Greek Areios Pagos of
4 May 2000 38has also had significant repercussions in Italy. The facts
underlying that case go once again back to the final months of the German
occupation of large parts of Europe. After 18 German soldiers had been
killed by Greek resistance fighters, a German unit launched a revenge
operation against the nearby village of Distomo. In the course of that
operation, more than 200 civilians, among them mostly women, children
and elderly men, were mercilessly massacred. The village was burned to the
ground. There can be no doubt that this was an abominable war crime. In
1995, proceedings against Germany were commenced by more than 250
relatives of the victims of the massacre who claimed compensation for loss
of life and property. In a judgment of 25 September/30 October 1997
(137/1997), the Regional Court of Livadia found that it had jurisdiction
over the case. It held Germany liable and made a finding – without issuing
an order to pay – to the effect that Germany as the respondent had to pay an
amount of 27 Million Euros to the claimants (according to the available
French translation: “Reconnaît que l’Etat dØfendeur doit verser … ”). As far
as the procedural costs are concerned, Germany was “ordered” to reimburse
a part of the costs defrayed by the claimants (“Condamne l’Etat dØfendeur à
une partie des frais et dØpenses de la demanderesse …”). This judgment was
challenged by Germany. In an appeal to the Areios Pagos it invoked its
jurisdictional immunity, arguing that no judgment on the merits should have
been rendered.
34. The Areios Pagos dismissed the appeal. It relied essentially on
the territorial clauses in a number of legal instruments dealing with State
immunity pursuant to which immunity is not operative in instances where
the relevant tortious action was committed in the territory of the forum State
by an agent of that State present in that territory. In addition, it emphasized
the gravity of the crimes in issue. Accordingly, it confirmed the judgment of
the court of first instance.
38
39ANNEX 9.
ANNEX 17. 24
35. Subsequent to the delivery of the judgment of the Areios Pagos,
the successful claimants, for whom the Prefecture of Voiotia acted, sought
to enforce the judgment 137/1997 of the Regional Court of Livadia against
German property in Greece. However, enforcement action against a foreign
State requires, under Article 923 of the Greek Code of Civil Procedure, the
authorization of the Minister of Justice. This authorization was not granted;
the Minister gave no response to a request to that effect submitted to him.
Nonetheless, the claimants commenced enforcement proceedings. Germany
lodged an objection and requested the proceedings – which aimed to register
a legal mortgage on the Goethe Cultural Institute in Athens - to be stayed.
Eventually, the Athens Court of Appeal upheld the objection lodged by
Germany. It observed that Article 923 pursued an aim in the public interest,
namely to avoid disturbances in international relations, and was
proportionate to that aim. Neither did Article 923 constitute a denial of the
right to effective judicial protection (Article 6 of the European Convention
on Human Rights and Article 2 (3) of the International Covenant on Civil
and Political Rights) since it did not enunciate an absolute prohibition on
enforcement but merely established a requirement for prior government
approval. An appeal to the Areios Pagos was dismissed on 28 June 2002.
Details of the somewhat complex proceedings are given in the factual part
of the judgment of the European Court of Human Rights in Kalogeropoulou
40
of 12 December 2002 (see following section 36).
36. Thereupon, the claimants introduced an application against
Greece and Germany before the European Court of Human Rights (ECtHR),
relying on Article 6 of the European Convention on Human Rights (ECHR).
They contended that their right to judicial protection, enshrined in that
provision, had been encroached upon by both governments. The European
Court dismissed the application. It recalled first the principle of State
immunity, developed from the maxim par in parem non habet imperium,
concluding that by granting immunity to a foreign State a legitimate aim
was pursued. It then stressed that the provisions of the European Convention
40Application No. 59021/00. 25
on Human Rights did not operate in a vacuum, as indicated by Article 31 (3)
(c) of the Vienna Convention on the Law of Treaties pursuant to which in
the interpretation of a treaty account is to be taken of “any relevant rules of
international law applicable in the relations between the parties”. Thus,
harmony must be established with other rules of general international law,
including the rule of sovereign immunity. Lastly, the European Court stated
that it did
“not find it established … that there is yet acceptance in international law of
the proposition that States are not entitled to immunity in respect of civil
claims for damages brought against them in another State for crimes against
humanity”.
37. The claimants then attempted to enforce the Distomo judgment
in other European countries. They found out that in Italy their chances of
being successful might be good, given the Ferrini judgment of the Corte di
Cassazione. Upon their request, the Court of Appeal of Florence, by virtue
of a decision (“decreto”) of 2 May 2005, declared “enforceable in Italy”
(“dichiara esecutiva in Italia”) the order contained in the Livadia judgment
which imposed on Germany to re-imburse the costs for the judicial
42
proceedings in Greece (2,934.70 Euros). By decision of 6 February 2007,
the same Court rejected Germany’s opposition against that decision, as did
the Corte di Cassazione on 29 May 2008 . The amount of 2,93470 Euros
plus costs is now enforceable in Italy against Germany.
38. Following its earlier line of reasoning, the Court of Appeal of
Florence then declared, by a decision (“decreto”) of 13 June 2006, 44 the
enforceability of the judicial order directing Germany to pay the amounts
allocated to the claimants on account of the merits of the dispute. Germany
lodged the remedy of opposition on 2 August 2007. The Avvocatura
Distrettuale dello Stato di Firenze, in a submission of 11 September 2008,
41ANNEX 18.
42ANNEX 19.
43
44ANNEX 20.
ANNEX 21. 26
45
observed that the decision of 13 June 2006 should be set aside. However,
in its judgment of 21 October/25 November 2008 the Court of Appeal of
Florence rejected the opposition. 46 Germany has filed the remedy of
cassation against that judgment in order to try, once again, to convince the
Corte di Cassazione of its erroneous course. To date, the proceedings have
not yet come to a close.
39. Subsequently, the claimants looked out for property of Germany
that might be subject to measures of constraint. They identified the Villa
Vigoni, located in the village of Loveno di Menaggio, province of Como, on
the heights surrounding Lake Como, as a suitable object for such action.
Villa Vigoni is a place of cultural encounter between Germany and Italy. It
was bequeathed in 1983 by Ignazio Vigoni, a member of a family with rich
traditions in Italo-German relationships, to the German State with the
proviso that a cultural centre should be established in the Villa and the
surrounding park. In 1986, an executive agreement 47 was concluded
between the two governments, fixing the legal status of Villa Vigoni. While
the ownership of the real estate remains with Germany, the management of
the entity was entrusted to an Association which operates as an Italian
association in Italy and as a German Verein in Germany. On an annual basis,
Villa Vigoni shall be awarded and has been awarded public monies from the
budget of the German Federal Ministry of Education and Research as well
as from the Italian Ministry of Foreign Affairs. Section 3 of the Exchange of
Notes provides: “The property shall be maintained intact”.
40. Notwithstanding the fact that the decision of the Corte di
Appello di Firenze of 13 June 2006 has not yet become res judicata, the
claimants obtained, on 7 June 2007, the inscription of a judicial mortgage
(“ipoteca giudiziale”) in the land register covering Villa Vigoni. The sum of
that mortgage amounts to 25,000 Euros. Germany challenged that decision.
45ANNEX 22.
46ANNEX 23.
47Exchange of notes constituting an arrangement concerning the establishment of the
“Villa Vigoni” Association as a German-Italian Centre, 21 April 1986, 1501 UNTS 57, No.
25828, ANNEX 24.
48
ANNEX 25. 27
In a submission of 6 June 2008 to the Tribunale di Como the Avvocatura
dello Stato opined that the judicial mortgage should be cancelled . No49
definitive decision has been taken as yet.
41. Additionally, the claimants in the Distomo case have recently
attempted to attach credits owed by the Italian Ferrovie dello Stato to
Deutsche Bahn AG, the German railway company, a private corporate body
the shares of which are currently held by the German State. The sum in
question amounts to roughly 50 million Euros. Germany has challenged the
application of the claimants for a decision of the Tribunale di Roma to
obtain such a garnishment order. A first hearing, scheduled for 17 March
2009, could not take place because the interested parties had not been
correctly summoned. A (second) hearing will take place on 2 October 2009.
49
ANNEX 26. 28
e) The latest cases - Examples
42. Numerous other claims are currently pending before Italian
courts. Thus, just to give an additional example, seven proceedings were
instituted before the Tribunale di Mantova on 8 September 2004 (Terzo
Bosoni; Alfeo Mutti; Norma Secchi; Lea Salardi; Evaristo Trida; Lido Cera;
Francesco Mazza). The claimants argue that Germany owes them financial
compensation because they were deported to Germany to perform forced
labour. In all of these cases, the Tribunale di Mantova concluded that there
was a lack of jurisdiction. However, appeals are pending before the Corte di
Appello di Brescia. It must be presumed that those appeals will be granted
since the Corte di Cassazione clings to the jurisprudence it initiated with the
Ferrini judgment.
43. One of the more recent proceedings is the case of Gamba and
Others, instituted before the Tribunale di Mantova on 10 April 2007 by 44
claimants. Later (11 March 2008) this action was joined by 30 further
claimants. On grounds of territorial jurisdiction, the case is now pending
before the Tribunale di Brescia. Here again, the claimants base their
requests on the fact that they were unlawfully deported to Germany and
were subjected, as forced labourers, to harsh living conditions.
44. In 2009, the series of mass claims has continued. On 27
February, two applications were introduced before the Tribunale di Torino,
the first one (Azzan and Others) comprising ten claimants, and the second
one (Baldi and Others) comprising nine claimants. Their wish is to join the
proceedings in the Mantelli case . A further case was brought to the
attention of the Tribunale di Mantova in February 2009 (Currà and 32 other
claimants).
45. Germany does not deem it necessary to describe in detail all the
cases that are currently pending before Italian judges. Since 2004, the
numbers have continually increased. Currently, almost 500 claimants have
50Above para. 24. 29
introduced civil actions against Germany, which are pending before 24
regional courts (“Tribunali”) and four courts of appeal. The essential data
51
can be gleaned from the list annexed to this application. It stands to reason
that Germany is thus involved in a continual confrontation which requires a
huge amount of financial and intellectual expenditure. A special task force
of lawyers had to be set up to follow the developments with their manifold
ramifications. Having to observe the judicial practice of the Italian judges in
the relevant cases, and to respond to it in an appropriate manner, is
extremely burdensome for Germany and has grown into a serious stumbling
block adversely affecting the bilateral relationships between the two nations.
f) No consent to Italian jurisdiction
46. It should be made clear at the very outset that Germany has
never consented to the exercise of jurisdiction by the Italian courts in the
cases referred to above. Whenever Germany has made an appearance in a
proceeding, it has consistently asserted that the actions must be dismissed
for lack of jurisdiction. If in the relevant cases the Italian courts had acted
correctly, they would have rejected those actions “on their own initiative”,
as specified by Article 6 (1) of the UN Convention on Jurisdictional
Immunities of States and Their Property of 2 December 2004, which reflects
the position under customary international law. On a regular basis, however,
Germany has responded to the actions with a view to drawing the attention
of the judges concerned to the jurisdictional obstacle of sovereign immunity,
and remedies were filed solely in order to alert the competent higher judicial
bodies about the mistaken course followed by some of the lower judges. In a
spirit of partnership, its intention was to help the Italian judiciary to correct
itself. Accordingly, Germany has never entered into a discussion about the
well-foundedness of the claims brought against it. In a deliberate manner, it
has always defended the viewpoint that substantive claims derived from
occurrences dating back to World War II cannot be pursued before Italian
courts. Accordingly, the subject-matter of the dispute is clearly confined to
51ANNEX 8. 30
occurrences that took place after the entry into force of the European
Convention for the litigant parties.
IV. The Merits
47. Through its judicial practice, as described above, Italy has
infringed and continues to infringe its obligations towards Germany under
international law. Primarily, Italy is bound to abide by the principle of
sovereign immunity which debars private parties from bringing suits against
another State before the courts of the forum State. Italy cannot rely on any
justification for disregarding the immunity which Germany enjoys under
that principle.
1) Sovereign Immunity as a Fundamental Principle of International
Law
48. Sovereign immunity is a fundamental principle of the present-
day international legal order. It is so well recognized that its existence needs
no lengthy demonstration. One of the early decisions usually referred to in
this connection is the U.S. judgment in The Schooner Exchange, delivered
by Chief Justice Marshall, where it was said that immunity was rooted in the
“perfect equality and absolute independence of sovereigns”. Before World
War I and even during the inter-war period, absolute immunity of States
from judicial interference was the dominant theory regarding the reach
53
ratione materiae of such immunity.
49. After World War I, doubts arose as to the scope ratione
materiae of jurisdictional immunity. Pursuant to the dominant view, States
enjoyed absolute immunity with regard to all kinds of suits brought against
them. However, since the Soviet Union, a newcomer on the international
stage, had decided to carry out trade activities through State undertakings, it
was increasingly felt unjust to grant a privileged status to commercial
5211 U.S. (7 Cranch) 116, 137.
53 nd
See, for instance, Hazel Fox, Tnd Law of State Immunied., Oxford 2008), pp. 204-
211; ILC, Report on the work of its 32sion, YbILC 1980, Vol. II, Part 2, pp. 142-157. 31
activities of foreign States. The great turnaround occurred in 1952 when the
Legal Adviser of the US Department of State stated in a letter of 19 May
54
1952 that in the future, when considering requests of foreign governments
for a grant of sovereign immunity, the Department would not support
continued full acceptance of the absolute theory immunity but would follow
the restrictive theory, which limited immunity to non-commercial activities
of foreign States.
50. This line of reasoning, which corresponded to a tendency in the
55
jurisprudence of the Italian courts followed already for many decades,
found also a positive echo in the case law of the German courts. The
Bundesverfassungsgericht (Constitutional Court), which is tasked under the
Basic Law (Article 100 (2)) with ruling on the controversial existence of a
general rule of international law if so requested by any one German court,
joined the international consensus reflected in the Tate letter in a decision of
56
30 April 1963 by specifying that a customary rule prohibiting civil actions
to be brought before the courts of other States no longer existed with regard
to commercial activities – acta jure gestionis. Sovereign immunity had to be
deemed to be confined to proceedings in which acta jure imperii were in
issue.
51. With the exception of socialist States, the restrictive theory of
sovereign immunity was indeed followed in the subsequent years almost
everywhere in the world when such issues arose before civil courts in cases
brought against foreign States. In the United States, the judgment of Alfred
57
Dunhill of London v. Republic of Cuba embraced the new doctrine, and
fuller grounds for the new course were given in 1983 in Verlinden v.
58
Central Bank of Nigeria. At the same time, the United States proceeded to
59
a legal enactment, the Foreign Sovereign Immunities Act (FSIA), which
provided that foreign States shall not enjoy immunity in commercial matters.
54
55“Tate letter“, 26 (1952) Department of State Bulletin 984.
For references see ILC, Report on the work of its 43rd session, YbILC 1991, Vol. II, Part
Two, p. 36 n. 11.
5616 Entscheidungen des Bundesverfassungsgerichts 27; English translation: 45 ILR 57.
57425 U.S. 682 (1976).
58461 U.S. 480 (1983).
5915 (1976) ILM 1388. 32
In the United Kingdom, efforts to depart from the absolute theory of
immunity eventually prevailed in 1977 in the case of Trendtex Trading
Corporation v. Central Bank of Nigeria. 60 In 1978, this new tendency
received legislative support through the enactment of the State Immunity
61 62
Act 1978, and in I Congreso del Partido the restrictive theory of
sovereign immunity was also established in common law. In the 1978 Act,
the main exception from the principle of immunity as stated in section 1.
relates to “commercial transactions” (section 3 (1)). In France, the same
development took place, partly already many years before the common law
countries abandoned their former position. To date, however, France has
not deemed it advisable to enact a specific domestic statute to regulate the
matter. In Italy, a judgment of the Corte di Cassazione of 6 June 1974 64
confirmed that foreign State activity, even if carried out in Italian territory,
was shielded from private claims before Italian courts “as long as the
activity concerned aims at the fulfilment of … public functions. Immunity
65
does not apply to a merely private activity”.
52. The distinction between acta jure imperii and acta jure gestionis,
between commercial and non-commercial activities, remains the parameter
which is still determinative today regarding the scope ratione materiae of
jurisdictional immunity of States. A current reflection of that distinction can
be found in Articles 5 and 10 of the UN Convention on Jurisdictional
Immunities of States and their Property. 66 Pursuant to Article 5, which
purports to codify a rule of customary international law, 67
60
Court of Appeal, 64 ILR 111; 16 (1977) ILM 471.
6117 (1978) ILM 1123.
62[1983] 1 A.C. 244.
63See ILC, Report on the work of its forty-third session 1991, Vol. II, Part Two, p. 37 n.
117; see also Patrick Daillier and Alain Pellet, Droit international public (7th ed. Paris
6402) para. 290.
ANNEX 27. English translation: 65 ILR 308.
65“purchØ si tratti di un’attività diretta alla reailzzazione dei loro fini pubblici, mente
l’immunità non spetta se vi sia stato esercizio di un’attività meramente privata.”
66Adopted by UN General Assembly Resolution 59/38, 2 December 2004.
67 nd
See ILC, Report on the work of its 32session, YbILC 1980, Vol. II, Part Two,
commentary on Article 6, p. 142, at 156 para. 55: “The preceding review of historical and
legal developments of the rule of State immunity appears to furnish ample proof of the
foundations of the rule as a general norm of contemporary international law.” 33
“[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 main exception is then to be found in Article 10 of the UN Convention
with regard to commercial transactions:
“If a State engages in a commercial transaction with a foreign natural or
juridical person and, by virtue of the applicable rules of private international
law, differences relating to the commercial transaction fall within the
jurisdiction of a court of another State, the State cannot invoke immunity
from that jurisdiction in a proceeding arising out of that commercial
transaction.”
53. Additionally, the UN Convention contains some other
exceptions in Articles 11 to 17. None of these exceptions is relevant to the
case at hand. Special attention will be given to Article 12: Personal injuries
and damage to property, in a later section of this submission.
54. All of the domestic statutes that were enacted in a number of
countries that followed the US and the UK example rely in the main on the
distinction between acta jure imperii and acta jure gestionis as well. Like
the UN Convention, they add to this main criterion a limited number of
other factual configurations in which a respondent State in a proceeding
before the courts of another State is prevented from invoking jurisdictional
immunity. None of those exceptions, however, covers the instances that
have recently been handled by the Italian courts with regard to claims in
connection with Germany’s occupation of Italy during World War II.
55. No general practice, supported by opinio juris, exists as to any
enlargement of the derogation from the principle of state immunity in
respect of violations of humanitarian law committed by military forces
during an armed conflict. It has already been mentioned that the Corte di
Cassazione was not able to rely on a customary rule that corresponds to the
definition in Article 38 (1) (b) of the Statute of the International Court of
Justice. The practice regarding the settlement of war claims is very 34
consistent. Such claims are generally settled under international treaties in
the relationship between the States concerned. Specifically with regard to all
the claims resulting from World War II, this traditional course was followed.
Accordingly, there can be no opinio juris to the contrary. All the arguments
which have been adduced by the Corte di Cassazione to sustain its line of
reasoning are devoid of firm foundations in positive international law.
Rightly, Pierre d’Argent has written that the jurisdictional immunity of
States is not so much designed to protect States alleged to have committed
internationally wrongful acts to the detriment of private persons, but rather
has a “fonction systØmique au sein du droit des gens”, namely to entr ust
other mechanisms than the judicial authorities of the forum State with the
regulation of reparation claims.68
56. Germany’s position is fully confirmed by the special practice as
it has evolved regarding the settlement of war claims in the relationship
between the two litigant countries. By virtue of Article 77 (4) of its Peace
Treaty, Italy had to renounce all claims against Germany and German
nationals resulting from the period of World War II. In 1961, pursuant to the
two treaties concluded for the settlement of any and all outstanding claims,
Italy declared once again for itself and for all of its nationals that indeed all
such claims were settled. There can be no doubt that such renunciation
clauses are valid. All the peace treaties concluded by the victorious Allied
Powers with the former enemy nations are based on that premise, which has
never been contested. The wish of the Allied Powers was to put a definitive
end to any litigation about the financial consequences of World War II, and
Germany and Italy followed that philosophy when concluding the two
treaties of 1961.
2) The Defects and Inconsistencies in the Case Law of the Corte di
Cassazione
57. Two years before the Corte di Cassazione delivered its judgment
in the Ferrini case, it had to pronounce on the jurisdiction of the Italian civil
68Les rØparations de guerre en droit international public (Brussels 2002), p. 842. 35
courts in respect of an action brought by the relatives of some of the victims
of the NATO air strikes against the former Yugoslavia during the armed
conflict unleashed by the occurrences in Kosovo. The issue of sovereign
immunity did not arise since the claimants based their demands on Italy’s
involvement in those air operations. The victims had died when the building
of the Yugoslav radio and television station in Belgrade collapsed under the
impact of a bomb. Accordingly, the claimants sought financial
compensation for the loss suffered (Markovic case). They argued that to
attack a radio and television station amounted to a war crime since such a
station did not constitute a military target. Rejecting these arguments, the
Corte di Cassazione held:
“2. The claim seeks to impute liability to the Italian State on the basis of an
act of war, in particular the conduct of hostilities through aerial warfare. The
choice of the means that will be used to conduct hostilities is an act of
government. These are acts through which political functions are performed
and the Constitution provides for them to be assigned to a constitutional
body. The nature of such functions precludes any claim to a protected
interest in relation thereto … With respect to acts of this type, no court has
the power to review the manner in which the function was performed.” 69
In other words, the Corte di Cassazione was of the view that judicial review
of acts of war was precluded a limine before ordinary civil courts, thus
applying an Act of State doctrine. It is highly inconsistent to change
direction a fairly short time later, affirming the jurisdiction of Italian courts
in a case brought against Germany. Obviously, the Corte di Cassazione
applies a double standard. It protects its own armed forces against any
reparation claim, but it dismisses any defence of lack of jurisdiction when a
case is filed involving the military activities of a foreign nation.
58. In the Ferrini judgment (point 7.1), the Corte di Cassazione has
attempted to justify the departure from its own jurisprudence. It argued that
“whilst it is accepted that the modus operandi of such activities is beyond
censure when they are carried out under the supreme direction of the public
69
Decision of 5 June 2002, No. 8157, English translation 128 ILR 652, ANNEX 28, also to
be found in the judgment of the European Court of Human Rights in Markovic, 14
December 2006, Application 1398/03, § 18. 36
authorities, this does not prevent investigations from being launched into
possible crimes committed during the course of the activities and into those
responsible for such crimes … Further, in accordance with the principle of
adaptation enshrined in Article 10(1) of the Italian Constitution, those
‘generally recognized’ norms of international law which safeguard, as
fundamental rights, the liberty and dignity of the human person, and which
characterize as ‘international crimes’ activities that pose a serious threat to
the integrity of those rights, automatically become an integral part of Italian
law. As such they clearly constitute a legitimate judicial parameter in
70
respect of harm caused by a criminally motivated or culpable act.”
These “explanations” do not explain anything. First of all, they mix up the
issue of individual criminal responsibility with the issue of sovereign State
immunity. Furthermore, they do not provide any justification for the
contention that in case of the alleged commission of an international crime
the immunity of the impleaded State may be automatically disregarded.
Third, the judgment ignores that in the Markovic case the claimants had
specifically argued that to target a radio and television station amounted to a
war crime. The inconsistency of the Corte di Cassazione is therefore
manifest.
59. Further in the Ferrini judgment, the Corte di Cassazione
essentially relies on the gravity of the violations of international
humanitarian law by German forces in Italy and on the fact that in criminal
matters the perpetrators do not enjoy personal immunity. Additionally, it
bases its findings mainly on the judgment of the Areios Pagos in the
Distomo case. Germany does not challenge the assertion that indeed very
serious violations, even crimes, were committed by its occupation forces in
Italy. Yet it is a fundamental mistake to treat the personal immunity of
perpetrators of an international crime and the sovereign immunity of a State
in the same manner. Every person is accountable for war crimes, and there
cannot even be any kind of personal immunity before criminal courts
established by the international community. No valid reasons militate for
sparing authors of grave crimes the just retribution which they deserve.
Civil responsibility of a State for war damages belongs to a different
conceptual framework, however. The liability of a national community for
70128 ILR 665. 37
the tortious actions orchestrated by its leaders cannot be unlimited. For that
reason, the traditional method of settling war claims, as already said above,
consists of concluding comprehensive agreements at inter-State level. This
preferred method is perfectly compatible, on the other hand, with systems
where, on the basis of specific conventional understandings, the injured
individual may also play a certain role in asserting his/her rights. However,
in respect of war damages, no such agreements exist in the relationship
between Germany and Italy. Given the waiver clause in the 1947 Peace
Treaty, there was also no need for such special regimes. Other points raised
in the Ferrini judgment will be dealt with separately in the following
sections of this submission.
60. In the legal literature, the Ferrini judgment has been submitted
to harsh criticism. In particular, it was noted that the Corte di Cassazione
fails to draw a clear distinction between the value-loaden primary rules of
international human rights law and humanitarian law and the secondary
rules that come into play once a breach of such primary rules has occurred.
Italian author Andrea Gattini charges the Corte with “deplorable
71
superficiality” and observes that “judicial activism alone is not sufficient”.
Thomas Giegerich concludes that the Corte “forgot to mention that the
immunity rules are emanations of the sovereign equality of States which
also is a fundamental principle of international law”. 72 In an extensive
article on the issue, Christian Tomuschat denounces the logical confusion
which permeates the Ferrini decision. 73
61. The most tangible expression of the inconsistencies in the case
law of the Corte di Cassazione can be found in the orders of 29 May 2008. 74
The key passages from those orders were already cited. The reader can have
no doubts as to the good intentions of the Corte di Cassazione. The judges
71
War Crimes and State Immunity in the Ferrini Decision, 3 (2005) Journal of
International Criminal Justice 224, at 231, 241.
72Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from
the Jurisdiction of Foreign Courts?, in: Christian Tomuschat and Jean-Marc Thouvenin
(eds.), The Fundamental Rules of the International Legal Order. Jus Cogens and
Obligations Erga Omnes (Leiden/Boston 2006), p. 203, at 222.
73L’immunitØ des Etats en cas de violations graves des droits de l’homme, 109 (2005)
RGDIP 51 et seq.
74Above para. 27. 38
acknowledge with great openness that the “law” they wish to apply has no
basis in actual rules of international law. They believe, however, that, given
the value-oriented texture of the present-day international legal order, it is
legitimate to develop the regime of sovereign immunity by giving
precedence to those values which, they feel, are not yet fully reflected in
positive law. In their view, the paramount importance of human rights and
human dignity overrides the traditional rules determining the scope of State
immunity ratione materiae.
62. It is certainly true that international law is not made up of a
well-circumscribed set of norms that remain stable forever. Of course, the
main instrument of change is international treaties. Customary law, too,
moves ahead, yet at a slower pace, as shown precisely in the field of
sovereign immunity by the passage from the absolute theory to the
restrictive theory, which extended over decades. Broad political support is
needed in any event. Processes of legal change must be in consonance with
the general movement of the system of international law in its entirety. It
cannot be denied that in the field of sovereign immunity, in particular,
domestic courts have played a considerable role, given the nature of the
subject-matter. But judges are not legitimated to place themselves at the
forefront of processes of change. In this regard, Lord Hoffmann in the Jones
case, adjudicated by the UK House of Lords, observed cogently in joining
Ronald Dworkin’s views that:
“the ordering of competing principles according to the importance of the
values which they embody is a basic technique of adjudication. But the
same approach cannot be adopted in international law, which is based upon
the common consent of nations. It is not for a national court to ‘develop’
international law by unilaterally adopting a version of that law which,
however desirable, forward-looking and reflective of values it may be, is
simply not accepted by other states.” 76
63. Italian authors have sharply criticized the way of reasoning the
Corte di Cassazione embarked upon in the orders of 29 May 2008.
75
76House of Lords, 14 June 2006, 129 ILR 713.
Ibid. 738. 39
Francesca De Vittor takes as her point of departure the recognition by the
Court of its intention
“not to apply an existing norm of general international law, but rathe78to
contribute to its formation in a situation of legal uncertainty”.
Carlo Focarelli subjects the orders of 29 May 2008 to a stringent analysis
and demonstrates also their logical inconsistency. 79 He calls them
80
“profondØment contradictores”. In fact, for a court of law it is rather
strange to openly acknowledge that it refrains from applying the law as it
stands, seeking instead new avenues that would better accommodate certain
ideals of justice as perceived by the judges.
64. In sum, one may say that the Corte di Cassazione hastily jumped
to conclusions which, with regard to its own country, it was not prepared to
accept. Many intellectual steps are required in an attempt to particularize
broad principles, translating them to the field of procedural law. Thus, for
instance, the commission of an international crime does not automatically
establish the jurisdiction of the International Court of Justice. This basic
proposition was recently re-confirmed by the Court in Democratic Republic
81 82
of the Congo v. Rwanda (paras. 64, 125) . Lastly, the Corte di Cassazione
did not at all pay heed to the fact that at the time of its decision in the
Ferrini case a whole system of settlement of war claims was in place
between Italy and Germany. In very short words, delivering his judgment in
77
‘Immunità degli Stati dalla giurisdizione e risarcimento del danno per violazione dei
diritti fondamentali: il caso Mantelli’, Diritti umani e diritto internazionale 2 (2008), issue
3; ANNEX 29).
78The Supreme Court states explicitly “di non applicare una norma di diritto internazionale
generale esistente, ma di contribuire piuttosto alla sua formazione in uno stato di incertezza
del diritto.”
79
‘La dynamique du droit international et la fonction du jus cogens dans le processus de
changement de la rŁgle sur l’immunitØ juridictionnlle des États Øtrangers’, 112 (2008)
Revue gØnØrale de droit international public 761et seq.
80Ibid., 768.
81Case concerning Armed Activities in the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda), 3 February 2006.
82
“Finally, the Court deems it necessary to recall that the mere fact that rights and
obligations erga omnes or peremptory norms of general international law (jus cogens) are at
issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction
always depends on the consent of the parties”. 40
the Jones case, Lord Bingham of Cornhill stated that the Ferrini decision
could not
“be treated as an accurate statement of international law as generally
understood”. 83
Referring to that judgment, he also added that “one swallow does not make
a rule of international law”, thereby emphasizing that Ferrini stood lost and
lonely in the wide arena of international law in which 192 States interact
with one another.
3) The Distomo Precedent Overruled by the Judgment in the
Margellos Case
65. Seen from a chronological viewpoint, it was the Distomo case,
culminating in the decision of the Greek Areios Pagos, that set in motion
the series of proceedings which have been commenced against Germany
before Italian courts. Indeed, the Distomo decision was the first
pronouncement of the highest court of any country to affirm that by
committing grave violations of human rights a State forfeited its
jurisdictional immunity if those crimes were committed in the territory of
the forum State. The somewhat summary reasoning of the Areios Pagos was
hardly persuasive, and indeed in Margellos the Special Supreme Court of
Greece, which discharges the functions of a constitutional court and is
therefore hierarchically superior to the Areios Pagos, ruled in a similar case
a short time later that the rule of international law according to which
proceedings cannot be brought against a foreign State before the courts of a
given State on account of a tort action committed by the military forces of
the respondent State continues to exist. To support this finding, it held:
“Since there is no specific text or act formulating a rule providing for an
exception to immunity in the case of a claim to establish State liability in
tort arising from armed conflict, this court cannot itself formulate such a
rule or confirm its existence in the absence of clear evidence from
83
84129 ILR 726, para. 22.
85129 ILR 513, 4 May 2000.
Judgment of 17 September 2002, 129 ILR 526. 41
international practice. Nor can the Court extrapolate such a rule from the
principle that Sta86s are liable to pay compensation for violations of the laws
of war on land.”
Thus, the Distomo decision lost its underpinnings. Accordingly, one has to
conclude that Italy remains indeed the only country where sovereign
immunity in consonance with general international law is not respected.
4) The U.S. Practice
66. When the United States enacted the Foreign Sovereign
Immunities Act of 1976 (FSIA), it intended to reflect, to the greatest extent
possible, the general rules of international law in force at that time. 87
However, such adjustment to international law was not considered a
necessity. In the United States, domestic statutes push aside international
88 89
treaties; likewise, they replace general principles of international law.
90
The proposition that international law is part of the law of the land remains
91
subject to domestic determinations to the contrary. In any event, the FSIA
did not contain any opening for instances where the claimant alleged that the
respondent State had engaged in serious human rights violations or
violations of international humanitarian law. Obviously, the legislative
bodies did not opine that in such instances sovereign immunity could be or
should be made to yield.
86Ibid., 532.
87See Fox, above n. 53, p. 317 et seq. The Report of the House Committee on the Judiciary,
September 1976, 15 (1976) ILM 1398, at 1402, states that “the bill would codify the so-
called ‘restrictive’ principle of sovereign immunity, as presently recognized in international
law.”
88Reid v. Covert, 354 U.S. 1, at 18 (1957).
89See American Law Institute (ed.), Restatement of the Law Third. The Foreign Relations
Law of the United States, vol. 1 (St. Paul, Minn., 1987), p. 63, § 115 (1).
90
Sabbatino, 376 U.S. 398, at 423 (1964); The Paquete Habana, 175 U.S. 677, at 700
91900).
The U.S. Department of Justice has even ventured to state “that customary international
law cannot bind the Executive Branch under the Constitution, because it is not federal
law. In particular, the Department of Justice has opined that ’under clear Supreme Court
precedent, any presidential decision in the current conflict concerning the detention and
trial of al-Qaida or Taliban militia prisoners would constitute a "controlling" Executive act
that would immediately and completely override any customary international law.’", see
Frederic L. Kirgis, ‘Distinctions Between International and U.S. Foreign Relations Law
Issues Regarding Treatment of Suspected Terrorists’, www.asil.org/insight 138.cfm. 42
67. The fact that in its original version the FSIA barred actions
against foreign States even when serious allegations of wrong-doing could
be brought against them, was felt to be a shortcoming of the Act after a few
years. Eventually, in 1996, this perceived shortcoming was remedied by the
adoption of the Antiterrorism and Effective Death Penalty Act of 1996 92
which deprives States alleged to have committed an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act, of the defence of immunity if
money damages are sought for personal injury or death, provided that the
State concerned was officially designated as a sponsor of terrorism. Thus,
Congress deliberately excluded any kind of automaticity.
68. In the first place, it should be recalled that a unilateral act of U.S.
legislation is not capable of changing international law. Custom requires “a
general practice accepted as law” (Article 38 (1) b. of the Statute of the ICJ).
It is certainly true that big powers frequently take the lead in shaping new
rules. However, such efforts, which may be taken as an element susceptible
of contributing to a – protracted - process of change in international law,
depend for their success on sufficiently broad support from other nations.
This is not the case with regard to the extension of the scope of the FSIA
through the 1996 Act. That Act is generally seen more as an emanation of
the factual strength of the United States than as the manifestation of a rule
that has by now crystallized as a rule of customary law.
69. It should also be noted that the 1996 Act is couched in fairly
cautious terms. It is an absolute requirement that the respondent State be
certified by the US Government as a sponsor of terrorism. The courts of the
United States have no power to determine in an autonomous fashion
whether a State has engaged in one of the activities enunciated in the list of
relevant crimes. Lastly, only individual acts of a specific kind are covered.
Occurrences related to an armed conflict have not been included in the list
of crimes on account of which claims can be brought before US courts. In
this connection, it is not without interest that the Legal Adviser of the
92Of 24 April 1996, 36 (1997) ILM 759. 43
Department of State, William H. Taft, IV, in a submission as Amicus Curiae
to the US Court of Appeals for the District of Columbia Circuit in the case
of Hwang Geum Joo v. Japan, a “comfort women” case, stated that “all
World War II-related claims should be resolved exclusively through
intergovernmental agreements”. 93 His submission was embraced by the
judges of the Court of Appeals who found that the case involved a
94
nonjusticiable political question. The determination that the settlement of
war damages should be sought by diplomatic negotiation and
intergovernmental agreements also underlies the 1996 Act.
70. Far from serving as a confirmation of a “trend” or a “tendency”
to further restrict the reach of sovereign immunity, the US Antiterrorism and
Effective Death Penalty Act of 1996 therefore rather buttresses the position
of the Applicant that no relevant international practice can be identified that
would deprive Germany of its right under general international law to raise
preliminary objections – lack of jurisdiction - against any attempt to be sued
before Italian courts on account of World War II occurrences.
5) The Narrow Scope of the Territorial Clause
71. One of the pivotal elements of the Ferrini judgment of the Corte
di Cassazione is its reliance on the territorial clauses in international
instruments and domestic statutes to the effect that States are debarred from
opposing their sovereign immunity to a claim deriving from a harmful
sovereign activity if the harm was caused in the territory of the forum State
itself by one of its agents present in that territory. This argument fails,
however. The territorial clauses which will be summarily set out in the
following have never been intended to cover unlawful acts committed
during armed conflict. It should be added, too, that in some cases the acts
complained of did not take place in Italy, thus, for instance, when Italian
prisoners of war were directly transported from Albania or Greece to the
German territory.
93
94Submission of November 2004, ANNEX 30.
Judgment of 28 June 2005, ANNEX 31. 44
72. The European Convention on State Immunity of 16 May 1972 95
came first as an attempt to codify the law of State immunity. Article 11 of
that Convention provides:
“A Contracting State cannot claim immunity from the jurisdiction of a court
of another Contracting State in proceedings which relate to redress for
injury to the person or damage to tangible property, if the facts which
occasioned the injury or damage occurred in the territory of the State of the
forum, and if the author of the injury or damage was present in that territory
at the time when those facts occurred.”
It is clear from the Explanatory Report to the European Convention on State
Immunity that the article is designed to cover only incidental occurrences
caused in the normal discharge of diplomatic or consular activities. The
authors did not intend to lay down a rule that would deal with the
consequences of armed conflict. Indeed, the Explanatory Report gives just
one example that unequivocally indicates the limits of the article:
”for example, when a vehicle belonging to a State is involved in a traffic
accident, then, provided the driver of the vehicle was present, the State as
owner or possessor of the vehicle may be sued, even though the plaintiff
does not seek to establish the personal liability of the driver”. 97
There is not a single example of a proceeding where Article 11 would have
served, in one of the States parties, as a tool to overcome the hurdle of
immunity in a dispute the subject-matter of which was a claim stemming
from armed conflict or the involvement of military forces in a UN operation.
In fact, Article 31 excludes the activities of armed forces from the scope of
application of the 1972 Convention. This exclusionary clause corroborates
the necessity of a narrow reading of Article 11. If military operations in the
territory of another State are not to be taken into account, very little remains,
only activities of a logistical nature the qualification of which as either being
jure imperii or jure gestionis would be extremely difficult without any
explicit determination. When participating through its agents in public
traffic or transport in a foreign country, a State does not exercise its specific
95
CETS No. 74. Germany is a party to that Convention since 1990, Italy has not ratified it
96 yet.
97Council of Europe, Strasbourg 1972.
Ibid., 21. 45
sovereign powers. To specify, however, that such “neutral” activities are
indeed removed from the privileged sphere of State power was a most
useful clarification.
73. In the case of McElhinney, the Irish Supreme Court gave
judgment on an incident at the border between Northern Ireland and the
Republic of Ireland in which a British soldier, who partly acted on Irish soil,
was involved. Basing itself on the clause in Article 31 of the European
Convention, the Supreme Court dismissed the action filed against the United
Kingdom for lack of jurisdiction, arguing that in any event Article 31
prevailed over Article 11. For the Irish Supreme Court, this reading was just
a matter of statutory interpretation. Its judgment was later confirmed by the
European Court of Human Rights (ECtHR), before which the applicant had
filed an application, arguing that his rights under Article 6 of the European
Convention on Human Rights (ECHR) had been infringed.
74. In respect of the UN Convention on Jurisdictional Immunities of
States and Their Property the legal position is even clearer. As generally
known, it has emerged from the work of the ILC. The draft articles were
adopted on second reading by the ILC in 1991. For many long years, until
2004, the draft was thereafter pending before the Sixth Committee of the
General Assembly. During that period, it was amended only on minor
points. Article 12, the territorial clause, was not modified. It remained
textually the same. Accordingly, the commentary adopted by the ILC in
1991 is highly relevant. It does not refer in the least to harm caused by
armed conflict. The general philosophy pursued by Article 12 is
unmistakably specified:
“The areas of damage envisaged in article 12 are mainly concerned with
accidental death or physical injuries to persons or damage to tangible
property involved in traffic accidents, such as moving vehicles, motor
cycles, locomotives or speedboats. In other words, the article covers most
areas of accidents involved in the transport of goods and passengers by rail,
98
Judgment of 15 December 1995, reproduced in the judgment of the European Court of
Human Rights in McElhinney v. Ireland and UK, 22 November 2001, Application
99253/96, § 15.
YbILC 1991, Vol. II, Part Two, p. 13. 46
road, air or waterways. Essentially, the rule of non-immunity will preclude
the possibility of the insurance company hiding behind the cloak 100State
immunity and evading its liability to the injured individuals.”
75. The commentary adds just one further sentence to its exposition
of the main purpose of the (then) draft article 12 where it is explained:
“In addition, the scope of article 12 is wide enough to cover also intentional
physical harm such as assault and battery, malicious damage to property,
101
arson or even homicide, including political assassination.”
Clearly, this is no more than a reference to individual cases of wrongdoing
that have nothing in common with large-scale operations pursuing
illegitimate aims, a frequent occurrence during armed conflict as the present
dispute recalls with regard to the past of more than 60 years ago. It would
amount to a total distortion of the object and purpose of Article 12 to apply
it to the settlement of macro-injustices that were never envisioned by the
authors of the 2004 Convention as coming within its purview. In particular,
102
the Letelier case, specifically mentioned in a footnote to the sentence
cited above, may be classified as such an individual case. Secret agents of
the Chilean Government assassinated a former ambassador and Minister of
the Allende Government, Orlando Letelier, right in the heart of Washington
on 21 September 1976 by detonating a bomb. To permit individual claims to
be brought in such particular cases where the territorial integrity of the
forum State was violated by unidentified agents of a criminal government
differs fundamentally from authorizing individual claims the background of
which is an armed conflict with thousands or perhaps even millions of
victims with incalculable financial dimensions. Therefore, Article 12 of the
2004 UN Convention cannot even be characterized as indicative of a new
tendency in international law. One may perhaps speak of a new tendency,
perceived by some writers in recent years, with regard to egregious
violations of human rights in individual cases. Concerning armed conflict,
however, no clues whatsoever may be derived from Article 12.
100
101Ibid., 45 para. 4.
102Ibid.
Letelier v. Republic of Chile, 748 F 2d 798 (2d Cir. 1984), 79 ILR 561. 47
76. Following the example of the European Convention on State
Immunity, most national statutes that were enacted above all in common
law countries included also a territorial clause that denies immunity in
instances where loss or injury were caused by an act or omission in the
territory of the State concerned. The first one of those clauses was Section
1605 (a) (5) of the FSIA that refers to instances where
“money damages are sought against a foreign state for personal injury or
death … occurring in the United States and caused by the tortious act or
omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment”.
However, not the slightest hint can be found that this provision was meant
to cover claims related to any kind of armed conflict. It also stands to reason
that the United States, when the FSIA was passed, never envisaged any
probability of foreign armed forces acting in a hostile manner in its territory.
In Argentine Republic v. Amerada Hess 103 the US Supreme Court explicitly
confirmed that “Congress’ primary purpose in enacting § 1605(a)(5) wasto
eliminate a foreign state’s immunity for traffic accidents and other torts
104
committed in the United States”. This was said with regard to a dispute
where the owners of a ship damaged and thereby rendered unusable by an
Argentine air attack during the Falkland war sought financial compensation
for the financial loss they had sustained. The claim brought against
Argentina was held to be inadmissible, given that the FSIA did not provide
an opening for violations of international law other than those specifically
mentioned in its text (at that time: property taken in violation of
international law). It would therefore be erroneous to contend that the FSIA
was adopted with a view to departing from the narrow definition of the
scope of the territorial clause by the European Convention on State
Immunity.
77. The United States confirmed its narrow reading of the object and
purpose of territorial clauses in legal instruments dealing with jurisdictional
immunities when it took the floor in the General Assembly on the occasion
103
104488 U.S. 428.
Ibid., 439. 48
of the concluding debate on the draft Convention on Jurisdictional
Immunities of States and Their Property (25 October 2004):
“ … article 12, on jurisdiction over non-commercial torts, must be
interpreted and applied consistently with the time-honoured distinction
between acts jure imperii and acts jure gestionis. It was entirely appropriate
for States to be held accountable – not to be able to invoke immunity – with
regard to their tortious acts or omissions in circumstances where private
persons would be. Domestic law in the United States and in many other
countries provided for that eventuality. However, extending that jurisdiction
without regard to the accepted private/public distinction under international
law would be contrary to the existing principles of international law and
would generate more disagreements and conflicts in domestic courts which
could be better resolved, as they currently were, through State-to-State
mechanisms. In other words, article 12 must be read in the light of
established State practice to concern tortious acts or omissions of a private
nature which were attributable to the State, while preserving immunity for
those acts of a strictly sovereign or governmental nature.” 105
This is a clear stance opposing any unwarranted extension of the usual
territorial clauses as they have made their entry into some of the modern
instruments, including the UN Convention.
78. The United Kingdom State Immunity Act 1978 106has a similar
territorial clause (Section 5). In very straightforward terms, it provides that a
State is not immune with regard to proceedings in respect of death or
personal injury or damage to or loss of tangible property, provided that the
107
injury was “caused by an act or omission in the United Kingdom”. This
formulation could have been interpreted as implying that military activities
conducted in the territory of the United Kingdom are indeed encompassed
by the clause. However, Section 16 (2) corrects this impression. The effects
entailed by military activities do not come within the purview of the Act. It
is specified:
“This Part of this Act does not apply to proceedings relating to anything
done by or in relation to the armed forces of a State while present in the
United Kingdom and, in particular, has effect subject to the visiting Forces
Act 1952.”
105
106UN doc. A/C.6/59/SR.13, 25 October 2004, para. 63.
10717 (1978) ILM 1123.
Emphasis added. 49
Obviously, in 1978 the only realistic prospect of foreign troops being
present on British soil was their deployment within the framework of
agreements among friendly nations, governed domestically in part by the
Visiting Forces Act 1952. Nonetheless, the United Kingdom took care to
exclude the entire complex of damage caused by foreign military activities
from the scope of the 1978 Act.
79. The other Commonwealth countries that subsequently were to
enact a domestic immunity act for the benefit of foreign nations mostly
copied, with only some minor modifications, the UK State Immunity Act
1978. Mostly, the exact scope ratione materiae of the territorial clause was
also clarified by a provision that subjects military activities of foreign States
to a special regime. Thus, the Singapore State Immunity Act 1979 108 rejects
the defence of sovereign immunity in Section 7 (damage caused by an act or
omission in Singapore) but specifies in Section 19 (2) (a) that this provision
does not apply “relating to anything done by or in relation to the armed
forces of a State while present in Singapore”. Pakistan opted for a slightly
109
different regime in its State Immunity Ordinance, 1981. It renounced a
territorial clause; on the other hand, however, it took care to keep outside of
the ordinance “anything done by or in relation to the armed forces of a State
while present in Pakistan” (Section 17 (2) (a)). Lastly, the Canadian State
Immunity Act 1982 110 joins also the precedents set by its predecessors. On
the one hand, it establishes the jurisdiction of Canadian courts in respect of
injury “that occurs in Canada” (Section 6). On the other hand, Canada
confines the effect of that clause by giving primacy to its Visiting Forces
Act (Section 15). Apparently, Canada did not wish to envisage the
hypothesis of foreign troops acting on its soil other than on friendly terms
according to an international agreement. In fact, in 1982 this was a perfectly
reasonable determination.
108Reprinted in: United Nations (ed.), Materials on Jurisdictional Immunities of States and
Their Property (New York 1982), p. 28.
109Ibid., p. 20.
110
11221 (1982) ILM 798.
Ibid., p. 34. 50
80. There are two domestic statutes which contain both a territorial
clause but which do not explicitly state that in respect of the consequences
of armed conflict they shall not apply. This is true of the South African
112
Foreign Sovereign Immunity Act (1981) (Section 6) and the Australian
113
Foreign States Immunities Act 1985 (Section 13). The most probable
explanation for that omission is that the legislative bodies did not seriously
consider as an actual possibility the presence, on their soil, of foreign troops.
In any event, however, the two statutes do not contain any hint to the effect
that civil suits might be brought against foreign States in such instances.
Moreover, there is absolutely no jurisprudence that would support a broad
reading of the two territorial clauses.
81. Another interesting instrument in point is the new Israeli
114
“Foreign States Immunity Law, 2008”. It contains the usual territorial
clause (section 5), specifying, on the other hand that (section 22)
“legal actions based on any act or omission committed by foreign military
forces whose rights and status in Israel were determined by agreement
between the State of Israel and the state to which the foreign military forces
belong shall be governed by that agreement.”
Accordingly, the text of the statute leaves it open whether immunity should
obtain in instances where the foreign troops on Israeli soil were not invited
on the basis of an agreement to that effect. One may take it, however, that
the Knesset wished to follow the general line that has hitherto prevailed in
the interpretation of the territorial clause.
82. Lastly, Germany wishes to recall that a few years ago the Corte
di Cassazione recognized the jurisdictional immunity of the United States in
respect of military training flights conducted over Italian territory, which
115
had caused a number of fatal incidents. The judgment deals at length with
sovereign immunity. It rejects above all the argument that such immunity
should be excluded if the activities concerned violate basic human rights,
113
11425 (1986) ILM 715.
115ANNEX 32.
FILT-CGIL Trento and Others v. United States of America, 3 August 2000; English
translation: 128 ILR 644; ANNEX 33. 51
pointing out that the potentially injurious effects of military training flights
on the right to life, personal safety and health of individuals cannot
invalidate a principle that by virtue of Article 10 (2) of the Italian
Constitution has been received by the Italian legal order. It was alone the
nature of the activity that had paramount importance. By contrast, no
mention whatsoever was made in the judgment of the fact that the incidents
had all occurred in Italian territory.
6) Erroneous Reliance on Jus Cogens Arguments
83. The Ferrini judgment is replete with observations to the effect
that Germany’s sovereign immunity must yield vis-à-vis the superior legal
force of the norms that were breached from 1943 to 1945 by the German
military units responsible for the crimes from which the various plaintiffs
derive their claims. In that judgment, the Corte di Cassazione does not
explicitly speak of jus cogens, but the theory of jus cogens clearly underlies
all of its considerations. Thus, in section 9 it says that international crimes,
such as those perpetrated by German armed forces, take the form of serious
violations of fundamental human rights, rights which
“are protected by norms from which no derogation is permitted, which lie at
the heart of the international order and prevail over all other conventional
and customary norms, including those which relate to State immunity”. 116
Continuing this line of argument, it then holds that (section 9.1)
“[t]here is no doubt that a contradiction between two equally binding legal
norms ought to be resolved by giving precedence to the norm with the
highest status”.117
Lastly (section 10.2), it underlines the priority status
“which, in respect of particularly serious criminal activities, now attaches to
the protection of fundamental human rights over and above the protection of
116
117128 ILR 668.
Ibid., 669. 52
State interest118hrough the recognition of immunity from foreign
jurisdiction”.
84. Similar, yet less extended legal grounds were set out in the
orders of 29 May 2008 where the emphasis is placed on the particular
gravity of the unlawful actions which led to the relevant proceedings. It
should again be stressed that the Corte di Cassazione itself was not
persuaded by its own reasoning since it had no more to say than that
“it could be presumed that a principle limiting the immunity of a State
which has committed crimes against humanity was ‘in the process of
formation’”. 119
It is of course extremely difficult to posit the existence of a rule on such
shaky foundations.
85. In the first place, it must be observed that the theory of different
hierarchical levels of the rules making up the international legal order
received official consecration not earlier than in 1969 when the Vienna
Convention on the Law of Treaties was adopted. For the first time on that
occasion, it was recognized that a treaty can be void if it conflicts with a
“peremptory norm of general international law” (Articles 53, 64). Before
that time, it was unanimously held in practice that rights and obligations
under international law are all located on the same hierarchical level. As a
legal concept, jus cogens did not exist at the time when the violations
occurred from which the plaintiffs attempt to derive their claims. 120 Thus, to
apply the standard of jus cogens to the tragic events of World War II does
not correspond to the general rules of temporal applicability of international
law. Any conduct must be appraised by the standards in force at the time it
118Ibid., 673.
119„un principio limitativo dell’immunità dello Stato che si sia reso autore di crimini contro
l’umanità può presumersi ‘in via di formazione’”.
120See, for instance, Robert Kolb, ThØorie du ius cogens international. Essai de relecture
du concept (Paris 2001) p. 23; Erika de Wet, ‘The Practice of Torture as an International
Norm of jus cogens and its Implications for National and Customary Law’, 15 (2004) EJIL
97, at 111. 53
was practiced. This will be pointed out in more detail in the following
section 7) (paras. 91 et seq.) of this submission.
86. The main criticism to be directed against the Corte di
Cassazione for (implicitly) resorting to the concept of jus cogens lies in its
wide interpretation of such rules. Undoubtedly, for instance, jus cogens
prohibits genocide. This ban has its legal foundations both in the 1948
Convention on the Prevention and Punishment of the Crime of Genocide
and in (earlier) general rules of international law. Any treaty under which
two States would agree to commit genocide would be null and void under
Article 53 of the Vienna Convention on the Law of Treaties and general
international law. In accordance with present-day interpretations, any
unilateral legal act aiming at bringing about genocide would likewise be
considered null and void. The jus cogens rule seeks primarily to prevent
genocide. The international legal order does not recognize as valid any legal
instrument that would promote, facilitate or condone the commission of
genocide.
87. However, it is a totally different question that must be answered
after an act of genocide has in fact been perpetrated. Responses to this
question must be sought in the overall regime of international responsibility.
The 1948 Convention on the Repression and Punishment of the Crime of
Genocide regulates only one aspect of that wider issue by ordering that
persons responsible for genocide “shall be punished” (Article IV). It refrains
from regulating other details of the applicable regime of responsibility,
thereby implicitly suggesting that the general rules apply – which, of course,
may change over time. The substantive rule which encapsulates the values
upheld in the international community is the ban on genocide. A breach of
this pivotal rule entails consequences which are regulated by secondary
rules. These secondary rules may of course be influenced by the paramount
importance of the primary rule in issue. But a State that does not provide a
remedy against an alleged author of genocidal acts or an alleged torturer 54
does not thereby become an accomplice of genocide or torture. 121There
exists no comprehensive special regime that applies to the breach of a jus
cogens rule. In particular, such a special regime cannot be freely invented.
Since international law is essentially based on the consent of States, it is in
their general practice that answers must be sought to each one of the
questions which emerge when it falls to be decided what consequences are
entailed by a breach of a jus cogens rule. The Regional Court of The Hague
(Rechtbank s’-Gravenhage) described the legal position as follows when it
had to adjudicate a claim brought against the United Nations on account of
the genocide committed in Srebrenica:
“Neither the text of the Genocide Convention or any other treaty, nor
international customary law or the practice of states offer scope in this
respect for the obligation of a Netherlands court to enforce the standards of
the Genocide Convention by means of a civil action. The Contracting
parties are obliged to punish all acts defined by this Convention as genocide
within the boundaries set in article VI of the Convention. Also, as stated
before, the states are bound to prevent genocide and therefore to refrain
from committing it themselves. The states are also bound to clearly set out
obligations on the extradition of suspects of genocide, but the Convention
does not provide for (any obligation pertaining to) the enforcement122 the
standards of the prohibition on genocide via a civil law action.”
88. In order to buttress the preceding observations, just two
examples should be given from the jurisprudence of the Court. Attention
was already drawn to the fact that the breach of a jus cogens rules does not
amount to a departure from the rules of the Statute pursuant to which the
jurisdiction of the Court is based on consent. No State must answer an
application brought against it if it has not given, or does not give, its consent
to judicial settlement of the dispute in accordance with Article 36 of the
Statute. The Arrest Warrant case 123demonstrates that a high-ranking State
official does not lose its functional immunity before domestic courts if it is
121See Lord Hoffmann in Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya
(the Kingdom of Saudi Arabia), 129 ILR 713, at 732, para. 44: “ The jus cogens is the
prohibition on torture. But the United Kingdom, in according state immunity to the
Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity,
justifying the use of torture.”
122
123Judgment of 10 July 2008, ANNEX 34.
ICJ Reports 2002, p. 3, at 24 s., paras. 58, 60. 55
alleged that he/she has committed a crime against humanity. Disregard for
immunity protection can have extremely damaging consequences that would
by far outweigh the moral victory gained by being allowed to institute
judicial proceedings against a respondent/defendant, either before civil or
criminal courts.
89. In other words, the substantive primary rules and the applicable
secondary rules must be carefully distinguished. There is no mechanical link
between the two. Persuasively, the United States Government argued in an
amicus curiae brief in Sampson v. Federal Republic of Germany that the
Amicus Curiae for the claimant conflated “the substantive norms of conduct
and the methods by which violations of those norms should be
redressed,” 124and the Court of Appeals for the Seventh Circuit agreed,
stating that while courts were directed to avoid conflicts with international
law:
“international law itself does not mandate Article III [scil. of the US
Constitution] jurisdiction over foreign sovereigns. In other words, although
jus cogens norms may address sovereign immunity in contexts where the
question is whether international law itself provides immunity, e.g., the
Nuremberg proceedings, jus cogens nor125do not require Congress (or any
government) to create jurisdiction.“
90. The nullity of treaties that infringe a jus cogens rule constitutes
essentially a preventive measure, designed to combat a looming evil. After
such a threat has – unfortunately - materialized, many options are open. It is
highly significant that the ILC Articles on Responsibility of States for
internationally wrongful acts provide for a duty of States to “cooperate”
(Article 41 (1)) if a serious breach of obligations under peremptory norms of
general international law has occurred. In other words, the Articles do not
open the doors for unilateral measures of self-help. In cases of transitional
justice, when a people has gone through a dark period in its history and is
now attempting again to build democratic institutions under the rule of law,
many avenues must be explored. Above all, consideration must be given to
124
125ANNEX 35. th
250 F.3d 1145 (7 Cir. 2001). 56
what is realistically feasible. Where a State has waged an aggressive war,
causing severe damage to other nations, the question arises inevitably to
what extent it can be made financially responsible. The Potsdam Accord
specified that the German people should bear liability “to the greatest
possible extent” (Chapter IV., chapeau). History has indeed taught the
lesson that to require complete reparation of war damages will inevitably
destabilize the debtor country and may lead to catastrophic consequences.
To individualize the settlement of war damages by granting every victim a
separate claim is a particularly bad solution because domestic judges in the
“victim countries” are generally overzealous in allocating to their nationals
huge amounts of financial compensation which would easily exceed the
126
financial capabilities of a debtor State. Reason dictates that there must be
some kind of insolvency procedure that can only be organized within an
intergovernmental framework, i.e. following the classical methods for the
settlement of mass damages, in particular as a consequence of armed
conflict. Otherwise, no fair and equitable distribution of the available
amounts of financial compensation could be ensured. Hence, the finding
that an international crime has been committed does not automatically lead
to the conclusion that an injured person must be granted an individual
remedy.
7) Retroactive Application of the Doctrine Resorted to by the Corte di
Cassazione
91. The Corte di Cassazione errs again in applying the extended
doctrine of restrictive immunity, on which it creatively relies, to occurrences
dating back more than 60 years. When German military forces were present
on Italian soil as enemy forces from 1943 to 1945, the doctrine of absolute
sovereign immunity was uncontested. At that time, only some Belgian and
Italian judgments ventured to reject the defence of sovereign immunity in
cases involving commercial activities. It was the Tate letter which, based on
a general consensus, brought about a fundamental turnaround in 1952. Since
126
The excessive amounts sometimes granted by US judges in proceedings where financial
reparation is sought against foreign States under the Alien Tort Claims Act (more than 200
million $ in individual cases) are well known and require no elaboration. 57
that time, as shown above; the judicial practice has distinguished between
two categories of State activities, acta jure imperii and acta jure gestionis.
To depart from the principle of absolute sovereignty with retroactive effect
infringes general principles of international law. It is even more
objectionable to establish new classes of instances allegedly not covered by
sovereign immunity, applying them retrospectively.
92. The rules governing sovereign immunity have the nature of
substantive rules of international law. They derive from the principle of
sovereign equality as laid down in Article 2 (1) of the United Nations
Charter and also rooted in customary international law. No State is subject
to the sovereign power of another State if no agreement to the contrary has
been concluded between the parties concerned, according to the well-known
Latin formulation of that proposition: par in parem non habet
jurisdictionem. Although in a civil proceeding before a civil court there is
invariably a private plaintiff, and although in such a proceeding the defence
of sovereign immunity operates essentially as a procedural device, the
relevant relationship between the two States concerned, the State of the
forum and the respondent State, has little, if anything to do with procedure.
At issue is the reach of the sovereign powers of one State vis-à-vis another
State. The territorial jurisdiction of the forum State and the sovereign rights
of the State forced into the role of a respondent must be balanced against
one another. The defining fact is that, until 1952, that balancing process was
regularly resolved in favour of the principle of jurisdictional immunity.
93. It is trivial to state that facts of international life must be
assessed according to the law in force at the time when those facts occurred.
The famous dictum of Max Huber in the 1928 Palmas case is generally
recognized as correctly stating the legal position:
“ … a juridical fact must be appreciated in the light of the law contemporary
with it, and not of the law in force at the time when a dispute in regard to it
arises or falls to be settled.”
127II RIAA 829, at 845. 58
As far as international treaties are concerned, the Vienna Convention on the
Law of Treaties provides explicitly (Article 24) that treaties do not have any
retroactive effect. The same is true of general rules of customary law. The
principle of non-use of force, for instance, formulated first by the Briand-
Kellogg-Pact of 1928, reconfirmed and strengthened by the UN Charter
(Article 2 (4)) and also having crystallized as customary law, cannot be
applied to military operations that took place before 1928. Similarly, human
rights existed before the advent of the United Nations as a moral and
philosophical ideal, but not as a legal concept. In numerous judicial
decisions, it has indeed been acknowledged that customary law does not, in
principle, produce retroactive effects. A particularly instructive example is
provided by the advisory opinion of the Court on Western Sahara. The
General Assembly had requested the Court to pronounce on the question as
to whether Western Sahara was a territory belonging to no one (terra nullius)
at the time of the Spanish colonization from 1884 onwards. For the Court,
there could be no doubt that the question
“had to be interpreted by reference to the law in force at that period”. 128
In the Rights of Passage case, the Court observed likewise that
“the validity of a treaty concluded as long ago as the last quarter of the
eighteenth century, in the conditions then prevailing in the Indian Peninsula,
should not be judged upon the basis of practices and procedures which have
since developed only gradually.” 129
History cannot be rewritten, as far as its legal framework is concerned.
Legal rules change as time goes by. But the law of the 21 century cannot
be introduced back into the 20 century. In the instant case, an aggravating
fact is that the new rules on which the Corte di Cassazione purported to base
the decisions referred to above have not materialized as genuine positive
international law, supported by a general practice, but remain constructs of
judicial activism.
128
129ICJ Reports 1975, p. 12, at 38 para. 79.
Right of Passage over Indian Territory (Merits), ICJ Reports 1960, p. 6, at 37. 59
94. It is true that, on the other hand, Huber acknowledged that legal
regimes can never be petrified, that they may be subject to change:
“The same principle which subjects the act creative of a right to the law in
force at the time the right arises, demands that the existence of the right, in
other words its continued manifestations, shall follow the conditions
required by the evolution of the law.”30
But this holding refers to the continuing effects of a situation brought into
being either by treaty or by custom. It is not intended to convey the idea that
legal effects that were produced in the past change continually over the
course of time. In particular, internationally wrongful acts entail legal
effects limited to the time of their commission if they do not have a
continuing character (Article 14 of the ILC Articles on State Responsibility),
which is not the case in the instant proceeding. French author Jean
Combacau observes with specific regard to internationally wrongful acts:
“Alors que, dans le fait instantanØ, le dØlit s’Øpuise au moment m mŒe oø il
s’accomplit, la durØe entre en jeu dans toutes les autres figur es du
dØlit …». 131
The unlawful actions of the armed forces of the Third Reich took place
between 1943 and 1945. Since that time, no injurious new element was
added to the damage originally caused. According to persuasive views in
legal literature, the requirement that any legal obligation must be interpreted
within its living context, cannot be extended to reshaping a legal
relationship that received its contours pursuant to the proposition: tempus
regit actum. Judge Rosalyn Higgins stated in an article specifically devoted
to the issue of inter-temporal law:
“ … an approach that merely requires human rights treaties, because of their
nature, to be interpreted in accordance with contemporary international law
or conditions in society, avoids any suggestion that the States upon whom
130
131II RIAA 845.
L’Øcoulement du temps, in : SociØtØ française poulre droit international (ed.), Le droit
international et le temps (Paris 2001), p. 77, at 88. 60
the obligations fall are required to reopen legal acts or pay compensation for
132
‘incorrect applications’ of the obligations in the past.”
In more general terms, Joe Verhoeven has written:
“L’acquis est fait pour l’essentiel de l’ensemble des situations crØØes ou des
actes accomplis sous l’empire des rŁgles ou des dØcisions qui Øi tant en
vigueur à l’Øpoque, peu importe d’ailleurs qu’elles aient par la suitecessØ de
l’Œtre … Dans cette mesure, il se comprend que l’acquis reprØsen etpour
l’essentiel un 133erdit, plaçant ce qui s’est passØ à l’abride mises en cause
dØchirantes. »
95. Internationally wrongful acts belong to the past. They do not
bring into being a dynamic regime that requires being adapted continually to
changing circumstances, unlike an international treaty. The set of rights and
obligations which they engendered is closed. Of course, for their assertion
the procedural requirements before the Court or before any other
international judicial body may change. But sovereign immunity cannot be
downgraded to a simple procedural rule. It determines the substantive
relationship between sovereign States, ensuring that good order will prevail
in the international community. In particular, sovereign immunity prevents
powerful States from establishing hegemonic mechanisms which invariably
operate in their favour.
134
96. In the case of Altmann v. Austria, adjudicated in 2004, the US
Supreme Court held that the FSIA may be resorted to in cases preceding its
enactment. In issue was a claim by the heir of an Austrian art collector of
Jewish origin who in the years after Austrias’s Anschluss had been deprived
by the Nazi regime of a number of famous paintings of Gustav Klimt. In
that case, the Supreme Court applied the expropriation exception enshrined
in section 1605 (a) 3 of the FSIA, which expressly exempts from immunity
certain cases involving rights in property taken in violation of international
132‘Some Observations on the Inter-Temporal Rule in International Law’, in: Theory in
International Law at the Threshold of the 21 Century. Essays in honour of Krzysztof
Skubiszewski (The Hague et al. 1996), p. 173, at 176.
133Les conceptions et les implications du temps en droit international, in: Le droit
134ernational et le temps (above, n. 131), p. 9, at 22.
541 U.S. 677 (2004). 61
law. The judgment has been severely criticized by voices in legal doctrine
from the United States itself. 135In any event, it cannot have any bearing on
the present dispute.
97. First of all, it should be noted that the US Supreme Court did not
at all render its judgment within the conceptual framework of international
law. The Court focused exclusively on the FSIA, attempting to find out
what intentions were pursued by the drafters in enacting that statute. A
lengthy discussion centred on the earlier case of Landgraf, 136which had
stated general principles for the retrospective application of domestic law.
Nowhere in the judgment does one find the slightest hint revealing that the
Supreme Court was aware of the wide dimension of the case under
international law. The only concern of the majority of the Court was to look
for evidence showing that Congress intended the FSIA to apply to
“preenactment conduct” Thus, the Supreme Court may be said to have
missed the centre of gravity of the case.
98. In fact, the methodology applied by the US Supreme Court rests
on the premise that the rules governing sovereign immunity do not form part
and parcel of international law, but are left to individual determination by
each nation. Pursuant to this view, States are free to define the scope of
sovereign immunity as they see fit. In Altmann, Justice Stevens recalled
approvingly the statement by Chief Justice Marshall in the Schooner
Exchange case that “foreign sovereign immunity is a matter of grace and
comity rather than a constitutional requirement”. This statement
unequivocally reflects the view that sovereign immunity can be handled free
from any constraints deriving from international law. In Altmann, this
perception is upheld in essence, albeit with different formulations:
135Marla Goodman, ‘The Destruction of International Notions of Power and Sovereignty :
the Supreme Court’s Misguided Application of Retroactivity Doctrine to the Foreign
Sovereign Immunities Act in Republic of Austria v. Altmann’, 93 (2005) The Georgetown
Law Journal 1117 et seq.; Carlos M. VÆzque‘ltmann v. Austria and the Retroactivity of
the Foreign Sovereign Immunities Act’, 3 (2005) Journal of International Criminal Justice
136 et seq.
Landgraf v. USI Film Products, 511 U.S. 244 (1994). 62
“But the principal purpose of foreign sovereign immunity has never been to
permit foreign states and their instrumentalities to shape their conduct in
reliance on the promise of future immunity from suit in United States courts.
Rather, such immunity reflects current political realities and relationships,
and aims to give foreign states and their instrumentalities some present137
‘protection from the inconvenience of suit as a gesture of comity’”.
Of course, one has to respect the holding of the US Supreme Court.
Nevertheless, the legal position it embraces is far from the realities of
international law. Outside the United States, sovereign immunity has always
been regarded as a principle of international law. There is no need to explain
this at length. The recent UN Convention on Jurisdictional Immunities of
States, for instance, provides tangible proof of the prevailing opinion that
indeed sovereign immunity constitutes a pivotal element in the mutual
relationships between States. The rich materials that can be found in the
materials assembled first by the two Special Rapporteurs of the ILC and
thereafter included in the official commentary of the ILC itself, drawn from
the judicial practice of numerous countries of the world, speak for
138
themselves. In a nutshell, Lord Millett, giving his judgment in Holland v.
Lampen-Wolfe, has summarized the significance of sovereign immunity:
“State immunity, as I have explained, is a creature of customary
international law and derives from the equality of sovereign states. It is not a
self-imposed restriction on the jurisdiction of its courts which the United
Kingdom has chosen to adopt. It is a limitation imposed from without upon
the sovereignty of the United Kingdom itself.” 139
99. Since the judgment in Altmann is based on the erroneous belief
that States may deal with suits brought before their courts against foreign
States at their pleasure, solely within the limits of “comity”, Altmann cannot
serve as a useful precedent in the instant case. The decision rendered by the
Supreme Court cannot be relied upon to show that the Corte di Cassazione
was right in applying the doctrine of forfeiture of sovereign immunity in
cases of grave human rights violations, its own creation, to occurrences of
137Ibid., Section IV.
138See ILC, Report on the work of its session, YbILC 1980, Vol. II, Part Two, pp.
139-157.
[2000] 1 WLR 1573, at 1588. 63
World War II. Quite visibly, the Supreme Court has deviated from the
mainstream in international law.
100. Moreover, even if one took Altmann as having the legal value of
a precedent, its limitations ratione materiae would have to be respected. The
Supreme Court did not give a comprehensive ruling on the applicability of
the FSIA ratione temporis. In the dispute between Altmann and Austria, no
more was in issue than the unlawful taking of works of art, assessed as
involving an infringement of rules of human rights and/or international
humanitarian law. It cannot be deduced from Altmann that any of the
clauses of the FSIA would be suitable for retrospective application in the
same manner. Each one of the exception clauses of the FSIA must be
appraised on its own merits. In particular, retroactive recourse to a territorial
clause might entail serious disturbances between the States concerned.
101. Lastly, there remains the fact that the FSIA does not deny
immunity with regard to claims based on injury suffered during armed
conflict. The FSIA does not touch upon the issue of armed conflict. It has
been enacted as a statute that should govern relations among States in time
of peace. In none of its provisions does it go beyond that subject-matter.
Armed conflict is totally outside its scope ratione materiae. Therefore, the
courts of the United States would never entertain a suit through which a
claimant would seek reparation for injury suffered during armed conflict. It
has been shown above that as from 1945 it was the policy of the United
States to settle the responsibility of Germany for the damages caused by the
aggressive policies of the Third Reich at the intergovernmental level. The
Potsdam Accord between the four victorious Allied Powers constitutes the
most significant reflection of that principled approach to the issue of war
damages. It has also been shown that with regard to Japan the United States
followed the same line. It stands to reason that this fundamental policy
determination was supported by all nations that approved the Potsdam
Accord as the primary instrument for the settlement of Germany’s war debts
and can therefore be held against them. 64
102. Concluding its submissions on the retroactive character of the
jurisprudence ushered in by the Corte di Cassazione, the Applicant stresses
once again that the retrospective denial of sovereign immunity to the
detriment of the Applicant amounts to a grave violation of the sovereignty
of Germany for which the Italian Republic must assume full responsibility.
8) Protection Against Measures of Constraint
103. In the preceding pages, the Applicant has focused on sovereign
immunity as a shield protecting a State against being pushed, against its will,
into judicial proceedings before the courts of a foreign State. Immunity from
measures of constraint is a complementary chapter of jurisdictional
immunity, even more important than immunity in judicial proceedings. In
principle, the property of a State, although located in the territory of another
State, may not be seized or attached. The Respondent has also breached this
rule to the detriment of the Applicant by inscribing in the land register
covering Villa Vigoni a “judicial mortgage” in the amount of 25,000 Euros
for the satisfaction of the Distomo judgment of the Greek Regional Tribunal
140
of Livadia, confirmed by the Areios Pagos.
104. The UN Convention on Jurisdictional Immunities of States and
Their Property has recently codified the rules existing under general
international law. Article 19 of that Convention provides that
“[n]o post-judgment measures of constraint … against property of another
State may be taken in connection with a proceeding before a court of
another State …”.
Several exceptions modify the main rule. None of the exceptions, however,
has any relevance for the instant case. Germany has not consented to the
inscription of the judicial mortgage in the land register (Article 19 (a)). On
the contrary, Germany has filed legal remedies which are still pending,
awaiting final settlement. Second, it is obvious that Germany has not
allocated or earmarked Villa Vigoni for the satisfaction of the Greek
140See above sections 39-40. 65
Distomo claim (Article 19 (b)). Lastly, Villa Vigoni is not in use for “other
than government non-commercial purposes” (Article 19 (c)). This should be
explained in more detail in a separate section.
105. As pointed out above (para. 39), Villa Vigoni is a centre for
cultural encounters between Germany and Italy; it is not used for any
commercial purposes. The executive agreement concluded between the two
governments in 1986 provides explicitly that Villa Vigoni should serve as a
place for dialogue and cultural exchange. 141Dozens of colloquia and
symposia take place there every year in a surrounding which permits ideas
to be discussed in leisurely serenity. Thus, Villa Vigoni is considered by
Germany as an important instrument of its cultural foreign policy, as
corroborated by the financial allocations which it receives on a regular basis
from the budget of the German Federal Ministry of Education and Research.
Therefore, even if one should take the view that the 2004 UN Convention,
by introducing the concept of “other than government non-commercial
142
purposes” is too restrictive in admitting measures of constraint, one
would have to conclude that in any event the specific function to be
discharged by Villa Vigoni is a genuine governmental function which is
being fulfilled on Italian soil with the unreserved consent of the Italian
government.
106. Indeed, for Italy Villa Vigoni has attained a similar status of
centrality in respect of cultural exchange with Germany. Quite logically,
therefore, the Italian Government itself has opposed the inscription of the
judicial mortgage in the relevant land register. It remains, however, that the
competent authorities being in charge of administering the land register have
not respected Germany’s sovereign immunity. One may hope that in the
course of the proceedings before the ICJ this particular encroachment of
German sovereignty will be removed by a decision of the relevant Italian
courts granting the remedy filed by Germany.
141
Article 2 (1) of the Exchange of notes (ANNEX 24) provides: “The Association shall
promote German-Italian relations in the fields of science, education and culture, including
their linkages with the economy, society and politics, through study visits, symposiums,
142nd tables, summer schools and art exhibitions in the Villa Vigoni.”
For the commentary of the ILC see Yearbook of the ILC 1991, Vol. II, Part Two, p. 57. 66
107. The attempts of the judgment creditors of the Distomo case to
obtain a garnishment order that would obligate the garnishee, the Ferrovie
dello Stato, to pay to them what it owes Deutsche Bahn AG, have to date
not been successful. However, the initiation of enforcement proceedings
where a separate corporate body, Deutsche Bahn AG, would become the
target of measures of constraint, shows to what degree of disturbance the
relationship between Germany and Italy can be exposed by the practice of
non-respect of sovereign immunity.
9) The UN Convention on Jurisdictional Immunities of States
and Their Property
108. Lastly, it cannot go unnoticed that the 2004 UN Convention on
Jurisdictional Immunities of States and Their Property has refrained from
supplementing its list of exceptions from immunity by a clause that would
allow claims to be brought against foreign States if the plaintiff alleges that
he/she is the victim of grave violations of human rights. This is not an
oversight. The issue was discussed by the ILC. In 1999 it even established a
working group mandated with examining whether it might be advisable to
lay down such an additional departure from the principle of immunity. The
working group noted that some lower judicial instances had shown some
sympathy for claims that could be founded on jus cogens rules. Eventually,
however, its deliberations were inconclusive. No decision was taken to
143
amend the existing draft articles. The summary of the deliberations was
even relegated to an “Appendix” to the report. This reluctance was nothing
else than a rejection of the new proposals. It is hard to understand how
against the opinion of the world’s most qualified legal consultative body the
view can be maintained that sovereign immunity has shrunk in relation to
such cases.
143
Report of the Working Group on Jurisdictiostl Immunities of States and Their Property,
Annex to the Report of the ILC on the work of its 51 session, YbILC 1999, Vol. II, Part
Two, p. 149, Appendix, p. 171. 67
109. There is, however, another issue which deserves close attention.
The text of the Convention itself does not touch upon the actions of the
armed forces of States, unlike the European Convention which pursuant to
Article 31 categorically maintains sovereign immunity in such instances.
Within the Sixth Committee of the General Assembly a Working Group (Ad
Hoc Committee) had been established, tasked with examining the
Convention with a view to its final adoption. In fact, the draft had been
pending before the General Assembly since 1991, when it was approved by
the ILC on second reading. One of the issues focused upon by the Working
Group was the judicial accountability of States for operations of their armed
forces abroad in the territory of other States. In order to dispel any
misunderstanding that might arise regarding the territorial clause (Article
12), suggestions were made to clarify the meaning of that clause. No
agreement could be reached on a formal amendment of the text. However,
the Chairman of the Working Group, Gerhard Hafner of Austria, was
authorized to make a statement when introducing the report of the Ad Hoc
Committee in the General Assembly on 25 October 2004. 144 In that
statement, Gerhard Hafner explained unequivocally that military operations
on foreign soil did not come within the scope ratione materiae of Article 12:
“One of the issues that had been raised was whether military activities were
covered by the Convention. The general understanding had always prevailed
that they were not.”
110. It is true that the interpretation of an international treaty starts
out with elucidating the meaning of the text. The declaration just referred to
was not embodied in the text of the 2004 Convention. However, it was
explicitly referred to in the last preambular paragraph of GA resolution
59/38, which adopted the Convention:
“Taking into account the statement of the Chairman of the Ad Hoc
Committee introducing the report of the Ad Hoc Committee.”
144See UN Doc. A/C.6/59/SR.13, para. 36. 68
It therefore constitutes an important instrument in the sense contemplated by
Article 31 (2) (b) of the Vienna Convention on the Law of Treaties and must
be taken into account in that quality. Doubts may arise and have arisen
regarding the precise contours of the territorial clause. Hafner’s statement is
suited to dismiss any extensive reading of Article 12.
111. In fact, when Norway ratified the Convention on 27 March
2006, it entered the following interpretative declaration – not a reservation! -
in consonance with the understanding publicly expressed by Mr. Hafner:
“Recalling inter alia resolution 59/38 adopted by the General Assembly of
the United Nations on 2 December 2004, in which the General Assembly
took into account, when adopting the Convention, the statement of 25
October 2004 of the Chairman of the Ad Hoc Committee on Jurisdictional
Immunities of States and Their Property introducing the Committee’s
report, Norway hereby states its understanding that the Convention does not
apply to military activities, including the activities of armed forces during
an armed conflict, as those terms are understood under international
humanitarian law, and activities undertaken by military forces of a State in
the exercise of their official duties. Such activities remain subject to other
rules of international law.”
This declaration evidences both international practice and opinio juris to the
effect that, on account of military activities, States continue to enjoy
unfettered immunity. 69
10) General Implications of the Self-Constructed Doctrine of the
Corte di Cassazione
112. The doctrine embraced and promoted by the Corte di Cassazione
would have far-reaching repercussions in vast areas of international law. In
particular, the entire history of the settlement of the tortious damages caused
by World War II would have to be rewritten. Not a single stone of the
relevant instruments could be left unturned. According to the Corte di
Cassazione, all the waiver clauses, designed to put an end to legal
quarrelling after satisfactory global compromise solutions had been found at
intergovernmental level, would be meaningless. No individual having
sustained harm – or, as the experience with the pending proceedings in Italy
shows, their heirs - could be prevented from instituting legal proceedings on
his/her own behalf. Thus, a second front of reparation for war injuries would
be opened, the debtor countries – not only Germany, but also Italy, for
instance – being made accountable for their misdeeds a second time.
113. Since, according to the Corte di Cassazione, the claims in issue
have as their foundation jus cogens, not even the Allied Powers could feel
safe from litigation. Germany does not wish to reopen a debate that has
lasted for decades. It is of the firm view that World War II, which will
remain engraved in everyone’s memory and will forever serve as reminder
of the political threats that should be combated with determination from the
very outset, must by now be considered an event of the past, as far as its
juridical dimension is concerned. On its part, Germany has deployed its best
efforts with a view to making good what could be made good within the
limits of its capabilities. The 1990 Treaty on the Final Settlement with
145
respect to Germany settled the issue of reparations once and for all. The
situation of peace and good neighbourhood which prevails in Europe since
that time should not be unhinged by judicial decisions that fail to even
perceive the wider context of the issues they are called upon to adjudicate.
145Of 12 September 1990, 5 (1990) ILM 1187. 70
114. The doctrine embraced by the Corte di Cassazione is also
fraught with dangers in respect of future developments. Comprehensive
peace treaties are a structural necessity in international relations. Many
situations are highly complex. Not even experts are invariably able to say
with authoritative firmness what really happened, who fired the first shot
and who, for instance, is to be blamed for a massacre that in fact occurred.
Rarely are historical situations as simple and straightforward as they were in
the days of the Nazi regime. To take just one example: In a future peace
treaty between Israel and Palestine a comprehensive waiver clause will also
be required of necessity. After the conclusion of such a treaty no one should
be able to destabilize the delicate balance reached by instituting reparation
claims before his/her own courts. Under the doctrine of the Corte di
Cassazione, even resolutions of the Security Council would not be immune
from challenges that fundamental human rights, such as access to a judge,
have been encroached upon and that therefore individual claims against the
States subject to such determinations are not precluded. Indeed, the recent
judgments of the Court of First Instance of the European Union in Yusuf and
Kadi 146held that the discretion of the Security Council was bound by the
rules of jus cogens. Accordingly, all legal avenues permitting to re-establish
peace after war could be blocked in instances where a peace settlement
requires sacrifices of the populations concerned, or would at least be in
danger of becoming subverted by subsequent individual claims that would
cleverly make use of the jus cogens argument.
11) Judicial Practice
115. Ample judicial practice may be cited which has rejected the
doctrine elaborated by the Corte di Cassazione. The thesis that States which
commit grave violations of human rights forfeit their sovereign immunity
has found no acceptance. In particular, whenever cases involving the
activities of military forces were to be adjudicated, the highest courts both at
European and national levels have refused to assume jurisdiction. The Corte
di Cassazione has in fact taken note of that case law. But it based the Ferrini
146Judgments T-306/01 and T-315/01, 21 September 2005. 71
judgment and the subsequent decisions consistently on the minority
opinions which were voiced in some of the judgments, disregarding the
majority views. As it openly acknowledges, it wishes to make a contribution
to developing the existing law. As was shown in the preceding pages, that
attempt is short-sighted since it ignores the complexity of settlements in
respect of war damages. It should also be reiterated that in the international
community it does not fall to domestic courts to develop the law. Judicial
bodies may follow the views held and practices observed as they change
over time. But they need broad political support for their moves. They
cannot push ahead with reformist ideas. In that regard, the Corte di
Cassazione stands on shaky ground. Its case law lacks solid support – any
support outside the Italian borders.
116. In November 2001, the European Court of Human Rights had to
pronounce twice on applications which complained that their right of access
to a judge, guaranteed by Article 6 of the European Convention on Human
Rights (ECHR) had been violated. In both cases, their remedies had been
dismissed on procedural grounds by the domestic courts concerned. In the
147
McElhinney case against Ireland as well as in the Al-Adsani case against
148
the United Kingdom the Respondent was a foreign State. It was already
explained in an earlier section of this submission (para. 73) that McElhinney
concerned an incident at a border crossing between Northern Ireland and the
Republic of Ireland, where a British soldier, acting as security agent at that
check point, was dragged away against his will on a trailer towed by an Irish
car driver into Irish territory and might have acted somewhat emotionally
after the threat to his life had ceased. The applicant, the driver of the car
involved, tried unsuccessfully to obtain a judgment on the incident from the
Irish courts. The Irish Supreme Court did not feel entitled to entertain the
action against the United Kingdom since the soldier had acted jure imperii
in the discharge of his functions. The Al-Adsani case concerned a British
and Kuwaiti national who had allegedly been tortured while in Kuwait.
After his return to the United Kingdom, he wished to bring an action against
147
148Application No. 31253/96, 21 November 2001.
Application No. 35763/97, 21 November 2001. 72
the State of Kuwait. That was denied to him. His action was rejected as
being inadmissible.
117. Since the two judgments were pronounced on the same day, they
contain a number of identical passages precisely on the issues that are
relevant in the present context. First of all, the ECtHR stated:
“that sovereign immunity is a concept of international law, developed out of
the principle par in parem non habet imperium, by virtue of which one State
shall not be subject to the jurisdiction of another State. The Court considers
that the grant of sovereign immunity to a State in civil proceedings pursues
the legitimate aim of complying with international law to promote comity
and good relations between States through the respect of another State’s
sovereignty”. 149
Thus, the ECtHR acknowledged sovereign jurisdictional immunity as a
general rule of international law currently in force. After having stated that
the guarantee of access to a judge as enshrined in Article 6 ECHR does not
operate in a vacuum, but must be interpreted in harmony with general
international law, it continued:
“Measures taken by a High Contracting Party which reflect generally
recognised rules of public international law on State immunity cannot in
principle be regarded as imposing a disproportionate restriction on the right
of access to a court as embodied in Article 6 § 1. Just as the right of access
to a court is an inherent part of the fair trial guarantee in that Article, so
some restrictions on access must likewise be regarded as inherent, an
example being those limitations generally accepted by the community of
nations as part of the doctrine of State immunity.”150
118. After those common passages, which confirmed the binding
nature of the principle of sovereign immunity, the two judgments had to
follow different pathways. In Al-Adsani, the emphasis was on the alleged
acts of mistreatment as constituting torture, with all the attendant
consequences, whereas in McElhinney the scope and meaning of the
territorial exception clause had to be explored.
149
Al-Adsani v. UK, 21 November 2001, Application 35763/97, § 54; McElhinney v.
150land, 21 November 2001, Application 31253/96, § 35.
Al-Adsani, ibid., § 56; McElhinney, ibid., § 37. 73
119. In fact, in Al-Adsani, the applicant attempted to draw benefit
from the characterization of torture as breach of a jus cogens rule. He argued
that in such instances the defence of sovereign immunity must yield. This
view was not shared by the ECtHR. It held:
“Notwithstanding the special character of the prohibition of torture in
international law, the Court is unable to discern in the international
instruments, judicial authorities or other materials before it any firm basis
for concluding that, as a matter of international law, a State no longer enjoys
immunity from151vil suit in the courts of another State where acts of torture
are alleged.”
In McElhinney, on the other hand, the ECtHR stressed that military
activities are in any event covered by sovereign immunity so that any claim
alleging misconduct on the part of the armed forces of a State must be
rejected without any consideration as to their merits:
“The Court observes that, on the material before it … there appears to be a
trend in international and comparative law towards limiting State immunity
in respect of personal injury caused by an act or omission within the forum
State, but that this practice is by no means universal. Further, it appears
from the materials referred to above (see paragraph 19) that the trend may
primarily refer to “insurable” personal injury, that is incidents arising out of
ordinary road traffic accidents, rather than matters relating to the core area
of State sovereignty such as the acts of a soldier on foreign territory which,
of their very nature, may involve sensitive issues affecting diplomatic
relations between States and national security. Certainly, it cannot be said
that Ireland is alone in holding that immunity attaches to suits in respect of
such torts committed by acta jure imperii or that, in affording this
immunity, Ireland falls outside any currently accepted international
standards. The Court agrees with the Supreme Court in the present case (see
paragraph 15 above) that it is not possible, given the present state of the
development of international law, to conclude that Irish law conflicts with
152
its general principles.”
Since the time when the two judgments were rendered, the jurisprudence of
the ECtHR has not changed. The ECtHR keeps on holding that with the
exception of commercial activities or acts jure gestionis, a State is immune
before the courts of another State and cannot sued there. In Kalogeropoulou
151
152Al-Adsani, § 61.
McElhinney, § 38. 74
v. Greece and Germany the complaint directed against Greece on account of
the Minister of Justice’s implicit refusal to authorize enforcement of the
judgment of the Regional Court of Livadia against Germany was rejected as
“manifestly ill-founded”. The ECtHR relied on exactly the same grounds
that it had given in Al-Adsani and McElhinney.
120. It is true that the decision in Al-Adsani was taken by a slim
majority. Nine judges supported the judgment, whereas eight judges
tendered dissenting opinions. However, the leading dissenting opinion of
judges Rozakis and Caflisch, which was joined by four other judges, has
little persuasive force. No disagreement was present between the majority
and the minority regarding the jus cogens nature of the ban on torture. They
differed in respect of the legal consequences to be drawn from an actual
breach of that ban. The six judges argued (§ 3):
“The acceptance … of the jus cogens nature of the prohibition of torture
entails that a State allegedly violating it cannot invoke hierarchically lower
rules (in this case, those on State immunity) to avoid the consequences of
the illegality of its actions … Due to the interplay of the jus cogens rule on
prohibition of torture and the rules on State immunity, the procedural bar of
State immunity is automatically lifted, because those rules, as they conflict
with a hierarchically higher rule, do not produce any legal effect”.
Seemingly logical, this reasoning is fundamentally flawed. The jus cogens
rule is the substantive proposition that torture amounts to a grave crime
under international law. Any national act that would promote, assist or
condone torture would indeed be irreconcilable with that prohibition.
However, to apply the customary principle of jurisdictional immunity, i.e. to
refuse to a victim to bring a claim against the author State before its own
courts, lacks any colour of complicity. A State denying access to its courts
in such instances simply applies a rule of international law. It wishes to
maintain good order in international relations, being convinced that such
disputes should better be resolved through other methods than individual
claims. By no means can such a denial be equated with conduct that
infringes the prohibition of torture. The minority in the Al-Adsani case
simply overlooked the distinction that must be drawn between the
substantive primary rule and the secondary rules that come into play once a 75
violation has occurred. Already in an earlier section of this submission, the
necessity of this distinction was highlighted.
121. Germany’s position is buttressed by authoritative voices in the
legal literature. Suffice it to refer to a recent publication, which is the result
of four years of work by the Committee on International Human Rights Law
and Practice of the International Law Association (ILA), where the author
examines with a lot of sympathy for new methods of reasoning in
153
international law the Ferrini doctrine of the Corte di Cassazione. Yet he
comes to the conclusion that it is untenable. Commenting on the minority
opinion in the Al-Adsani case, he writes:
“Despite its seemingly logical rigour, the argument is seriously flawed
because neither the alleged normative conflict nor the presumed hierarchy
between human rights and state immunity can be demonstrated to exist … A
normative collision could … only be assumed if the prohibition of torture
(or any other jus cogens rule) implied the duty to establish jurisdiction over
foreign states and their officials in order to provide compensation to the
victims … As international law stands today, such a general duty to
establish criminal or civil jurisdiction with a view to providing judicial
remedies for the violation fundamental human rights endowed with the
status of jus cogens (mandatory universal jurisdiction) only exists in
exceptional circumstances .. Under customary international law there is no
rule of mandatory universal jurisdiction with regard to criminal or tort
154
proceedings.”
122. The conclusion therefore seems to be warranted that the Corte di
Cassazione has departed from a common European standard. It should be
noted, in this connection, that the decision in Kalogeropoulou was
unanimously adopted by the ECtHR. None of the judges opined that the
refusal of the Greek Minister of Justice to authorize the application of
measures of constraint against Germany amounted to a violation of Article 6
ECHR, the guarantee of access to a judge. The ECtHR thus made it clear
that the rule of sovereign immunity could not be dislodged by a human
rights guarantee.
153
Thilo Rensmann, ‘Impact on the Immunity of States and their Officials’, in: The Impact
of Human Rights Law on General International Law (Oxford 2009), pp. 151-170, ANNEX
154
Ibid., 166-7. 76
123. The judgment handed down by the Court of Appeal of Ontario
in Bouzari v. Iran on 30 June 2004 155 is also remarkable for its sober
examination of the procedural consequences deriving from the commission
of acts of torture. In that case, an Iranian, having been accepted by Canada
as a “landed immigrant”, wished to sue Iran on account of acts of torture to
which he had been subjected while still residing in his original home
country. One of his main arguments was that any State was under an
obligation to provide victims of torture with a civil remedy, irrespective of
the venue of the crime, hence even if the crime had been perpetrated outside
the forum State. The Court of Appeal of Ontario did not share that view.
With extreme care, it scrutinized the arguments advanced by the applicant
which could not convince it. In summing up its view, it cited approvingly a
statement by the lower court, the Ontario Superior Court of Justice:
“An examination of the decisions of national courts and international
tribunals, as well as state legislation with respect to sovereign immunity,
indicates that there is no principle of customary international law which
provides an exception from state immunity where an act of torture has been
committed outside the forum, even for acts contrary to jus cogens. Indeed,
the evidence of state practice, as reflected in these and other sources, leads
to the conclusion that there is an ongoing rule of customary international
law providing state immunity for acts of torture committed outside the
forum state.” 156
On this basis, the claim was rejected. The Supreme Court of Canada denied
the application for leave to appeal.
124. In the United Kingdom, the House of Lords had also to
pronounce on the issue. In a case very closely resembling the Canadian case
157
of Bouzari, the Jones case, it was called upon to determine whether a
person who had allegedly been subjected to “severe, systematic and
injurious” torture in Saudi Arabia, could bring a suit against the Kingdom
before the courts of the United Kingdom. After a careful examination of all
155
156128 ILR 586.
157Ibid., para. 88.
Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Sandiya (the Kingdom of
Saudi-Arabia), 14 June 2006, 129 ILR 713. 77
the arguments put forward by the claimant, all of the judges came
unanimously to the conclusion that the British courts lacked jurisdiction,
both under the UK Act of 1976 and under general international law. In
particular, the judges had an opportunity to appraise the reasons given by
the Corte di Cassazione in Ferrini. We can report that their appraisal was
less than favourable. According to the words of Lord Bingham of Cornhill
(para. 22),
“The Ferrini decision cannot in my opinion be treated as an accurate
statement of international law as generally understood; and one swallow
does not make a rule of international law.”
Lord Hoffmann’s comments were already referred to in an earlier section of
this submission. The gist of his observations is that judges should refrain
158
from playing an activist role as promoters of “progress” - and he is
certainly right in emphasizing the need for a judge to keep a reserved
attitude with regard to the cases before him. Judges are not called upon to
act with the explicit intention to create new law. In hindsight, one will often
find that indeed the law was moved forward step by step through judicial
pronouncements. Common law has evolved in that fashion. But judges have
to act lege artis. They must at least base their reasoning on the bona fide
belief that the rule applied by them was developed in a constructive effort to
synthesize elements actually in force as component parts of the legal order.
To push the law in force aside, deriving instead the legal reasoning from
values underlying that law but not yet having crystallized as truly legal
rules, reveals a tragic misunderstanding of the function entrusted to them.
What may be acceptable in a domestic framework cannot be justified at the
universal level where 192 nations have the same right to contribute to the
formation of the law. The courts of one nation cannot impose their views on
all the other nations. International law is based on consensus. Hegemonic
methods are incompatible with its egalitarian nature. In the case of Military
and Paramilitary Activities the Court said quite unequivocally that States
may indeed attempt to bring into being novel rules and that such attempts
“might … tend towards a modification of customary international law”, but
158Ibid., para. 64. 78
the precondition is that for such reliance on novel concepts support is
obtained from other States: “if shared in principle by other States”. 159 Even
under such circumstances, the Court remains extremely cautions. Attention
is drawn to the words “might” and tend” which deliberately refrain from
providing clear answers.
125. The French jurisprudence is also of unequivocal clarity in
respect of the immunity of foreign States who have performed acts,
challenged by a petitioner as violating human rights or international
humanitarian law, in the exercise of their sovereign power (actes de
puissance publique). In a case against Germany (Bucheron), where French
jurisdiction with regard to a claim derived from the plaintiff’s deportation to
Germany for purposes of forced labour was in issue, the Cour de Cassation
held that the facts
“consistant à contraindre des personnes requises au titre du service du
travail obligatoire, à travailler en pays ennemi, avaient ØtØaccomplis à titre
de puissance publique occupante par le TroisiŁme Reich, dont la RFA est
successeur … n’Øtaient pas de nature à faire Øchec au principe de l’immunitØ
juridictionnelle de la RFA selon la pratique judiciaire française … » 160
The Cour de Cassation does not even deem it necessary to provide reasons
for its decision. As the citation shows, the judges confine themselves to
referring to the French judicial practice. The MinistŁre publichad deemed it
sufficient to devote half a sentence to the argument of the claimant that a
violation of international humanitarian law leads to forfeiture of
jurisdictional immunity:
“ … tant par les moyens mis en oeuvre que par la finalitØ poursuivi e, les
opØrations critiquØes ont ØtØ entreprises par l’Etat allemandn dsale cadre de
ses prØrogatives de puissance publique et dans l’intØrŒt de son sercv eipublic
(quel que puisse Œtre par ailleurs le jugement à porter au pln a moral sur la
161
lØgitimitØ d’une telle action). »
159Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, ICJ Reports 1986, p. 14, at 110 para. 209. See also the plea for
caution by Olivier Corten, ‘Breach and Evolution of Customary Law’, in: Enzo Cannizzaro
and Paolo Palchetti (eds.), Customary International Law on the Use of Force. A
160hodological Approach (Leiden/Boston 2005), pp. 119 et seq.
161108 (2004) RGDIP 259, at 260.
Submission of 26 April 2002/25 June 2002, ANNEX 37. 79
Only in the note written by François Poirat 162 are some more general
163
considerations put forward. Beforehand, the Cour d’Appel de Paris had
also expressed itself in a more substantial manner:
“Les États Øtrangers bØnØficient de l’immunitØ de jurid ticn lorsque l’acte
qui donne lieu au litige constitue un acte de puissance publique ou a ØtØ
accompli dans l’intØrŒt d’un service public … tant par les moyens m is en
œuvre que par la finalitØ poursuivie, les faits dont le requØrant aØtØ la
victime s’intŁgrent dans un ensemble d’opØrations entreprises par ’lÉtat
allemand dans le cadre de ses prØrogatives de puissance publique. Enl’Øtat
du droit international, ces faits, quelle qu’en soit la gravitØ, nesont pas, en
l’absence de dispositions internationales contraires s’imposant aux parties
concernØes, de nature à faire Øchec au principe de l’immunitØ dje uridiction
des États Øtrangers. »
126. The Constitutional Court of Slovenia, in a judgment of 8 March
2001, 164 also rejected complaints based on the argument that a State
committing grave violations of human rights should be denied immunity in
proceedings where compensation is sought as reparation for injury suffered.
The Constitutional Court felt that there was a “trend” towards the limitation
of State immunity, but it held that the cases referred to, in particular the
Greek judgment in the Distomo case, could not
“serve as a proof of general state practice recognized as a law and thus as
the creation of a rule of international customary law, which would in the
case of violations of the cogent norms of international law in the area of
human rights protection as a consequence of state activities in the
framework of iure imperii … allow Slovenian courts to try foreign states in
such cases.”
There is no need to comment on this finding.
127. Some lower courts in those countries that during World War II
suffered German occupation have also rejected applications requesting to
find Germany’s responsibility for damage and losses during that time as a
consequence of military operations. Reference is made to
162
163108 (2004) RGDIP 260.
164Judgment of 9 September 2002, ANNEX 38.
ANNEX 39. 80
- the judgment of the Rechtbank (Regional Court) of Gent (Belgium) of 18
February 2000 165 which sees the rules laid down in the European
Convention on State Immunity, although not directly applicable to the case
at hand, as a reflection of the applicable rules of customary international
law, arguing that the actions of armed forces shall in any event remain
covered by jurisdictional immunity (Article 31 of that Convention);
- the judgment of the tribunal of first instance Leskovac (Serbia) of 1
November 2001 (no specific reasoning given; general reference to
166
international treaties and custom);
- the judgment of the Court of Appeal of Gdansk of 13 May 2008 which
denies the jurisdiction of the Polish courts for claims requesting reparation
for serious physical harm (burns) suffered during World War II (2 February
167
1944) in a village close to Lublin.
Mostly, such judgments do not come to the knowledge of the public at large
– or, in many cases, not even to the German Government - inasmuch as
courts generally reject claims based on actions by the German armed forces
in foreign territory without any hesitation, not bothering to provide lengthy
explanations.
128. In order to round off its pleadings, Germany draws the attention
of the Court to the restrictive interpretation to which the Court of Justice of
the European Communities has subjected the concept of “civil and
commercial matters” in Article 1 of the [European] Convention of 27
September 1968 on Jurisdiction and the Enforcement of Judgments in Civil
168
and Commercial Matters (Brussels Convention). Originally, the Italian
courts based their decisions on the enforceability of the Greek decisions in
the Distomo case on that Convention. However, in Lechouritou and Others
the Court of Justice of the European Communities held that the Convention
does not cover legal actions brought by natural persons in one Contracting
State against another Contracting State for compensation of loss or damage
165ANNEX 40.
166ANNEX 41. The same view was expressed in a legal opinion of the Yugoslav Federal
Ministry of Justice of 24 April 2002, ANNEX 42.
167ANNEX 43.
168
Official Journal 1978 L 304, p. 36. 81
suffered as a consequence of acts of warfare. 169 The cooperation among
European nations within the framework of the Brussels Convention does not
extend to such actions, which have a special nature and cannot be dealt with
like any other dispute between civil litigants, even when the plaintiffs claim
compensation for tortious acts committed by the armed forces of the
respondent party.
129. No comfort can be drawn for the position of the Corte di
Cassazione from the judgment of the Trial Chamber of the International
Criminal Tribunal for the Former Yugoslavia of 10 December 1998 in
Furundzija. 170In that judgment, the Trial Chamber went on a long journey
in attempting to explain the legal effects deriving from a violation of a jus
cogens rule. Rightly holding that the prohibition of torture constitutes
indeed such a rule, it held that
“[p]roceedings could be initiated by potential victims if they had locus
standi before a competent international or national judicial body with a view
to asking it to hold the national measure to be internationally unlawful; or
the victim could bring a civil suit for damage in a foreign court, which
would therefore be asked inter alia to disregard the legal value of the
171
national authorising act.”
In the first place, it should be noted that the Trial Chamber gave an
academic exposition which was in no way related to the case it had to
adjudicate. Its observations are no more than obiter dicta. Second, the Trial
Chamber did not address the legal defence of sovereign immunity which a
State can hold against a reparation claim instituted before the courts of
another country. Its sole concern is to underline that no State is in a position
to invoke, as a defence to shield it from responsibility, a national act that
would authorize torture. Lastly, the Trial Chamber explicitly stresses that its
observations are confined to proceedings where a victim has
unobjectionable locus standi, either before an international or a national
judicial body. Hence, only a superficial perusal of Furundzija would permit
to draw any justification for the Ferrini jurisprudence from that judgment.
169
170Case C-292/05, 15 February 2007, para. 46.
171IT-95-17/1-T, 38 (1998) ILM 317.
Ibid., para. 155. 82
130. Lastly, Germany wishes to recall once again that Italian
authorities that occupy the highest ranks in the Italian judicial system, the
Avvocatura Generale dello Stato as well as the Procura Generale della
Repubblica presso la Corte di Cassazione, have attempted to persuade the
Corte di Cassazione that it should abandon its erroneous course (see
Annexes 10, 12, 22). In their submissions, they cogently demonstrated that
the alleged new opening in the defence of jurisdictional immunity simply
does not exist since it lacks any solid foundation in general rules of
international law. The Court should follow those voices coming directly
from Italy. They confirm the well-foundedness of the present Application.
V. Relief Sought
131. Germany requests reparation as indicated in the subsequent
requests. In particular, Italy must ensure that the recurrent violations of its
sovereign immunity be brought to a halt. The Court should also specify that
the unlawful judicial practice must not continue. Guarantees of non-
repetition are all the more necessary since Germany has been battling the
surge of civil actions seeking reparation for World War II injustices for
more than five years, with new claims being brought month after month. 83
VI. Requests
132. On the basis of the preceding submissions, Germany prays 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 from September 1943 to
May 1945, to be brought against the Federal Republic of Germany,
committed violations of obligations under international law in 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 above in request No. 1 enforceable in Italy, committed a further
breach of Germany’s jurisdictional immunity.
Accordingly, the Federal Republic of Germany prays 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 judicial
authorities infringing Germany’s sovereign immunity become
unenforceable;
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 above; 84
133. Germany reserves the right to request the Court to indicate
provisional measures in accordance with Article 41 of the Statute should
measures of constraint be taken by Italian authorities against German State
assets, in particular diplomatic and other premises that enjoy protection
against such measures pursuant to general rules of international law.
Berlin, 12 June 2009
Christian Tomuschat Georg Witschel
Agent of the Government of the Director General for
Federal Republic of Germany Legal Affairs and Agent of
the Government of the
Federal Republic of Germany 85
List of Annexes
Annex 1 Corte di Cassazione, judgment No. 5044/2044, Ferrini, 11 March 2004,
87 (2004) Rivista di diritto internazionale 539; English translation:
128 ILR 659.
Annex 2 Joint Declaration by the Governments of the Federal Republic of
Germany and the Italian Republic, 18 November 2008.
Annex 3 Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3, No. 747, Art.
77.
Annex 4 Abkommen über die Regelung gewisser vermögensrechtlicher,
wirtschaftlicher und finanzieller Fragen, 2. Juni 1961, BGBl. 1963 II,
669; Treaty on the Settlement of Certain Property-Related, Economic
and Financial Questions, 2 June 1961.
Annex 5 Vertrag über Leistungen zugunsten italienischer Staatsangehöriger, die
von nationalsozialistischen Verfolgungsmaßnahmen betroffen worden
sind, 2. Juni 1961, BGBl. 1963 II, 793; Treaty Concerning
Compensation for Italian Nationals Subjected to National-Socialist
Measures of Persecution, 2 June 1961.
Annex 6 Italian Presidential Decree No. 2043, 6 October 1963.
Annex 7 Corte di Cassazione, judgment, 30 October 1986/2 March 1987.
Annex 8 List of all pending judicial cases against Germany.
Annex 9 Areios Pagos, Prefecture of Voiotia v. Federal Republic of Germany,
judgment of 4 May 2000, English translation: 129 ILR 514.
Annex 10 Procura Generale della Repubblica presso la Corte di Cassazione,
submission of 22 November 2007.
Annex 11 Secretary-General of the Presidency of the Italian Council of Ministers,
letter of 24 April 2008 to the Avvocatura Generale dello Stato.
Annex 12 Avvocatura Generale dello Stato, submission to the Corte di Cassazione,
28 April 2008.
Annex 13 Corte di Cassazione, cases of Giovanni Mantelli and Liberato Maietta,
Orders, 29 May 2008.
Annex 14 Military Court of La Spezia, case of Max Josef Milde, judgment of 10
October 2006.
Annex 15 Military Court of Appeals, Rome, case of Max Josef Milde, judgment of
18 December 2007. 86
Annex 16 Corte di Cassazione, case of Max Josef Milde, judgment of 21 October
2008
Annex 17 Regional Court of Livadia, judgment 137/1997, 25 September/30
October 1997.
Annex 18 Court of Appeal of Florence, decision (“decreto”) of 2 May 2005.
Annex 19 Court of Appeal of Florence, decision (“decreto”) of 6 February 2007.
Annex 20 Corte di Cassazione, judgment No. 14199, 29 May 2008.
Annex 21 Court of Appeal of Florence, decision (“decreto”) of 13 June 2006.
Annex 22 Avvocatura Distrettuale dello Stato di Firenze, submission of 11
September 2008.
Annex 23 Court of Appeal of Florence, decision of 21 October 2008.
Annex 24 Exchange of notes constituting an arrangement concerning the
establishment of the “Villa Vigoni” Association as a German-Italian
Centre, 21 April 1986, 1501 UNTS 57, No. 25828, 25829.
Annex 25 Inscription of a judicial mortgage in the land register covering “Villa
Vigoni”.
Annex 26 Avvocatura Distrettuale dello Stato di Milano, submission of 6 June
2008.
Annex 27 Corte di Cassazione, judgment No. 1653/1974, 6 June 1974; English
translation: 65 ILR 308.
Annex 28 Corte di Cassazione, decision 8157/2002, Markovic, 5 June 2002;
English translation: 128 ILR 652.
Annex 29 Francesca De Vittor, Immunità degli Stati dalla giurisdizione e
risarcimento del danno per violazione dei diritti fondamentali: il caso
Mantelli, 2 (2008) Diritti umani e diritto internazionale, issue 3.
Annex 30 William H. Taft, IV, Legal Adviser, Department of State, submission as
Amicus Curiae to the US Court of Appeals for the District of Columbia
Circuit in the case of Hwang Geum Joo v. Japan, November 2004.
Annex 31 United States Court of Appeals for the District of the Columbia Circuit,
Hwang Geum Joo v. Japan, Minister Yohei Kono, Minister of Finance,
28 June 2005.
Annex 32 Foreign State Immunity Law, 2008, Israel. 87
Annex 33 Corte di Cassazione, decision No. 530/2000, FILT-CGIL Trento and
Others v. United States of America, 3 August 2000; English translation:
128 ILR 644.
Annex 34 Rechtbank s’-Gravenhage (Regional Court The Hague), judgment of 10
July 2008.
Annex 35 U.S. Department of State, Amicus Curiae brief in Sampson v. Federal
Republic of Germany.
Annex 36 Thilo Rensmann, ‘Impact on the Immunity of States and their Officials’,
in: The Impact of Human Rights Law on General International Law
(Oxford 2009), pp. 151-170.
Annex 37 [French] MinistŁre public, submissions inBucheron before Cour de
cassation, of 26 April 2002/25 June 2002.
Annex 38 Cour d’appel de Paris, judgment of 9 September 2002, Bucheron.
Annex 39 Constitutional Court of Slovenia, judgment of 8 March 2001, English
translation.
Annex 40 Rechtbank (Regional Court) of Gent (Belgium), judgment of 18
February 2000.
Annex 41 Tribunal of first instance Leskovac (Serbia), judgment of 1 November
2001.
Annex 42 Legal opinion of the Yugoslav Federal Ministry of Justice of 24 April
2002.
Annex 43 Court of Appeal of Gdansk (Poland), judgment of 13 May 2008.
Memorial of the Federal Republic of Germany