INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY)
COUNTER-MEMORIAL
OF ITALY
22 DECEMBER 2009 TABLE OF CONTENTS
CHAPTER I. GENERAL REMARKS ........................................................................
.............5
Section I. Introduction........................................................................
.........................................5
Section II. The Agreement Between the Parties on the Jurisdiction of the Court.................7
Section III. The Real Scope of the Dispute ........................................................................
........8
Section IV. The Position of the Federal Republic of Germany and its International
Responsibility for the Crimes Committed by the Third Reich.......................................9
Section V. The Time Element in the Present Case..................................................................10
CHAPTER II. THE FACTS........................................................................
.............................13
Section I. The Events of the Second World War Concerning the Parties ............................13
A .MPRISONMENT AND FORCED L ABOUR OF BOTH ITALIAN M ILITARYP ERSONNEL AND
C IVILIAN........................................................................
......................................14
B.C RIMES A GAINST THEC IVILIANPOPULATION .................................................................15
Section II. The Exclusion of Italian Victims from Reparations on the Basis of a Mistaken
Interpretation of the 1947 and 1961 Waiver Clauses....................................................16
Section III. The Mechanisms for Reparation Established by Germany and the Persistent
Lack of Effective Reparation for a Very Large Number of Italian Victims...............19
A. THE FEDERAL COMPENSATION LAW OF 1953.................................................................19
B. THE COMPENSATION L AW OF 2A UGUST 2000................................................................21
Section IV. The Search for an Effective Remedy in the Light of a Denial of Justice: Access
to Justice before Italian Courts and the Derogation from the Principle of Immunity
........................................................................
....................................................................25
Section V. Conclusions........................................................................
.......................................29
CHAPTER III. JURISDICTION ........................................................................
....................31
Section I. Introduction........................................................................
.......................................31
Section II. Identification of the Real Cause of the Dispute Submitted by Germany for the
Purposes of the Court’s Jurisdiction.........................................................................
......33Section III. The Dispute on Immunity Brought by Germany and the Dispute on
Reparation Brought by Italy Fall within the Scope Ratione Temporis of the 1957
European Convention........................................................................
...............................37
Section IV. Conclusions........................................................................
.....................................40
CHAPTER IV. IMMUNITY........................................................................
............................42
Section I. Introduction........................................................................
.......................................42
Section II. The Principle of State Immunity from Jurisdiction and Its Limits....................43
A.IMMUNITY FROM JURISDICTION AS C ONSEQUENCE OF THE STATE SOVEREIGNTY
PRINCIPLE........................................................................
......................................44
B.D EVELOPMENTS OF IMMUNITY LAW ........................................................................
.......45
1. Evolution from Absolute to Relative Immunity........................................................................
............45
2. The Exceptions to State Immunity for Personal Injuries.......................................................................51
(a) Irrelevance of Imperii-Gestionis Distinction in Tort Litigation .....................................................51
(b) Applicability of the Torts Exception in Cases Concerning War Damage......................................54
3. Inter-Temporal Application of the Rules of State Immunity.................................................................56
C.C ONCLUSIONS ........................................................................
.........................................59
Section III. The Principles of State Immunity in the Context of Developments of
International Law........................................................................
.....................................60
A.JUS COGENS ........................................................................
.............................................60
B.INTERNATIONAL CRIMINAL LAW ........................................................................
............70
C.A CCESS TOJUSTICE........................................................................
.................................73
D.C ONCLUSIONS ........................................................................
.........................................80
Section IV. Immunity Cannot Mean Impunity .......................................................................80
Section V. Conclusions........................................................................
.......................................85
CHAPTER V. REPARATION ........................................................................
........................87
Section I. Introduction........................................................................
.......................................87
Section II. The General Principle of Effective Reparation for Serious Violations of IHL..90
A. THE REPARATION RÉGIME FOR SERIOUS VIOLATIONS OFIHL........................................90
B.T HEN ON-D EROGABLE C HARACTER OF THEO BLIGATION OF REPARATION INW AR
CRIMES CASES........................................................................
...............................94
C.T HEN EED FOR‘EFFECTIVE’ REPARATION AND THE W AYS INW HICH STATES FULFIL
THEIRR EPARATION OBLIGATIONS ........................................................................
98
Section III. Developments in International Criminal Law, Human Rights Law and Other
Relevant Principles Concerning Reparation to Victims of International Crimes....100
Section IV. Germany’s Obligations of Reparation for Serious Violations of IHL Against
Italian Victims........................................................................
.........................................104CHAPTER VI. BALANCING IMMUNITY AND THE OBLIGATION OF
REPARATION........................................................................
............................................114
Section I. The Position of the Italian Judges with Respect to the Conflict Between
Immunity and Reparation ........................................................................
.....................114
A.I NTRODUCTION ........................................................................
.....................................114
B.N ATIONAL JUDGES AND INTERNATIONAL LAW .............................................................117
Section II. The Reasons Why, by Denying Immunity, Italy Did Not Commit an
Internationally Wrongful Act........................................................................
................122
CHAPTER VII. COUNTER-CLAIM........................................................................
...........128
Section I. Introduction........................................................................
.....................................128
Section II. Jurisdiction and Admissibility of the Counter-Claim........................................129
Section III. Remedies Sought by Italy........................................................................
............131
Section IV. Conclusions........................................................................
...................................133
SUBMISSIONS .........................................................................
...............................................134
LIST OF ANNEXES........................................................................
........................................135 CHAPTER I
GENERAL REMARKS
Section I. Introduction
1.1 In this Counter-Memorial, presented w ithin the deadline laid down by the
International Court of Justice (hereinafter the Court) by orde r of 29 April 2009, the Italian
Republic (hereinafter Italy) intends, first, to set out the arguments that lead it to ask the Court to
reject the request submitted on 23 December 2008 by the Federal Republic of Germany
(hereinafter Germany), illustrated in its Memo rial of 12 June 2009. Secondly, Italy intends to
explain the reasons on which its own counter-claim, submitted in the same context, is based.
1.2 In its Memorial, Germany emphasizes th at the strong links of friendship and
cooperation between Italy and Germany are not being called in question in any way by the
initiative of bringing before the Court a delica te controversy it seems impossible to resolve any
other way. For, starting with the decision of the Italian Corte di Cassazione in the Ferrini case
1
of 11 March 2004 , an approach has been becoming consolidated in the case law that Germany’s
immunity from jurisdiction canno t be recognized by Italian judge s in cases of legal actions
brought by victims of crimes co mmitted by the Nazi authorities during the Second World War
aimed at securing reparation. According to Germany, denial of immunity to the German State by
Italian judges should be regarded as internationally wrongful conduct by Italy, which the Court
ought to find, drawing all the appropriate consequences in international law.
1.3 Italy fully shares the conviction that th e solid bonds of friendship between the two
countries absolutely do not risk being distur bed by the present proceedings and “respects the
German decision to apply to the International Court of Justice for a ru ling on the principle of
State immunity”, as solemnly stated in the Joint Declara tion adopted on the occasion of
1ANNEX 1 to the Memorial of the Federal Republic of Germany (hereinafter GM).
5German-Italian governmental consultations held on 18 November 2008 in Trieste . Obviously,
Italy equally trusts that Germa ny will in the same spirit of pr ofound friendship in turn respect
the Italian decision not only to rebut the German request on the merits but further to submit with
the present Counter-Memorial its own counter-claim, so that under the guidance of the Court the
complex issue at the heart of the dispute can be fully, not merely par tially, resolved. For the
Italian case law denying the immunity of the German State from jurisdiction in connection with
requests for reparation submitted by victims of crim es committed by the Nazi authorities during
the Second World War is inseparably linked with the finding that these victims have suffered,
and continue to suffer, a flagrant denial of ju stice, since every attempt over a span of over 60
years to secure compliance by Germany with the peremptory principle of international law
imposing an absolute obligation of reparation in such cases has failed. A complete solution to
the dispute accordingly requires the Court to be called on not only to answer the question
whether there has been a breach by Italy of Ge rmany’s jurisdictional immunity (as the latter
claims), but also the closely connected questi on whether Germany has br eached, and continues
to breach, its obligation to make reparation for th e extremely severe violat ions of international
humanitarian law for which it is internationally responsible (as Italy holds).
1.4 As Germany admits, the Italian Government has consistently tried to avoid immunity
becoming a contentious issue before Italian courts. The positions taken in the framework of
3
judicial proceedings by the Avvocatura dello Stato and by the Procura Generale can be
explained in this light. Italian courts were, how ever, faced with a clear dilemma: to condone a
blatant denial of justice or to render justice to victims of heinous crimes . Confronted with this
dilemma, Italian judges made th e only possible, logical and rati onal choice for any judicial
institution: considering that an imperative obligation of repara tion existed, c onsidering that
several attempts had been made to obtain satisfactory reparation from Germany, and considering
that all other remedial avenues seemed to have been exhausted, they had to render justice even
at the price of setting aside the principle of immunity. Now that Germany has decided to
approach the Court on only one aspect of this complex situa tion, it seems to Italy highly
desirable, indeed necessary, for the Court to be asked to deal with it and resolve it in its entirety.
2ANNEX 1.
3GM, paras. 24 and 26; ANNEXES 10 and 11 to GM.
6 Section II. The Agreement Between the Parties on the Jurisdiction of the Court
1.5 As emerges from the Joint Declaration of 18 November 2008, Italy not only respects
Germany’s decision to apply to the Court in this case, but has also stated its conviction that the
Court’s decision “will help to clarify this complex issue” . The Joint Declaration might thus in
itself constitute an adequate consensual basis for the Court’s jurisdiction in the present case,
even independently of the reference to the Eu ropean Convention for the Peaceful Settlement of
Disputes of 29 April 1957, invoked by Germany 5. And it is a matter of course, in full respect for
the letter and the spirit of the Joint Declaration, that Italy considers itself in any case bound not
to raise objections regarding the Court’s jurisd iction to decide on th e German claim and its
admissibility.
1.6 As will be shown in Chapter III below, the principles laid down in the 1957 European
Convention, on which Germany bases the Court’s juri sdiction in relation to its own claim, also
fully establish the Court’s jurisdiction in refe rence to the counter-cla im submitted by Italy. It
should however be noted that th e Joint Declaration of 2008 imp lies that Germany fully shares
with Italy the trust that the Court’s decision will “clarify this complex issue”. And the
complexity of the issue brought before the Court de rives from the very fact that the question of
the State’s jurisdictional immunity arises in the case in point not abstrac tly and in general, but
with specific reference to disputes regarding th e reparation denied to Italian victims of war
crimes and crimes against humanity. It follows that any objections from the German side
regarding the admissibility of the counter-claim submitted by It aly or regarding the Court’s
jurisdiction in relation to it would appear to be in sharp contrast with the common intent of the
Parties as solemnly expressed by them jointly.
4
Joint Declaration by the Government of the Federal Republic of Germany and the Italian Republic, 18 November
5008 (ANNEX 1).
GM, para. 1.
7 Section III. The Real Scope of the Dispute
1.7 In its claim, Germany asks the Court to fi nd that Italy, through its judicial practice
starting with the Ferrini judgement, has infringed and continues to infringe towards Germany
the principle of sovereign immunity which debars private parties from bringing suits against a
State before the courts of another State.
1.8 As it will be underlined in Chapter IV below, Italy fully agrees with Germany that
sovereign jurisdictional immunity is a fundament al principle of intern ational law. But this
principle, though undeniably always in force, should be properly interpreted. Conceived in other
times as absolute, it is today commonly seen as relative: the important developments of
international law in this respect have progres sively highlighted that immunity has to be
understood as subject to various exceptions. In ot her words, it is recognized that in a whole
series of situations it cannot be validly invoked by one State brought before the judge of another
State.
1.9 However, over and above the exceptions specifically identifiable according to the
standards of international practice, the interplay of the immunity principl e with other rules of
positive international law of para mount importance must be assessed taking into account the
potential impact of the normative hierarchy. For in the present cas e the Court is being asked to
say, not whether the principle of State jurisdictional immunity exists or not, but whether it
should or should not be applied even in a case where it is essentially being used to exonerate the
State itself from complying with international oblig ations of an imperative nature, that is, when
recourse to the domestic judge appears to be the only path to pursue in order to secure
compliance with those obligations, since every other way has been tried without success or is in
any case precluded as a consequence of postwar Germany’s choice not to provide compensation
to a multitude of Italian victims of horrendous crimes committed by the German Reich.
1.10 Italy is convinced, and asks the C ourt to say, that the application in concreto of State
jurisdictional immunity must be balanced in term s of the need to avoid such application leading
to the sanctioning of an irremediable breach of the principle of international law, itself
fundamental and, moreover, non-derogable, regarding the obligation to offer effective reparation
to the victims of war crimes and crimes agains t humanity. Chapters V and VI of this Counter-
Memorial are specifically dedicated, respective ly, the former to iden tifying the fundamental
8international principles applicable as regard s reparation for damage caused by severe breaches
of international humanitarian law, and the latter to the necessary balancing to be done in the case
in point between immunity and reparation.
1.11 Finding the existence of the international obligation of reparation and of its
continuing breach by Germany thus appears to be a necessary stage in order to establish whether
Italy has indeed breached Germ any’s jurisdictional immunity or not. With its own counter-
claim, as clarified in Chapter VII below, It aly further asks the Court to draw all the
consequences of this finding, indicating in pa rticular that Germany has in any case the
obligation to cease its own wrongful conduct and the consequent obligation to offer the victims
appropriate and effective reparation.
Section IV. The Position of the Federal Republic of Germany and its International
Responsibility for the Crimes Committed by the Third Reich
1.12 The German Memorial admits de plano from the outset that “in respect of acts jure
imperii performed by the authorities of the Third Reich […] present-day Germany has to assume
international responsibility” 6 and describes “the steps undertaken by post-war Germany […] to
give effect to the internationa l responsibility of Germany” relating to “t he unlawful conduct of
the forces of the German Reich” . But not only is the international responsibility of “present-day
Germany” for the conduct of the German authorit ies of the times indisp utable and undisputed:
also indisputable, and moreover openly reco gnized by Germany, is the wrongful, indeed
criminal , nature of the “egregious vi olations of international hum anitarian law perpetrated by
the German forces during the period from 8/9 September 1943 until the liberation of Italy” 9 as
well as “the untold suffering inflicted on Italian men and women in particular during massacres,
10
and on former Italian military internees” .
6GM, p. 1.
7GM, para. 7.
8GM, para. 59.
9GM, para. 15.
10Ibid., and Joint Declaration.
91.13 Italy invites the Court to find that no dis pute thus exists between the Parties as
regards Germany’s responsibility for the indisputably criminal acts committed by the Third
Reich against Italians to which the Italian ca se law denying jurisdictional immunity to the
German State refers. In other words, the existe nce of the obligation to make reparation for the
crimes committed, its non-derogable nature and its permanence in relation to today’s democratic
Germany can and must be analysed and ascertai ned by the international judge on the basis of
these certain and incontrovertible data.
Section V. The Time Element in the Present Case
1.14 Both the German claim and the Italian coun ter-claim relate to the same extremely
severe wrongful acts, perp etrated between 1943 and 1945 during the Second World War. The
disputed questions that the Cour t is called on to resolve today thus inevitably raise inter-
temporal problems, given that there is a need to determine the legal effects of the lapse of time,
taking into account the undoubted evol ution of the relevant principl es of international law over
this span of more than 60 years. The position asserted by Germany in this connection in its
Memorial is that the events of the past cannot be a ssessed on the basis of the standards of the
international norms currently in force, given that these are not to be applied retroactively 1. The
crimes in question, it affirms, “belong to the past” and “the set of ri ghts and obligations which
they engendered is closed” 12. And Germany adds: “(s)ince th at time, no injurious new element
was added to the damage origin ally caused”. Consequently, “the requirement that any legal
obligation must be interpreted within its legal c ontext, cannot be extended to reshaping a legal
13
relationship that received its contours pursuant the proposition: tempus regit actum” .
1.15 Such argumentation cannot be supported. Moreove r, it is not at all relevant in the
case in point, whether in connection with the Ge rman principal claim or in reference to the
Italian counter-claim.
11
12GM, para. 91.
13GM, para. 95.
GM, para. 94.
101.16 In its claim, Germany seeks to assert that the approach adopted by the Italian judges
in their case law, from the Ferrini judgment onwards, breaches Germany’s right to enjoy
jurisdictional immunity. These al legedly wrongful acts do not date from more or less remote
times but from today: it is, acco rdingly, inevitably in the light of international law in force
currently – not that which existed in the past – that the Court must judge whether the Italian
judges have or have not acted correctly in denying jurisdictional immunity. It is true that tempus
regit actum. But the acts sub judice in the case in point are not the crimes committed in the
1940s by the Third Reich (as to the perpetra tion of which, and Germany’s consequent
responsibility, there is not – as already pointed out – any disagreement), but the decisions of the
Italian judges who from 2004 onwards have asserted the existence of Italian jurisdiction vis-à-
vis the German State. The principles of inte rnational law invoked by Ge rmany, in other words,
are concerned with regulating – and where appr opriate limiting – the exercise of the national
jurisdictional function vis-à-vis foreign States. It is, accordingly, on the basis of the principles in
being at the time when the judge is resorted to vis-à-vis the foreign State that the question
whether immunity is to be acknowledged or not has to be answered. In other words, it should be
held that – as will be shown at greater length in Chapter IV below – immunity is a procedural
rule which affects the jurisdic tional competence of a court and, in accordance with a general
principle of law, it has to be assessed on the basi s of the law in force at the time when the court
is seized.
1.17 Coming now to the Italian counter-claim, it is true that it refers to internationally
wrongful acts indubitably attributable to Germa ny which, as the German Memorial asserts,
“belong to the past”, given that they were perp etrated in the 1940s. It is not, however, in any
14
way true that “the set of rights and oblig ations which they engendered is closed” , as it is not
15
true that “no injurious new element was added to the damage originally caused” . On the
contrary, the counter-claim arises from the ve ry finding that the obligation of reparation has
been and continues today to be breached by the Ge rman side in relation to a great number of
victims, despite all the endeavour s to secure it made by the latt er (Chapters II and IV below).
Even if the crimes from which the obligation of reparation takes its origins have to be assessed
14GM, para. 95.
15GM, para. 94.
11as “faits instantanés” (as Germany asserts) 16, it is certain that the same cannot be said of the
breach of this obligation. The internationally wrongful act consisting in breach of the obligation
of reparation is by no means “instantaneous”: instead, it falls fully within the definition
contained in Article 14(2) of the ILC Articles on State Responsibility, according to which:
“The breach of an international obligation by an act of a State having a
continuing character extends over the entire period during which the act continues
and remains not in conformity with the international obligation.”
In other words, the breach by Germany of the obligation to provide reparation to war-
crimes victims began at the time of the releva nt facts, but still continues today. Hence,
Germany’s continuing violation of its obligations under international law to provide appropriate
and effective reparation to Italian victims of war crimes cannot be assessed otherwise than in the
light of the present state of international law.
16
GM, para. 94.
12 CHAPTER II
THE FACTS
Section I. The Events of the Second World War Concerning the Parties
2.1 The real subject-matter of this case is not ju st immunity, as Germany presents it in its
Memorial, but also, and above all, the ongoing non-compliance by Germany with its obligations
of reparation for the egregious violations of In ternational Humanitarian Law (hereinafter IHL)
committed in the final years of the Second Wo rld War against Italian victims by the Third
Reich. Since these violations are intrinsically linked to the events which took place towards the
end of the Second World War and, more speci fically, between 3 September 1943 and 8 May
1945, it is apposite briefly to mention the historical background.
2.2 It is well known that Italy, having started th e war as an ally of the German Reich in
June 1940, had eventually surre ndered unconditionally on 3 Se ptember 1943. Subsequently, on
13 October 1943, it declared war on Germany, join ing the Allied Powers in their fight against
the Nazi system.
2.3 Thus, while until September 1943 Fascist Italy a nd Nazi Germany we re close allies,
during the war – due to the sufferings caused by th e war itself – the political conditions in Italy
evolved and after a significant change in government (involving inter alia the arrest of Benito
Mussolini), Italy found itself in a rather difficult position exposing both its troops and its civilian
population to one and a half years of serious di stress, largely due to German occupation of
considerable parts of Italian territory.
2.4 This was, broadly speaking, the historical background against which the serious and
massive violations of IHL under scrutiny in th e present case took place. The fluctuation of
Italy’s position during the final part of the wardoes not of course justify, nor condone in any
way, the atrocities committed by the Third Reich against Italian civilians and Italian soldiers
13both in Italy and abroad, though it certainly helps explain the cont ext in which the war crimes
and crimes against humanity took place, and also – at least to a certain extent – the postwar
reluctance to make appropriate reparation.
A .IMPRISONMENT AND F ORCED L ABOUR OF BOTH ITALIAN M ILITARY PERSONNEL AND C IVILIANS
2.5 Numerous units of the Third Reich were already on Italian territory, and as a
consequence of Italy’s change of side large portions of Italia n territory came under the control
and occupation of Germany. By the time the declaration of war against Germany was issued the
Reich had already started to c onsider Italy and all Italian tr oops refusing to fight alongside
Germany as enemies and, even worse, as traitors.
2.6 Italy had been an ally of the German Reic h, but after Mussolini’s fall the new Italian
Government first concluded a truce with the Alli ed forces and then declared war to Germany.
Thus German armed forces disarmed and capture d Italian soldiers. Those captured were offered
the choice of either joining the German armed fo rces or becoming prisoners of war. The latter
were detained in labour camps a nd used as forced labourers in German industry in violation of
IHL. As of 20 September 1943 those detainees were called “Italian Military Internees”
(Italienische Militärinternierte ) (hereinafter IMIs). Beginni ng in the summer of 1944 the
internees were transferred from war captivity ( Kriegsgefangenschaft) to so-called “civilian
employment” (Ziviles Arbeitsverhältnis). At first, the internees were asked to sign a declaration
consenting to the change of their status. Despit e pressure exercised by the German authorities,
only a few internees agreed to the transfer of their status. The Government of the German Reich
then abstained from obtaining those declarations a nd transferred the internees to civilian status
without any formal declaration. Th ey were subsequently registered as civilian forced labourers.
The working conditions and the detention in labour camps, however, did not change. The
internees had to carry out physi cally hard work without receiving adequate nutrition and many
of them died as a consequence. Here reference is clearly made to a variety of extremely serious
violations of IHL and human rights law, am ounting to international crimes, including
deportation, enslavement, violence to life a nd person, cruel treatment, outrages upon personal
dignity, inflicting inhuman, humiliating and de grading treatment, wilfully causing great
suffering. The living conditions imposed on all these internees amounted to enslavement: this is
why these prisoners were often referred to as “Hitler’s slaves”.
14 B.C RIMES A GAINST THE CIVILIAN P OPULATION
2.7 While thousands and thousands of Italian soldiers made prisoners both in Italy and
abroad were imprisoned and employed as forced labour (according to the calculations made by a
committee representing some IMIs their overall number was nearly 700,000), the situation was
not any better for the civilian population in the occupied territories of central and northern Italy.
Here the civilians were the victim s of unspeakable atrocities and, especially as the fight against
the occupiers by partisans starte d, several massacres occurred in towns and villages (for
example in Civitella, 17Marzabotto, Sant’Anna di Stazzema, Onna) as measures of reprisals
against the civilian population. These actions enta iled the extermination of civilians, including
women, children and elderly pe rsons, tortures, rapes and w ilful killings, the extensive
destruction of property, depor tation and many other unspeakable atrocities amounting to war
crimes and crimes against humanity. War crimes were widely committed against the civilian
population, and thousands of civilians of military age, among them Mr. Ferrini, Mr. Mantelli,
and Mr. Maietta (whose cases are referred to by the Applicant in its Memorial 18), were also
transferred to detention camps in Germany, or in territories controlled by Germany, where they
were employed as forced labour as another fo rm of retaliation against the Italian civilian
population. Given that most criminal proceedings are still pending and th ese contribute to the
establishment of the facts, it is not easy to give precise numbers as far as these massacres are
concerned, but there would seem to be thousands of victims. Research es made by historians
suggest that between September 1943 and Ma y 1945 at least 10,000 innocent civilians were
exterminated in about 400 massacres carried out by Third Reich troops occupying Italy.
2.8 Hence, there are at least three categories of victims of serious violations of IHL who
have a right to obtain reparation, and none, or very few, of them has obtained it so far: (i)
soldiers who were imprisoned, denied the status of prisoners of war, and sent to forced labour;
(ii)civilians who were detained and transferre d to detention camps where they were sent to
forced labour; (iii)civilian populations who were massacred as part of a strategy of terror and
reprisals against the actions of freedom fighters.
17
18GM, paras. 29-32.
GM, paras. 23-28.
15 Section II. The Exclusion of Italian Victims from Reparations on the Basis of a Mistaken
Interpretation of the 1947 and 1961 Waiver Clauses
2.9 As is well known, after the war the 1947 Peace Agreement between Italy and the Allies
seemed at first sight to set aside completely th e issue of reparations. However, the provisions of
Article 77(4) of the Peace Treaty were not, as will be shown in more detail in Chapter V, aimed
at absolving Germany of its res ponsibilities under international humanitarian law, but simply at
allowing the Allied Powers controlling Germany to use all German resources for their own
purposes, without having to divert them for th e payment of reparations to Germany’s former
ally. The underlying intention wa s not to exclude compensation but simply to ensure that any
issue relating to reparation for serious violations of IHL committed by Germany against Italian
citizens would have to be addre ssed by the parties at a later stag e, in a different context. The
powers administering Germany did not want to deal with this is sue. The provisions of Article
77(4) deferred the treatment of re parations to a later stage so th at, at least for some time, all
German proceeds would be used only by the Allies.
2.10 As one author has written,
“the waiver clauses [of the 1947 Peace Treaties] [were] provisional
arrangements. They were put in force in 1946-7 in order not to burden the
conclusion of the peace treaties with the problem of German foreign debts. In the
meantime, a significant part of that problem was solved with the London
Agreement. The remaining issu es of German debts will ha ve to be solved in the
future.”19
This is the correct and more logical in terpretation of Article 77 of the 1947 Peace
Treaty; and this is confirmed by all subsequent developments.
19W. Wilmanns, “Die Forderungen der Verbündeten des Deutschen Reiches gegen deutsche Schuldner nach dem
Londoner Schuldenabkommen“, 10 Der Betriebs-Berater (1955), p. 820 et seq., at 821 (our translation). See also G.
Henn, “Forderungen der „Eingegliederten“ und „Verbündeten“ gegen deutsche Schuldner nach dem Londoner
Schuldenabkommen”, 10 Der Betriebs-Berater (1955), p. 1115 ss, at 1117.
162.11 After the end of the immediate post-War phase, in the early fifties, there was the clear
idea that the bulk of the reparation issues woul d have to be handled after a more complete
settlement of the German situation and probably even after reunification. This is confirmed by
the London Agreement on German debt, which explicitly postponed re paration for serious
violations of IHL. Under the London Agreem ent on Germany’s External Debts (London Debt
Agreement) of 27 February 1953, the regulation of compensation claims was deferred until the
final settlement of reparations.
2.12 The Federal Republic of Germany, afte r its foundation on 23 May 1949, did not
establish any compensation schemes specifica lly for forced labourers. It provided inter alia
compensation for detention in a concentration camp and damage caused to the detainees’ health.
However, forced labour as such was not covered by the existing legislation.
2.13 The Federal Republic of Germany paid comp ensation to some victims of the Nazi
regime; this was however limited to those w ho were living in Israel, Germany and other
Western European States. This occurred in partic ular pursuant to the prov isions of the Federal
Act on Compensation for Victims of Nazi Persecution ( Bundes-entschädigungsgesetz, Federal
Indemnification Act), which entered into force on 1 October 1953 20.
2.14 Therefore, no special German legislation ex plicitly addressed the compensation claims
of persons belonging to the thre e groups of Italian victims. A nd although in principle Italian
victims could rely on the general West German legislation concerning the reparation of National
Socialist wrongs, broadly speaking they did not succeed in obtaining compensation, for several
reasons which excluded them from the scope of these laws.
2.15 Among the steps taken to address the issue of reparations to victims of violations of
IHL, the two 1961 Agreements between Italy a nd Germany are also of course of direct
relevance. From the Italian perspective these Agreements are first and foremost a confirmation
that Germany recognizes it is under an obligati on to offer compensation to Italian victims of
serious violations of IHL. However, Italy co nsiders that these Agreements by their very
provisions did not exhaust the range of reparatory measures, but should have simply represented
20See infra, section III of present Chapter.
17a first step in a broader proces s of providing appropria te reparations to all Italian victims of
serious IHL violations.
2.16 The two Agreements are different in scope an d do not specifically address the issue of
victims of serious violations of IHL. The first Agreement refers to pending economic questions,
and it does not refer to the rights of victims of serious IHL violations . The second Agreement,
although it more specifically deals with victims of Nazi violence, is confined to victims of
persecution by the Nazi system. Under both Ag reements the Federal Republic of Germany
undertook to pay a lump sum to the Italian St ate of 40 million DM under each Agreement; the
Italian Government would then award compen sation to individual claimants. The two
Agreements are, however, clearly limited in scope. They do not cover all serious violations of
IHL but only the victims of pers ecution by the Nazi regime and ot her natural or legal persons
that had pending economic claims against Germany or German citizens.
2.17 Moreover, the Agreement on victims of persecution also contains a clause under Article
3 which establishes that the provisions of the Agreement are without prejudice to any potential
claims Italian victims may have under German legislation on reparations (“senza pregiudizio
delle eventuali pretese di cittadini italiani in base alla legislazione tedesca sui risarcimenti”).
2.18 In sum, these Agreements are an explicit re cognition of the existe nce of an obligation
of reparation towards Italian victims which had not been waived in 1947. They also clarify that
some questions were finally se ttled (i.e. pending economic quest ions and reparations to those
persecuted by the Nazi system). However, it ca nnot be inferred that these two relatively limited
Agreements would definitively close the whole issue of reparation claims. A very large number
of victims remained uncovered and has never received appropriate reparation.
2.19 As will be shown below, many of these Italia n victims have also tried to obtain justice
from courts and administrative bodies in Germany under applicable German legislation.
However, for several reasons (very perplexing indeed), they were denied compensation. As a
consequence, after decades of unfulfilled prom ises and renewed disappointments they filed
compensation claims before Italian courts, initiating the trend which brings us here today.
18 Section III. The Mechanisms for Reparation Established by Germany and the Persistent
Lack of Effective Reparation for a Very Large Number of Italian Victims
2.20 Over the last decades Germany has adopted and implemented a number of measures in
order to address the compensation claims of vict ims of war atrocities. Wh ile there is no special
German legislation addressing claims to compen sation of Italian nationals belonging to the
abovementioned groups – namely forced labourers and victims of massacres – Italian victims
could in principle rely on certa in general redress mechanisms provided under German law. In
particular, reference must be made to the two most important pieces of German legislation
concerning the reparation of National Socialist wrongs: the Federal Compensation Law of 1953
and the Compensation Law of 2 August 2000.
2.21 As will be shown in this Section, neither of these two laws was able to provide an
effective legal avenue for Italian victims to obtain reparation. On the one hand, foreign nationals
were generally excluded from compensation paid under the rule s of the Federal Compensation
Law of 1953. On the other hand, while more than 130,000 Italian forced labourers lodged
requests for compensation under the Law of 2 A ugust 2000, the great majority of such requests
(more than 127,000) was rejected because of the unduly strict requirements for compensation set
under that Law. Lawsuits by Italian victims in German courts were also unsuccessful.
A.T HE FEDERAL COMPENSATION L AW OF 1953
2.22 The Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung
(Federal Compensation Law Concerning Victim s of National Socialist Persecution), or
Bundesentschädigungsgesetz (Federal Compensation Law, in German law abbreviated as BEG)
was adopted in 1953 and amended many times si nce. In 1965, the BEG was supplemented by
the ‘BEG Schlussgesetz’ (BEG Final Law, abbreviated as BE GSchlG). Both laws are still in
21
force .
21For the texts of these laws (excerpts) as they are presently in force, see ANNEXES 5 and 6.
192.23 In the first years after the adoption of the Bundesentschädigungsgesetz, it was
controversial whether the waiver clause of Article 77(4) of the Peace Treaty with Italy covered
claims made by Italian victims in accordance w ith that Law. The question was resolved in
favour of the Italian claimants by the Treaty Concerning Compensation for Italian Nationals
Subjected to National-Socialist Measures of Persecution, conc luded in 1961 between Italy and
Germany. In the exchange of letters accompanying the Treaty 22, the Secretary of State of the
German Foreign Office informed the Italian G overnment that the German Government would
see to it that claims made by Italian nationals under the Bundesentschädigungsgesetz would be
dealt with without raising objections based on Ar ticle 77(4) of the Peace Treaty with Italy of
1947.
2.24 However, claims of Italian nationals bel onging to one of the three groups mentioned
above in para. 2.8 met with two major obstacles. Firstly, the Bundesentschädigungsgesetz only
entitles persons specifically affected by measures of National Socialist persecution. Sec. 1,
para.1 of the Law defines a “victim of Nationa l Socialist persecution” as someone persecuted
because he or she was a political enemy of the National Socialists, or persecuted on grounds of
race, faith or ideology ( Weltanschauung), who suffered certain damage because of that
persecution 23. Paragraphs 2 and 3 of the same S ection set out additional requirements.
Generally, Italian civilians or soldiers deported to Germany to perform forced labour did not
meet the conditions defined in paragraphs 1 to 3. They were persecuted on grounds of their
nationality, and not because of their political belief, race or faith. The same is generally true for
civilian victims of massacres pe rpetrated by German forces in retaliation for attacks by
partisans. Secondly, the Bundesentschädigungsgesetz only entitled persecutees who had their
domicile or place of permanent sojourn in th e Federal Republic of Germany on 31 December
1952 (Sec. 4, para. 1(a)), and certain other groups of persecutees with a particular territorial link
to Germany. Thus, persons living outside of Ge rmany were generally excluded from claims to
compensation under the Law.
2.25 With the ‘BEG Final Law’ of 1965, an addi tional category of persons eligible for
benefits under the Bundesentschädigungsgesetz was established – the so-called
Nationalgeschädigten. They were defined as “persons who were injured under the National
22ANNEX 4.
23ANNEX 5.
20Socialist dictatorship, in disregard of human rights, on grounds of their nationality (aus Gründen
24
ihrer Nationalität)” (Article VI of the BEG Final Law) . In the case of these persons (as distinct
from the persecutees defined in Sec. 1 of th e BEG), their belonging to a foreign State or non-
German ethnic group constituted the main reason for the action causing the damage. While at
first appearance the Italian civilians forced to perform labour in Germany fall into this category
(prisoners of war were generally not consid ered to have suffered damage “on grounds of
nationality”), another criterion of the Law excluded them, namely the requirement that the
persons in question should also, on 1 October 19 53, have been refugees as defined by the 1951
Geneva Convention.
2.26 Because of the narrow terms of the Bundesentschädigungsgesetz and of the BEG Final
Law, lawsuits of victims having foreign nati onality based on such laws were generally
dismissed by German courts. Most prominently, in the Distomo case, the Federal Supreme Court
(Bundesgerichtshof) decided in 2003 that the Greek plainti ffs could not base their claims on the
Bundesentschädigungsgesetz because the execution by shooting of the more than three hundred
inhabitants of the Distomo village was not a m easure of National Socialist persecution within
25 26
the meaning of the Law . That view was shared by the Federal Constitutional Court in 2006 .
Thus, as the Distomo case clearly shows, the Bundesentschädigungsgesetz provides no
reasonable possibility for Italian civilian victims of massacres perpetrated by German forces to
obtain effective redress.
B.T HE C OMPENSATION L AW OF 2 AUGUST 2000
2.27 In 1999 and 2000, the German Government c onducted diplomatic negotiations with a
number of States which were belligerent parties in the S econd World War about financial
compensation for individuals who had, during the war, been subjected to forced labour in
German companies and in the public sector. Most significantly in the li ght of the dispute now
opposing Italy to Germany, the negotiations we re triggered by lawsuits brought by former
24ANNEX 6.
25
Judgment of 26 June 2003 (case no. III ZR 245/98), 155 Entscheidungen des Bundesgerichtshofs in Zivilsachen
26GHZ), p. 279 (= Neue Juristische Wochenschrift (2003), p. 3488, at 3489 et seq.)(ANNEX 11).
Decision of the First Chamber of the Second Senate, 15 February 2006 (case no. 2 BvR 1476/0Neue
Juristische Wochenschrift (2006), p. 2542, at 2544.
21forced labourers against German companies in United States c ourts. Against that background
Germany and the United States of America concl uded a treaty that envisaged the establishment
of a mechanism for addressing reparation claims of former forced labourers.
2.28 Following the conclusion of the American -German executive Agreement of 17 July
2000 27, on 2 August 2000 a German Federal La w was adopted setting up a Foundation
“Remembrance, Responsibility and Future” ( Gesetz zur Errichtung einer Stiftung “Erinnerung,
28
Verantwortung und Zukunft”) . The purpose of the Foundation wa s to make funds available to
individuals who had been subjected to forced labour “and other injustices from the National
Socialist period” (Sec. 2, para. 1 of the Law) . The Foundation did not give money directly to
individuals defined by the Law but instead to so-called “partner organizations,” which received
specified global amounts (Sec. 9 of the Law). One of these organizations was the International
Organization for Migrati on (IOM) in Geneva. According to Sec. 11 of the Law, individuals
detained in a concentration camp, or in another prison or camp, or in a ghetto under comparable
conditions, and subjected to forced labour (Sec. 11, para. 1(1)) are entitled to compensation, as
are individuals deported from their homelands into the territory of the German Reich within the
borders of 1937, or a territory occupied by Germany, and subjec ted to forced labour in a
commercial enterprise or for public authorities there, or subjected to conditions resembling
detention or similar extremely ha rsh living conditions (S ec. 11, para. 1(2)). S ec. 11, para. 3 of
the Law explicitly states that the status of a prisoner of war does not give entitlement to
payments or benefits under the Law. However, in the official commentary on the draft law, the
Federal Government recognized th at persons released as pris oners of war who were made
29
‘civilian workers’ can be entitled under the Law if the other requirements are met .
2.29 Thousands of “Italian Mili tary Internees” lodged requests for compensation on the
basis of the Law of 2 August 2000. They had a reasonable expectation to be regarded as entitled
to receive compensation under that Law. In particular, the exclusionary clause set out under Sec.
11, para. 3 did not seem to be applicable in respect of the IMIs. As already explained, the
Government of the German Reich had in fact de prived Italian internees of the status and the
27Bundesgesetzblatt 2000 II, 1372.
28
29ANNEX 7.
See “Entwurf eines Gesetzes zur Errichtung einer Stiftung „Erinnerung, Verantwortung und Zukunft“”, 13 April
2000, Drucksache des Deutschen Bundestages 14/3206, at 16 (reported also in the decision of the German
Constitutional Court of 28 June 2004, para. 5 (ANNEX 9)).
22rights of prisoners of war and transferred these internees to civilian status. Thus, the German
Government’s decision to exclude IMIs from benefits under the Foundation Law came as a
surprise. This decision was based on an expert opinion requested in 2001 by the German Federal
30
Ministry of Finance . According to the opinion, under the rules of international law the German
Reich had not been able unilaterall y to change the status of the Italian prisoners of war. Based
on this premise, the opinion concluded that IMIs had never lost their prisoner-of-war status, so
that they were also prisoners of war for the purposes of the Law establishing the Foundation. On
the basis of this opinion, the Federal Ministry of Finance instructed the Foundation that former
Italian Military Inte rnees were excluded from benef it under the Foundation Law. As a
consequence, more than 127,000 of the 130,000 requests for compensation lodged by IMIs were
rejected by the Foundation.
2.30 When informed that IMIs were not consid ered to be entitled to reparation under the
Foundation Law, Italian authorities represented to Germany that they strongly deplored this
decision, which they regarded as being unjust and not supported by facts. Italian authorities also
expressed the view that the decision of the Ge rman Government would be resented by former
Italian forced labourers as a new injustice whic h added to the one suffered during wartime,
when the German Reich had deprived IMIs of th eir status as prisoners of war and subjected
them and other Italian civilian workers to forced labour under conditions of intolerable hardship.
IMI’s profound dissatisfaction and disappointment was understandable. After almost 60 years,
the German Government recognizes that IMIs were entitled to the status of prisoners of war.
However, it uses this late recognition of the right s to which IMIs were entitled (but which were
in fact denied to them) as a reason to reject IM Is’ legitimate claims for reparation of the wrongs
suffered.
2.31 IMIs then sought to obtain justice before German courts. In the first place, a number of
IMIs filed lawsuits before the Verwaltungsgericht (Administrative Court) Berlin. They asked the
Court to order the Foundation to recognize that they, as former It alian Military Internees, were
entitled to benefits under Section 11 of the Foundation Law. In 2003 the Verwaltungsgericht
30Leistungsberechtigung der Italienischen Militärinternierten nach dem Gesetz zur Errichtung einer Stiftung
“Erinnerung, Verantwortung und Zukunft”, Rechtgutachten erstattet von Professor Dr. Christian Tomuschat , 31
Juli 2001 (ANNEX 8).
23 31 32
Berlin and the Oberverwaltungsgericht (Higher Administrative Court) Berlin dismissed
33
these lawsuits. In particular, in a decision of 4 November 2003 , the Oberverwaltungsgericht
Berlin confirmed its earlier case law with regard to the IMIs, holding that soldiers of the Italian
Army who had in 1943 been taken to Germany afte r the conclusion of the armistice but before
Italy’s declaration of war against Germany in order to perform forced labour had the
international legal status of prisoners of war. In the view of the court, th e soldiers also did not
lose that status when in August and September 1944 the German National Socialist Government
decided to treat the soldiers as “civilian workers” (Zivilarbeiter), because Germany was not able
unilaterally to change the legal status of prisone rs of war as defined by international law. Thus,
the Court followed the legal opinion written for th e Federal Ministry of Finance. The result of
that line of argument was to conf irm that former IMIs were not entitled to compensation under
the Law establishing the Foundation.
2.32 On 28 June 2004, a Chamber of th e German Constitutional Court
(Bundesverfassungsgericht) decided to not adjudicate const itutional complaints brought before
the Court by an association of former Italian military detainees and 942 such former detainees
individually 34. The Chamber held that Sec. 11, para. 3 of the Foundation Law, which excludes
prisoners of war from the benefits of the Law, does not violate th e right to equality before the
law guaranteed by the German Constitution (Article 3(1) of the Basic Law). The Chamber
referred to the fact that a St ate may utilize the labour of pris oners of war. Moreover, the
Chamber, referring to the Hague Convention on the Laws and Customs of War on Land, found
that public international law does not establish an individual ri ght to compensation for forced
labour. In particular, it held that Article 3 of the 1907 Hague Convention only establishes the
international responsibility of Germany vis-à-vis another State Party to the Convention, and does
not entitle an individual victim.
2.33 After the unsuccessful attempt to obtain justice before German courts, on 20 December
2004 an application was even lodged before the European Court of Human Rights by the
31Decisions of 28 February 2003, case No. VG 9 A 435.02 and case No. VG 9 A 336.02.
32Decision of 18 June 2003, case No. 6 S 35.03.
33Case No. 6 M 20.03, available in the JURIS database.
34Case no. 2 BvR 1379/01 (ANNEX 9). For a critical review of the decision, see B. Fassbender, “Compensation for
Forced Labour in World War II: The German Compensation Law of 2 August 2000”, 3 Journal of International
Criminal Justice (2005), pp. 243-252.
24Associazione nazionale reduci dalla prigionia da ll’internamento e dalla guerra di liberazione
(A.N.R.P.) and 275 other Italian nationals. The appli cants had complained under Articles 5(4)
and (5), 6(1) and 14 of the European Conven tion on Human Rights and Ar ticle 1 of Protocol
No. 1 to the Convention about the decisions regarding their claims to compensation rendered by
the International Organization for Migration (I OM), the German Federal Constitutional Court
and two German administrative courts. On 4 September 2007, the European Court of Human
Rights declared the application inadmissible 35.
2.34 The denial opposed by German authorities an d courts to IMIs’ legitimate claims for
compensation has an important ro le in the context of the pres ent dispute between Italy and
Germany. It is only after, and as a result of, this denial of effective reparation that IMIs decided
to resort to Italian judges to obtain the protection of their rights at last. The denial of effective
reparation by German authorities, and not the d ecision of Italian courts with respect to the
jurisdictional immunity of Germany, must be regarded as the real cause of the present dispute.
Section IV. The Search for an Effective Remedy in the Light of a Denial of Justice: Access
to Justice before Italian Courts and the Derogation from the Principle of Immunity
2.35 On 11 March 2004, the Italian Corte di Cassazione held that Italy has jurisdiction over
the civil claim for reparation brought against Germany by Luigi Ferrini, an Italian national who
in August 1944 was arrested near Arezzo, Italy, by soldiers of the German army, and deported to
Germany to perform forced labour 3. The Corte di Cassazione based its decision on the
consideration that the operation of the rule on State immunity from civil jurisdiction may in
certain cases give rise to a conf lict with fundamental rules of the international legal system that
has to be resolved in favour of the latter. In particular, it found that Germany was not entitled to
immunity from jurisdiction in respect of the civil claim brought by Ferrini, since this claim
derived from the commission by Germany of international crimes.
35
36Application no. 45563/04 (ANNEX 10).
Text in ANNEX 1 of GM.
252.36 In subsequent decisions taken in 2008 the Corte di Cassazione upheld the principle
established in the 2004 Ferrini decision. In particular, on 29 May 2008 the Corte di Cassazione
rendered twelve identical decisions in respect of cases concerning compensation claims
submitted by Italian victims of deportation and forced labour 37. The facts underlying these cases
are similar to those underlying the Ferrini case. Claimants were eith er members of the Italian
armed forces or civilians who were taken prisoner or arrested by the German armed forces,
deported to Germany and assigned to forced labour under conditions of intolerable hardship.
2.37 On 21 October 2008 the Corte di Cassazione upheld the decision of the Military Court
of Appeals in Rome, by which that Court had denied Germany immunity from jurisdiction in
relation to compensation claims brought by relatives or descendants of the victims of massacres
committed by German armed forces on 29 June 1944 in Civitella 38. Claimants appeared as civil
parties in the criminal proceedings instituted against Max Josef Milde for his role in the Civitella
massacre. In the same proceedings, the Milita ry Court of La Spezia had ordered Milde and
Germany, jointly and severally, to make imme diately enforceable interim payments to
39
compensate for the massacre .
2.38 A considerable number of cases concerning claims for reparation against Germany are
now pending before Italian courts. They have b een brought either by individuals who, after
September 1943, were deported to Germany and empl oyed as forced labourers, or by victims of
the massacres perpetrated against civilians by the German armed forces which occupied Italy in
the last two years of the Second World War.
2.39 In addition to the above-mentioned cases, the Corte di Cassazione, by an order of 29
May 2008, denied immunity to Germany in respect of the enforcement against German property
assets located in Italy of the Greek decision requesting payment by Germany of the expenses
40
incurred by Greek authorities during the proceedings resulting in the Distomo judgment . In
reaching this conclusion, the Corte di Cassazione relied on the same principle as that underlying
its Ferrini decision. An appeal agains t the enforceability of the Distomo jugdgment is now
pending before the Corte di Cassazione.
37
38For the text of the orders in the Mantelli and Liberato cases, see ANNEX 13 of GM.
39Text of the judgment of the Corte di Cassazione in ANNEX 16 to GM.
40ANNEX 14 to GM.
ANNEX 20 to GM.
262.40 In its Memorial, Germany discusses at length the reasoning applied by the Corte di
Cassazione in its Ferrini judgment as well as in the other decisions addressing the issue of
Germany’s immunity. Italy does not intend here to embark on a similar exercise, since it serves
little purpose in the context of the present dis pute to examine each and every detail of the
reasoning applied by Italian judges. In the next ch apters, and particularly in Chapter VI, Italy
will indicate what is the position of Italian ju dges with respect to the issues raised by the
compensation claims against Germany and will demonstrate that, by denying immunity, Italian
judges did not commit any internationally wrongful act for which Italy must bear international
responsibility.
2.41 What is important to stress here is that an examination of the factual context
surrounding the submission of compensation claims to Italian judges clear ly reveals that the
decision of Italian victims to re sort to their national judges has been mainly dictated by the
attitude previously taken by German authorities in respect to such claims. For them, resort to
Italian courts constituted the only means, the ultima ratio, for obtaining redress for the injuries
suffered.
2.42 In its Memorial, Germany seems to argue for a different interpretation of the relevant
facts. When reading Germany’s Memorial, one is left with the impression that the growing
number of claims for compensati on filed against Germany before Italian courts is simply the
result of the awkward and mi staken decision taken by the Corte di Cassazione in the Ferrini
case. Several assertions, as well as important omissions, in Germany’s Me morial contribute to
build this impression. For instance, in introducing the f acts underlying the Mantelli case,
Germany thus describes the reasons leadi ng Mantelli to submit his claims to the Tribunale di
Torino:
“Mantelli, born 3 October 1921 in Torino,was arrested by German forces in
June 1944 and brought to Germany where he was assigned towork 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
27 Ferrini decision, he and the other claimants fileda suit against Germany on 13April
41
2004 before the Tribunale di Torino” .
From this passage (and from other si milar passages contained in Germany’s
Memorial) 42, one is led to believe that Italian victims had long sinc e waived or abandoned any
claim for compensation against Germany and that the Ferrini decision had suddenly come along
to reopen an already settled issue.
2.43 As shown in Section III of this Chapter, th is picture is far from the truth. Germany’s
Memorial completely omits to mention that si nce 2000 thousands of IMIs and Italian civilians
subjected to forced labour had lodged reque sts for compensation on the basis of the Law
establishing the “Remembrance, Responsibility and Future” Foundation and that these requests
were almost all rejected. In 2003, German administrative courts had dismissed the lawsuits filed
43
by a certain number of IMIs. With the sole exception of the Ferrini case , all the claims
44
submitted before Italian courts were filed starting from 2004 . At that time it was already
evident that Italian forced labourers had no po ssibility of obtaining redress from German
authorities. If one considers th e cases brought before Italian judges against the background of
these facts, it is easy to detect a clear link betw een Germany’s denial of justice and the resort to
national courts by Italian victims. The existence of such a link is further demonstrated by the
fact that in several cases lawsuits were also filed against the “Remembrance, Responsibility and
45
Future” Foundation and the Internati onal Organization for Migration (IOM) . Significantly,
Mantelli too brought lawsuits against the Foundation and the IOM.
41GM, para. 24 (emphasis added).
42GM, p. 1, p. 6 (para. 3) and p. 16 (para. 23).
43It must be noted, however, that, while Mr. Ferrini already instituted proceedings before theTribunale di Arezzo in
1998, he also sought to obtain compensation before Ge rman authorities. He considered lodging a request for
compensation under the Law establishing the Foundation but decided not to pursue this avenue “since he had not
been detained in ‘another place of confinement’ within the meaning of section 11 § 1 no. 1 of the Foundation Act
and was furthermore not in a position to demonstrate that he met the requirements as set up by the guidelines of the
Foundation” (see the summary of facts reported in Associazione nazionale reduci dalla prigionia dall’internamento
e dalla guerra di liberazione (A.N.R.P.) and 275 others v. Germany , p. 5 (ANNEX 10). In 2001 Mr Ferrini,
together with other complainants, also lodged a constitutional complaint against sections 10 § 1, 11 § 3 and 16 §§ 1
and 2 of the Foundation Law with the Federal Constitutiona l Court. This complaint was later rejected by the
Federal Constitutional Court (ANNEX 9).
44See the list of all pending judicial cases against Germany, ANNEX 8 to GM.
45Ibid.
282.44 What has now been said with regard to cases submitted by individuals who had been
subjected to forced labour e qually applies to the cases recently brought against Germany by
victims of the massacres committed by the armed forces of the German Reich. In this respect,
the fact that these cas es have only recently been brought before It alian judges is not a
consequence of the Ferrini decision. Rather, it reflects an increasing world-wide awareness,
among judicial authorities and in public opinion, of the need to invest igate atrocious events,
both past and present, in order to determine the responsibilities and hold the authors accountable
46
for their crimes . As part of this world-wide trend, Ital ian judicial authorities have recently
instituted criminal proceedings against indivi duals implicated in massacres such as those
committed in Civitella, Marzabotto and Sant’Anna di Stazzema. As the above-mentioned Milde
case shows, these criminal proceedings inevitab ly also raise the question of the compensation
owed to the victims or to th eir relatives and descendants. Since claimants cannot rely on a
reasonable prospect of obtaining effective redress from German authorities and courts, resort to
Italian judges represents the only legal avenue available to that end.
Section V. Conclusions
2.45 The analysis of the relevant facts conducte d in the present Chapter shows that the
dispute submitted to the Court on the issue of imm unity is inextricably linked with the issue of
reparation. Italian forced labourers and victims of the massacres perp etrated by the German
Reich after 1943 have never received effective reparation for the grave injuries suffered. On the
one hand, the Agreements concluded in 1961 betw een Italy and Germany do not apply to such
victims; on the other, the mechanisms for co mpensation unilaterally set up by Germany do not
cover their claims. Moreover, Germany has system atically denied reparation to many of these
victims and appears to argue that there is no longer any reparation obligation in respect of them.
This situation of denial of jus tice explains the decisions of th e Italian victims to submit their
compensation claims to national courts. It is ag ainst the background of th is situation that the
46Criminal proceedings against former members of the armed forces of e German Reich have been recently
instituted also in Germany. For instance, on 10 August 2009 a Munich State court found a former German infantry
commander guilty for his role in the killing of 14 civilians, which took place in Falzano di Cortona, Tuscany, on 26
June 1944 (see “Nazi Criminal Jailed for Life” available at http://news.bbc.co.uk/2/hi/8194691.stm).
29lifting of Germany’s immunity must be assessed. As will be shown in the next Chapters, Italy
submits that under the circumstances of the pres ent case Italian courts were entitled to deny
immunity to Germany.
30 CHAPTER III
JURISDICTION
Section I. Introduction
3.1 In bringing the case concerning Jurisdictional Immunities (Federal Republic of
Germany v. Republic of Italy), Germany has based the jurisdiction of the Court on Article 1 of
the European Convention for the Peaceful Settlement of Disputes of 29 April 1957 (hereinafter:
47
European Convention), taken together with Article 36(1) of the Statute of the Court . 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 repara tion to be made for the breach of an
international obligation”.
Germany argues that the applicability of the European Convention is not excluded by
the provisions of Article 27, which establishes:
“The provisions of this Convention shall not apply to:
(a) disputes relating to facts or situati ons prior to entry into force of this
Convention as between theparties to the dispute;
47GM, para. 2.
31 (b) disputes concerning questions which by international law are solely
within the domestic jurisdiction of States.”
3.2 In its Application and Memorial, Germany ha s also defended the admissibility of its
claims by addressing three possible grounds for objections – namely, the need for exhaustion of
local remedies, the need for prio r exhaustion of diplomatic nego tiations and the jurisdiction of
the Court of Justice of the European Communities. Germany argues that none of these
objections can be raised in the present case 48.
3.3 On the occasion of the Italian-German G overnmental Consultation, which took place
on 18 November 2008 in Trieste, the Italian Governme nt solemnly declared that it “respect[ed]
Germany’s decision to apply to the International Court of Justice for a ruling on the principle of
State immunity” and expressed the view that “the ICJ’s ruling will help to clarify this complex
issue” 4. Italy intends now to confirm its previously held position. In the interest of a complete
settlement of the present dispute, Italy fully recognizes the Cour t’s jurisdiction over the dispute
submitted to it by Germany’s Application of 23 December 2008 and refrains from taking issue
with Germany’s assertions concerning the admissibility of its claims.
3.4 However, Italy draws the Court’s attention to the fact that, in the context of the
above-mentioned German-Italian Joint Declara tion, reference was already made to the
complexity of the dispute that Germany intended to bring before the Court. The complexity of
the present case is due to the inextricable link between the dispute on immunity brought by
Germany and the issue of the reparation owed by Germany to Italian victims of the crimes
committed by Nazi authorities during the Second Wo rld War. As far as the jurisdiction of the
Court is concerned, this strict link between the issue of immunity and that concerning reparation
has one relevant implication, which relates to the determination of the “facts or situations”
constituting the “source or real cause of the dispute” for the pur poses of applying Article 27(a)
of the 1957 European Convention. In this re spect, while Italy accepts that the Court has
jurisdiction under the Eur opean Convention, its view differs from that of Germany over the
identification of the “real cause” of the disput e submitted by the Applicant State. Italy submits
that the dispute on immunity has its “real cause” in Germany’s refusal to compensate the Italian
48GM, paras 4-6.
49ANNEX 1.
32victims of the grave violations of internationa l humanitarian law committed by Nazi authorities
during the Second World War. It follows that the dispute on immunity brought by Germany and
the dispute on reparation brought by Italy through its counterclaim arose out of the same “facts
and circumstances”.
3.5 In this Chapter, Italy will state its views on the jurisdiction of the Court in the present
case. The jurisdiction of the Court will be analysed in relation not only to the dispute on State
immunity brought by Germany, but also to the dispute on reparation brought by Italy through its
counter-claim. In Section I Italy will show that the “real caus e” of the dispute on immunity
brought by Germany is to be found in the conduc t adopted by organs of the German State in
relation to the issue of reparation. In Section II it will establish that the dispute on immunity and
the dispute on reparation fall within the jurisdiction of the Court, as they both relate to facts or
situations that arose after 18 April 1961, the date when th e European Convention entered into
force between Germany and Italy.
Section II. Identification of the Real Cause of the Dispute Submitted by
Germany for the Purposes of the Court’s Jurisdiction
3.6 As already indicated, Article 27(a) of the European Convention es tablishes that the
provisions of the European Convention do not apply to “disputes relating to facts or situations
prior to entry into force of this Convention as between the parties to the dispute”. In the Right of
Passage over Indian Territory case, where the interpretation of a temporal limitation clause
comparable to that in Article 27(a) was at issue, the Court defined the content of such clauses in
the following terms:
“[t]he facts or situations to which regard must be had […] are those with
regard to which the dispute has arisen or, in other words, as was said by the
Permanent Court in the case concerning the Electricity Company of Sofia and
33 Bulgaria, only ‘those which must be considered as being the source of the dispute’,
50
those which are its ‘real cause’.”
As acknowledged by the Court in the Certain Property case, this legal test for
temporal limitation is also relevant to the interpretation of Article 27(a). In the Court’s words:
“The Court considers that, in so far as it has to determine the facts or
situations to which this dispute relates, the foregoing test of finding the source or
real cause of the dispute is equally applicable to this case.”51
3.7 Germany argues that it is the judgment of the Italian Corte di Cassazione in the
Ferrini case, of 11 March 2004, which gave rise to the dispute brought to the Court by the
Applicant State. In Germany’s view, this ju dgment “opened the gates for claims seeking
reparation for injury sustained as a consequence of events situated within the framework of
World War II” 5. Furthermore, while recognizing that all the claims brought against Germany
before Italian courts relate to events of the Second World War, “when German troops committed
grave violations of internati onal humanitarian law”, Germa ny excludes that those events
constitute the real cause of the present dispute. This is because “the proceedings instituted
53
against Italy do not deal with the substance of those claims.”
3.8 Italy agrees with Germany that the o ccurrences during the Second World War
referred to in Germany’s Memorial do not constitu te the real cause of th e dispute on immunity.
Nor, in fact, as it will be shown later, do they constitute the real cause of the dispute on
reparation brought by Italy. However, Italy refutes Germany’s conten tion that the real cause of
the dispute on immunity is to be found in the Ferrini judgment of the Corte di Cassazione.
3.9 First, with regard to Germany’s argument that it was the Ferrini judgment that
“opened the gates for claims seeking reparation” fo r Nazi crimes, the least that can be said is
that Germany’s account of the events leading Italian nationals to seek reparation for Nazi crimes
before Italian courts offers only a very partial picture of the rele vant facts. No doubt, the case
law inaugurated by the Corte di Cassazione in Ferrini has provided an in centive for Italian
50
51I.C.J. Reports 1960, p. 35.
52I.C.J. Reports 2005, p. 25, para. 46.
53GM, para. 3.
Ibid.
34victims of Nazi crimes to submit their cases before national courts. However, the real reason
why claims for reparation were brought before It alian judges, as well as the reason behind the
case law inaugurated by the Ferrini judgment, has to be sought in the attitude taken by Germany
towards the claims for reparation submitted by Italian nationals to German authorities.
3.10 The case of the Italian Military Internees (IMIs) is para digmatic in this respect. As
54
already shown , when, on 2 August 2000, the German Parliament adopted the Law establishing
the “Remembrance, Responsibility and Future” Foundation with a view to compensating
55
individuals who had been subjected to forced labour by Nazi Germany , thousands of IMIs
filed their applications for reparation to the International Organization for Migration. Most of
these claims were dismissed following the decisi on of the German Executiv e to consider that
IMIs were not entitled to reparation under the Law establis hing the Foundation. IMIs also
lodged unsuccessful complaints against this decision before German courts. It was only because
of the refusal opposed by German authorities that many IMIs decided to lodge their claims for
56
reparation before Italian courts . It is significant in this respect that in many cases complaints
against the Foundation have also been lodged.
3.11 Italy also refutes Germany’s argument suggesting that the case submitted against Italy
has nothing to do with the substance of the claims for reparation lodged before Italian courts. In
Germany’s view, since the case submitted against Italy deals exclusively with the issue of
Germany’s immunity before Italian courts, then th e real cause of the dispute has to be found in
the judgment of the Corte di Cassazione denying that immunity. This argument collapses for the
simple reason Italy has now made clear: in the present case th e issue of the jurisdictional
immunity enjoyed by the German State before It alian courts cannot be considered separately
from the issue of reparation owed by Germany to the Italian victims of the crimes committed by
Nazi authorities. The decisions taken by Italia n courts in 2004 and la ter with re gard to
Germany’s jurisdictional immun ity cannot be fully assessed without taking into account the
broader context relating to the issue of reparatio n for Nazi crimes. As Italy will show in more
detail later, in the specific circumstances of th e present case Italian courts have considered that
they are entitled to lift immunity because of Germ any’s refusal to compensate Italian victims of
54
55Chapter II, Section III.
56ANNEX 7.
The Ferrini case was the only one which was submitted to Italian courts before the decision of the German
authorities dismissing IMIs’ claims. But see Chapter II, note 43.
35Nazi crimes. Thus, for the purposes of determini ng the real cause of the dispute, the decisions
taken by Italian courts with regard to the issue of the immunity of the German State have to be
regarded as being a consequence of the legal an d factual situation created by Germany’s refusal
to compensate Italian victims. Germany’s argu ment that in the present case the issue of
immunity can be separated from the issue of re paration is unacceptable. In fact, the issue of
reparation, far from being extraneous to the case submitted by Germany, lies at the very heart of
it.
3.12 In its judgment in the Certain Property case the Court found
“that the decisions of the German courts in thePieter van Laer Paintingcase
cannot be separated from the Settlement Convention and the Benes Decrees, and
that these decisions cannot consequently be considered as the source or real cause of
57
the dispute between Liechtenstein and Germany”.
Along much the same lines, it must be ackno wledged that in the present case the
decisions of the Corte di Cassazione on the issue of immunity of the German State cannot be
separated from the issue of reparation owed by Germany to victims of Nazi crimes, and that
these decisions cannot consequently be considered as the source or real cause of the dispute
brought by Germany: the real cause of the dis pute brought by the Appli cant State has to be
found in Germany’s refusal to co mpensate the Italian victims of the grave violations of
international humanitarian law committed by aut horities of the Third Reich during the Second
World War. It is because of the attitude taken in this regard by organs of the German State that
most Italian victims decided to l odge their complaints before Italian courts; and it is because of
Germany’s denial of justice in respect to such claims that Italian judges have lifted State
immunity. The conclusion seems therefore to be warranted that the dispute on immunity brought
by Germany and the dispute on reparation brought by Italy originate out of the same fact: the
refusal of Germany to compensate Italian victims.
57I.C.J. Reports 2005, p. 26, para. 51.
36 Section III. The Dispute on Immunity Brought by Germany and the Dispute on
Reparation Brought by Italy Fall within the Scope Ratione Temporis
of the 1957 European Convention
3.13 The conclusion now reached with regard to the origin of the dispute has no
repercussions on the question of the Court’s jurisdiction. The limitation ratione temporis
provided under Article 27(a) of the European Convention does not apply to the dispute brought
by Germany even if, as submitted by Italy, it is acknowledged that the real cause of this dispute
is constituted by the attitude taken by the German authorities with regard to the issue of
reparation. As it will be show n in this Section, the issue of reparation, which constitutes the
subject-matter of the dispute br ought by Italy through its counter -claim, relates to facts or
situations that arose after 18 April 1961, i.e. the date wh en the European Convention entered
into force between Germany and Italy. Accordingl y, this Court has jurisdiction to rule on both
Germany’s claim on immunity and Italy’s counter-claim on reparation.
3.14 Before identifying the facts with regard to which the dispute on reparation arose, a
preliminary remark must be made. In its Memori al Germany asserts that the temporal limitation
provided by Article 27(a) of the European Convention does not apply to th e dispute on
immunity even if part of the factual background to that dispute is constituted by events that took
58
place during the Second World War . Italy submits that the same holds true with regard to the
dispute on reparation.
3.15 Two major considerations come into pla y. First, Germany and Italy are in clear
agreement concerning the occurrence and the legal qualification of the facts which gave rise to
the claims for reparation. There is no dispute betw een the parties that these claims arose out of
the grave violations of international humanita rian law committed by Nazi Germany during the
Second World War. It is the issue of reparati on, and not the factual and legal assessment of
events of the Second World War, which forms th e central point of the dispute brought by Italy.
Secondly, as clearly indicated by the Permanent Court of In ternational Justice in the Electricity
Company of Sofia and Bulgaria case and later confirmed by this Court in the Right of Passage
case, a distinction must be drawn between “situa tions or facts which constitute the source of the
58GM, para. 7.
37rights claimed by one of the Parties and the situ ations and facts which are the source of the
59
dispute”. The grave violations of international humanitarian law committed by the Third Reich
during the Second World War constitute the sour ce of the right of reparation claimed by the
Italian victims. The “real cause” of the present disputes has instead to be found in the conduct of
organs of the German State with regard to th e issue of the reparation owed by Germany to the
Italian victims.
3.16 Two different, albeit interrelated, sets of f acts must be regarded as constituting the
real source of the dispute on repara tion. First, and in most general terms, the dispute is directly
related to the two international Agreements – namely the Treaty on the Settlement of Certain
Property-Related, Economic and Financial Questions and the Treaty Concerning Compensation
for Italian Nationals Subjected to National-Soci alist Measures of Persecution, both signed on 2
June 1961 60, which entered into force, respectively, on 16 September 1963 and on 31 July 1963
– by which Germany, for the first time, agreed to compensate Italy and Italian nationals for its
conduct during the Second World War. The sec ond, and more recent, source of the present
dispute is constituted by the events following the establishment in 2000 of the “Remembrance,
Responsibility and Future” Foundation, and in part icular by the decision taken by the German
Executive, and later confirmed by German judge s, not to provide compensation to Italian
nationals who, during the Second World War, were subjected to forced labour by the authorities
of the Third Reich .61
3.17 The two Agreements concluded in 1961 between Italy and Germany lie at the centre
of the dispute concerning the reparation owed by Germany to Italian victims of Nazi crimes. In
the Memorial Germany argues that, by concludi ng the two Agreements of 1961, Germany and
Italy put a definitive end to any litigation about the financial consequences of the Second World
War. In particular, Germany claims that, “[i] n 1961, pursuant to the two treaties concluded for
the settlement of any and all out standing claims, Italy declared on ce again for itself and for its
nationals that indeed all such claims [ i.e., claims against Germany and German nationals
resulting from the period of the Second World War] were settled”. 62 This same argument was
advanced by Germany when considering whether IMIs were entitled to reparation on the basis
59
60I.C.J. Reports 1960, p. 35. See also P.C.I.J., Series A/B, No. 77, p. 82.
61ANNEXES 3 and 4.
62ANNEXES 7 and 9.
GM, para. 56.
38of the system created by the German statute establishing the “Remembrance, Responsibility and
Future” Foundation . Italy disagrees with Germany about the scope of the waiver clauses
contained in these two Agreements. Leaving aside here the merits of the parties’ respective
claims, what must be stressed is that the position held by Germany in the Memorial confirms the
central role played by the 1961 Agreements in the present case. For the purposes of applying the
temporal limitation clause contained in Artic le 27(a) of the European Convention, these
Agreements must therefore be regarded as constituting the source or real cause of the dispute on
reparation brought by Italy – and consequently also of the dispute on immunity submitted by
Germany.
3.18 In the Memorial, when discussing the is sue of war reparation between Italy and
Germany, Germany also made reference to the waiv er clause contained in Article 77(4) of the
1947 Peace Agreement. However, the Peace Agreement cannot be regarded as the source or real
cause of the present disputes for the purpose s of applying Article 27( a) of the European
Convention. As is made clear by the subsequent conclusion of the 1961 Settlement Conventions,
and as admitted by Germany in its Memorial 6, the waiver clause of the Peace Treaty did not
settle the issue of re paration between Germany and Italy. In fact, by concluding the 1961
Agreements, Germany renounced its availing itself of any claim based on an interpretation of
the 1947 Peace Treaty to the effect that Italy had waived its rights of reparation for war
damages, including reparation owed to Italian victims of Nazi crimes. At the same time, in 1961
Germany acknowledged its obligation of reparation towards Italy and Italia n nationals. To use
the Court’s words in the Certain Property case , the conclusion of the 1961 Agreements created
a “new situation” between Italy and Germany with regard to the issue of reparation. It is the
1961 Agreements – and more particularly the qu estions concerning their scope, as well as the
scope of the waiver clause therein contained – which form the central poi nt of the differences
between Italy and Germany on the issue of reparation. The 1961 Agreements, and not the Peace
Treaty, must therefore be regarded as constitu ting the source or real cause of the disputes
submitted to the Court.
63
Leistungsberechtigung der Italienischen Militärinternierten nach dem Gesetz zur Errichtung einer Stiftung
“Erinnerung, Verantwortung und Zukunft”, Rechtgutachten erstattet von Professor Dr. Christian Tomuschat , 31
64li 2001 (ANNEX 8).
65GM, para. 10.
I.C.J. Reports 2005, p. 26, para. 51.
393.19 The present dispute does not originate only out of the reparation system established
by the 1961 Agreements. An additional source is to be found in the more recent decisions of
German authorities regarding the claims of reparation put forward by IMIs. As we have seen,
when, in 2000, the German State set up the most comprehensive programme aimed at providing
individual compensation for for ced labour imposed by the Nazi German State, thousands of
IMIs submitted claims of reparation for forced labour. The submission of these claims provided
one of the first instances in which the German Government and courts had to face individual
claims of reparation submitted by Italian nationals who were victims of grave violations of
international humanitarian law committed by the German Third Reich. To use the Court’s words
in the Certain Property case again, when dealing with such claims the German Executive and
German courts faced a “new situation” for th e purposes of applying Article 27(a) of the 1957
European Convention. This is all the more so since what happened in 2000 and later was not
merely the application of the reparation sy stem established by the 1961 Agreements. The
decisions of the German authorities dismissing the claims brought by Italian nationals were
mainly grounded upon the view that individuals who are victims of grave violations of
international humanitarian law would not be entitled to an individual right of reparation because
the issue of reparation in such cases has to be dealt with exclusively at the inter-State level. This
view was expressed in the le gal opinion accompanying the Ex ecutive decision concerning the
66
rights of IMIs ; it also had a prominent role in the decision of the German Constitutional
Court . In this respect, the decisions of the German authorities regarding the rights of IMIs can
be separated from the 1961 Agreements. Consequen tly, they can be considered as a distinct
source of the dispute between Italy and Germany.
Section IV. Conclusions
3.20 For all the reasons stated in the previous Sections of the present Chapter, Italy
submits that the Court has juri sdiction to deal with the di spute on immunity brought by
Germany as well as with the dispute on repara tion brought by Italy. There is no relevant
temporal limitation on the Court’s jurisdiction since both disputes relate to facts and situations –
66ANNEX 8.
67ANNEX 9.
40the conclusion of the 1961 Compensation Agr eements between Italy and Germany and
Germany’s refusal to address the claims for reparation by IMIs – which took place after the
entry into force of the European Convention as between the parties to the disputes.
41 CHAPTER IV
IMMUNITY
Section I. Introduction
4.1 This Chapter analyses the law of jurisdicti onal immunity of States with a view to
framing the legal context applicable in resp ect of the claims submitted by Germany in its
Application of 23 December 2008. Germany argues that, by certain decisions of Italian judicial
authorities, Italy has violated the principle of sovereign immunity which debars individuals from
bringing claims against a foreign State before the courts of the forum State. Germany also
contends that Italy could not re ly on any justification for di sregarding Germany’s immunity.
This Chapter sets out Italy’s view of the rules per tinent to the issues of State immunity raised in
the present case. Together with Chapters V and VI, this Chapter exposes the fallacy in
Germany’s legal argument.
4.2 Both Parties agree that the source of the legal obligations which are relevant in the
present case is customary international law. In particular, Italy fully acknowledges that
sovereign immunity is a fundamental principle of international law which every State is bound
to respect.
4.3 In this Chapter, however, Italy will show that, while recognizing sovereign immunity
as a fundamental principle of international law, States have also accepted the fact that sovereign
immunity is not an absolute principle. The rule of sovereign immunity has been subjected over
time to a process of progressive redefinition of its content in the direction of a restriction of the
scope of State activities covered by immunity. The evolution towards a restrictive immunity has
been fuelled by the increasing concern not to unjustly limit the possibility for individuals to
have access to courts against a foreign State. Si gnificantly, domestic courts have always had a
major role in contributing to the evolution of the law of State immunity.
424.4 The fact that States have come over time to agree to balance immunity against other
values widely perceived as dese rving protection assumes particul ar significance at a time at
which fundamental developments in international law show the paramount importance assigned
by the international community to the protec tion of certain shared values. These recent
developments must inevitably be taken into account when determining whether a State may be
considered to be entitled to invoke immunity. It aly submits that, under certain circumstances in
which immunity does not appear to be reconc ilable with the effective protection of these
fundamental values, immunity must be set aside.
4.5 The present Chapter is articulated as follows . In Section II Italy will illustrate the
evolution of the rule of State immunity. It will show the progressive acceptance by States of the
restricted scope of the immunity enjoyed by a Stat e before the courts of another State. Section
III will examine the rule of immunity agai nst the background of certain fundamental
developments of contemporary international law; it will show that these developments affect the
applicability of State immunity. Finally, in Section IV, Italy will draw the conclusion of its
reasoning by showing that a State responsible for vi olations of fundamental rules is not entitled
to immunity in cases in which, if granted, i mmunity would be tantamo unt to exonerating the
State from bearing the legal co nsequences of its violation of principles of paramount
importance.
Section II. The Principle of State Immunity from Jurisdiction and Its Limits
4.6 As already indicated, Italy fully agrees with Germany that immunity is a fundamental
principle of the international legal order. However, Italy’s view on the evolution of this principle
in international law differs from that of Germany.
4.7 In this Section Italy will, firstly, analys e the evolution from absolute immunity
towards relative immunity and will demonstrate that, contrary to what is claimed by Germany,
such an evolution started well before the Seco nd World War. Secondly, Italy will show that
since their first introduction, exceptions to immunity have been an answer to the need to protect
private persons and avoid denial of justice, i. e. the same concern underlying recent case law of
Italian judicial authorities. Thirdly, Italy will demonstrate that the distinction between acta jure
imperii and acta jure gestionis does not always operate as the l eading criterion for establishing
43jurisdiction. In particular, this distinction does not always apply in lawsuits concerning claims
for damages arising out of injurious acts committed by foreign States against individuals, i.e. the
kind of case which has given rise to the present dispute.
A. MMUNITY FROM JURISDICTION AS A CONSEQUENCE OF THE STATE SOVEREIGNTY PRINCIPLE
4.8 The obligation of domestic courts to decl ine jurisdiction in cases brought against
foreign States is generally considered as firm ly grounded in the principles of independence,
equality, and dignity of States. Since the op inion delivered by Chief Justice Marshall in The
Schooner Exchange case 68, State immunity has been considered as a corollary of the “perfect
equality and absolute independe nce of sovereigns”, indeed a “constitutional” principle of
international law, linked to the very structure of the international legal order.
4.9 In 1978, the ILC Working Group on jurisdicti onal immunities of States and their
property described the doctrine of State immunity as
“the result of an interplayof two fundamental principles of international law:
the principle of territorialityand the principle of State personality, both being aspects
of State sovereignty. Thus, State immunity is sometimes expressed in the maximpar
69
in parem imperium non habet” .
4.10 Italian courts have always recognized th e customary nature of the rule on State
immunity, even when, because of the circumstances of the case, they have agreed to exercise
jurisdiction. In the Ferrini case, the Corte di Cassazione held that
“the existence and operation of a norm of customary international law which
imposes on States the duty to abstain fromexercising jurisdictional power over other
States, enacted in our system by virtue of the provision laid down inArticle 10(1) of
70
the Constitution, are beyond question.”
68U.S. Supreme Court, The Schooner Exchange v. McFaddon , 24 February 1812, 11 u.s. 116 (1812). For a
rationalization of different traditional doctrines see S. SSecond report on jurisdictional immunities of
States and their property, YbILC 1980, vol. II, Part One, p. 214et seq.
69Report of the Working Group on jurisdictional immunities of States and their property, YbILC 1978, Vol. II, Part
Two, p. 153.
70
Judgment No. 5044/2004, Ferrini, para. 5, ANNEX 1 to GM.
44 Furthermore, in the Mantelli case the Corte di Cassazione reasserted that the
customary principle of State immunity aims at fostering international relations based on mutual
respect for sovereignty 7.
4.11 Nevertheless, immunity has never been considered to be a non-derogable principle of
international law. And, as Italy will demonstrate in the follow ing sections, the number and the
scope of exceptions generally accepted are continually increasing.
B. D EVELOPMENTS OF IMMUNITY LAW
1. Evolution from Absolute to Relative Immunity
4.12 To accept that State immunity is grounded in the most fundamental principles of
international law does not mean that it is a prin ciple absolute in character. Indeed, immunity
rules form part of customary interna tional law, but they do not constitute jus cogens and they
have never been consider ed to be imperative or non-derogable. Indeed, even when States were
agreed to have absolute immunity from jurisdiction, they always had the option of waiving this
privilege . The validity of express consent to jurisdiction has never been questioned. Moreover,
immunity was not granted in disputes relating to real property acquired in the territory of the
forum State.
4.13 Since the very beginning of the twentieth cen tury, and even in the second half of the
nineteenth century, the changing relationship betw een States and private persons has driven a
consistent trend towards restric ting immunity. At first the exer cise of jurisdiction was made
exclusively on the basis of the distinction between acta jure imperii and acta jure gestionis ;
more recently the law and practice of many St ates has also supported exceptions to State
immunity for some activities in the domain of sovereign acts.
4.14 As is generally known, the evolution from the principle of absolute immunity towards
the relative immunity doctrine has its origins in successive rulings of municipal courts 73. Italy
considers that the role played by domestic courts in promoting the evolution of the law of State
71Order n. 14201/08, Mantelli, ANNEX 13 to GM.
72
See Turkish Purchases Commission Case , Germany, Prussian Tribunal for Conflicts of Jurisdiction, 29 May
1920, in 1 ILR (1919-1922), p. 114, in which the consent to jurisdiction was extended even to measures of
73ecution.
See ILC, Report on the work of its 32nd session, YbILC 1980, Vol. II, Part Two, pp. 143.
45immunity has to be taken into account when assessing the case law of the Corte di Cassazione at
issue in the present case.
4.15 The first proposal for restrictive immunity dates from as early as 1840, when the
Attorney-General of the Court of Appeals of Brussels argued in favour of the denial of foreign
State immunity with regard to non-public acts. A few years late r, in 1857, the same Court of
Appeals affirmed its competence over cases involving commercial suits 74. In 1903, the Cour de
Cassation definitely confirmed the lower court’s th eory of a restrictive immunity rule, and
75
denied immunity to the Netherlands in a case concerning railway works . The Cour de
Cassation motivated the decision by two main argument s. Firstly, the Court considered that the
foreign State was acting in a private-law capacity, and the acts in question were not sovereign or
governmental. Secondly, the Court considered that in similar cases it was possible for private
parties to bring a case against the Belgian Government in local courts, without affecting Belgian
sovereignty; therefore, for the same reason, it wa s possible to sue a foreign State. This decision
of the Belgian Cour de Cassation can be considered the leading case for the restrictive immunity
theory because it overruled the two main theoretical arguments fo r the immunity principle: the
mutual respect for sovereignty between equal an d independent States; and the analogy with the
immunity of the local sovereign. The first theore tical argument is no longer valid if the State
could act as a private person; neither is the seco nd in cases where even the local sovereign can
be sued.
4.16 Belgian case law was the pioneer in the e volution of the private-acts exception to
immunity. Italian case law followed very soon. Si nce the end of the nineteenth century, or at
least at the very beginning of the twentieth, Italian case law has been consistent in distinguishing
the State as a political entity exercising sovereign powers and entitled to immunity and the State
76
as a legal person not entitled to immunity . In both the Belgian and the Italian case law the
distinction between private and public acts has since the beginning been established on the basis
of the nature of the act and not its purpose. This principle was clearly expressed in the Soviet
74References in G.M. Badr, State Immunity. An Analytical and Prognostic view(The Hague, 1984), p. 21 et seq.
75Compagnie des chemins de fer liégeois- luxembourgeois c. Etat néerlandais , in Journal de droit international
(1904), p. 417.
76
See Corte di Cassazione, Torino, 1882 (Giurisprudenza italiana (1883), I, 125); Corte di Cassazione, Florence,
1886 (Foro italiano (1886), I, 913); Corte di Cassazione , Naples, 1886 ( Foro italiano (1887), I, 474). All these
decisions are reported by G.M. Badr, State Immunity. An Analytical and Prognostic View (The Hague, 1984), p. 23
et seq.
46Trade Delegation case of 1925 in which the Corte di Cassazione held that the monopolization
of foreign trade for political reasons by the S oviet Government cannot modify the commercial
nature of a transaction 7. Accordingly, since this decision th e trend has been towards expansion
of the range of acts over which jurisdiction was to be exercised.
4.17 Belgian and Italian case law did not long re main isolated. The distinction between
acta jure imperii and jure gestionis was immediately appreciated by scholars 7, and well before
the Second World War the principl e of restrictive immunity was being applied, and still is
applied, by the municipal courts of an increasing number of European countries. For example, in
the Immunities (Foreign State in Private Contract) Case , of 5 January 1920, the Austrian
Supreme Court in Civil Matters held that the s overeignty of a State does not involve absolute
freedom from responsibility for that State. Indee d, if the foreign State concludes contracts to be
fulfilled in Austria it “enters the legal system of the Austrian State”, and can no longer be
independent of it. As a consequence, it is subject to the jurisdiction of the courts of the territorial
State in matters concerning contracts 79. In 1918 Swiss Federal Courts declared admissible under
international law the arrest of depos its belonging to the Austrian State 80. In 1928 the Court of
Athens denied immunity to the Soviet Union in a commercial suit ; the decision was upheld by
the Areios Pagos on appeal.
4.18 In 1929, the Mixed Court of Appeals in Egypt affirmed that to grant immunity to the
State for a non-political act would be
“a denial of justice because it would deprive of its help people whose
interests are in conflict with th e private interest of the State” .
77Corte di Cassazione, Roma, Foro italiano, 1925, I, 830.
78See Institut de droit international, Hamburg session, 1891, Projet de règlement international sur la compétence
des tribunaux dans les procès contre les Etats, souverains ou chefs d'Etat étrangers , esp. Article 4, points 3, 5 and
6.
79Immunities (Foreign State in Private Contract) Case, 5 January 1920, in 1ILR (1919-1922), p. 119.
80 K.K. Oesterreichisches Finanzministerium v. Dreyfus, 13 March 1918, cited with reference to the subsequent
81cision of the same Court in Greek Republic v. Walder, 28 March 1930, in 5 ILR (1929-1930), pp. 121-122.
82Soviet Republic (Immunity in Greece) Case, 1928, no. 1681, 4 ILR (1927-1928), p.172.
Capitaine Hall, commandant le «Sumatra» c. Capitaine Bengoa, commandant le «Mercédès» , in Journal du
droit international (1921), p. 271 (emphasis added). See also the decision of the same court in Monopole des
Tabacs de Turquie and Another v. Régie Co-Intéressée des tabacs de Turquie , 22 January 1930, in 5 ILR (1929-
1930), p. 123.
474.19 In 1938 the Tribunal de commerce de Marseille argued that to grant State immunity
with respect to commercial activities would be contrary to French public order because
“l’Etat étranger pouvant poursuivre ses co contractants devant les juridictions
françaises sans pouvoir être poursuivi par eux devant elles, il s’ensuivrait que les
tribunaux français qui sont institués en premier lieu pour protéger les droits de leurs
nationaux, ne pourraient jamais en pareil cas que condamner ceux-ci sans avoir la
possibilité de faire respecter leur droits , ce qui serait manifestement contraire au
fondement même de l’organisation judiciaire” 83
In 1936 the French Cour de Cassation confirmed the denial of immunity in relation
to an operation of a commercial character 84.
4.20 Germany considers that the “turnaround” be tween absolute and re strictive immunity
is represented by the United States Tate Letter of 1952 . The brief description of the case law
just set forth however shows, firstly, that the evolution towa rds the restrictive immunity
principle started well before and was not limited – as indicated by Germany – to the case law of
Italian courts. In fact the Tate Letter was no more than the recognition of some decades of
previous judicial practice in ot her countries. With the Letter, the Legal Adviser of the U.S.
Department of State merely conformed the United States governmental position to the consistent
86
practice, and opinio juris, of the majority of Western countries . This means that well before
the Second World War, the denial of State immunity before municipal courts was not considered
prejudicial to the dignity or sove reignty of a foreign State; and the exercise of jurisdiction, at
least in respect to commercial activities, was not considered to be incompatible with the
fundamental principles of equa lity and reciprocal independence of States. Even scholars who
considered that a State has always to be appreh ended as a sovereign entity, and does not change
83, Cited by I. Pingel-Lenuzza,Les immunités des Etats en droit international (Bruxelles, 1997), p. 47 et seq.
(original in Gazette du Palais (1938), 2, 580).
84Chaliapine v. Union of Socialist Soviet Republics, 15 December 1936, in 8 ILR (1935-1937), p. 225.
85See esp. GM, para. 91.
86J. Combacau, “L'Immunité de l'Etat étranger aux Et ats-Unis: la lettre Tate vingt ans après”, in 1Annuaire
Français de Droit International (1972), p. 455.
48its personality by undertaking commercial activ ities, acknowledged that sovereignty was not
always challenged by the exercise of jurisdiction by municipal courts . 87
4.21 Secondly, the case law set forth above demonstrates that the evolution towards
restrictive immunity has its ratio in the necessity of protecting private persons. On this point
Italy fully agrees with Germany that the re ason for the development towards restrictive
immunity was the feeling that to grant the privil ege of immunity to a State acting in a private
capacity was an unjust limitation of the rights of private contractors 8.
4.22 In fact, since the very beginning the progressive limitation of immunity from
jurisdiction was linked to the development of rule-of-law principles. The aim of preserving
individual rights from an unjust privilege and granting the individual access to justice and to tort
reparation also characterized further developments of the immunity rule and its exceptions.
4.23 Germany considers that the distinction between acta jure imperii and acta jure
gestionis remains the parameter which is still determinative today regarding the scope ratione
materiae of the jurisdictional immunity of States. Italy only partially agrees with this assertion.
In the following paragraphs Italy will demonstrate that exceptions to immunity are not limited to
acta jure gestionis.
4.24 In labour-law litigation, the distinction based on nationality or residence of the
employee and on the place where the work has to be performed have often been preferred to the
distinction based on the public or private character of the employee’s functions. In this respect,
for instance, Article 5(1) of the European Convention on State Immunity (1972) establishes that
a Contracting State
“cannot claim immunity from the jurisdiction of a court of another
Contracting State if the proceedings relateto a contract of employment between the
State and an individual where the work has to be performed on the territory of the
State of the forum”.
87
A. Weiss, “Compétence ou incompétence des tribunaux à l'égard des États étrangers”, Recueil des Cours, vol. 1
88923), p. 544.
GM, para. 49.
49 The only exceptions to this restriction of immunity, listed in paragraph 2, concern the
nationality of the worker or the existence of a written provision in the contract of employment,
the character jure gestionis or jure imperii of the performed func tions being generally
89
irrelevant . The same provision is accepted in Section 4 of the United Kingdom State Immunity
90
Act (1978) .
4.25 Article 11 of the United Nations Convention on Jurisdictional Immunities of States
and their Properties establishes, as a general rule, that a State is not entitled to immunity “in a
proceeding which relates to a c ontract of employment between the State and an individual for
work performed or to be performed, in whole or in part, in the te rritory of that other State”. The
subsequent paragraph 2 of this article limits this general exception and grants immunity if “the
employee has been recruited to perform particul ar functions in the exercise of governmental
authority”. So even though the Convention does not completely abandon the distinction based
on functions performed, the exception to jurisdiction is limited to “ particular functions in the
exercise of governmental auth ority”, and therefore does not cover the whole public-functions
domain. The preparatory works on this provision demonstrate the already-mentioned trend to a
progressive restriction of State immunity even in respect of activities concerning governmental
functions. The draft Article 12, provisionally adopted by the International Law Commission on
first reading in 1986, provided immunity whenever “the employee has been recruited to perform
services associated with the exercise of governmental authority” 91. In its comments and
observations on the draft article mentioned, the Federal Republic of Germany considered that
such an exception was “extraordinary broad and could serve to invalidate the whole provision”
because “a link with the exercise of ‘government al authority’ can probably be established in
practically all contracts of em ployment”. Therefore the propos al of the Federal Republic of
Germany was to delete the paragraph, adopting the same solution as the European Convention 92.
This proposal demonstrates that, in the opinion of Germany, the exercise of jurisdiction in cases
89
In the terms of Article 32, the Convention shall not “aff ect privileges and immunities relating to the exercise of
the functions of diplomatic missions and consular posts and of persons connected with them”. It seems possible to
deduce from this norm that labour litigation between the State and its diplomatic personnel are also exempted from
municipal jurisdiction.
9017 International Legal Materials (1978), p. 1123. Like the European Convention, the SIA too provides an
exception for employment controversies with diplomatic personnel (Section 16).
91ILC, Report on the work of its thirty-eighth session , YbILC 1986, Vol. II, Part Two, p. 10. For the Commentary
see ILC, Report on the work of its thirty-sixth session, YbILC 1984, Vol. II, Part Two, p. 63.
92Comments and observations received from Governments, YbILC 1988, Vol. II, Part One, pp. 70-71.
50involving some jure imperii activities does not always affect the independence and equality of
sovereign States.
4.26 The evolution of the immunity rule concerning employment disputes shows the
tendency of State practice to reduce the domain of State immunity and to grant individuals
access to justice to the maximum extent possible, even when jure imperii activities are involved.
This trend is even clearer in an area which is mo re relevant for the present case, that of personal
injuries.
2. The Exceptions to State Immunity for Personal Injuries
4.27 The evolution of immunity rules also con cerns cases in which reparation claims for
personal injuries are brought by in dividuals against a foreign Stat e before domestic courts. In
this respect too the need to give adequate protection to individual rights has led to limiting the
protection accorded to State sove reignty. In this Section Italy w ill show, first, that in tort
litigation jurisdiction is exercised even in rela tion to sovereign activities. Second, Italy will
show that the applicat ion of this exception to immunity ca nnot be excluded in relation to war
damages.
(a) Irrelevance of Imperii-Gestionis Distinction in Tort Litigation
4.28 Nearly all recent national and international codifications of State immunity provide,
to some extent, for the removal of immunity for illegal acts of foreign States which cause death
93
or personal injury, or damage to or loss of property . Such a removal, generally known as ‘the
torts exception’, was already provided for in the 1891 Hamburg resolution of the Institut de droit
international . This exception represents the most relevant departure from the distinction
between acta jure gestionis and acta jure imperii.
93See Article 11 of the European Convention on State I mmunity, and Article 12 of the United Nations Convention
on Jurisdictional Immunities of States and Their Property.
As examples of national codification, see the U.S. Fore ign Sovereign Immunities Act (1976), section 1605(a)(5);
U.K. State Immunity Act (1978), section 5; AustralianSovereign Immunities Act (1985), section 13; Singapore
State Immunity Act (1979), section 7; Canadian State Immunity Act (1982), section 6 ; South African Foreign State
Immunity Act (1981), section 6. The Pakistani State Immunity Ordinance (1981) is the only national codification of
94ate immunity that does not provide for a torts exception.
Institut de Droit International, Hamburg session, 1891, Projet de règlement international sur la compétence des
tribunaux dans les procès contre les Etats, souverains ou chefs d'Etat étrangers, Article 4(6).
514.29 Germany argues that this exception is most commonly used in relation to damage
produced in situations in which States are no t exercising their specifi cally sovereign powers.
Italy considers that the exercise of jurisdiction in relation to damage produced by governmental
activities cannot be underestimated. The only condition for the application of the torts exception
in national regulation of State im munity is the link between the in jury and the territory of the
forum State 95.
4.30 The European Convention on State Imm unity requires a double connection. In
accordance with Article 11, jurisd iction can be exercised “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” (emphasis
added). The Convention codified the law of State immunity at a relatively early stage, when the
restrictive immunity doctrine was not yet univers ally accepted. Moreover, the majority of the
signatory countries were civil-law countries, whose courts ha d traditionally be en cautious in
extending judicial control to damage caused as a result of performance of acts in exercise of
96
sovereign authority . Nevertheless, the wording of the article makes it quite clear that the
gestionis-imperii distinction finds no place in the regula tion of tortious claims provided for by
97
the Convention .
4.31 The International Law Commission’s codification work confirms the idea that the
gestionis-imperii distinction is no longer main tained with regard to to rtious conduct. Article 12
of the United Nations Convention on Jurisdictiona l Immunities of States and their Properties
requires the same double connection provided for by the European Convention. A brief analysis
95
Both the U.S. Foreign Sovereign Immunities Act and the Canadian State Immunity Act require that the damage
occur on the territory of the State. The British State I mmunity Act, Australian Foreign Sovereign Immunities Act
and Singapore State Immunity Act give relevance to the place where the tortious act was perpetrated. The
irrelevance of the imperii-gestionis distinction for the applicability of the torts exception has been affirmed by the
Canadian Supreme Court in Schreiber v. Federal Republic of Germany and the Attorney General of Canada, [2002]
3 S.C.R. 269, 2002 SCC 62, decision of 12 September 2002, para. 32 (on line at
http://csc.lexum.umontreal.ca/en/2002/2002scc62/2002scc62.html).
96The Federal Republic of Germany embraced the doctrine based on the gestionis-imperii distinction with the
decision of the Federal Constitutional Court in thIranian Embassy case of 30 April 1963 (BVerfGE 16, 27 et
seq.). Nevertheless, the Federal Republic ratified the European Convention on 22 January 1990, and therefore
accepted the possibility of being subject to jurisdiction in relation to jure imperii activities too.
97For a deep analysis of States’ legislation and case law, confirming the conclusion that the distinction between
acts jure imperii and acts jure gestionis does not apply in torts claims, see J. BrömeState Immunity and the
Violation of Human Rights (The Hague, 1997), pp. 51-121. See also C. Schreuer, State Immunity: some recent
developments (Cambridge, 1988), pp. 45-62.
52of the debates concerning the redaction of this rule demonstrates that its main purpose was to
assure the protection of individual rights and to avoid denial of justice.
4.32 When proposing the draft article on the torts exception, in 1983, the then Special
Rapporteur Sucharitkul considered that
“[t]he distinction between jus imperii and jus gestionis, or the two types of
activities attributable to the State, appears to have little or no bearing in regard to
this exception, which is designated to allow normal proceedings to lie and to
provide relief for the individual who has suffered an otherwise actionable physical
damage to his own person or his de ceased ancestor or to his property.” 98
4.33 Accordingly, since its first drafting the pur pose of the rule was to grant individuals
access to judicial proceedings in order to obtai n reparation for wrongful injuries. The need to
provide individual access to justice is made even clearer in the 1991 ILC Commentary on this
article. The Commission observed that
“[t]he injuredindividual would have been without recourse to justicehad the
State been entitled to invokeits jurisdictional immunity.” 99
The same rationale which fuelled the aba ndon of absolute immunity in favour of the
distinction imperii-gestionis underlies these further developments in the context of torts claims:
the feeling of injustice and the necessity to protect individual rights.
4.34 The intention to improve the protection of individual rights expressed by the Special
Rapporteur was shared by a number of States. Some of them even proposed enlarging the scope
of the exception. Among them, the Federa l Republic of Germany did not oppose the
abandonment of the imperii-gestionis distinction, nor did it propose the maintenance of
immunity with respect to particular governmental acts. Rather, Germany criticized the fact that,
by requiring the presence of the au thor of the injurious acts on the territory of the forum State,
this exception risked being unsuitable for transboundary injuries.
98
S. Sucharitkul, Fifth report on jurisdictional immunities of States and their property, YbILC 1983, Vol. II, Part
99e, p. 39 (emphasis added).
ILC, Report on the work of its forty-third session, YbILC 1991, Vol. II, Part Two, p. 44 (emphasis added).
534.35 The ILC Commentary to the 1991 draft articles made it clear that the torts exception
may also apply to governmental activities. The ILC pointed out that
“the scope of article 12 is wide enough to cover also intentional physical
harm such as assault and battery, malicious damage to property, arson or even
100
homicide, including political assassination” .
4.36 The insertion of a torts excep tion clause, not limited to non-sovereign activities, in
almost all national statutes and internationa l conventions – particul arly in a convention
characterized by its universal vocation such as the United Nations Convention on Jurisdictional
Immunities – demonstrates that there is no peremp tory or absolute principle which requires that
immunity is to be granted whenever public acti vities are involved. In the following paragraphs,
Italy will demonstrate that there is no absolute principle requiring foreign States to be granted
immunity from jurisdiction in cases concerning war damage.
(b) Applicability of the Torts Exception in Cases Concerning War Damage
4.37 Germany asserts that the torts exception cannot be extended to war damage, and more
generally, that State immunity regulations never apply to war conduct. Italy considers that, in its
absolute terms, this assertion is questionable. Indeed, there seems not to be any absolute
principle entailing the exclusion of situations relating to armed conflicts from the application of
the restrictive immunity rule.
4.38 Article 31 of the European Convention on State Immunity explicitly excludes the
applicability of the Convention in relation to conduct of foreign-State armed forces taking place
101
on the territory of the forum State .
4.39 Such an explicit exclusion is not provided for in the United Nations Convention. Italy
considers that there are reasons to believe that the UN Convention does apply to military
activities. Indeed, it appears difficult to agree, without further explanation, with the statement of
the Chairman of the Ad Hoc Committee according to which a general understanding had always
100
101ILC, Report on the work of its forty-third session, YbILC 1991, Vol. II, Part Two, p. 45.
Article 31: “Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State
in respect of anything done or omitted to be done by,in relation to, its armed forces when on the territory of
another Contracting State”.
54prevailed in the Sixth Committee debate that military activities were excluded from the scope of
102
the Convention .
4.40 When the Convention intends to limit its scope of application in respect to a certain
subject, it says so explicitly. Significantly, in listing the categories of privileges and immunities
not affected by the Convention, Article 3 men tions diplomatic imm unities, head-of-State
immunities and immunities relating to aircraft or space objects. It does not mention military
activities. Another exclusion, namely criminal proceedings, was explicitly mentioned in General
Assembly resolution 59/38 103. No reference to military activities or war damages can be found
in the Convention nor in the General Assembly resolution.
4.41 The 1991 Commentary to draft Article 12 seems contradictory on this issue. The
Commentary affirms that the ar ticle “does not apply in case of armed conflict”. However,
concerning the non-applicability of the article to transboundary damage, the Commentary gives
as an example the fact that “cases of shooting or firing across a boundary or of spill-over across
the border of shelling as a result of an armed conflict are excluded from the areas covered by
Article 12”. This example suggests, a contrario, the idea that the context of armed conflict is not
104
a priori excluded from the application of the ar ticle in cases of non-transboundary damage .
Thus, genuine doubts remain as to whether war damage is excluded from the applicability of the
torts exception provided for by the United Nations Convention .
4.42 Moreover, case law is not as unanimous as Germany pretends in excluding war
damage from the scope of the torts exceptions provided under national legislations. As to United
States practice, for example, Germany states that “the courts of the United States would never
entertain a suit through which a claimant would seek reparation for injury suffered during armed
conflict.”105 Italy notices that the Supreme Court decision in Republic of Iraq v. Simon et al. 106
seems to support quite the opposite. Some Amer ican citizens who had been captured and
tortured by Iraqi agents duri ng the Gulf War in 1991 brought a suit for damages against Iraq
102Summary record of the 13th meeting of the Sixth Committee , 25 October 2004, A/C.6/59/SR.13. See A.
Dickinson, “Status of Forces under the UN Convention On State Immunity”, in 55 International & Comparative
Law Quarterly (2006), p. 428.
103GA Res. 59/38 of 2 December 2004.
104ILC, Report on the work of its forty-third session, YbILC 1991, vol. II, Part Two, p. 46.
105GM, para. 101.
106Republic of Iraq v. Jordan Beaty et al., Republic of Iraq et al., v. Robert Simon et al., Nos. 07–1090 and 08–539,
8 June 2009, on line at http://www.supremecourtus.gov/opinions/08pdf/07-1090.pdf.
55before US courts. They alleged that Iraq was not entitled to State immunity because since 1990
Iraq was included in the State Department list of States supporting terrorism, so that the
exception to State immunity provided under th e amendment to the FSIA introduced by the
Antiterrorism and Effective Death Penalty Act a nd codified at 28 U. S. C. §1605(a)(7) would
apply. The Supreme Court considered that the FSIA and the relevant amendment were
applicable in the case at issue, giving no relevance to the fact that the injuries had occurred
during and in relation to the Gulf War. Immunity was finally granted to Iraq because the District
Court lost jurisdiction over suits against Iraq in May 2003, when the President made
§1605(a)(7) inapplicable with respect to Iraq.
3. Inter-Temporal Application of the Rules of State Immunity
4.43 Germany considers that, by denying immunity in relation to occu rrences dating back
to the period between 1943 and 1945, the Corte di Cassazione erroneously applies the extended
107
doctrine of restrictive immunity retroactively . From the principle according to which “the
rules governing facts of internati onal life must be assessed according to the law in force at the
time when those facts occurred”, Germany infe rs that Italian judges should apply the rules
governing sovereign immunity in fo rce at the moment of the inju rious activities, i.e. during the
Second World War 108.
4.44 The issue of inter-temporal application of substantive rules of international law in the
present dispute is dealt with in several parts of this counter-memorial, and particularly in
Chapter V. As stated in Section V of Chapter I, Italy considers that the conclusion reached there
according to which international law has to be inte rpreted in the light of the development of the
international legal order is also valid in relation to the rule of jurisdictional immunity. Moreover,
immunity is a procedural rule 109which affects the ju risdictional competence of a court and, in
accordance with a general principle of law, has to be assessed according to the rules in force at
the time when the court is appealed. National and international practice supports this statement.
107
108GM, para. 91 et seq.
109GM, para. 93 et seq.
See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) , Judgment, I.C.J. Reports
2002, para. 60.
564.45 The Italian Code of Civil Procedure specifically provides, at Article 5, that
“Jurisdiction and competence shall be determined having regard to the law
in force and the factual situation in bei ng at the time of submitting the application
110
[…]” .
In Germany, the issue of inte r-temporal procedural law ( Intertemporales
Prozessrecht) is generally resolved in favour of the application of new relevant rules. Even
pending proceedings should be assessed according to new rules as from the entry into force of
the amending act. Nevertheless, legitimate expectat ions of claimants are pr otected; indeed, if a
remedy admissible at the moment of the action becomes inadmissible under the new statute, the
111
old one remains applicable . In French law there is no prov ision on the matter, but the general
principle according to which the competence of the tribunal is assessed at the moment of
112
submission of the application is accepted .
4.46 The application of this pr inciple in relation to juri sdictional immunity too has
characterized the relevant practice. Germany seem s to consider that the judgment of the United
States Supreme Court in Altmann v. Austria is the only example of a pplication of restrictive
immunity doctrine to facts dating b ack to the Second World War period 113. Italy does not share
this opinion. Quite the opposite: Altmann is far from being an isolated example.
4.47 Whatever the conclusion reached by the judges in cases in which foreign State
immunity for grave breach of human rights and humanitarian law was at issue, courts have
generally approached the question in the light of the moment of the judicial action and not of the
original injurious facts. It is worth noting th at this is specifically the case in relation to
complaints against Germany relating to crim es committed during the Second World War. In
Princz v. Federal Republic of Germany the Court of Appeal for the District of Columbia granted
114
foreign immunity to Germany by applying the Foreign Sovereign Immunities Act of 1976 . In
the Distomo case, the Greek Areios Pagos explicitly applied what it considered contemporary
110“Art. 5 (Momento determinante della giurisdizione e de lla competenza) - La giurisdizione e la competenza si
determinano con riguardo alla legge vigente e allo statdi fatto esistente al momento della proposizione della
domanda, […]”.
111H.-J. Musielak, Kommentar zur Zivilprozessordnung (2007), Einleitung No. 13.
112See infra, § 4.48.
113GM, para. 96 et seq.
114
Decision of 1 July 1994, in 103 ILR (1996), p. 606.
57international law at the moment of the decision, taking into account the evolution of general
115
international law and of the rule of State immunity . The same is to be noticed concerning the
116
decision of the Greek Special Highest Court in the Margellos case ; the Court granted
immunity to Germany because it considered th at “in the present state of development of
international law” a norm of customary international law excluding crimes committed by armed
forces from the law of State immunity does not exist, and not because it applied the immunity
rule in force at the time of the crimes.
4.48 In two cases concerning people deported a nd forced to work by Germany during the
Second World War, the French Cour de Cassation granted immunity to the Federal Republic of
Germany, but stressed that
“le bénéficiaire de celle-ci [of immun ity] est l’Etat étranger tel qu’il se
présente au moment de l’assignation en justice, en l’occurrence, la République
117
fédérale d’Allemagne, et non tel qu’il éa tit à l’époque des actes ou faits litigieux.”
4.49 European Court of Human Rights case la w confirms the idea that the time of
injurious acts or facts in dispute is not relevant to establishing the applicable immunity rule. The
118
arguments for the decision are almost the same in Al-Adsani v. United Kingdom , where the
beginning of judicial action immediately followed the tortious acts, and in Kalogeropoulou and
119 120
Others v. Greece and Germany or in Grosz v. France, concerning crimes committed during
the Second World War. In all those decisions the European Court investigated the contemporary
rules of international law governing State immunity. In Grosz v. France the stress on
contemporary law is so important that the Cour t seems to feel obliged to underline that its
conclusion
115
116ANNEX 9 to GM.
Anotato Eidiko Dikastirio, Margellos and Others v. Federal Republic of Germany, case No 6/2002, judgment of
117September 2002, in 1èreILR (2007), p. 526 et seq.
Cour de Cassation, 1 chambre civile, case No. 03-41851, decision of 2 June 2004, and case No. 04-47504,
decision of 3 January 2006, both at http://www.legifrance.gouv.fr/initRechJuriJudi.do
118Application no. 35763/97, judgment of 21 November 2001.
119Application no. 59021/00, judgment of 12 December 2002.
120Application no. 14717/06, judgment of 16 June 2009.
58 “vaut du moins en l’état actuel du droit international public, ce qui n’exclut
pas pour l’avenir un développement du droit international coutumier ou
conventionnel.” 121
4.50 Finally, it is worth noting that Article 4 of the United Nations Convention on
Jurisdictional Immunities of States and Their Property defines the non-retroactivity of the
Convention as follows :
“[…] the present Convention shall not apply to any question of jurisdictional
immunities of States or their property ar ising in a proceeding instituted against a
State before a court of anot her State prior to the entry into force of the present
Convention for the States concerned.”
It seems quite evident from this article that the relevant moment for the determination
of the rule of State immunity to be applied is that of the institution of judicial proceedings and
not that of the disputed facts.
C.C ONCLUSIONS
4.51 Jurisdictional immunity of foreign States is not an absolute or peremptory rule of
international law. Quite the opposite: it is co ntinuously subject to li mitations and must be
interpreted taking into account developments in contemporary international law. Exceptions to
immunity are increasingly broad in scope, and in certain cases the removal of immunity also
applies to acts jure imperii. The number and scope of exceptions is so important that scholars
are beginning “to think of immunity as not normally being allowed” unless in exceptional cases:
“An exception to the normal rule of jurisdiction should only be granted
when international law requires – that is to say,when it is consonant with justice and
122
with the equitable protection of the parties. It is not to be granted ‘as of right’.”
121
122Application no. 14717/06, judgment of 16 June 2009, p. 7 (emphasis added).
R. Higgins, “Certain Unresolved Aspect s of the law of State Immunity”, in 29 Netherlands International Law
Review (1982), p. 271 (emphasis added).
594.52 The function of exceptions to immunity is to give protection to two of the most
important principles of contemporary internati onal law: respect for individual rights and for
rule-of-law principles. It is in this context and in the light of these fundamental principles that
the evolution of immunity and its exceptions must be appraised.
4.53 This progressive restriction of the scope of State activities covered by immunity is
further driven by certain recent developments in international law. In the following section Italy
will analyse the impact of those developments on immunity rules.
Section III. The Principles of State Immunity in the Context of
Developments of International Law
4.54 So far Italy has described the ‘internal’ evolution which the law of State immunity
has undergone in order to protect individual rights. In this Sec tion the law of State immunity
will be looked at in relation to other rules of international law.
4.55 In particular, in the following paragraphs Italy will assess the impact on the rule of
immunity of certain developments in internationa l law, such as the recognition of the existence
of international rules having a jus cogens character (A); the exis tence of a body of rules
criminalizing the conduct of indi viduals responsible for specified international crimes (B); and
finally, the increasing acceptance of the existenc e of a right of access to courts by individuals
(C). Italy will demonstrate that, when no other means of implementing the fundamental rights of
human beings are available, the recognition of immunity may be precluded by the need to avoid
situations which appear to be irreconcilable with the effectiveness of the fundamental values of
the international community.
A. JUS COGENS
4.56 Germany considers that the removal of immunity in cases relating to damage suffered
by victims of Nazi atrocities du ring the Second World War is the consequence of an erroneous
60 123
reliance on jus cogens . The German assertion is based on two main points. Firstly, “ jus
cogens did not exist at the time when the violations occurred from which the plaintiffs attempt
124
to derive their claims” . Secondly, Germany assumes that “there exists no comprehensive
special regime that applies to the breach of a jus cogens rule” and that the denial of State
125
immunity is a consequence that cannot be freely inferred from the breach of a jus cogens rule .
Italy considers that both these arguments are only partially valid and only partially relevant.
4.57 Firstly, Italy will show that that the concept of jus cogens had already emerged before
the Second World War, and particularly that it included rules concer ning the treatment of
prisoners of war. Secondly, Italy will demonstrate that jus cogens has some consequence on the
way in which immunity has to be applied.
4.58 The idea of an ‘international public order’, whose function is to protect general values
and common concerns of the international community, dates back to Grotius, Vitoria and Wolff,
and has never disappeared with th e rise of positive-law doctrine 126. It is worth noting that quite
often such rules were associated with human rights and humanitarian principles, such as the
universal recognition of the prohibition of slaver y and the slave trade, or the protection of
wounded soldiers as soon as the First Geneva Convention of 1864 was adopted.
4.59 In the era between the two World Wars, the idea of superior principles was taken up
again. In his separate opinion in the Oscar Chinn case, Judge Schücking asserted the existence
of jus cogens rules in international law and affirmed that the Permanent Court of International
127
Justice would never “apply a convention the terms of which were contrary to public morality” .
4.60 The idea of invalidity of “immoral” tr eaties was shared by scholars. Verdross
considered “the general principle prohibi ting States from concluding treaties contra bonos
mores”, i.e. “in contradiction to the ethics” of the community, as a peremptory norm of general
123GM, paras. 83 to 90.
124GM, para. 85.
125GM, para. 87.
126See for references S. Kadelbach, “Jus Cogens, Obligations Erga Omnes and Other Rules – The identification of
Fundamental Norms”, in The Fundamental Rules of International Legal Order, C. Tomuschat and J.-M. Thouvenin
(eds.) (Leiden, 2006), pp. 21 et seq.
127P.C.I.J., Judgment of 12 December 1934, Series A/B n. 63, p. 149-150.
61international law determining the limits of th e freedom of the parties to conclude treaties 128. In
order to determine when treaties were to be cons idered immoral, he proposed as a criterion “to
find the ethical minimum recognised by all the St ates of the internati onal community”. One of
the most important of such minimum ethical princi ples was the right of the State to protect “the
129
life, the liberty, the honor or the property of men on its territory” .
4.61 Again, the work of the International La w Commission on codification of the law of
treaties supports the idea that ‘ non-derogable’ principles of in ternational law already existed
130
before the Second World War . As to the content of jus cogens rules, examples given by the
Special Rapporteur, Fitzmaurice, are revealing. He affirmed, in fact, that
“[m]ost of the cases in this class are cases where the position of the
individual is involved, and where the rules contravened are rules instituted for the
131
protection of the individual” .
The first example of such a rule, having an “absolute and non-rejectable character” is
that concerning the treatment of prisoners of war 132.
4.62 It seems to be universa lly accepted that, even before the Second World War,
provisions concerning the treatment of prisone rs had a non-derogable character. Such a
character is expressed by Article 6(1) of the Geneva Convention (III) relative to the Treatment
of Prisoners of War of 1949 provi ding that “no special agreemen t shall adversely affect the
situation of prisoners of war, as defined by th e present Convention, nor restrict the rights which
it confers upon them”. Despite th e fact that the 1929 Convention relative to the Treatment of
Prisoners of War did not contain an identical provision, the reference in Article 83 to “more
favourable measures” has been authoritatively interpreted as excluding the possibility for a State
133
to deprive prisoners of the rights conferred by the Convention . As will be set forth in detail in
128A. von Verdross, “Forbidden Treaties in International Law”, in 31 American Journal of International Law
12937), pp. 571-577, at 572;Id., “Règles générales du droit de la paix”, Recueil des Cours, vol. 30 (1929), p. 304.
130A. von Verdross, “Forbidden Treaties in International Law”, p. 574.
131See H. Lauterpacht, Report on the Law of Treaties, YbILC 1953, Vol. II, p. 154.
G. Fitzmaurice, Third Report on the Law of Treaties, YbILC 1958, Vol. II, p. 40 (emphasis added).
132Ibid.
133In its Commentary to Article 6 of the 1949 Third Convention, the ICRC recalls the case of French prisoners in
Germany. In response to offers made by the German Government, in agreement with the Vichy Government, these
prisoners abandoned some of their rights in exchange for certain material advantages, but in the end they suffered
62Chapter V 134, the non-derogable character of norms protecting prisoners of war during the
Second World War is recognized ev en in the opinion delivered to the German Government by
135
Professor Tomuschat .
4.63 The Charter annexed to the Agreement of 8 August 1945 establishing the Nuremberg
International Military Tribunal qualified as war crim es the violations of the laws or customs of
136
war . The Tribunal found that, by 1939, the humanitarian rules included in the Regulations
annexed to the Hague Convention IV of 1907 “were recognized by all civilized nations and were
137
regarded as being declaratory of the laws and customs of war” .
In 1946, General Assembly resolution 95(I) confirmed the Nuremberg Principles as
regards international crimes. Even if the context was that of i ndividual criminal responsibility
and not that of Stat e responsibility and jus cogens definition, it cannot be denied that the
criminalization of violations of humanitarian law committed during the Second World War is
indicative of the idea that such vi olations were considered, already at that time, as affecting the
most fundamental values of the international community.
It is significant in this respect that, in draft Article 13(2), defining when treaties are to
be regarded as contrary to jus cogens, Special Rapporteur Waldock proposed the following
definition:
“a treaty is contrary to international law and void if its object or execution
involves […] (b) any act or omission char acterized by international law as an
international crime; or (c) any act or omi ssion in the suppression or punishment of
138
which every State is required by international law to co-operate” .
rather serious disadvantages. The ICRC affirms that “[a]lt hough it is less explicit than [Article 6(1) of the 1949
Convention], Article 83 of the 1929 Convention should have prevented agreements of this kind”.
134See infra para. 5.19.
135
Leistungsberechtigung der Italienischen Militärinternierten nach dem Gesetz zur Errichtung einer Stiftung
„Erinnerung, Verantwortung und Zukunft“? Rechtsgutachten , erstattet von Professor Dr. Christian Tomuschat,
136ex X
Charter of the International Military Tribunal, Article 6(2).
137Trial of the Major War Criminals, 14 November 1945 - 1 October 1946, Nuremberg, 1947, Vol. 1, p. 254.
138H. Waldock, Second Report on the Law of Treaties , YbILC 1963, vol. II, p. 52. The commentary is also
meaningful: “if a treaty contemplates the performance of an act criminal under international law, its object is clearly
illegal. […] Where international law, as in the cases ofthe slave-trade, piracy and genocide, places a general
634.64 Furthermore, in its Advisory Opinion on the Legality of Nuclear Weapons, the Court
affirmed that a large number of rules of international humanitarian law
139
“constitute intransgressible principles of international customary law” .
As a confirmation of this conclusion the Court cited exactly the passage of the
Nuremberg judgment mentioned above. Thus, the Court has confirmed the link between
international crimes and jus cogens outlined above.
4.65 Thus, it is clear that, even at the time of the Second World War, the idea of superior,
peremptory and non-derogable values shared by the international commun ity already existed.
Such values have been undisputedly trampl ed on by crimes committed by Germany. Germany
itself recognized the seriousne ss of the crimes in question with the law of 2 August 2000
establishing the “Remembrance, Responsib ility and the Future” Foundation. Moreover,
Germany unconditionally acknowledges that “ver y serious violations, even crimes, were
committed by its occupation forces in Italy” 14.
4.66 Nevertheless the dispute on the exis tence and scope of the concept of jus cogens
during the Second World War seems, in the case under discussion, a quite sterile one. The
problem in fact is not how the violations committed by Germany were to be qualified at that
time. The problem is whether the absolute denial of access to justice, and the denial of any form
of reparation, to victims of behaviours that were unquestionably forbidden by customary
international law when they were committed, and unquestionably constitute violations of jus
cogens today, is compatible with the contemporary concept of jus cogens.
4.67 This last consideration al so raises some criticism on the second argument proposed
by Germany. Germany’s second main point is ba sed on the indisputable distinction between
primary norms, admittedly peremptory, forbiddi ng some grave violations of international
humanitarian law and of human rights law, an d secondary norms concerning the consequences
of violations of such primary norms. German y argues that there is no conflict between the
peremptory norms of humanitarian law forbidding deportation, forced labour or massacre of the
obligation upon every State to co-operate in the suppression and punishment of certain acts, a treaty contemplating
or conniving at their commission must clearly be tainted with illegality” (ibid. p. 53).
139I.C.J. Reports 1996, p. 257, par. 79.
140GM, para. 59.
64civilian population, and the general customary ru le granting State immunity from jurisdiction,
because these two rules have completely different contents. This argument, already put forward
among scholars by Zimmermann 141 and Bröhmer, 142is formally unquestio nable, but rather
irrelevant in the case under discussion. In fact, Italian cas e law is not based on the formal, a
priori, prevalence of jus cogens primary rules over immunity pr ocedural rules. Italy does not
pretend in general terms that when confronted with a claim arising out of the violation of a jus
cogens norm municipal courts have jurisdiction. Italy fully agrees with Germany that such a
general exception to immunity does not yet find confirmation in international practice, nor can it
be theoretically inferred from the jus cogens character of the rule violated. Italy subscribes to the
idea that immunity and jus cogens rules on human ri ghts and humanitarian law can generally
coexist in the international legal system. However, there is a substantive inconsistency in the
legal system if immunity is used by a State responsible for grave breaches of international law in
order to avoid its responsibility.
4.68 The inconsistency of a legal system that considers human rights and human dignity as
its paramount values endorsed by jus cogens norms and, at the same ti me, protects violators of
such norms by granting them sovereign immunity is the fundamental premise of a number of
theories concerning the relations hip between State immunity and jus cogens norms. All those
doctrines, whose echoes are noticeable also in some judicial opinions, examine the way in which
jus cogens may prevent a State from relying on immunity.
4.69 Two main ideas are at the basis of those theo ries. The first one is that the violation of
peremptory norms of international law cannot be considered to be a sovereign act. This idea has
been expounded since 1989 by Professors Belsky, Roth-Arriaza and Merva:
“the existence of a system of rule s that States may not violate [i.e. jus
cogens] implies that when a State acts in vi olation of such a rule, the act is not
recognised as a sovereign act. When a Stateact is no longer recognised as sovereign,
143
the State is no longer entitled to ivoke the defense of sovereign immunity.”
141
A. Zimmermann, “Sovereign Immunity and Violation of International Jus Cogens. Some Critical Remarks”, 16
142higan Journal of International Law (1995), p. 438.
143J. Bröhmer, State Immunity and the Violation of Human Rights (The Hague, 1997), p. 195.
A. Belsky, N. Roth-Arriaza, M. Me rva, “Implied Waiver Under the FS IA: A Proposed Exception to Immunity
for violation of Peremptory Norms of International Law”, 77 California Law Review (1989), p. 394.
65 On the basis of an analogous idea Professor Kokott stated that the loss of immunity is
144
the consequence of the ‘abuse of sovereignty’ caused by the violation of fundamental rights .
Indeed sovereign immunity cannot be invoked when sovereignty is used to criminal ends.
4.70 This idea was first applied by the United Stat es District Court for the District of
Columbia in Princz v. Federal Republic of Germany. The Court held that
“the Federal Sovereign Immunity Act [i .e. immunity] has no role to play
where the claims involve undisputable acts of barbarism committed by a one-time
outlaw nation” 145
and
“a nation that does not respect the civ il and human rights of an American
citizen is barred from invoking United States law to block the citizen in its effort to
vindicate his rights” 146.
Despite the wording of the decision, rela ting to United States domestic law, the
argument would be the same in relation to inte rnational norms on international immunity. The
District Court’s decision was overruled by the Court of Appeal s, but it is worth noting that
Circuit Judge Wald, dissenting, considered that
“Germany’s treatment of Princz violated jus cogens norms of the law of
nations, and that by engaging in such conduct, Germany im plicitly waived its
immunity from suit” 14.
4.71 This theory was also accepted by the major ity of the Greek Supreme Court in the
Distomo case. The Areios Pagos stated that
144J. Kokott, „Mißbrauch und Verwirkung von Souveränitäts rechten bei gravierenden Völkerrechtsverstößen“, in
Recht zwischen Umbruch und Bewahrung : Völkerrecht, Europarecht, Staatsrecht : Festschrift für Rudolf
Bernhardt (Berlin, 1995), pp. 135-151.
145Judgment of 23 December 1992,in 103 ILR (1996), p. 598 et seq., at 601.
146Ibidem, p. 602.
147Court of Appeals, District of Columbia Circuit, 1 July 1994, Wald, Circuit Judge, dissenting, in 103 ILR (1996),
p. 614.
66 “the defendant State could not invoke its right of immunity, which it had
tacitly waived since the acts for which it was being sued were carried out by its
organs in contravention of the rules ofjus cogens[…] and did not have the character
of acts of sovereign power.” 148
It is true that few years later, in a similar case, the Greek Special Supreme Court
decided that Germany enjoyed immunity 149. Nevertheless, it is worth noting that this conclusion
was reached by a majority of only six votes to five.
4.72 The second main idea is that States responsible for violations of jus cogens norms
would no longer be entitled to sovereign immunity because of the hierarchical supremacy of the
150
former norms . This theory was supported by a minority of eight to nine judges of the
European Court of Human Rights in Al-Adsani v. United Kingdom, and it is significant that this
minority included almost all members of the Court who were scholars of international law. In
their dissenting opinion, Judges Rozakis, Caflisch, Wildha ber, Costa, Cabral Barreto and Vaji ć
stated that
“The acceptance therefore of the jus cogens nature of the prohibition of
torture entails that a State allegedly viol ating 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 Stat e immunity, the procedural bar of State
immunity is automatically lifted, because those rules, as they conflict with a
151
hierarchically higher rule, donot produce any legal effect.”
4.73 Whatever the merit and the final outcome of these views, the increased recognition of
individual interests and rights under international law has already lead to a restrictive application
of the doctrine of immunity in commercial matters. As the Corte di Cassazione pointed out in
148Areios Pagos, Prefecture of Voiotia v. Federal Republic of Germany, case n. 11/2000, 4 May 2000, ILR vol, 129
(2007), pp. 514-524, at. 521 (ANNEX 9 to GM).
149Anotato Eidiko Dikastirio, Margellos and Others v. Federal Republic of Germany, case No 6/2002, judgment of
17 September 2002, ILR, vol. 129 (2007), p. 526 et seq.
150M. Reimann, “A Human Rights Exception to Sovereign Immunity: some Thoughts on Princz v. Federal
Republic of Germany”, 16 Michigan Journal of International Law (1995), p. 407. J.A. Gergen “Human Rights and
the Foreign Sovereign Immunities”, 36 Virginia Journal of International Law (1996), p. 765.
151Application no. 35763/97, judgment of 21 November 2001, Joint Dissenting Opinion of Judges Rozakis and
Caflisch Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, para. 3.
67Mantelli, it would be quite paradoxical for the international legal system, which allows the
exercise of civil jurisdiction vi s-à-vis foreign States in the ev ent of violation of contractual
obligations, to exclude it when faced with mu ch graver violations, such as those which
constitute crimes against humanity and which mark the breaking-point of the tolerable exercise
of sovereignty 152. To state the contrary would mean to us e a merely procedural rule to achieve
an aim of paramount injustice.
4.74 Furthermore, the incompatibility revealed by the Italian case law in the cases of
claims for compensation brought by Italian deported persons, for ced labourers and relatives of
civilians massacred in reprisal actions is not fo rmal but substantive. It aly does not assert the
abstract incompatibility of immunity law with hu manitarian law, but the fact that immunity law
cannot be applied in such a way as to hamper the fulfilment of some of the most fundamental
values and humanitarian principles shared by the international community and recognized as
153
such by jus cogens norms .
4.75 To clarify this point, a comparison between Italian cases and similar United States
case law is useful. The best-known case concerni ng a civil action for damages for atrocities
committed by Nazi Germany is the Princz case. In that case, the Federal Republic of Germany
was sued by a Jewish American citizen who ha d been interned in a concentration camp. The
District Court for the District of Columbia denied immunity 154. The Court of Appeals reversed
the decision and affirmed that “the f act that there has b een a violation of jus cogens does not
155
confer jurisdiction under the FSIA” . Two main points, deeply differentiating the Princz case
from the Italian cases, need to be stressed. Firs tly, it was controversial whether Mr Princz could
have benefited from any compensation programmes in Germany. Secondly, it is worth stressing
that the final solution of the controversy cons isted of an agreement between Germany and the
United States for the compensation of Mr Princz as well as other U.S. nationals who were
victims of Nazi pers ecution. Under the Agreement, which was signed on 19 September 1995,
the German Government provided three million mark s to be distributed by the U.S. Department
152ANNEX 13 to GM.
153For an appraisal of the Italian case law not as a consequence of the formal superiority of jus cogens rules but as a
result of the substantive importance that must be given to the value of human rights protection see P. De Sena, F.
De Vittor, “State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case”, in 16
European Journal of International Law (2005), pp. 89-112.
154See supra para. 4.70.
155
Judgment of 1 July 1994, 26 F 3d 1166 (1994), in 103ILR (1996), p. 610.
68 156
of State to Mr Prin cz and other victims . Thus, even though immunity was granted, Germany
felt obliged to grant compensati on and reparation even to people who did not attempt to claim
reparation before German authorities.
4.76 In the majority of U.S. cases in which the question of denial of State immunity in
relation to violation of jus cogens norms and particularly human rights law was at issue, the case
ended with some form of reparation to individuals. In Letelier v. Chile (concerning the
extrajudicial killing of Letelier and his interpreter by Chilean secret services on U.S. territory),
the District Court for the District of Columbia affirmed its jurisdiction and denied immunity to
Chile on the basis of the consideration that a foreign country
“has no ‘discretion’ to perpetrate conduct designed to result in the
assassination of an individual or individuals, action that is clearly contrary to the
157
precepts of humanity” .
In this case the District Court condemned Chile to pay damages to the relatives of the
victims. Chile, though refusing to execute the d ecision because it considered it a violation of
158
international immunity law, agreed to pay an ex gratia compensation to the victims . In
Siderman de Blake and others v. Republic of Argentina (concerning torture and other ill-
treatments committed by Argentinian officers on their territory), the Court of Appeals for the 9th
Circuit denied the existence of a jus cogens exception to State immunity, but ultimately affirmed
jurisdiction on other procedural grounds 159. In that case too Argentina did not recognize the
decision, but eventually paid co mpensation to Mr Siderman on th e base of an extrajudicial
transaction 160.
4.77 Italy considers that international immunity law must be interpreted and applied
consistently with the fundamental values shar ed by the international community and embodied
156
Agreement between the Government of the United Stat es of America and the Government of the Federal
Republic of Germany concerning Final Benefits to Certai n United States Nationals Who Were Victims of National
157ialist Measures of Persecution, Bonn 19 September 1995, 35 ILM (1996), p. 193 et seq.
Judgment of 11 March 1980, 488 F. Supp. 665 (D.D.C. 1980), in 63ILR (1982), pp. 378-390, at 388.
158See Agreement between the United States and Chile with regard to the dispute concerning responsibility for the
deaths of Letelier and Moffit (Washington, 11 January 1992), in 31 ILM (1992), p. 3; and Chile-United States
Commission convened under the 1914 Treaty for the settlement of disputes, Decision with regard to the dispute
concerning responsibility for the deaths of Letelier and Moffitt, Ibid., p. 9.
159Judgment of 22 May 1992, 965 F 2d 699 (1992), in 103ILR (1996), pp. 454-479.
160T. Golden,“Argentina Settles Lawsuit by a Victim of Torture”, inN.Y. Times, 14 September 1996, p. 6.
69in peremptory norms of international law. A systematic interpretation of the international legal
system – an interpretation consistent with the hierarchy of norms – does not imply the removal
of State immunity in any case of violation of jus cogens norms. Nevertheless, the invocation of
immunity from jurisdiction canno t be used by States to avoid their respons ibility and deny to
individuals any forms of reparation and compensation. The practice set forth above confirms the
conclusion according to which the recognition of immunity seems fair only when other
mechanisms for obtaining reparation are availabl e. Otherwise, the withdrawal of immunity
seems to be the only way to establish the consistency of the international legal system.
B.INTERNATIONAL C RIMINAL LAW
4.78 In this Section Italy will analyse the impact of the evolution of international criminal
law on immunity rules. Particularly, Italy will assess whether the limitation of the functional
immunity of State organs responsible for intern ational crimes is also able to affect State
immunity.
4.79 One of the main characteristics of contemporary international law is the development
of international criminal law a nd the idea that State officials ar e always responsible for their
international crimes even though those crimes we re committed in the exercise of sovereign
functions.
4.80 Since the institution of the Nuremberg Tr ibunal and the approval of Nuremberg
principles, the official position of persons indicted for international crimes “shall not be
considered as freeing them from responsibilit y or mitigating punishment” (Article 7 of the
Charter of the International Military Tribunal). Nor can compliance with higher orders free them
from their responsibility (Article 8).
4.81 Functional immunity of State organs res ponsible for crimes against humanity or
violations of jus cogens norms has been consider ed irrelevant not only before the International
Criminal Court, but also be fore national jurisdictions, in both criminal prosecutions1and civil
161See namely, Israel Supreme Court, Eichmann case, judgment of 29 May 1962, in 36 ILR (1968), pp. 277-342;
House of Lords, Ex parte Pinochet, judgment of 24 March 1999, in 38ILM (1999), pp. 581-663.
70 162
actions . This constitutes another important contex t in which State immunity needs to be
reappraised. In fact, ‘functiona l immunity’ and State immunity express the same international
obligation to refrain from the exercise of jurisdiction over foreign States for their sovereign acts.
The most common justification for ‘functional imm unity’ is that the action in question is not
attributable to the individual person but direct ly to the State. By consequence, it has been
asserted that if the Government could claim sovereign immunity in relation to sovereign acts, it
would not seem surprising that the same immunity could be claimed by its officers 163.
4.82 In the light of the close relation between functional immunity and State immunity, it
seems legitimate also to refer to the practi ce relating to the punishme nt of State officials
responsible for international crimes, and to infer from this the possibility of also subjecting
foreign States to jurisdiction 164.
4.83 The main reason behind the development of international criminal law towards the
punishment of officials responsible for international crimes, rega rdless of where crimes have
been committed or of the nationality of the victims, is the necessity not to leave unpunished acts
contrary to basic values of the community an d affecting the dignity inherent in any human
being. As pointed out by Special Rapporteur Ago in his Fifth Report on State Responsibility:
“If […] we deem it necessary to point out that if State organs which have
committed certain acts have been regarded as liable to persona l punishment, it is
primarily [because] this fact in itself u nquestionably testifies to the exceptional
importance attached by the internationa l community to respect for certain
obligations. It is,moreover, no accident that the obligations whose breach entails, as
162
The most known examples are in United States case law. See, namely, Federal Court of Appeals, 9th Circuit, In
re Estate of Ferdinando Marcos Human Rights Litigation , in 32 ILM (1993), p. 107; District Court, District of
Massachusetts, Xuncandand Others v. Gramajo, Ortiz v. Gramajo , 12 April 1995, in 104 ILR (1987) p. 165 et seq.;
Court of Appeals, 2 Circuit, Kadic v. Karadzic, Doe I and Doe II v. Karadzic , 13 October 1995, in 104 ILR
(1997), p. 149 et seq.
163See, mutatis mutandis, the argument of Lord Chief Justice Bing ham in the decision of the Queen’s Bench
Division, Divisional Court, 28 October 1998 in the Pinochet case, in 38 ILM (1999), pp. 70-90, at 85 para. 73. As is
well known, the decision was finally overturned by the House of Lords.
164See A. Bianchi, “Immunity versus Human Rights: The Pinochet Case”, in 10 European Journal of International
Law (1999), p. 264. For a comment on the utilization of this argument by the Corte di Cassazione in theFerrini
case, see De Sena in P. De Sena, F. De Vittor, “State Immunity and Human Rights: The Italian Supreme Court
Decision on the Ferrini Case”, in 16 European Journal of International Law (2005), p. 104.
71 already indicated, the personal punishment ofthe perpetrators correspond largely to
those imposed by the rules ofjus cogens.” 165
4.84 Additionally, such acts are not justified by the fact that they were perpetrated in
accordance with domestic law. As affirmed by the British Chief Prosecutor, Sir Hartley
Shawcross, the approval of the Charter of the International Military Tribunal in 1945
demonstrates that the “omnipotence of the State” is limited and that
“the individual human being, the ultimateunit of all law, isnot disentitled to
the protection of mankind when the State tramples upon his rights in a manner
which outrages the conscience of mankind” 166.
4.85 If the State’s international responsibility and the international criminal responsibility
of the individual are effectivel y complementary, it would be inconsistent to hold, on the one
hand, that the individual victim of barbarian acts is entitled to the protection of the international
community as a whole in relation to the punishment of the perpetra tor of such acts, but that, on
the other, the victims have no rights when they attempt to have satisfaction directly from the
State which ordered the commission of those acts.
4.86 This inconsistency has recently also been stressed by the Canadian Supreme Court. In
an obiter dictum, it refused a restrictive inte rpretation of the torts exception in the State
Immunity Act that
“would deprive the victims of the wo rst breaches of basic rights of any
possibility of redress in national courts. Given the recent trends in the development
of international humanitarian law enlarging this possibility in cases of international
crime, as evidenced in the case before the House of Lords, R. v. Bow Street
Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3) , [1999] 2
165
166R. Ago, Fifth report on State responsibility, YbILC 1976, Vol. II, Part. 1, p. 33.
Sir H. Shawcross, “Speeches of the Chief Prosecuto rs at the Close of the Case Against the Individual
Defendants”, London: H.M. Stationery Office, Cmd. 6964, 1946, p. 63. See A. Cassese, International law (Oxford
2001), p. 249.
72 W.L.R. 827, such a result would jeopardizeat least in Canada a potentially important
progress in the protection of the rights of the person” .7
The necessity, for fundamental reasons of justice, of such a progress has been
recently endorsed also by Canadian legislator. The House of Commons is in fact discussing an
amendment to the State Immunity Act, significantly called ‘Redress for Victims of International
Crimes Act’, providing that
“a foreign state is not immune fro m jurisdiction of a court in any
proceedings that relate to genocide, a crime against humanity, a war crime or
torture”168.
4.87 The judgments of the Italian Corte di Cassazione aim to grant access to justice to
victims of grave breaches of humanitarian law ot herwise deprived of any form of redress. By
avoiding the risk of impunity, such judgments fit in perfectly with the progress just delineated.
C. A CCESS TO JUSTICE
4.88 The right of access to justice, in its double significance of right to a remedy and right
to due process of law, is provided for by all r ecent instruments of human rights protection, and
has to be considered part of customary human ri ghts law. There is an irreducible contradiction
between the acknowledgement of this right to th e individual and the privilege of immunity
granted to the State. In the following paragra phs Italy will evaluate the impact of this
fundamental principle on the application of immunity rules in instances concerning violations of
the most fundamental human rights.
4.89 Even before the emergence of the modern law of human rights the question of an
individual right of access to domestic justice arose in the context of injuri es to aliens. In that
context “access to justice was and remains a component of the complex system of guarantees to
aliens recognized under the law of State responsibility for injuries to nationals of another State,
167
Schreiber v. Federal Republic of Germany and the Attorney General of Canada, [2002] 3 S.C.R. 269, 2002 SCC
168 decision of 12 September 2002, para. 37. th
See Bill C 14 October 2009, 2nd session, 40Parliament, 57-58 Elizabeth II, 2009, House of Commons of
Canada.
73and constitutes the indispensable condition for the operation of the rule of prior exhaustion of
local remedies” 16. In this context, access to justice is an integral part of the guarantees
provided by international sta ndards on treatment of aliens 17, and denial of ju stice has always
been considered a violation of international law. Of course in this particular context the right of
access to justice is limited to the domestic jurisdiction of the State responsible for the violation.
Nevertheless, it is important to note that the ri ght of access to justice has had some recognition
since the first examples of State obligations relating to the treatment of individuals.
4.90 Concerning access to international remedies, as early as after th e First World War,
forms of access to independent authorities for individuals asking compensation for war damages
were established under Article 304 of the Treaty of Versailles. Mixed Arbitral Tribunals were
competent to adjudicate a large variety of claims lodged by citizens of the Allied and associated
powers against Germany, including loss of property for exceptional war measures. The
operation of Mixed Arbitral Tribunals in the post-First World Wa r era contributed significantly
to the development of the principle of direct acc ess for individuals to international adjudication
machinery 171. It also shows the recognition, even before the Second World War, of an individual
right to compensation for some war damage and demonstrates that the idea of direct
participation of the individual in the comp ensation machinery was already accepted by the
international community.
4.91 After Second World War the practice of peace treaties showed a tendency to
return to State-to-State claims. Article 83 of the 1947 Paris Treaty between Italy and the Allied
Powers established the constitution of conciliation commissions to adjudicate claims for
damages suffered by citizens of a United Nations country. In the conciliation procedure the
individual had no role to play; conversely, the claimant State had absolute discretion. It is
interesting to note that the existence of an inter-State mechanism for settlement of compensation
disputes did not deprive the individual of the right of access to domestic jurisdiction. The Italian
Corte di Cassazione , in a series of decisions, asserted the competence of Italian courts to
169
F. Francioni, “Access to Justice in Customar y International Law”, in Francioni (Access to Justice as a
170an Right (Oxford, 2007), p. 9.
171Ibid., p. 10.
F. Francioni, "Access to Justice in Customary International Law”, p. 17.
74 172
adjudicate on lawsuits for compensation bro ught by private actors against the Italian State .
The court affirmed that:
“Art. 78, para. 4, of the Peace Treaty between Italy and the Allied Powers,
in providing that the Italian Government becharged with the obligation to indemnify
citizens of the United Nations for loss su ffered, from wartime events, following
injury or damages caused to their property in Italy, gives rise, along with an
international obligation of the Italian State vis-à-vis the other Contracting States, to a
direct legal relation of a binding character,between the first State and the individual
citizens of the United Nations. Such relation, complete in all its essential elements, is
immediately effective in the domestic le gal system […] and therefore […] it is
actionable by the same citizens before Italian courts. To this effect no obstacle can
be found in the jurisdictional competence re served by Art. 83 of the Treaty to the
Special International Conciliation Commission with regard to disputes arising from
the above-mentionedArt. 78, in that such inte rnational jurisdiction can be resorted to
only by the Contracting States and by no means has been intended to provide a
173
domestic legal remedy open tothe individual citizens concerned.”
4.92 Furthermore, Italian case law also qualif ied as legal rights act ionable in Italian
174
courts the claims of Italia n citizens of Jewish origin . Thus, relevant Italian case law
concerning the responsibility of the Italian State for war damages is consistent in affirming the
individual right to reparation and the individual right of access to justice. In the argument of the
Corte di Cassazione, only the existence of an alternative international procedure directly open to
individuals seems to be appropriate for excluding access to domestic remedies 175. In fact, only
under this condition can the fundamental principle of access to justice embodied in Article 24 of
the Italian Constitution, which, as we will see, is today also recognized by general international
law, be respected.
172See Corte di Cassazione, sezioni unite, 13 November 1974, n. 3592, English translation in 2 Italian Yearbook of
International Law (1976), p. 364.
173Corte di Cassazione, Ministero del tesoro c. Soc. Mander Bros Ltd , n. 107, 14 January 1976, in Foro italiano
(1976-I), c. 2463. English translation with comment by F. Francioni, in 3 Italian Yearbook of International Law
(1977), p. 347 et seq.
174See G. Sacerdoti, “L’assimilazione degli ebrei italiani ai cittadini deNazioni Unite nell’applicazione del
Trattato di pace”, in Rivista di diritto internazionale(1972), p. 468.
175On this point see esp. Corte di Cassazione, sezioni unite, 13 November 1974, n. 3592.
754.93 Since the first development of international human rights law the idea of the need to
grant remedies in case of violation has also de veloped. As there is no right without remedy,
almost all catalogues of human rights approv ed since the Universal Declaration of Human
Rights of 1948 include provisions relating to access to justice a nd remedies, at least at the
domestic level. Article 8 of the Universal Declaration provides “the right to an effective remedy
by the competent national tribunals for acts viol ating the fundamental rights granted him by the
constitution or by law”. Article 2(3) of the Inte rnational Covenant on Civil and Political Rights
obliges States Parties to “ensure that any pers on whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity”. On the terms of Article 13 of the European
Convention of Human Rights “[e]veryone whose rights and freedoms as set forth in this
Convention are violated shall have an ef fective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an official capacity”.
Article 25 of the American C onvention on Human Rights grants the “Right to Judicial
Protection” to everyone “agains t acts that violate his funda mental rights recognized by the
constitution or laws of the Stat e concerned or by this Conven tion, even though such violation
may have been committed by persons acting in th e course of their offi cial duties”. Article
7(1)(a) of the African Charter on Human and Peoples’ Rights grants everyone the right to “an
appeal to competent national orga ns against acts violating his fundamental rights as recognized
and guaranteed by conventions, laws, regulations and customs in force”. Finally, the Charter of
Fundamental Rights of the European Union es tablishes that “every one whose rights and
freedoms guaranteed by the law of the Union are violated has the right to an effective remedy
before a tribunal”. In all these c onventions, the right to an effec tive remedy is strictly linked to
the right to a fair trial, provided under the same articles (as is the case for the Universal
Declaration, the African Charter and the European Union Charter) or under a different article of
the same Convention (Article 6 in the Euro pean Convention, Article 8 in the American
Convention). In fact States are generally obliged to provide effective judicial remedies to the
victims of human rights violations according to the rules of due process of law.
4.94 Thus, the right of ‘access to justice’ is conceived in all systems of human rights
protection as a necessary complement of the righ ts substantively granted. Accordingly, it is not
76surprising that the Inter-American Court of Hu man Rights has described access to justice as a
peremptory norm of international law in a case in which the substantive rights violated were also
granted by jus cogens norms 17.
4.95 The right of access to justice is not limited to the right to a judge. Historically, access
to justice can be regarded as part of the core contents of the prin ciple of the rule of law, and it
also incorporates the rights to due process and a fair trial. All European constitutions which
provide for the right of a ‘natural judge’ (see Article 101 of the German Constitution, Article 24
of the Italian Constitution, Article 83 of the Austrian one, Article 13 of Chapter II of the Belgian
one, Article 13 of the Constitution of Luxembour g, Article 38 of the Constitution of the Czech
Republic, Article 24 of the Spanish Constitution) ha ve to be interpreted accordingly. They all
provide a right to a court established by law and in consequence a right to an independent and
impartial trial177. Article 6(1) of the European Convention of Human Rights represents the most
complete catalogue of necessary elements of a due process in civil matters.
4.96 Thus, at least the right to access to domestic justice has to be considered granted by
international law and to be termed a human right. Of course, the right of access to a court and of
due process of law is not absolute. Indeed it may be subject to limitations. In particular, respect
for sovereign immunity has been considered such a legitimate limitation. Germany relies on the
European Court of Human Rights to assert that there is no inconsistency between the human
right of access to justice and State immunity 17. Italy considers that no one of the cases cited by
Germany prevents international practice from fu rther developments in line with rule-of-law
principles.
176Case of Goiburú et al. v. Paraguay , Merits, Reparations and Costs, judgment of September 22, 2006, Series C,
177 153, para. 131.
See E. Storskrubb and J. Ziller, “Access to Justice in European Comparative Law”, in F. Francioni (ed.), Access
178Justice as a Human Right (Oxford, 2007), pp. 178-180.
GM, p. 71 et seq.
774.97 Concerning the Al-Adsani case, it is to be stressed that the European Court did not
“find it established that there is yet acceptance in international law of the
proposition that States are not entitled to i mmunity in respect of civil claims for
179
damages for alleged torture committed outside the forum State” .
Thus the Court left open the possibility of a further evolution in the immediate future.
Moreover, it is worth noting that almost all in ternational-law scholars who are members of the
Court considered that a consistent interpretation of the “now vertical international legal system”
would have already led to the lo ss of State immunity in that case; the minority judges sharply
criticized the decision held by the majority, considering that
“The majority, while accepting that the rule on the prohibition of torture is a
jus cogensnorm, refuse to draw the consequences of such acceptance” 180.
4.98 The suggestion of a possible development of international law toward the restriction
of immunity in relation to Stat e crimes is even clearer in Grozs v. France, where the European
Court clarifies that the conclusion according to which, at the present state of international law,
the recognition of State immunity is not contrary to the right of access to justice
181
“does not exclude the future developm ent of customary or treaty law.”
4.99 The 1999 Report of the Working Group on Juri sdictional Immunities of States and
their Property drawn up by the International Law Commission has to be considered along the
same line. The Working Group affirmed that the que stion of denial of immunity in the case of
injury resulting from acts of a State in violati on of human rights norms having the character of
jus cogens was a relevant development in internat ional immunity law that “should not be
ignored”. 182 Unfortunately, further codification wor k, until the approval of the United Nation
Convention on Jurisdictional Immunity of States and Thei r Properties in 2004, did not follow
the Working Group’s advice. Nevertheless the position of the Working Group, like the judgment
179Application no. 35763/97, judgment of 21 November 2001, para. 66 (emphasis added).
180Joint Dissenting Opinion of Judges Rozakis and Caflisch Joined by Judges Wildhaber, Costa,
Cabral Barreto and Vajić, para. 4.
181Application no. 14717/06, judgment of 16 June 2009, p. 7.
182Report of the Working Group on jurisdictional immunities of States and their property, YbILC 1999, vol. II, Part
Two, pp. 149-173, at 171 et seq.
78of the European Court, demonstrat es how international law in this field is subject to important
developments. The jurisprudence of the Italian Corte di Cassazione is perfectly consistent with
such developments.
4.100 A further important aspect of the European Court of Human Rights case law
concerning the relationship between immunity a nd access to justice needs to be stressed. The
European Court has, in fact, always recalled that the limitation applied to the right of access to
justice must “not restrict or reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired” 183. As a consequence of this principle, the
Court has sometimes evaluated the availability to the applicants of reasonable alternative means
to protect their rights effectively. In Waite and Kennedy v. Germany , and in Beer and Regan v.
Germany, for example, the Court considered that the jurisdictional immunity in labour litigation
granted to the European Space Agency was a le gitimate limitation of the right of access to
justice of the employed persons because the agreement between Germany and the Agency
“expressly provides for various modes of settlement of private-law disputes, in staff matters as
well as in other litigation” 18. In McElhinney v. Ireland, the Court noted that it would have been
“open to the applicant to bring an action in Northern Ireland ag ainst the United Kingdom
Secretary of State for Defence” 185; such a possibility had alrea dy been indicated by the United
Kingdom’s representatives at the beginning of the proceedings befo re Irish domestic courts, so
that it was the injured person ’s own choice not to seek repa ration directly in the United
186
Kingdom legal system .
4.101 In conclusion, access to justice is a fundame ntal guarantee of respect for the rule of
law in modern democracies. Inte rnational rules on State immun ity from jurisdiction cannot but
be balanced against respect for this principle. The restriction of immunity in cases of individuals
bringing lawsuits to obtain redress for a grave breach of the most fundamental principles of
human dignity granted by jus cogens rules seems to be a reasonably balanced solution.
183 Al-Adsani v. United Kingdom , Application No. 35763/97, judgment of 21 November 2001, para. 53;
Kalogeropoulou and others v. Greece and Germany, Application No. 59021/00, decision of 12 December 2002, p.
7-8; Waite and Kennedy v. Germany [GC], No. 26083/94, judgment of 18 February 1999, para. 59; McElhinney v.
Ireland, Application No. 31253/96, judgment of 21 November 2001, para. 34; Fogarty v. United Kingdom ,
Application no. 37112/97, judgment of 21 November 2001, para. 33; Beer and Regan v. Germany, Application No.
28934/95, judgment of 18 February 1999, para. 49.
184Beer and Regan, para. 59; Waite and Kennedy, para. 69.
185McElhinney v. Ireland, Application no. 31253/96, judgment of 21 November 2001, para. 39.
186
See para. 39 and para. 11 of the judgment.
79 D.C ONCLUSIONS
4.102 In this Section Italy has shown the evolution of international law toward the
recognition of fundamental values that must be protected in any circumstance. The paramount
importance attributed by the international-law community to those values is testified by their
inclusion in jus cogens rules of international law and by th e necessity to punish, in accordance
with the requirements of international criminal law, State organs that have committed acts
contrary to those values. Moreover, recent deve lopments concerning the individual right of
access to justice testify that the primary object of this evolution in the protection of human
dignity is the fundamental rights of every individual person.
4.103 Italy considers that the interplay of the immunity principle with other rules of positive
international law endorsing valu es of paramount importance sh all be assessed taking into
account the hierarchical superiority of the latter. When the victim s of violations of fundamental
rules of the international legal order, deprived of any other means of redr ess, resort to national
courts, the procedural bars of State immunity cannot bring the eff ect of depriving such victims
of the only available remedy. As Italy will demonstrate in the next Section, the implication of
the immunity principle cannot be impunity.
Section IV. Immunity Cannot Mean Impunity
4.104 Section II of this Chapter has demonstrat ed that the law on State immunity has
undergone a process of progressive redefinition of its scope of application. The evolution of the
law of State immunity has involved a shift away from an absolute immunity to a restrictive
immunity. Even the distinction between acta jure imperii and acta jure gestionis no longer
represents the dividing line between State activiti es that are covered by immunity and activities
that do not enjoy immunity, as under certain circumstances a St ate may not be entitled to
immunity even for conduct which falls within the category of acta jure imperii.
4.105 Nowadays, the most contentious issue aris ing in the field of the law of State
immunity is to establish whether a State is en titled to immunity in cases where the breach by
that State of fundamental rules of international law is at issue. This is not an issue which has
been suddenly unearthed by the Italian Corte di Cassazione with the Ferrini judgment, as
80sometimes Germany appears to suggest. Nor is it a subject which, until the Ferrini judgment,
was merely confined to a scholarly debate. In fact, there are signs which show that,
independently of the Ferrini judgment, this issue has alr eady acquired and is increasingly
destined to acquire great significance. This is clearly shown by the fact that already in 1999 the
ILC’s Working Group on Jurisdicti onal Immunities of States a nd their Properties noted that
“there has been an additional recent development in State practice and legislation on the subject
of immunities of States since the adoption of the draft articles”:
“This development concerns the argument increasinglyput forward that
immunity should be denied in the case of d eath or personal injury resulting from acts
of a State in violation of human ri ghts norms having the character of jus cogens,
187
particularly the prohibition of torture” .
4.106 The fundamental developments in international law examined in Section III have set
a process into motion that inevitably also affects the law of State immunity. These developments
compel reconsideration of the a pplicability of the rule of immun ity at least in those cases in
which the recognition of immunity would lead to a result which is irreconcilable with the basic
principles underlying these developments. The e nd results of such a pr ocess are to a certain
extent still surrounded by uncertainties. In particular, it is not ye t clear whether it would lead to
a new rule denying in general te rms the immunity of the State in respect to violations of
fundamental norms of international law. However, Italy submits that certain conclusions which
affect the applicability of the ru le of State immunity and are relevant to the settlement of the
present case may already be deduced from the existing general principles.
4.107 Before addressing this point, it may here be appropriate to mark the difference
between the approach followed by Germany as regards the point of law at issue in the present
case and the position defended by Italy. Germany argues that Italy committed a violation of
Germany’s jurisdictional immunity since there is no rule of general international law permitting
the removal of immunity in cases involving clai ms for reparation against a State responsible for
the violation of fundamental nor ms of international law. Germ any’s main argument in this
187YbILC 1999, Vol. II, Part Two, p. 172, para. 3 (emphasis added).
81respect is that the existence of such an exception to immun ity is not supported by general
188
practice or the opinio juris .
4.108 Germany’s approach is misleading. The quest ion at issue in the present case is not
whether there is a widespread and consistent practice, supported by the opinio juris, pointing to
the existence of an international customary rule permitting in general terms the denial of
immunity in cases involving gross violations of international humanitarian law or human rights
law. Italy is not asking the Court to anticipate events and to declare that a rule to that effect is
already part of international customary law. In other words, Italy is not asking the Court to
embark on an exercise de lege ferenda. Indeed, there is no need in the present case to rely on
such a general exception. The c onduct of Italian judges may be justified by reference to an
exception to immunity which is far more limited in scope but whose existence may clearly be
inferred from the fundamental principles of c ontemporary international law described above in
Section III.
4.109 When fundamental values of general interest for the inte rnational community are at
issue, contemporary international law does not tolerate the use of immunity as a tool for
exonerating a State from bearing the consequences of its unlawful acts. Jurisdictional immunity
is a procedural rule that cannot exempt the State from its responsibility towards other States and
towards individuals who personally suffered as a consequence of a violation of international
humanitarian law and human rights committed by that State. In cas es of violation of
fundamental rules, the developm ents in contemporary internati onal law show a shift of the
balance between sovereign immunity and a ccountability in the direction of greater
accountability.
4.110 The conclusion to be drawn is not that im munity must always be denied in cases
involving claims for reparation agai nst a State for grave violations of fundamental rules. Italy
sees no inconsistency between State immunity and the protection of fundamental values of
human dignity whenever other mechanisms are av ailable to the victims seeking reparation. The
problem arises when, as in the present case, othe r mechanisms are not available, either because
negotiations between the States concerned did not lead to a se ttlement capable of ensuring a
form of reparation to the victims of the grave vi olations of fundamental rules, or because the
188GM, para. 55.
82authorities and judges of the responsible State re fuse to address the claims for reparation. When
mechanisms for redressing grave violations of fundamental rules are not put in place by the
State which is responsible for such violations , then resort by the in dividual victims to the
judicial authorities of the forum State constitu tes in fact the ultimate and sole avenue for
obtaining redress. In such a situation, the St ate which has committed grave violations of
fundamental rules cannot be regarded as being entitled to invoke immunity for its wrongful acts,
even if these acts are to be qualified as acta jure imperii. If granted, immunity would amount to
an absolute denial of justice for the victims and to impunity for the State.
4.111 The international legal orde r cannot, on the one hand, esta blish that there are some
fundamental substantive rules, which cannot be derogated from and whos e violation cannot be
condoned, and on the other grant immunity to the author of violations of these fundamental rules
in situations in which it is clear that im munity substantially amounts to impunity. The
paramount importance of the primary rules has as a necessary corollary that in case of breach of
these rules the author of the breach must be held accountable and cannot avail itself of rights
granted to it by other rules of international law in order to avoid the legal consequences
stemming from its unlawful conduct.
4.112 In its judgment in Arrest Warrant of 11 April 2000, this Court observed:
“The Court emphasizes, however, that the immunity from jurisdiction
enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy
impunityin respect of any crimes they might have committed, irrespective of their
gravity. […] Jurisdictional immunity may well bar prosecution for a certain period
or for certain offences; it cannot exonerat e the person to whom it applies from all
189
criminal prosecution.”
4.113 The Court’s statement mainly intended to c onvey the idea that in principle immunity
is reconcilable with the need to ensure that the author of a wr ongful act be held accountable for
his conduct. Yet a further message may be read off the Court’s statement, namely that immunity
cannot be used as a tool for exonerating the author of a wrongful act from bearing the
consequences of his faults. Italy submits that the message underlying the Court’s statement is of
189I.C.J. Reports 2002, para. 60.
83great legal significance particularly in cases involving claims for reparation against a State
responsible for violations of fundamental rules of international law. It implies that a State is not
entitled to invoke immunity if granting immunity would substantially amount to exonerating the
State from bearing the consequences of its unlawful acts.
4.114 It is surprising that Germany itself, when defining the function of the rule of State
immunity in contemporary international law, ap pears to reach the same conclusion. According
to Germany:
“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 systémique au sein du droit des gens’, namely toentrust other mechanisms
than the judicial authoritie s of the forum State with the regulation of reparation
claims.” 190
4.115 Italy fully subscribes to this statement. At the same time, however, Italy asks
Germany to accept the inescapable conclusion inhere nt in this statement: if immunity does not
serve the purpose of protecting a State against the judges of anot her State but rather that of
entrusting “other mechanisms than the judicial authorities of the forum State with the regulation
of reparation claims”; then, when all other mech anisms put in place by the responsible State
have proved to be unable to pr ovide any form of redress to individuals claiming reparation,
immunity loses its primary func tion and the judicial authoritie s of the forum State can be
entrusted with the regulation of the reparation claims.
4.116 Remarkably, in order to support its claim fo r jurisdictional immunity before Italian
courts, Germany repeatedly resorts to the argument that “the damage entailed by a breach of
fundamental rules during armed conflict can be repaired in many different ways, in particular on
191
an inter-State level” . In principle, this argument is unobjectionable. When damages can be
repaired in other ways, including through mech anisms established on the basis of specific
conventional understandings, there is no reason for derogating from the principle of
jurisdictional immunity of States. The fact is, however, that in the present case the measures
190GM, para. 55 (emphasis added).
191GM, para. 32. See also ibid., para. 59.
84adopted so far by Germany, both under the relevant agreements and as unilateral acts, have
proved completely insufficient. Th ey did not cover several categor ies of victims, who were in
fact denied any legal avenues for obtaining reparation. In its Memorial Germany has
acknowledged this situation and sought to justify it by referring to the waiver clauses contained
in the 1947 Peace Treaty and the 1961 Agreements between Italy and Germany. As will be
shown in Chapter V, Germany’s reliance on the wa iver clauses is completely mistaken. For the
purposes of the present Chapter, it suffices to note that Germany cannot base its claim for
jurisdictional immunity on the argument that th e damage suffered by Italian victims could be
repaired in other ways than by resorting to Italian judges. In fact, no other ways were offered to
Italian victims. Italy submits that, under these particular circumstance s, Italian judges were
entitled to deny Germany immunity from jurisdiction.
Section V. Conclusions
4.117 Italy acknowledges that jurisdictional immunity of States is a fundamental rule of the
international legal order. As has been shown in this Chapter, this rule has evolved over time in
the direction of a progre ssive restriction of the scope of St ate activities covered by immunity.
Moreover, significant developments in international law – such as, in particular, the recognition
of the existence of international rules having a jus cogens character, the formation of a body of
rules criminalizing the conduct of individuals responsible for specified international crimes and
the increasing acceptance of the existence of a ri ght of access to courts by individuals – are
inevitably having an impact on the rule of i mmunity. The most notable consequence in this
respect is the fact that under certain circum stances the recognition of immunity may be
precluded by the need to avoid situations whic h appear to be irreco ncilable with the basic
principles underlying these developments. In particular, Italy has shown that, in cases involving
claims for reparation against a State responsib le for grave violations of international
humanitarian law and human rights law, immunity must be denied when, if granted, it would
amount to an absolute denial of justice for th e victims and to impun ity for the State. The
importance of this exception to immunity for the purposes of the present case will be revealed in
the chapters that immediately follow. In Chapte r V Italy will address the issue of reparation
owed by Germany to Italian victims of its grave breaches of international humanitarian law; it
will demonstrate that no alternative mechanisms for the settlement of the claims for reparation
85by Italian victims have been put in place by Ge rmany in the more than 60 years since those
crimes were committed. In Chapter VI Italy will examine the facts bearing on Italy’s compliance
with the legal obligation described in this Chapter; it will demonstrate why the Court must reject
Germany’s argument that Italy committed violations of its legal obligation to grant immunity to
Germany.
86 CHAPTER V
REPARATION
Section I. Introduction
5.1 It is an undisputed principle of law that all unlawful acts causing damage must be
redressed. This principle has been restated several times by a vari ety of authorities under both
national and international law, and courts of just ice have always had a cr ucial role in ensuring
respect for this pillar of the rule of law. A cursory look at municipa l systems highlights the
192
fundamental nature of this principle . The basic principle goes back to Roman Law (see e.g.
the lex aquilia of 287-6 B.C.) and reaches our days. It may suffice to look at Article 2043 of the
193 194
Italian Civil Code , Article 1382 of the French Civil Code , Section 823 of the German Civil
195
Code . In international law the principle equally applies. The draft articles on State
responsibility provide that “every internationally wrongful act of a State entails the international
responsibility of that State” (Article 1) and that “[the] responsible State is under an obligation to
192See C. Tomuschat, “La protection internationale des victimes”, in 18 Revue universelle des droits de l’homme
(2006), pp. 1-11, at 3.
193Article 2043 Risarcimento per fatto illecito – “Qualunque fatto doloso o colposo, che cagiona ad altri un danno
ingiusto, obbliga colui che ha commesso il fa tto a risarcire il danno”. (Our translation: Reparation for tort (non-
contractual) liability - “Any act committed either with intent or w ith negligence causing an unjustified injury to
194ther person obliges the person who has committed the act to compensate damage”.
Article 1382 (Créé par Loi 1804-02-09 promulguée le 19 février 1804) - “Tout fait quelconque de l'homme, qui
cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer”.
195§ 823 BGB, Schadensersatzpflicht “(1) Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit,
die Freiheit, das Eigentum oder ein sonstiges Recht ei nes anderen widerrechtlich verletzt, ist dem anderen zum
Ersatz des daraus entstehenden Schadens verpflichtet. (2) Die gleiche Verpflichtung trifft denjenigen, welcher
gegen ein den Schutz eines anderen bezweckendes Gesetz verstößt. Ist nach dem Inhalt des Gesetzes ein Verstoß
gegen dieses auch ohne Verschulden möglich, so tritt die Ersatzpflicht nur im Falle des Verschuldens ein.” (Section
823, Liability in damage “(1) A person who, intentionally or negligen tly, unlawfully injures the life, body, health,
freedom, property or another right of another person is liable to make compensation to the other party for the
damage arising from this. (2) The same duty is held by a person who commits a breach of a statute that is intended
to protect another person. If, according to the contents of the statute, it may also be breached w ithout fault, then
liability to compensation only exists in the case of fauÜbersetzung des Bürgerlichen Gesetzbuches durch ein
Übersetzer-Team des Langenscheidt Übersetzungsservice . Translation provided by the Langenscheidt Translation
Service. © 2009 juris GmbH, Saarbrücken).
87make full reparation for the injury caused by the inte rnationally wrongful act’ (Article 31.
Emphasis added).
5.2 In this context, reference is often also made to the well-known Chorzów Factory case
(1928), where the PCIJ clarified that
“The essential principle contained in the actual notion of an illegal act – a
principle which seems to be established by international practice and in particular by
the decisions of arbitral tribunals – is that reparationmust, as far as possible, wipe
out all the consequences of the illegal actand reestablish the situation which would,
in all probability, have existed ifthat act had notbeen committed.” 196
There is no need to recall the numerous instan ces in which this Court as the principal
organ of world justice has clearly restated this principle. And this principle applies also in time
of war and in particular regardi ng territories under foreign occupation; in this regard this Court
appears to have been very clear in recognizi ng, under the specific circumstances of military
occupation, an explicit obligation of States vis-à-vis indi vidual victims of se rious violations of
international law. For example, in the Wall Advisory Opinion the Court recognized the
obligations of Israel “to compensate […] all natural or legal persons having suffered any form of
material damage as a result of [the unlawful act]” 197.
And it might be worth emphasizing that the violations underlying the present dispute
were committed by the Third Reich against It alian victims while Germany was effectively
198
acting as an occupying power over large parts of the territory of Italy .
5.3 In the present case, there are several intertwi ned issues that justif y a slightly deeper
examination of the matter, which revolves around the issue of understanding how State
responsibility operates in the fram ework of IHL. Given that the specific purpose of IHL is to
provide persons with enhanced pr otection during armed conflicts it would be hard to consider
that the régime of responsibility be less demandi ng than under general international law. On the
contrary, the reparation obligations are imposed on States to further strengthen the probability of
196
197P.C.I.J., Series A, No. 17, p. 47 (emphasis added).
198I.C.J. Reports 2004, para. 153.
This is admitted by Germany. See GM, para. 13.
88compliance with the primary rules. Allowing Stat es to set aside reparation obligations would
have the undesirable effect of lowering the guarantees of implementation.
5.4 The relevant norms, which are enshrined both in treaties ratified by the Parties to this
dispute and in customary international law, will be discussed below.
5.5 This Chapter will establish three key points underlying the present dispute:
(a) Germany has obligations of reparation arising out of the seri ous violations of IHL
committed by the Third Reich against Italian victims as recognized, confirmed and renewed by
Germany itself through the 1961 Agreements; (b) the measures adopted so far by Germany
(under both the relevant agreements and unilateral acts) have proved insufficient for several
reasons (and above all for the fact that they did not cover all victims and did not provide
effective reparations ); hence, (c)Germany is still under an ongoing obligation , clearly
recognized by the 1961 Agreements, to make reparations for the unlawful acts committed by the
Third Reich, which have not yet been repaired.
These three elements must be taken into account since they are essential in trying to
clarify and understand the factual and legal bac kground against which the decisions of Italian
judges relating to immunity were adopted (as further explained in Chapter VI below). These
elements are also necessary to set the real subs tance of the present dispute and the third one is
clearly at the very basis of Italy’s counter-claim.
5.6 Before moving more specifically to these th ree key points, however, it is appropriate
to sketch a general outline of the reparation régime for serious violations of IHL, emphasize its
non-derogable character, and highlight the prevaili ng trends under international law to
strengthen the rights of individuals to obtain re paration for serious viol ations of human rights
and of IHL. In particular, since these bodies of law have the specific purpose of ensuring the
protection of persons, the relevant reparation régimes appear to be inspired by the common goal
of ensuring the highest standards of protection for individual rights.
89 Section II. The General Principle of Effective Reparation for Serious Violations of IHL
A.T HE R EPARATION R ÉGIME FOR SERIOUS V IOLATIONS OF IHL
5.7 There are two main points which must be dealt with. First, the foundation and scope,
as well as the object and purpose, of the principle that States must be liable to pay compensation
for violations of IHL committed by their armed forces. Secondly, it is important to understand in
which way(s) States can discharge their obligations to make reparations for serious violations of
IHL, and whether or not there are limits to their discretion in the implementation of these
obligations. And this is indeed the most delicat e aspect of the present dispute, on which Italy
and Germany might have different views.
5.8 A preliminary clarification is apposite: here reference is not made to the entire, and
largely undefined, set of reparations owed at th e end of a conflict by a State for damage and
suffering caused by that State during the war. The focus must be only on the much more limited
régime applicable to serious viol ations of IHL (i.e. wa r crimes) attributable to the belligerents,
which does not necessarily equate to the broader régime of war reparations.
5.9 The reparation régime for serious violations of IHL finds its hi storical roots in
Article3 of the 1907 Hague Convention IV, whic h admittedly was broader in scope (covering
all violations in a more undefined wa y) but captured the need for an explicit provision on
reparation to avoid compensation claims being simply wiped out by post-c onflict agreements,
as had regularly occurred in the nineteenth century9.
According to this principle “[a] belligerent party which violates the provisions of the
[…] Regulations [annexed to the Convention] shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons forming part of its armed
200
forces” .
No such provision existed in prior tr eaties; neither the 1864 and 1906 Geneva
Conventions nor the 1868 Sain t Petersburg Declaration nor the 1899 Hague Conventions
199
200ICRC Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949, para. 3646, p. 1053.
Article 3 HC IV 1907.
90 201
contained rules on this point . These instruments did not specifically provide for any
obligation to make reparations for damage cau sed during the war because the approach taken
was that States were free to handle the matter through bilateral or multilateral treaties, concluded
at the end of the hostilities. The consequence wa s generally that reparations were made only by
the vanquished States in favour of victorious Powers 202. Against this background, in 1907 States
thus decided, on the basis of a German proposal , to specifically impos e a general obligation
203
incumbent on all Parties to a conflict to make reparations . The adoption of such a provision is
a clear indication that ther e was the conviction that specific regulation of the obligation of
reparation was necessary, in order to avoid unfair post-war solutions.
5.10 Hence, Article 3 Hague Convention IV, on the one hand, amounts to an application to
IHL of the broader principle of State responsibility under general international law. However, on
the other hand, it is the first provision laying down the essen tial elements for a specific
reparation régime for violations of IHL, whic h implies that the provision aims at something
more than merely restating the general principle of State responsibility for unlawful acts. In this
regard, Article 3 certainly aims at triggering a broader set of c onsequences for States Parties,
including at least establishing the principle that reparation must take the form of compensation
and must be effective (i.e. must reach the individual victims and be satisfactory).
5.11 The obligation to make reparations is not imposed in the exclusive interest of the
States concerned; it is rather conceived as a form of additional guarantee to ensure compliance
with the provisions of the Convention and ultimately it should protect the interests of the victims
of the violations. Arguably, the in tent of such a provision could not be merely to restate the
general principle of State responsibility for unl awful acts. The drafters obviously sought to go
further through a set of implicit corollaries that are to be derived by the interpreter from the
logic of the system, which is premised on the assumption that the protection afforded by IHL
must apply beyond States’ interests.
201See A. Zemmali, “Reparations for victims of violations of international humanitarian law”, iNetherlands
Institute of Human Rights (ed.) SIM Special no. 12 (1992), pp. 61-73, online at
http://www.uu.nl/NL/faculteiten/rebo/organisatie/departementen/departem…
202centra/studieeninformatiecentrummensenrechten/publicaties/simspecials/12/Documents/12-07.pdf, at 65.
203ICRC Commentary at pp. 1053-55.
Zemmali, supra note 201, p. 65.
91 Therefore, even though Article 3 may seem to merely restate the principle that an
unlawful act entails State responsibility, on a closer reading it cl early appears that it does much
more than that. In the light of the context and of the subs equent practice and progressive
clarification of the rules flowing from this basic principle two main further consequences can be
identified: first, reparation claims cannot be merely waived at the end of the conflict; secondly,
States, although they can enter into agreements to regulate th e forms, means and methods of
reparation, must ensure effective reparation to the victims.
5.12 This implied meaning of the provision of Article 3 has been confirmed by the
evolution of the relevant normative framework, which still considers the text of this provision as
the fundamental bedrock of the entire reparation régime for serious violations of IHL.
As is well known, today the same provision is reproduced verbatim in Article 91 of
the 1977 First Protocol to the 1949 Geneva Conventi ons, and represents (as it did already at the
time of its adoption) customary international la w. As stated in the ICRC Commentary to the
First Protocol “Article 91 literally reproduces Article 3 of the Hague Convention Concerning the
Laws and Customs of War on Land of 1907, and does not abrogate it in any way, which means
that it continues to be customary law for all nations.” 204
The ICRC Commentary also appropriately specifies that
“[such] a provision […] co rresponded to the general principles of law on
international responsibility. Moreover, any recourse by wronged persons to the law
was considered illusory if this could not be exercised against the government of the
perpetrators of these violations, through their own government.” 205
The primary purpose of this provision was to impose some limitations on the
discretion of States to make post-war agreements to settle compensation claims. The
Commentary does not at all exclude that the principle had broader implications and the
subsequent developments of the law spelled out what these implications were (i.e. the reparation
system ought to be non-derogable and compensa tion had to be effective). The idea already
204ICRC Commentary, para. 3645, at p. 1053 (emphasis added).
205Ibidem.
92implicit in Article 3 was that violations of IHL had to engage an obligation of effective
reparation towards individual victims.
5.13 It is precisely against this background that the Diplomatic Conference of 1949
revisiting IHL adopted an arti cle common to the four Geneva Conventions (Convention I,
Article 51 ; Convention II, Article 52; Conventi on III, Article 131; Convention IV, Article 148)
entitled “Responsibilities of the Contracting Parties”, which reads as follows:
“No High Contracting Party shall be a llowed to absolve itself or any other
High Contracting Party of any liability incurred by itself or by another High
Contracting Party in respectof breaches referred to in the precedingArticle.”
This provision, which again corresponded to customary law, seeks to
“prevent the vanquished from being compelled in an armistice agreement or
peace treaty to renounce all compensation duefor breaches committed by persons in
206
the service of the victor.”
The underlying idea, however, preexists th e Geneva Conventions, which merely
restate what was already implicit in the system.
These provisions (Articles 51, 52, 131 and 148, 1949 Geneva Conventions) clearly
refer to the liability of States for the breaches of IHL for which individuals are to be held
criminally responsible (i.e. war crimes). It na turally covers reparations and it has the specific
purpose of avoiding the paradoxical consequence that individuals be punished while the State in
whose behalf they have acted be absolved of a ll responsibility [e.g. this would be the case with
German cases pending before Italian criminal cour ts for the massacres of Civitella, Marzabotto,
Sant’Anna di Stazzema, in which the plain tiffs participate in the proceedings as parties civiles
(and hence with the specific pur pose of seeking reparations) and have, following the logic
inherent in these provisions, filed claims against not only the defendants but also Germany].
5.14 The Geneva Conventions provisions, although new in their drafting, are not at all new
in their content. They simply represent a clar ification and explanati on of the consequences
206ICRC Commentary, para. 3649, at p. 1054.
93already underlying Article 3 of Hague Conven tion IV. As clearly stated in the ICRC
Commentary to the Additional Protocols of 1977 re ferring back to the provisions contained in
Articles 51, 52, 131 and 148, Geneva Conventions
“this is clearly the same principle as that contained in the present Article 91
207
[1977 First Protocol] and inArticle 3 of HagueConvention IV of 1907.”
The arguments set out above do not, of couse, mean that States cannot enter into
agreements to organize and appropriately proc eduralize the actual phase of reparations. This,
however, can only be done keeping in mind the foundation and scope of the provisions on
reparations, which is ultimately to ensure effective reparation to the victims of the violations,
and without frustrating their ultimate object and purpose.
B.T HE NON -DEROGABLE CHARACTER OF THE OBLIGATION
OFR EPARATION IN W AR CRIMES CASES
5.15 To shed a clearer light on the reparatirégime for war crimes and to understand
better the logic of the system it is thus a pposite to emphasize the non-derogable nature of the
reparation régime for serious IHL violations on the basis of Articles 6 and 7 Geneva Convention
I 1949, as well as the above-mentioned Articles 51, 52, 131, and 148 Geneva Conventions.
5.16 The 1949 Geneva Conventions contain provis ions (Article 6 Ge neva Convention I,
Article 6 Geneva Convention II, Article 6 Geneva Convention III, and Article 7 Geneva
Convention IV) establishing that
“No special agreement shall adverselyaffect the situation of [protected
persons], as defined by the present Convention, nor restrict the rights which it
confers upon them.”
And there are also other provi sions (Article 7 Geneva Conve ntions I, II and III, and
Article 8 Geneva Convention IV) further specifying that even the protected persons themselves
207
ICRC Commentary, para. 3649, at p. 1054.
94 “may in no circumstances renounce in part or in entirety the rights secured to
them by the present Convention.”
On the basis of these provisions it clearl y appears that neither the State nor the
individual concerned are allowed to agree to any derogation lowering the standards of protection
208
set out in the Conventions .
5.17 Moreover, as mentioned above, under the grave breaches régime the provisions are
also very clear: ”no High Contracting Party shall be allowed to ab solve itself or any other High
Contracting Party of any liabili ty incurred by itself or by a nother High Contracting Party in
respect of breaches referred to in the preceding Article”.
These provisions reflect the assumption underlying the whole body of IHL that States
must not have at their disposal the standards of protection for individuals in their hands. States
cannot trade off the rights of those protecte d by the provisions of IHL by entering into
derogatory agreements. But there is even more; in some instances not even the individuals
concerned are entitled to waive their rights. In other words no derogation in peius is allowed to
the protection régime.
5.18 Hence, there is broad agreement on the f act that already during the Second World
War the law concerning protected persons, and in particular prisoners of war, represented a sort
209
of jus cogens which was largely not at the dispos al of to negotiati ons between States . The
provisions of Article 6 simply clarified and explicitly restated a principle that was already
implied in the previous law.
5.19 The lesson one may draw from these provisions is that of course States are entitled to
conclude treaties on a variety of issues; however, as held by Pr ofessor Tomuschat in his expert
opinion on the Italian Military Internees,
“[such] agreements may not however in any way affect the protected status
of the prisoner of war. The home country too is barred from sacrificing the rights of
208
GM, para. 85 is inaccurate in two respects: first because it denies that non-derogable regimes existed prior to the
recognition of the notion of jus cogens in the Vienna Convention; secondly, because it takes for granted that new
209 may never apply.
ANNEX 8, p. 28 (English translation).
95 its own soldiers who are in foreign custody, in order, say, to secure advantages in
some other area. Of course, at the level ofinternational law the States continue to be
the competent legislators. But they are not entitled to interfere with rights that have
after all been created on the basis of treats put in force by them to protect prisoners
of war.
It is clear that this provision goes back to the negative experiences of the
Second World War, in particular, to the agreements that the French Vichy
government concluded with the German Re ich, and also the arrangement between
Germany and Fascist Italy. Nonetheless, the opinion in the literature is to the effect
that such agreements were unlawful even in the light of the 1929 Convention. Art. 3
of the 1929 Convention did not explicitly regulate the matter, but Art. 83(2)
explicitly refers to the principle of favourableness [“Guenstigkeitsprinzip”]. It is to
be concluded from this that States Par ties were entitled only to conclude such
agreements as provided for yet more fa vourable treatment of prisoners of war.” 210
This clearly means that the minimum standard set by IHL provisions on the treatment of
prisoners of war cannot be lessened neither by mutual agreement between States nor, a
fortiori, unilaterally. Hence this standard should beconsidered as being non-derogable by the
Parties.
5.20 It is important to observe that the ICRC too in its commentary on the GC explains
that
“Nor doesArticle 7 express an entirely novel principle as compared with the
earlier Geneva Conventions.As in the caseof the provision on special agreements, it
embodies the reasonable interpretation implicit in those Conventions. States which
are party to them are required to applythem when certain objective conditions exist;
but there is nothing in the texts which woul d justify those States in taking refuge
behind the will of the "prisoners of war" towithhold application either in entirety or
in part. The authors of those solemn instruments were prompted by a keen desire to
provide war victims with complete pr otection. Had they wanted to make
210ANNEX 8, p. 28 (English translation).
96 concessions to the wishes of those victim s, they would not have failed to provide
safeguards and forms of procedure permitting those wishes to be expressed freely,
knowing as they did how great the possi bilities of misrepresentation were in
211
wartime. They did not do so, however.”
It is therefore clear that th e spirit of the 1949 provisions is the same one as animated
previous undertakings, and this should inspire the interpretati on of the previous Hague and
Geneva law applicable to the cases underlying the present dispute. This perspective should lead
to a reading which implies that it is not for States to decide wh ether or not protection should be
accorded to ‘protected persons’, nor should St ates determine whether or not compensation
should be paid to protected persons who are vict ims of serious violations of IHL. States are
given discretion only as far as the methods and procedures for implementation of these
obligations are concerned. The obligations as such are not negotiable and they must eventually
be fulfilled212.
5.21 The fact that broadly speaking IHL is not based on the principle of reciprocity
testifies to the same logic. IH L does not pose rights and obliga tions in the interests of the
Contracting Parties, but to prot ect persons; thus it logically follows that it cannot allow the
Contracting Parties to engage in negotiations to lessen the standard of protection enshrined in
the relevant provisions or to wa ive such protection altogether. Th is is more than a fundamental
principle of IHL, it is its very raison d’être. To allow States to simply waive the reparation
rights of individual victims of serious IHL violations would amount to depriving the primary
rules of all their strength.
What would be the preventive effect of t hose provisions establishing the standards of
protection, the obligation of reparation and the obligation of punishment of serious violations of
IHL if, after the conflict, the Parties were ent itled to enter into agreements to condone the
violations and wipe out the consequences through inter-state agreements?
211
212ICRC Commentary on the Four 1949 Geneva Conventions, p. 90 (emphasis added).
In a totally different area, relng to EC Directives (which in a way bear some similarities with these
obligations), the European Court of Justice has developed an interpretation whereby States have a primary duty to
implement the Directives and possess broad discretion as to the way in which implementation is to be carried out.
However, if they fail to implement the Directives nationa l judges will be entitled to draw direct effects from the
Directive, or – in case the provisions of the Directive arenot self-executing – States will have to pay compensation.
97 C.T HE NEED FOR ‘EFFECTIVE ’ REPARATION AND THE W AYS
INW HICHS TATES FULFIL THEIR REPARATION OBLIGATIONS
5.22 Finally, there is also another general principle of international law which entails that
reparations must eventually reach the individual victims. This is the general principle of
‘effectiveness’.
The effect of the provisions on reparation examined above may not be circumvented
by simply paying ‘lip service’ to the rightsvictims in Peace Treaties or in other lump-sum
arrangements. It is necessary – if the rule to be respected in substance – that reparations
ultimately be made to the final beneficiaries.
This is a burden which rests both on the St ate which has provoked the violations and
on the State of nationality of the victims.e former cannot simply claim it has fulfilled its
obligations by negotiating with th e latter forms of collective a nd yet undefined reparation. To
fulfil its obligations under intern ational law it must conclude ag reements which possess all the
necessary requirements for ensuring bona fide fina l reparation to individual victims. Any other
solution would frustrate the obj ect and purpose of the provisions on reparations for serious
violations of IHL.
5.23 Now, of course, there is little or no doubt that the issu e of reparations may be settled
and handled by States on the basis of treaties. However, what is really important is to understand
whether States possess unfettered discretion iregulating these matters through bilateral or
multilateral agreements. In this respect, it app ears that there are two requirements that must
apply: (a) the régime of reparations under IHL appears tbe considered non -derogable, thus
States could in no case be entitled to set asid e reparation rights by merely renouncing them in
the name of their nationals; (b) secondly, the right s of individualprovided for by IHL
provisions imply that any inter-s tate arrangement not only cannot lead to completely setting
aside individual reparati ons, but must lead effective reparation, which at least broadly
speaking – implies that the demand of individual victims for justice must somehow eventually
be satisfied.
5.24 As mentioned above, the underlying idea behi nd this obligation is that individuals
must eventually be compensated. The mechanisms are at the disposal of States, which can
98negotiate as they prefer the means and methods for reparation, but the result is not derogable.
From the moment in which there are individual victims of serious violations of IHL who have
not been adequately compensate d, the responsible State is not relieved from its obligations
under the relevant conventions and under international customary law.
5.25 The final relevant issue is, thus, to disc uss how on the conclusion of a peace treaty,
the Parties can deal with the problems relating to compensation for violations occurred during
the war, taking into account that not all of them can be considered serious violations of IHL.
5.26 Broadly speaking, parties can decide most i ssues relating to war damage as they see
fit, including by waiving most claims. However, as far as serious vi olations of IHL are
concerned the situation would seem radically different. In this context Parties are bound
“[not] to forego the prosecution of war criminals, nor to deny compensation
to which the victims of violations of the rules of the Conventions and the Protocol
are entitled.”213
Therefore, States (both the State of the vi ctims and the State which is responsible for
the violations) when negotiating such agreements must ensure that (a) all categories of (if not all
individual) victims of war crimes are covered; (b)there be suffi cient financial means to make
the reparation more than symbolic; (c)there be appropriate mechanisms for ensuring that the
reparation is made to the victims. Thus, it would not be sufficient for a State just to say that the
counterpart agreed to waive all claims in exchange for a sum of money. There must be certainty
that the sum of money is sufficient and appropriate; there must be criteria for the identification
of victims and for its distribution to victims.
213See ICRC Commentary to the Additional Protocols of 1977 to the Four Geneva Conventions of 1949, para.
3651, p. 1055.
99 Section III. Developments in International Criminal Law, Human Rights Law and Other
Relevant Principles Concerning Reparation to Victims of International Crimes
5.27 In order to better clarify the legal context in which the It alian judges operated and to
enable the Court to appreciate the reasons why Italian judges have acted in keeping with
international law, it is apposite to take a look at more recent developments of international law
concerning the rights of victims of international crimes to obtain compensation.
5.28 This brief survey of post Second World Wa r developments concerning the rights of
victims in the field of international criminal law and human rights law helps to set the
background against which the decisi ons of Italian judges are to be evaluated. There has been a
consistent trend starting with the end of the S econd World War in reaffirming that the suffering
of victims of serious IHL and human rights viol ations must receive reparation through effective
measures.
5.29 The arguments set out above concerning th e régime of reparations for serious
violations of IHL are confirmed by the whole process of crimin alization of those violations
amounting to war crimes, as well as of the viol ation of fundamental human rights, amounting to
crimes against humanity and genocide.
5.30 The consistent trend towards the criminalization of serious violations of international
law should not be seen in isolation, merely as a move to punish individuals who have committed
war crimes, crimes against humanity or genocide, a nd leave the responsibilities of States aside.
Criminalization is not a tool for singling out individual responsibility and setting aside the
responsibility of Stat es. This would be a mistaken in terpretation of the provisions on
international crimes. The responsibility of both the individual and the State are simultaneously
engaged by serious IHL violations. As this learned Court observed “[the] duality of
214
responsibility continues to be a cons tant feature of international law” ; international crimes
attract both individual criminal responsibility and State responsibility 215. Criminalization is just
214
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
215zegovina v. Serbia and Montenegro), 26 February 2007, para. 173, see more in general paras. 172-174.
As recalled by the ILC in its Commentary on the Drafts Articles on Responsibility of States for Internationally
Wrongful Acts, Commentary on Article 58, para. 3, “the State is not exempted from its own responsibility for
internationally wrongful conduct by the prosecution and punishment of the State official who carried it out”, YbILC
100an additional tool to strengthe n the chances of respect for IH L provisions. And, as seen above,
an equally strong and non-derogable reparation régi me is also a guarantee that the rules will be
respected.
5.31 The fact that there are no statutes of limita tions for individual criminal responsibility
is the actual counterpart of the prohibition on derogating from the reparation régime. As there is
no possibility to cancel the responsib ilities of individual perpetrators of international crimes, in
the same way there is no option for wiping out St ate responsibility for these crimes, not even
through negotiations with the State of nationality of the victims.
5.32 That there should be no temptation to allow States to free themselves from these
obligations is testified by the evolution of the mechanisms to impose criminal responsibility on
individuals. Originally, the first and priority goal of criminalization rules was to impose on
States the obligation to adopt na tional provisions criminalizing the violati ons and establishing
jurisdiction over them. States were (and still are) under an obligation to prosecute and punish the
offenders; the implementation of these obligations was left to States. However, the obligation
was incumbent not only on the State of nationality of the offender, but also on the State of the
territory in which the crimes were committed and in some instances on all States (e.g. think of
the grave breaches régime). Subse quently, a variety of international institutions were created to
fill the impunity gap. This was mainly a cons equence of the widespread unwillingness or
inability of States to carry out proceedings at national level, and the relative lack of
prosecutions.
5.33 Hence criminalization, before becoming a reality enforced by international
institutions (only in the 1990s), was essentially the object of obligations imposed on States to try
and punish at national level the alleged perpetrato rs of international crimes. In other words,
States had parallel obligations to prosecute and punish indivi dual offenders and to provide
reparation to victims. Both obligati ons have the esse ntial purpose of ensuring that the primary
norms are respected. They are means of guaranteeing compliance with the fundamental rules of
IHL.
2001, Vol. II, Part Two, pp. 142-143. No need to mention that only in very few of the cases underlying the present
dispute Germany did bring to justice the individual perpetrators.
1015.34 The principle that egregious IHL violations are to be criminalized entails two
interlocking corollaries: the obl igation on States to prevent and punish such violations and the
obligation to make appropriate effective reparati ons. Both aspects of the régime are intertwined
and must be considered as havi ng a non-derogable nature, otherwise these tools would lose any
preventive or deterrent effect.
5.35 Against this background it is clear that reparation obligations have not been set aside
by the criminalization of serious violations of IHL. The f act that a number of Third Reich
officials have been prosecuted and punished for war crimes and crimes against humanity does
not per se absolve Germany of its reparation oblig ations. As has been the case with prosecution
and punishment of war criminals, if Germany doe s not carry out the trials by herself it will be
for other States to enforce those obligations.
5.36 Furthermore, in international criminal law there have been major developments
concerning the status of victims with the adopti on of the International Criminal Court Statute
and the establishment of the Tr ust Fund for Victims. These are further testimonies that the
international community has no doubts in recognizi ng that the claims of victims of serious
international crimes cannot be set aside. The criticisms of the UN ad hoc Tribunals, which did
not allow for victim participation, led to the r ecognition of an actionable right of compensation
for victims. The International Criminal Court Stat ute itself did not create th e right of victims to
compensation; it merely recognized that victims had a right to make reparation claims before the
Court. It gave victims a procedural avenue fo r the exercise of their preexisting rights. This
explains why the provisions on victim reparations before the International Criminal Court apply
irrespective of whether the State of nationality of the offender, the victim or the territory where
the crimes were committed is a party to the Statute.
5.37 The trend towards the progressive streng thening of reparation régimes through the
recognition of specific rights for individuals to go before cour ts to obtain reparations is
evidenced by other post Second World War developments.
5.38 Under human rights law and the responsibility régimes associated with it, there has
been a consistent endeavour to grant individuals enforceable rights of compensation. In the
European Convention system as well as in the Inter-American system (and prospectively in the
African system), individuals have been granted a right to obtain compensation from the relevant
102regional courts against States violating the provisions of the Conventions, without any immunity
protection being available.
5.39 The same holds true, although in a radically different context, in the EU system, in
which natural or legal persons can obtain reparation before national courts for failure of Member
States to comply with obligations incumbent on them on the basis of EU law.
5.40 Finally, beside developments in region al human rights conventions and in
international criminal law, there have been vari ous soft-law instruments of universal character,
which confirm an approach to victim rights whic h increases the demand for a direct recognition
of the obligations of States towards individual victims.
5.41 The UN General Assembly has adopted two im portant declarations on the rights of
victims. The first Declarati on, of 1985, essentially deals with the victims of crimes under
domestic law and of abuses of power committed by public authorities even if these abuses are
not criminalized under national law. This Decl aration represents an attempt to build upon the
protection of individual rights vi s-à-vis State authorities along th e lines of traditional human
rights law. At the same time, the Declaration aims at ensuring that States operate to grant a right
to justice and reparation to victims of serious crimes irresp ective of the involvement of public
authorities in such crimes. Specifically, unde r the 1985 Declaration vi ctims are “entitled to
access to the mechanisms of justice and to pr ompt redress, as provided for by national
legislation, for the harm that they have suffered” 216.
5.42 The second UN General Assembly declaratio n was adopted twenty years later, in
2005, and is entitled “Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of Internationa l Human Rights Law and Serious Violations of
International Humanitarian Law”. The 2005 Declaration goes a step further in strengthening the
protection of victims’ rights at the international level. The declaration explicitly affirms that its
binding legal value essentially rest s on pre-existing legal obligations of States. To this end, the
declaration specifically recalls all internationa l human rights and humanitarian law instruments
that grant rights to victims of violations (Article 8 UDHR , Article 2 ICCPR, Article 6
International Convention Against Racial Discrimination, Article 14 CAT, Article 39 Convention
216Declaration of Basic Principles of Justice for Victims of Crime and Abuse of P, GA Res. 40/34 of 29
November 1985, Annex I, para. 4.
103on the Rights of the Child, Article 3 of the Hague Convention of 18 October 1907, Article 91 of
I Additional Protocol of 1977, and Articles 68 and 75 of the ICC Statute) and codifies the rights
attributed by international law to victims of serious crimes.
5.43 The idea is that States are already under va rious obligations to ensure appropriate
reparation to victims of serious violations of in ternational law, including compensation. In this
respect, the declaration is very clear in saying that it does not aim at imposing new international
or domestic legal obligations but (merely) seek s to identify mechanisms, modalities, procedures
and methods for the implementation of pre-exis ting legal obligations (P reamble at § 7). In
particular, paragraph 3(c) of the Resolution ca lls upon States to provide “victims of a human
rights or humanitarian law violation with equal and effective access to justice […] irrespective
217
of who may ultimately be the bearer of responsibility for the violation” .
5.44 All these developments show a widespread recognition of the rights of individual
victims to obtain reparation by presenting claims before a judge (i.e. the so-called right to access
to justice). This right is part and parcel of the notion of the rule of law, which both Germany and
Italy are bound to recognize by their constitutional pr ovisions as well as by treaties to which
they are parties, such as the EU Treaties.
5.45 This is the legal background against which Italian judges were called to pronounce on
the admissibility of victim reparation claims.
Section IV. Germany’s Obligations of Reparation for
Serious Violations of IHL Against Italian Victims
5.46 The events described in Chapter II determ ine the original factual basis for the
obligation of reparation incumbent on Germany under Article 3 Hague Convention III as well as
subsequent amendments and customary rules. It aly is aware that Germany sets forth several
arguments to deny it has reparation obligations or to suggest it has already fulfilled. Italy
assumes that the basis of Germany’s obligation to make reparations to Italian victims of serious
217GA Res. 60/147 of 16 December 2005, Annex (emphasis added).
104violations of IHL is the acceptance of such obligations by Germany through the two Agreements
concluded in 1961 with Italy, which provided for reparations to some Italian victims.
5.47 Germany seems to maintain that reparation claims had been waived by Italy through
the 1947 Peace Treaty, to which Germany is not a party though it claims it may benefit from it.
As is well known Article 77 of the Peace Treaty between Italy and the Allied Powers provides
that
“Without prejudice to these and to any ot her 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 intergovernmental claims in respect of
arrangements entered into in the course ofthe war, and all claimsfor loss or damage
arising during the war.”
This provision cannot, however, be seen as a stipulation in favour of Germany itself
and, even if it were, it could not cover serious violations of IHL.
5.48 Article 77(4) contains no reference to claims arising out of violations of international
law and in particular IHL. Italy, as well as any other State, could not waive the underlying
claims of its nationals since, as shown above, the reparation regime set out by the provisions of
IHL is not at the disposal of the contracting parties. The parties can organize the means and
methods through which reparations be granted bu t cannot simply wipe them out by waiving the
claims.
5.49 Italy wishes to draw attention to three elements which clarify the scope and purpose
of Article 77(4) and indicate that this clause was never intended to c over reparations for war
crimes and other serious violations of IHL. First, there is a systematic and contextual argument.
The focus of Article 77 – in the context of the other paragraphs of the same Article as well as
the other Articles preceding it – is on private-law rights. This implies that this specific provision
is intended as applying to cl aims arising out of commercial and contractual obligations, in
particular “claims arising out of contracts and ot her obligations entered into” as well as “debts”
and “claims in respect of arrangements entered into in the course of the war”. This entails that
105claims arising from violations of the laws of war and humanitarian law attributable to the
German Reich were not included in the scope of Article 77(4). This also follows from the
language used in Article 77(4), “claims […] outstanding on May 8, 1945”, which is appropriate
for contractual claims but not for claims arising out from violations of IHL. In that context, the
term “claims for loss or damage arising during the war” appears to refer to ‘ordinary’ war
damage, in particular damage to property. As clarified by Fitzmaurice, although in a slightly
different context,
“[I]t is far from clear whether this declaration on the part of the Allies
operates as a complete renunciation of a ll possible war claims other than those
specifically covered by theArticles mentioned.In other words, it is not clear that it
necessarily applies to absolve the ex-enemy countries from claims in respect of
actual illegalities or breaches of the rules of war on their part. It is arguable that its
scope was intended to be confined to th e type of claim which can only be made
good against an enemy country by express provision in the Treaty of Peace, and for
which no claim would exist independentlyon the basis of general rules of law.” 218
5.50 Secondly, there is a teleologi cal argument which confir ms the above reasoning. The
Allies had no reason to preserve or shield Germ any from reparation claims, as subsequent
developments have proven. After the war, the Alli es fundamental interest was to be allowed to
use the entire German economic potential for their own purposes. Against this background, it is
improbable that Article 77(4) was intended to re lieve Germany from its responsibilities for war
crimes committed in Italy or against Italian nationals since July 1943. Nor would it be more
logical to argue that the Allies wanted to shie ld Germany from responsibility to compensate
victims of Nazi persecution, which in theory would have been included in a broad reading of the
term ‘all claims’. The fundamental principles of Allied postwar policy in respect of Germany
were to establish responsibility and ensure appropriate reparation as evidenced by the
Agreement for the Prosecution and Punishment of the Major War Criminals of the European
219
Axis of 8 August 1945 ; the Law No. 10 of the Contro l Council for Germany about the
Punishment of Persons guilty of War Crimes, Cr imes against Peace and against Humanity of 20
218
See G.G. Fitzmaurice, “The Juridical Clauses of the Peace Treaties”, in Recueil des Cours, vol. 73 (1948-II), pp.
219-367, at 340 note 1.
For text, see I. von Münch (ed.), Dokumente des geteilten Deutschland, vol. I, 2nd (Stuttgart, 1976), p. 43 et
seq.
106 220
December 1945 ; Directive No. 38 of the Control Council for Germany about “The Arrest and
Punishment of War Criminals, Nazis and M ilitarists and the Inte rnment, Control and
Surveillance of Potentially Dangerous Germans” of 12 October 1946 22. Articles 2(2) and (3) of
the latter Directive defined as “major offe nders” to be held responsible “Anyone who, in
Germany or in the occupied areas, treated forei gn civilians or prisoners of war contrary to
International Law”, and “Anyone who is responsib le for outrages, pillag ing, deportations, or
other acts of brutality, even if committed in fi ghting against resistance movements”. Post-war
German law on the compensation of victims of National Socialist persecution has its roots in
legislation by the Allied occupation authorities and
“was inspired by the Occupation Powe rs; compensation of Nazi victims
belonged to the fundamental aims of th e Allied occupation policy; the respective
rules could only be issued by German au thorities with the approval of the Allied
Military Governments. Accordingly, the present German law on compensation is a
cluster of rules originating in dspositions of the Occupation Powers.” 222
5.51 Ultimately Article 77(4) of the 1947 Peace Treaty constituted a guarantee for the
Allied Powers governing Germany at the time that they would be able to use all German
proceeds to fulfil their goals and they not be obliged to take in to account at that stage the
obligation to make reparations to Italy, which – among other thin gs – had been an ally of
Germany for most of the war.
5.52 Moreover, it must be clarified that th rough Article 77 of the 1947 Peace Treaty, Italy
did not and could not have waived all claims. For the reasons set out above, even assuming that
Italy had wanted to, it could not have waived the repara tion claims of victims of serious
violations of IHL as the reparation régime for wa r crimes is not at the disposal of the States
concerned.
220Official Gazette of the Control Council for Germany, No. 3 of 31 January 1946, p. 22 et seq.
221For text, see W. Friedmann, The Allied Military Government of Germany, (London, 1947), p. 314 et seq.
222A. Schüler, “Österreicher von der Wiedergutmachung ausgeschlossen? Zum Urteil des BGH vom 22. 6. 1960”,
in Rechtsprechung zum Wiedergutmachungsrecht 1960, pp. 535-538, at 537. The author concluded that therefore
claims of Austrian nationals arising from German legislation on compensation of Nazi victims were generally
excluded from the waiver declared in Article 23(3) of the Austrian State Treaty because of the provision “ Without
prejudice to (…) dispositions in favor of Austria and Austrian nationaby the Powers occupying Germany ”
(emphasis added). The same argument can be used with regard to Article 77(4) of the Peace Treaty with Italy.
1075.53 Finally, subsequent practice has shown that Germany was fully aware of the real
scope of such a clause, which could not and did not cover war crimes reparations. For example,
in a decision of 14 December 1955, 223 the German Supreme Court ( Bundesgerichtshof),
although in the instant case it de nied the underlying claim, clearly held that the waiver declared
by Italy had not brought about a final settlement of the matter because, according to the very
wording of the clause, it had been made “wit hout prejudice […] to any […] dispositions in
favour of Italy and Italian nationals by the Powers occupying Germany”. Accordingly, the Court
admitted that Italian claims and corresponding German obligations still existed.
5.54 However, clearly today Germany cannot rely on the 1947 waiver clause because more
than a decade after the 1947 P eace Treaty, through the 1961 Agreements with Italy, Germany
accepted it had reparation obligations concerning some economic questions relating to pending
claims and for victims of persecutions. In so doing Germany explicitly laid down the basis for
its obligations of reparation towards Italian victims of war crimes.
5.55 The conclusion of the 1961 Agreements re presents a clear renunciation by Germany
to rely on the alleged ‘waiver clause’ of Article 77 (4) of the Peace Treaty of 1947. Even
assuming that Italy through that provision had in tended to waive all cl aims, including those
(under discussion in the present case) relating to serious violations of IHL, the conclusion of the
1961 Agreements prevents once for all Germany fr om attempting to resort to the 1947 alleged
waiver clause.
5.56 Through the 1961 Agreements Germany assumed the obligation not to invoke Article
77(4) of the 1947 Peace Treaty. Germany itself argued that “the differences of opinion about the
meaning of that waiver arose between the Federal Republic and Italy” and it was thus necessary
to conclude new agreements to overcome thes e differences. These new agreements (the 1961
treaties) imply that Germany waiv es its right to resort to the alleged 1947 Italian renunciation
clause. Moreover, these Agreements also repr esent the recognition by Ge rmany that reparation
obligations exist. As clearly indicated in the Exchange of Letters dated 2 June 1961 between
RFG and Italy, Germany undertook that “claims br ought by Italian nationals which ha[d] been
rejected with final and binding e ffect on the basis of Article 77( 4) of the Italian Peace Treaty
223Decisions of the Bundesgerichtshof in Civil Matters [BGHZ] vol. 19, p. 258 et seq., at 265 stating that “The
Allied Powers demanded the waiver from Italy exclusively in their own interest. They wanted to prevent that the
economic capabilities of Germany would be impaired by claims of states formerly allied with the Reich and by
claims of nationals of these states, in order better to realize their own claims and those of their nationals.” (Our
translation).
108 224
[were to be] re-examined” . In this respect it is also worth emphasizing that in a Memorandum
(Denkschrift) submitted to the legislative bodies on May 30, 1962, the Federal Government
recalled Article 77(4) of the Peace Treaty as generally excluding Italian claims against Germany
and German nationals arising out of the Second World War, and added:
“However, the special character of the claims to compensation for measures
of National Socialist persecution ( Ansprüche auf Wiedergutmachung
nationalsozialistischer Verfolgungsmaßnahmen) justifies not to raise objections,
based on Art. 77(4), to applications according to the Bundesentschädigungsgesetz.
[…] Regarding the Bundesrückerstattungsgesetzof July 19, 1 957, the Federal
Government had already before the signing of the German-Italian treaty of June 2,
1961 instructed the German authorities in charge not to raise objections based on
Art. 77(4) of the Peace Treaty with Italy of February 10, 1947, in the case of claims
225
to restitution.”
226
5.57 Contrary to what Germany suggests , however, the 1961 Agreements are not the
final word on reparations. This is also attested by the provisions of the Agreements themselves,
which recognize the rights of victims to reque st compensation under German law, whenever
applicable, and by the provisions determining the scope of the Agreements which revolve
around pending economic questions and reparations to victims of persecution.
5.58 The two 1961 treaties are a clear recogniti on of Germany’s obligations to make
reparations towards Italian victims. However, they represent only a partial implementation of
these obligations. The first treaty, the so called ‘Settlement Treaty’ refers in general terms to the
aim of settling “pending economic questions” (w hich the governmental memorandum specified
as “all kinds of claims […] based on rights and facts originating in the time of the Second World
War which were barred by the Italian waiver of claims”); the second treaty (the ‘Indemnity
Treaty’) provided for a lump-sum payment in fa vour of Italian victims of National Socialist
persecution. The questions settled through the 1961 Agreements were thus limited to, on the one
hand, the pending economic questions to be id entified merely as those covered by the 1947
waiver clause, and, on the othe r, compensation to victims of National Socialist persecution.
224
See the Exchange of Letters of 2 June 1961 between the State Secretary of the Federal Foreign Office, H.E. Karl
225stens and the Italian Ambassador, H.E. Pietro Quaroni (ANNEX 4).
226Drucksache des Deutschen Bundestages IV/438, p. 9.
GM, para. 11.
109Compensation to all other victims of war crim es was not mentioned nor dealt with by these
Agreements, being left to German national legi slation and to further negotiations between the
two States.
5.59 Germany can hardly deny that in 1961 it confirmed and renewed the reparation
obligations owed to Italian victims by creati ng a ‘new situation’, which determined the
expectation in Italian victim communities that the suffering and damage caused by the war
crimes would be compensated. The 1961 Agreemen ts, while they represent the basis for the
obligation to provide reparation to Italian victims of serious violations of IHL, were not the only
instrument on which victims could rely. By e xpress mention in the Agreements themselves,
measures under German law could recognize additio nal avenues for Italian victims. Moreover,
the agreements were clearly limited in scope, no t covering all potential claims, and there should
have been other supplementary measures suitable for providing reparation to all victims.
5.60 It is not too late to try to understand w hy such supplementary measures were never
adopted. Here Italy can only restate that the principle of effective reparation must apply equally
to those who received reparation under the Agreem ents and to those not covered by it. It would
be cumbersome and unfair to victims (as well as very hard to justify in the light of the
fundamental principle of equality of treatment) why some victims of serious violations of
international law should receive compensation and others not.
5.61 Nearly forty years after, in 2000, as a c onsequence of the pressure deriving from
several cases pending or decided by national c ourts all over the world, Germany adopted the
Law on the “Remembrance, Responsibility and Future” Foundation providing for reparations to
some victims of persecutions. But here again the rights of Italian victims were denied reparation,
through an extremely contorted argument whic h deserves to be stigmatized (and was
immediately stigmatized by Italy) for the extremely perplexing reasoning on which it is based.
5.62 In summary: a number of Ital ian Military Internees filed compensation claims before
the relevant authorities on the basis of the 200 0 Law. This law provided for compensation to
some victims of the Third Reich crimes, excludi ng – however – prisoners of war from its field
of application (on the basis of Section 11.3). The claims of Italian IMIs were examined and they
were turned down because it was considered th at these persons were, for the purposes of
application of the 2000 Law, to be considered as prisoners of war. Hence these persons, who had
actually been denied the status of prisoners of war at the time when this status would have
110ensured them protection (and had thus been mist reated in various ways), were eventually
recognized such a status in a situation where th e recognition of such a status would exclude
them from any benefit. The pe rplexing reasoning is as follows: since these Military Internees
could not be deprived of the status of prisoners of war (which is not derogable) they should be
considered, for the purpose of application of th e 2000 Law, as prisoners of war and thus not be
entitled to any reparation. This reasoning testifies the substan tive unwillingness of the German
authorities to fulfil their obligations. It is in the wake of this line of argument that Italian judges
had to take their determinations.
5.63 For all the reasons set out above, Germany continues to bear an ongoing obligation of
effective reparation in respect of Italian victims of serious IHL violations. This obligation,
which only historically derives from the crim es committed by Third Reich officials during the
Second World War, is essentia lly based on the decision of post-war Germany, formalized
through the 1961 Agreements to take upon its shoul ders the obligation to make reparation to
Italian victims. These Agreements are at the sa me time the foundation of the obligation and an
imperfect and partial fulfilment of it. In any case, they necessarily imply renunciation of the
waiver clause, and represent the foundation of all subsequent claims by Italian victims,
including those on the basis of German law.
5.64 Unfortunately, after the 1961 Agreements nothing or very little was done in favour of
Italian victims. As indicated above IHL does not impose on States one single specific way in
which they must discharge their obligations; however, IHL does not allow States to trade off the
protection enjoyed by protected pe rsons and victims through agreements between them. Italy’s
position is that Germany has only partially fulfille d its obligations towards Italian victims and
thus is still under an ongoing obligation to provide effective reparation.
5.65 An analysis of the position of Germany relating to its obligations of reparation
towards Italian victims of serious violations of IHL indicates that the perception of these
obligations has been rather weak from the outset. In a way there seems to be some reluctance of
Germany to recognize and fulfil these obligati ons. This approach might be explained by
referring to the historical developments of th e final years of the S econd World War and its
immediate aftermath. It must be recognized th at Germany in 1961 moved away from the idea
that no reparation had to be made to a more nuanced approach and opted for an approach
leading to the recognition of its obligations. However, it only gave limited implementation to
111these obligations. The 1961 Agreements with Italy have been seen (here again erroneously) as a
final settlement of all matters relating to reparation obligations. This idea underlies the approach
of Germany to the entire question. This appr oach is however flaw ed. The 1961 Agreements
contain clauses that clearly limit their scope, making them intrinsically unsuitable to cover all
claims and all reparation obligations.
5.66 The 1961 Agreements represent a ‘new situation’ whereby Germany has
(a)recognized the obligation towa rds Italian victims of serious violations of IHL; (b) they
contain some limited measures of reparation (covering pending economic claims as well as
claims by victims of persecution on various specific grounds); but, at the same time, (c) they left
several other situations uncovered. In this respect, after a long period of uncertainty and several
unfulfilled promises, Italian victims were eventu ally excluded from the application of the 2000
Law, on rather unconvincing arguments.
5.67 The situation described above created the legal background that prevented Italian
judges from turning down reparation claims whic h had been unfulfilled for too long and forced
them to reject the plea of immunity advanced by Germany.
5.68 The arguments made by Germany that Italia n judges erred in retr oactively applying
contemporary-law notions are flawed in three respects.
First, as far as non-derogabl e obligations are c oncerned, Italy has shown that in some
areas – and specifically in the ar ea of reparation oblig ations of serious IH L violations – these
existed prior to the Vienna Convention of 1969.
Secondly, Germany, like any party failing to fulfil an obligation, exposed herself to risks
in the development of law which may make the position of the subject to whom the obligation is
owed more favourable.
Thirdly, in the light of th e object and purpose of the provisions establishing the
obligation of reparation for serious IHL violat ions, it is logical to consider that any new
provisions which make reparation effective or more effective must apply.
5.69 Finally, the German violation of the oblig ations of reparation is a breach of a
continuing character. As clarified by Article 14(2) ILC Articles on State Responsibility,
112 “[the] breach of an international oblig ation by an act of a State having a
continuing character extends over the entire period during which the act continues
and remains not in conformity with the international obligation”.
In such cases the applicable law is not merely the law existing at the time of the initial
breach, but includes any evolution of the said law, in particular as far as its procedural aspects
are concerned.
113 CHAPTER VI
BALANCING IMMUNITY AND THE OBLIGATION OF REPARATION
Section I. The Position of the Italian Judges with Respect
to the Conflict Between Immunity and Reparation
A. INTRODUCTION
6.1 Italian courts have always consistently upheld the pr inciple of State immunity
whenever appropriate 22. This has been clearly shown in Chapter IV. However, starting with the
end of the 1990s, and in particular in the lastfive years (when all residual hopes of obtaining
due reparation under German law evaporated), Ita lian judges have been confronted with several
applications by victims of serious IHL violati ons, who for over fifty years had not received
effective reparation for crimes committed against them by the German Reich.
6.2 True, the existence of reparati on obligations owed to victim s of serious violations of
IHL does not automatically entail that individuals are entitled to bring j udicial claims before
national or international courts against the St ates bearing the obligation, nor does it normally
imply that States, in the context of the proceed ings following the filing of those claims before
national courts, necessarily lose their right to immunity from jurisdiction. Reparation obligations
do not per se entail these consequences; however, they do not exclude them either. How the
principles relating to claims to be brought before national courts operate in every single case
depends on the specificities of each case, its ba ckground, as well as national rules existing in
municipal systems for the implementation of international law.
227See above Chapter IV, section II.
1146.3 As seen above, in Chapter V, the obligation of reparation for serious violations of IHL
inevitably implies that effective reparation must ultimately be granted to victims. In this respect,
immunity cannot represent a tool for States to avoid complying with their international
obligations, in particular when the rights of individuals are at issue and when the fulfilment of
these obligations has been due fo r over half a century. As this Court has unambiguously stated,
particularly in the area of international crim es, “immunity from jurisdiction does not mean
228
[…]impunity” .
6.4 This important statement by the principal j udicial organ of the United Nations cannot
be without consequences even in the present case. True, imm unity could, for example, imply
that petitioners may be barred from seizing a court in their own coun try (although it is the
country in the territory of which the crimes took place), but they should be entitled to file a
claim before the national courts or other administrative organs of the responsible State, or such a
State must enter into relevant agreements to ensure reparation to the benefit of victims.
However, in the cases underlying the presen t dispute several plaintiffs had indeed
already tried to obtain reparation before German competent author ities, but were consistently
denied due reparation. This means that in such cases immunity would effectively amount to
impunity. Moreover, the principles set out in Germany by both judici al and administrative
bodies, which on a variety of grounds excluded Ital ian victims from reparations under German
legislation, inevitably lead to the conclusion that any seeki ng of a remedy before German
authorities appears to be very likely to be wholly ineffective. And this is also attested by the
claim made by Germany that the waiver clause s contained in the 1947 Peace Treaty and in the
1961 Agreements with Italy bar all claims underl ying the present dispute. All these elements
entail only one possible consequence: granting immunity in the present case equates to
absolving Germany of its responsibilities.
6.5 Although in a slightly different context (individual criminal responsibility for
international crimes), this Court has been very clear in stating that “jurisdictional immunity […]
228Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgiu, Judgment, I.C.J. Reports
2002, para. 60.
115 229
cannot exonerate the person to whom it applies from all criminal responsibility” . Why should
immunity exonerate the State from all responsibility?
6.6 It is only against this backgr ound that Italian courts exerci sed jurisdiction over claims
of Italian victims of serious IHL violations by setting aside Germany’s immunity. Italian judges
were confronted with highly complex cases in which the procedural bar of immunity was not the
only important principle of international law at issue. Alongside immunity, equally important
principles, reflecting the views of States under international law, were to be given appropriate
consideration in the cases under discussion. In particular, the long-lasting principle whereby
violations of IHL require appropriate reparatio n (shown above in Chapter V), the existence of
the notion that there are rules which cannot be derogated from by States with all its
consequences (Chapters IV and V) , the clear affirmation that th ere are serious violations of
international law (i.e. crimina juris gentium ) that national legisla tion cannot authorize nor
condone, the absence of statutes of limitation fo r such serious violations, the human rights
discourse relating to the right to have appropr iate remedies to redress wrongs (also known as
‘access to justice’) and the increasing attention to the rights of victims of serious human rights
and IHL violations. All these elements, which are undoubtedly based on existing international
law (enshrined in both custom and numerous treaties), inevitably had an influence on the
decisions of Italian courts. More over, the judges also took into account the fact that Italian
victims had been awaiting reparations for over fifty years. Against this legal and factual
background, the idea to simply apply the princi ple of State immunity did not and does not
appear to be the most appropriate solution. Not on ly judges but also legisl ators have started to
realize that it is necessary to sp ell out the intrinsic logic of exis ting international rules in this
area by explicitly reaffirming that State immunity must be set aside in cases of serious
international crimes, whenever reparation can not be obtained thro ugh other appropriate
230
means .
229
230I.C.J. Reports 2002, para. 60. th
See Bill C 14 October 2009, 2nd session, 40 Parliament, 57-58 Elizabeth II, 2009, House of Commons of
Canada.
116 B.N ATIONAL JUDGES AND INTERNATIONAL LAW
6.7 The situation of internal judge s vis-à-vis the fluctuating developments of international
law compels them to take into account a variety of factors, ranging from the protection of State
sovereignty to the obligation to implement the fundamental rights of individuals. However, if
judges do not appropriately take into account the prospects of effective satisfaction of these
rights they betray their proper function, i.e. to ensure that rights are implemented and wrongs
remedied.
6.8 Naturally, municipal judges are fully aware of the obligation to respect the principle of
State immunity. Nonetheless, they are now us ed to setting it aside in all cases involving jure
gestionis activities, as well as in other specific cases, as set forth in Chapter IV. In this respect,
they have become accustomed to the notion that immunity is no longer an absolute impediment
to the exercise of jurisdiction but needs to be pu t in the balance together with other values and
principles. In particular, when the prospects of securing compliance with the law through other
means (inter-state negotiations, international agreements), or through proceedings before other
courts are minimal or simply do not exist, or wh en – as it is in the present case – they have
proved or are likely to be ineffective, municipal judges cannot simply ratify a denial of justice.
6.9 Municipal judges, like all State officials, bear the obligation to respect and ensure
respect for international law, which of course means, on the one hand, to respect State
immunity, but also, on the othe r, to ensure respect for and compliance with international
humanitarian law as well as human rights obligat ions. In particular, when these obligations
result from a system of imperative rules of inte rnational law (as is the case with the reparation
regime for serious violations of IHL, as s hown above in Chapter V), municipal judges are
obliged under international law to follow the intrinsic logic deriving from the existence of these
obligations. This is especially true when both international law and the constitutional provisions
of their national system impose on them the ob ligation to protect the fundamental rights of
individuals, as is the case in Italy and in Ge rmany. Additionally, the national judge has no other
choice when confronted with a situation in whic h the State bearing these imperative obligations
has had over sixty years to fulfil them but has not done so (or only to a very limited extent), and
there appear to be no prospects that it will.
6.10 In cases such as those underlying the pres ent dispute, municipal judges are in the
uncomfortable position (to which however they are used at national le vel) of being faced
117(moreover, increasingly) with hard cases in whic h important international law principles are in
conflict. In these cases judges must balance competing values and principles against each other,
taking into account the specificiti es of each case and the evoluti on of international law. One
231
must remember that the notion of immunity is procedural in nature and thus must be
interpreted according to the law existing at the time when the proceedings in which it is invoked
are taking place. In so doing they have to rely on notions which enable them to strike the
appropriate balance and/or to choose which competing interest must prevail in a given case. One
of these notions is certainly jus cogens, which refers to the idea that there exist provisions which
cannot be derogated from by States through agreements. Jus cogens inevitably places the
municipal judge in the difficult position of being entrusted with the task of identifying, through
a normative hierarchy, the right ba lance between apparently conf licting international rules and
drawing the relevant consequences on the ba sis of the logic of the system. Undoubtedly,
municipal judges are used to th e inherent logic of a substant ive hierarchy of norms within
national legal orders (e.g. through the rule s of ‘public policy’ or the notion of ‘ ordre public’).
Hence, the idea of resorting to its equivalent at the international level (the notion of jus cogens)
appears to any national judge very logical and fully justified.
6.11 The very notion of jus cogens implies the possibility (or even the need) to refer to
international judges for its identification and interpretation. However, the procedural conditions
for the intervention of the ICJ as defined in Article 66 of the Vienna Convention (1969) do not
allow the Court easily to exercise jurisdiction in th is area. Moreover, even in its case law, apart
from the case of genocide, the C ourt has not so far had a chance to specify and set out in detail
the criteria for identifying and inte rpreting all the consequences of the jus cogens nature of a
provision of international law. In the absence of specific guidance, municipal judges have a
natural tendency to assimilate that notion to the more familiar one of ordre public, as known in
their internal legal orders. This notion, ordre public, is certainly more familiar to them, and they
have often contributed to developing it, with specific regard to the human rights provisions of
their national constitutions.
6.12 National judges did not create the notion that there are violations of international law
which are so serious that no immu nity can be granted to their au thors, nor that there are some
231I.C.J. Reports 2002, para. 60. For further details see also supra in this Counter-Memorial, paras. 4.43-4.50.
118international rules which possess imperative character, nor did the judges establish by
themselves that such rules must prevail over any other conflicting prin ciple not possessing the
same character. All these principles and the set of consequences attached to them were laid
down by States and are part of customary interna tional law as well as treaty law. Italian judges
simply exercised their judicial function in draw ing the normative consequences of the existence
of certain imperative rules, and did so in trying to weigh conflicting principles and identify the
appropriate balance, in the light of the specificities of the cases pending before them (the crimes
were committed on Italian territory or against Italian victims, the reparation obligations had
been ignored for over half a cen tury, many claimants had tried to obtain justice from German
authorities, the crimes were committed by the Nazi State, which has notoriously been defined as
the epitome of evil).
6.13 In the present state of development of institu tions at the international level, national
232
judges – in applying Scelle’s notion of dédoublement fonctionnel – provide their jurisdictional
services to an international legal order which lacks the appropriate means of systematically
addressing these issues. This is precisely what the Italian Corte di Cassazione has done. And it
would be unfair to argue that the Italian Court has done more than simply draw the logical
consequences ensuing from the existence of norms that cannot be derogated (as is the case with
the reparation regime for serious IHL violations and with the provisions proscribing war crimes,
233
crimes against humanity and genocide) .
6.14 The logic underlying the position of Italian Corte di Cassazione is that a normative
conflict existed and the conflict had to be solved applying the criteria for the identification of the
competing values behind the principles in the balance. It then d ecided that the conflict could be
solved on the basis of imperative norms of inte rnational law taking into account the need to
implement the obligation to make effective reparation to victims of serious IHL violations.
232G. Scelle, Précis de droit des Gens, Principes et systématique , Vol. I. (1932), pp. 43, 54-56, 217 and Vol. II
(1934), pp. 10, 319, 450. See also, by the same author, “Le phénomène du dédoublement fonctionnel”, in
Rechtsfragen der Internationalen Organisation, Festschrift für H. Weberg (1956), pp. 324-342. For a commented
presentation of the theory, see H. Thierry, “The Thought of Georges Scelle”, in 1 European Journal of
International Law (1990), pp. 193-209, and A. Cassese, “Remar ks on Scelles’s Theory of ‘Role Splitting’”, Ibid.,
233 210-231. .
As far as genocide is concerned the Court clearly st ated “that the norm prohibiting genocide was assuredly a
peremptory norm of international law ( jus cogens )”, Application of the Conv ention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February
2007, para. 161.
1196.15 Italy considers that this is precisely the real issue underlying the present dispute. The
ongoing German denial of appropriate and effec tive reparation to a large number of Italian
victims of serious violations of IHL committed by German authorities during the final part of
the Second World War, as recognized and renewed by Germany through the 1961 Agreements
as well as subsequent unilateral measures, needed to be addressed.
6.16 Italian judges, facing such a blatant and long-lasting denial of reparation in violation of
all relevant rules of international law, coul d not simply turn down victims’ claims by
recognizing the principle of State immunity. Clearly, the judges had the feeling that by applying
a purely procedural principle in the face of the gravity of crimes for which no reparation has yet
been made, they would create a ty pical situation of denial of just ice. Had Italian courts granted
immunity they would have put a full stop to the entire questi on of reparation to thousands of
victims. They would have effec tively denied any possibility for these claims to achieve any
objective. On the contrary, they had very serious justifications for setting aside the immunity of
Germany and verifying whether the claims were substantiated on the merits.
6.17 Italian judges had good reasons to deny immunity to Germany on account of the
extremely serious nature of the violations of IHL for which reparation had been requested, on
account of the non-derogable natu re of the reparation regime for these violations, and on
account of Germany’s ongoing failure to comply with its reparation obligations.
6.18 This was particularly justified in the light of all the developments which have occurred
in international law concerning the rights of indivi duals to effective reparation for violations of
human rights and IHL, including their emergi ng right of access to courts for the proper
determination of their case. As has been shown in detail in Chapter IV, international law has
progressively developed a set of measures to ensure that individuals are granted a right to access
to justice.
6.19 Italian judges were confront ed with conflicting principles of fundamental importance
which they had to compare and balance against one another. They were not in a position to grant
immunity, since the obligations of reparation owed by Germany to Italian victims were non-
derogable from the outset, they have not been fulfilled for over fifty years, despite numerous
attempts to obtain reparation, and in the light of all th e developments in international law since
the Second World War to promote the right of individuals to access to justice.
1206.20 As is well known (and as has been shown in Chapter IV) the principle of State
immunity, although fundamental in international relations, can be set aside in a variety of
situations in which the values put in balance ar e far less compelling than those at stake in the
present case. Moreover, immunity seeks to pr event the national courts of one State from
pronouncing upon the State policies of another, im plying that there might well be diverging
evaluations but assuming that it would not be perm issible to allow one State’s courts to decide
on the appropriateness of the policies of another St ate. However, in the present case, there is
nothing contentious about the appropriateness, let alone the lawfulness, of the behaviour of Nazi
Germany. The blatant illegality of the Third Re ich system and the appalling character of the
crimes committed by the Nazi regime are unchallenged. Hence, by simply recognizing
immunity in these cases, Italian courts would have prevented logical consequences being drawn
from the violations of IHL committed by agents of the Third Reich.
6.21 The claimant in its Memorial analyses in the detail the decisions of various Italian
judges and patronizingly undersco res their alleged mistakes in understanding and interpreting
international law. Italy does not intend to engage here in a sp ecific rebuttal of these arguments
(most of which are far less clear than Germany pr etends), nor does Italy believe that it is proper
to transform the proceedings before this Court into trivial third-instance proceedings revolving
around the details of specific municipal cases.
6.22 It is well known that a difference should be clearly made between the reasoning
underlying national decisions and the results of th e decisions in themselves. Here, there is no
need to discuss the reas oning in the decisions. The crucial point is to de termine whether or not
their outcome and their (potential) impact on th e rights and obligations of the States involved
amounts to a violation of international law.
6.23 Therefore, irrespective of the reasoning of the Italian judges on the normative ranking
of the various rules involved, it must be emphasi zed that the main justification for setting aside
Germany’s immunity was to avoid an otherwise inescap able denial of justice. It is with this in
mind that the Italian Corte di Cassazione affirmed the primacy over the principle of immunity of
imperative norms enshrining the need to ensure e ffective reparation to victims of international
crimes.
1216.24 Was there a ‘good way’ for Italian judges to solve this delicate issue, without betraying
their function of ensuring respect for and compliance with law, including international law, and
allowing individuals effectively to obtain respect for their rights?
Section II. The Reasons Why, by Denying Immunity,
Italy Did Not Commit an Internationally Wrongful Act
6.25 That any illegal act entails obligations of reparation is certainly part of the fundamental
tenets of any legal system, including the international legal order. Moreover, there are no doubts
that the provisions establishing obligations of reparation for serious violations of IHL cannot be
derogated from by States. This makes it extremel y difficult for national judges to consider them
on the same footing as rules on immunity. Hence, the approach taken to the balancing between
immunity and reparation was made in favour of the latter instead of the former. Had Italian
judges decided that immunity had to prevail, no other avenues would have been available to
victims. In essence a denial of justice would ha ve been endorsed by the It alian judicial system.
To ratify such a violation of international law is something that could not be asked of any judge.
6.26 The solution reached by Italian courts is fully justified on the basis of existing
principles of positive international law. In the absence of a specific conventional régime that
determines how victims should have access to reparations, victims are entitled, as a measures of
last resort, to appeal to the courts of the State where the egregious viol ations of international
humanitarian law were committed (which in the instant case is also their State of nationality),
and to obtain a derogation from the principle of immunity, whenever applying this principle
would entail the denial of any reparation.
6.27 In the first place, it should be recognized that it is for the State responsible for the
crimes under international law to ensure, through its tr ibunals or any other appropriate means,
reparation to the victims of the crimes. However, when the State responsible fails to comply
with its reparation obligations other avenues are open.
6.28 In these cases, whenever the judges of the State in which the crimes were committed
and/or of nationality of the vi ctims are called upon to intervene, they must be considered as
authorized to set aside immunity only under the very specific and exceptional circumstances that
122all other avenues have been e xplored and that there are no effective prospects of obtaining
reparation in other ways.
6.29 In the present case, the conditions set out above are clearly met: Italian judges had no
other option than to set aside Germany’s immunity. As mentioned above (Chapter IV), Germany
repeatedly resorts to the argumen t that “the damage entailed by a breach of fundamental rules
during armed conflict can be repaired in many di fferent ways, in partic ular on an inter-State
level”234. Now, while in principle this argument is unobjectionable, in th e present cases the
measures adopted so far by Germany, both under th e relevant agreements as well as through
unilateral acts, have proved totally insufficient and created a situation in which there were no
prospects that due reparation in favour of Italian victims would ever occur. As a consequence,
very large numbers of Italian victims were de nied any legal avenues for obtaining reparation.
Germany acknowledges this situation, and even c onfirms that Italian vi ctims would have no
chance of obtaining any reparation since it seeks to rely on the waiver clauses of the 1947 Peace
Treaty and the 1961 Agreements with Italy. As cl arified in Chapter V, Germany’s reliance on
the waiver clauses is mistaken, but the very fact that Germany continues to invoke those
235
‘waiver’ or ‘renunciation clauses’ clearly indicates that Ge rmany has no intention of
complying with its reparation obligations.
6.30 Germany cannot genuinely claim that it ha s jurisdictional imm unity and that the
damage suffered by Italian victims could be repaired in other ways, since in invoking the waiver
clauses it implicitly affirms that Italian victim s would never obtain any reparation in any other
way (as has happened in the past) because Germ any has no obligations of reparation toward
them. Therefore, Germany’s position is quite clear: there must be immunity and there will be no
236
reparation, apart from some ex gratia measures .
6.31 Against this background, although some doubts may be expressed as to a few aspects of
the reasoning adopted and some of the arguments used by Italian courts, Italy considers that,
under the very unique circumstances of the presen t case, Italian judges we re fully justified in
denying Germany’s immunity from jurisdiction. As will be clarified, if one looks at the
234
235GM, para. 32.
236See e.g. GM, paras. 9-12 and 56.
As seems implicit in its Memorial, e.g. at para. 15.
123substance of the balancing of competing values one can hardly deny that the solution reached is
indeed in keeping with the fundamental principles of international law.
6.32 Having in mind Germany’s ongoing denial of reparati on to Italian victims of war
crimes committed by Third Reich officials, Italia n judges rightly decided to set aside immunity,
for three main reasons.
First of all, the crimes involved are serious violations of international law for which
no statute of limitation applies, for which Stat e officials can be punished having no right to
immunity, and which neither superior orders nor the command of the law can authorize.
Secondly, the special IHL reparation regime prevents States from avoiding the
implementation of the ensuing obligations. States may only have a choice as to the modalities
and procedures for their implementation. Hence, States must provide ef fective reparation, be it
by unilateral administrative measur es, or through their court syst em or through international
agreements, or through a combination of all these or other instruments.
Thirdly, in most Italian cases many victim s had already tried to obtain justice from
German authorities and, at any rate, in all cas es they had been waiting such a long time for the
fulfilment of these obligations that there seemed to be no point in waiting for other measures to
be adopted by Germany. In this respect, it is clear that there is no need to ask for the exhaustion
of local remedies before German courts or other administrative bodies, since after several
decades of denied reparation there are no chances that such remedies can be effective.
6.33 In this situation, there was little else that Italian judges could do. The duty to protect the
right to access to justice is part and parcel of the judicial function. Of course, it is also inherent
in the judicial function to verify whether applic able law provides for reparation to be obtained
elsewhere and through other means. However, in the instant cases Italian judges were examining
claims which had been pending for a very long time, for which Germany had had every chance
to make appropriate reparations. In some inst ances reparation had been explicitly refused by
German authorities on extremely perplexing gr ounds. The Italian Government had cautioned
Germany about the possible consequences of such an approach and informed Germany of the
profound dissatisfaction and disappointment whic h followed the decision to exclude the IMIs
from the reparation provided under the Foundation Law. Therefore, since judges were not in a
position to open negotiations between the States involved (something which this Court can do),
124they did the only thing judges co uld reasonably be expected to do: rendered justice to the
victims of serious IHL violations by lifting immunity.
6.34 Italian judges correctly interpreted contemporary international law when they
considered that immunity had to be set aside. There are various reasons which provide ample
justification for these decisions. First, serious violations of IHL cannot go unpunished and such
violations entail not only indivi dual but also State responsibility (what would be the impact of
the obligation to make reparations if States could circumvent it by merely invoking immunity?).
Secondly, the ensuing obligations of reparation owed to victims of serious violations of IHL
cannot be derogated from by States. Thirdly, there are several developments in international law
that recognize the right s of individuals to obtain compen sation from the State without any
obstacles relating to immunities (e.g. in international criminal law or under human rights or IHL
reparation régimes). On account of all these deve lopments Italian judges could hardly have
turned down the victims’ requests, particular ly given the absence of any other realistic
alternative.
6.35 Finally, it is worth stressing that Italian judges lifted State i mmunity concerning war
actions by the Nazi State – actions which have already been condemned by the entire world
community on numerous occasions. In so doing Italia n judges did little else than adhere to the
precedents set by the assessments of the Nuremberg Tribunal, of the United Nations General
Assembly, of several hundred judges all over th e world, and ultimately of history. True, it is
today’s Germany that has been held accountable, but this is simply a mere consequence of
Germany’s position with regard to the acts of the Third Reich (andthe obligations following
from them), and, in particular, of Germany's recognition, through several agreements (including
the 1961 Agreements with Italy), of the obliga tion of reparation towards the victims of the
Reich. There is nothing in the decisions of It alian judges which imp lies any involvement of
today’s Germany with the crimes. However, there is the clear recognition that those acts, those
crimes of a horrendous nature, cannot enjoy any immunity, in the light of the fact that reparation
has been (and is still being) de nied and thus the consequences of the unlawful act have not yet
been wiped out.
6.36 It is often argued that State responsibility for infringements of international obligations
exists only between the Stat es concerned. Although this is no longer necessarily true in
contemporary international law, the present case is precisely about the responsibility of the
125States concerned. Germany claims Italy violated international law because Italian judges set
aside Germany’s immunity from jurisdiction; Ital y responds that there is no violation, because
the Italian judges’ decisions are justified on account of Germany’s failure to ensure appropriate
and effective compensation to Italian victims of serious IHL violations and further requests the
Court to establish Germany’s responsibility for the ongoing fa ilure to comply with the
reparation obligations.
6.37 The negative implications of accepting the German approach of imposing State
immunity in the present case, would be as fo llows: (a) a rule of non-reparation for damage
caused by war crimes and crimes against humanity would be enforced; (b) a denial of justice
concerning a large number of Italian victims of such crimes w ould materialize; (c) some of the
most fundamental developments of general in ternational law, based on values enshrined, inter
alia, in the UN Charter and in the Geneva Conventions, would be weakened.
6.38 The principle of State immunity from ju risdiction should not be applied in a vacuum:
the specificities of the case at issue must be considered. Here we are at the intersection of a
variety of legal issues, the complexity of whic h is attested by the Joint Declaration; this
complexity requires enlightenment from the International Court of Justice. A non liquet decision
would not be the solution in th is case. There is no doubt that jus cogens is part of positive
international law, and it is also, to a certain exte nt, possible to identify its content. However, in
the area of determining all its consequences a nd its interplay with other rules there is the
overriding need for its régime to be identif ied by the activity of interpretation of the
International Court of Justice, provided that in a given case the conditions for such a
determination exist. It is submitted that this is so in the present case, in the context of
contentious proceedings which allow the Court to pronounce on several sensitive issues without
exceeding the boundaries of its jurisdiction.
6.39 Italy believes, without going into the discussion about the jus cogens nature of the
violations and without aiming at a general holding that jus cogens violations require that
immunities of all kinds be set aside, that in th e present cases Italian judges did not commit an
unlawful act since lifting Germany’s immunity was the only appropriate and proportionate
remedy to the ongoing violation by Germany of its obligations to offer effective reparation to
Italian war crimes victims. Such a measure was adopted only after se veral attempts by the
victims to institute proceedings in Germany and it was the only possible means to ensure respect
126for and implementation of the imperative reparation regime established for serious violations of
IHL.
6.40 The reasoning and the conclusions set out above for Italian victims, apply mutatis
mutandis to the proceedings relating to the enforcem ent in Italy of the Greek judgment on the
237
Distomo massacre . Since the Greek judgment concerns a case which presented much of same
features which are present in the Italian cases, in cluding the fact that Greek victims had tried to
obtain reparation before German courts and were re peatedly confronted with a denial of justice,
the recognition that the Greek judgment on the Distomo case could be enforced in Italy does not
amount to a violation of international law.
237
See supra paras. 2.27 and 2.39.
127 CHAPTER VII
COUNTER-CLAIM
Section I. Introduction
7.1 As permitted by Article 80 of the Court’s Rules, Italy hereby submits a counter-claim
with respect to the question of the reparation ow ed to Italian victims of grave violations of
international humanitarian law committed by forces of the German Reich. Article 80 of the
Rules of the Court provides as follows:
“1. The Court may entertain a counte r-claim only if it comes within the
jurisdiction of the Court and is directlyconnected with the s ubject-matter of the
claim of the other party.
2.Acounter-claim shall be made in the Counter-Memorial and shall appear
as part of the submissions contained therein. The right of the other party to present
its views in writing on the counter-claim, in an additional pleading, shall be
preserved, irrespective of any decision of the Court, in accordance with Article45,
paragraph 2, of these Rules, concerni g the filing of further written pleadings.
3. Where an objection is raised concerning the application of paragraph 1 or
whenever the Court deems necessary, the Court shall take its decision thereon after
hearing the parties.”
7.2 The present Chapter sets forth Italy’s counte r-claim in this case. Italy asks the Court
to find that Germany has violated its obligation of re paration owed to Italian victims of the
crimes committed by Nazi Germany during th e Second World War and that, accordingly,
Germany must cease its wrongful conduct and offer effective and appropriate reparation to these
victims. Section I of this Chapter will address the question of the Court’ s jurisdiction over the
counter-claim as well as the question of its admi ssibility. Section II will indicate the remedies
128sought by Italy for the breaches by Germany of its obligation of repara tion owed to Italian
victims.
7.3 Most of the factual and legal issues at stake in this counter-claim have been addressed
in establishing Italy’s defence to Germany’s cl aim. Indeed, the previous chapters of this
Counter-Memorial have already demonstrated that Germany ha s violated its obligation of
reparation owed to Italian victims. Since a de tailed assessment of the facts and law upon which
Italy relies in presenting its counter-claim ha s already been made in previous chapters,
examination of such issues in the context of th e present Chapter will be kept to an essential
minimum. Italy reserves the right to introduce and present to the Court in due course additional
facts and legal considerations in respect to the present counter-claim.
Section II. Jurisdiction and Admissibility of the Counter-Claim
7.4 The Court’s jurisdiction over this counter-claim is based on Article 1 of the European
Convention for the Peaceful Settlement of Dis putes of 29 April 1957, taken together with
Article 36(1) of the Statute of the Court. As dem onstrated in Chapter III, the applicability of the
European Convention to Italy’s counter-claim is not excluded by Article 27(a) of the
Convention. Italy has already shown that the dispute on immunity brought by Germany and the
dispute on reparation brought by Italy originate out of the same facts. In particular, the source or
real cause of the disputes submitted to the Cour t in the present case is to be found in the
reparation regime established by the two 1961 Agreements between Germany and Italy. An
additional source is constituted by events following the establishment in 2000 of the
“Remembrance, Responsibility and Future” Foundati on. Since both disputes relate to facts that
arose after 18 April 1961, i.e., the date when the European Convention entered into force
between Germany and Italy, the limitation ratione temporis provided for by Article 27(a) of the
European Convention does not apply to the dispute brought by Italy through its counter-claim.
7.5 Italy’s counter-claim is also directly connected with the subject-matter of Germany’s
claim. In its Order of 29 Novemb er 2001 in the ca se concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda), this Court observed:
129 “Whereas the Rules of Court do not however define what is meant by
‘directly connected’; whereas it is for the Court to assess whether the counter-claim
is sufficiently connected to the principa l claim, taking account of the particular
aspects of each case; and whereas, as a general rule, whether there is the necessary
238
direct connection between the claims must be assessed both in fact and in law” .
7.6 Manifestly, there is a dir ect connection between the fa cts and law upon which Italy
relies in rebutting Germany’s claim and the fact s and law upon which Italy relies to support its
counter-claim. While Germany has claimed that Italy violated Germ any’s jurisdictional
immunity, Italy submits that no violation has been committed since, under international law, a
State responsible for violations of fundamental ru les is not entitl ed to immunity in cases in
which, if granted, immunity would be tantamount to exonerating the State from bearing the legal
consequences of its unlawful conduct. Thus, in assessing the well-foundedness of Germany’s
claim, the Court will have to address many of the same factual and legal issues as lie at the heart
of Italy’s counter-claim. Unde r such circumstances, it seems inevitable to c onclude that
Germany’s principal claim and It aly’s counter-claim “form part of the same factual complex”
and that, by submitting their respective claims, both parties “are pursuing the same legal
aims” 239.
7.7 Obviously, Italy’s counter- claim does not simply ai m to “counter” Germany’s
principal claim. However, the f act that this counter-claim has also the effect of widening the
subject-matter of the dispute to be decided by the Court does not affect its admissibility. As this
Court stated in its Order of 17 December 1997 in the Application of the Genocide Convention
case,
“the thrust of a counter-claim is thus to widen the original subject-matter of
the dispute by pursuing objectives other than the mere dismissal of the claim of the
Applicant in the main proceedings” . 240
7.8 Significantly, even before submitting its Application to the Court, Germany was well
aware of the strict link existing in the pres ent case between immunity and reparation. The
238
239I.C.J. Reports 2001, p. 678, para. 36.
240Ibid., p. 679, para. 38.
I.C.J. Reports 1997, p. 256, para. 27.
130existence of a complex issue linking together questions of immunity with questions of
reparation emerges unequivocally from the Join t Declaration adopted on the occasion of the
German-Italian governmental consultation held on 18 November 2008 in Trieste. In the Joint
Declaration, while Germany, together with Italy, fully acknowledged “the untold suffering
inflicted on Italian men and women in particular during massacres and on former Italian military
internees” (i.e., the groups of individuals who have instituted proceedings before Italian courts
in order to obtain financial compensation for the harm suffered as a result of the activities of
German armed forces) 241, Italy declared that it respected “Germany’s decision to apply to the
International Court of Justice for a ruling on the principle of State immunity”, finding that “the
ICJ’s ruling on State immunity will he lp to clarify this complex issue” 242. Now that Germany
has brought proceedings on the question of immunit y, Italy finds it important to seize this
opportunity and to entrust the Court with the ta sk of rendering a decision with regard to the
entire “complex issue” dividing the parties.
Section III. Remedies Sought by Italy
7.9 In Chapter V Italy has demonstrated that Germany has obligations of reparation
arising out of the serious violations of inte rnational humanitarian law committed by the Third
Reich against Italian victims. However, as clear ly emerges from the facts described in Chapter
II, the measures adopted so far by Germany (both under the relevant agreements as well as in
unilateral acts) have proved insufficient, in pa rticular because such measures did not cover
several categories of victims such as the Italian military internees and the victims of massacres
perpetrated by German forces during the last m onths of Second World Wa r. In its Memorial
Germany argues that the conclusion of the two 1961 Agreements between Italy and Germany
extinguished all reparation claims, since Italy ag reed to waive for itself and for all of its
nationals all claims against Germany resu lting from the period of Second World War. 243This
argument has been disproved in Chapter V.
241
242GM, para. 13.
243ANNEX 1.
GM, para. 11.
1317.10 For all these reasons, Italy as ks the Court to adjudge that Germany is still under an
ongoing obligation to make reparations for the large number of the unlawful acts committed by
the Third Reich and that German y’s international res ponsibility is engaged by its failure to
provide effective reparation more than 60 years after the relevant facts.
7.11 The remedy to make good this violation s hould consist in an obligation on Germany
to establish an appropriate and effective mech anism for addressing the reparation claims of
Italian victims. The establishment of such a mechanism would not only provide the necessary
remedy for the breaches by Germany of its intern ational obligations. It would also provide
Italian victims with a legal avenue other than re sort to national judges. As already indicated in
the previous chapters, it is because of the abse nce of any alternative mechanism for reparation
that Italian victims of Nazi crimes brought their claims before Italian judges; and it is because of
Germany’s failure to offer effective reparation that Italian judges have lifted State immunity.
7.12 While Italy is entitled to an order from the Court that Germany must cease its
wrongful conduct and provide reparation to Italian victims of Nazi crimes, admittedly the choice
of means as to how reparation s hould be provided is to be left primarily to Germany. However,
this freedom in the choice of means is not without qualification: any mechanism to which
Germany may entrust the assessment of the reparation claims must ensure that Italian victims
are offered appropriate and effective reparation.
7.13 Among the available options, due consideration must be given to the possibility that
the Parties find an agreed solution through negotia tions. In its Memorial, Germany repeatedly
asserts that the traditional and preferred method of settling war claims consists of concluding
agreements at inter-State level 244. While Germany argues that in the relationship between Italy
and Germany there was (and there is) no need for a new agreement covering the reparation
claims of the victims of grave violations of humanitarian law committed by Nazi Germany, its
view is based solely on the claim that Italy, by concluding the 1947 Peace Treaty and the 1961
Agreements, has renounced all claims against Germany and German nationals resulting from the
period of Second World War 245. Now, as shown above Italy did not waive all the claims, since
the 1947 clause had a very specific and limited scope, and the 1961 Agreements only partially
244GM, paras. 32, 55 and 59.
245GM, para. 59.
132addressed the issue of reparations. In any case, the question whether Italy has validly renounced
all reparation claims against Germany is now before the Court. Once the Court has clarified that
Germany’s position concerning Italy’s renunciati on to all claims is completely unfounded, the
negotiation of an agreement at inter-State level ma y be regarded as a viable solution for sorting
out the complex situation arising as a result of the denial of effective reparation suffered by
Italian victims of Nazi crimes. Italy would cer tainly welcome any initiative on the part of
Germany leading to the establishment, on the basis of specific conventional understandings, of
mechanisms for addressing reparation claims. Thus , in Italy’s view, a declaration by the Court
ordering Germany to provide effective re paration, including thro ugh negotiation of an
agreement with Italy, may, under the circumstances of the present case, constitute an appropriate
remedy.
Section IV. Conclusions
7.14 Italy’s counter-claim is based on Germany’s denial of effective reparation to Italian
victims of the grave violations of internati onal humanitarian law committed by Nazi Germany
during the Second World War. This counter-claim is within the jurisdiction of the Court and is
directly connected with the subject-matter of Germ any’s claim. Italy asks the Court to find that
Germany has violated its ongoing obligation to provide effective reparation to Italian victims of
Nazi crimes and that Germany must cease its wrongful conduct and bear international
responsibility for such conduct. Italy finds that under the circumstances of the present case an
appropriate remedy consists in an order of the Court that Germany must offer effective
reparation to Italian victims of Nazi crimes by means of its own choosing as well as through the
conclusion of an agreement with Italy.
133 SUBMISSIONS
On the basis of the facts and arguments set out above, and reserving its right to
supplement or amend these Submissions, Italy re spectfully requests that the Court adjudge and
declare that all the claims of Germany are rejected.
With respect to its counter-claim, and in accordance with Article 80 of the Rules of
the Court, Italy asks respectfully the Court to adjudge and declare that, considering the existence
under international law of an obligation of reparation owed to the victims of war crimes and
crimes against humanity perpetrated by the III° Reich:
1. Germany has violated this ob ligation with regard to Ita lian victims of such crimes
by denying them effective reparation.
2. Germany’s international responsibility is engaged for this conduct.
3. Germany must cease its wrongful conduct and offer appropriate and effective
reparation to these victims, by means of its own choosing, as well as through the conclusion of
agreements with Italy.
Rome, 22 December 2009
Ambassador Paolo Pucci di Benisichi
Agent of the Government of the Italian Republic
Dr. Giacomo Aiello
Agent of the Government of the Italian Republic
134 LIST OF ANNEXES
Annex 1 Joint Declaration by the Governments of the Federal Republic of Germany
and the Italian Republic, 18 November 2008.
Annex 2 Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3, No. 747, Article
77.
Annex 3 Accordo fra la Repubblica Federale di Germania e la Repubblica Italiana
per il regolamento di alcune questioni di carattere patrimoniale, economico
e finanziario, 2 giugno 1961; Treaty be tween the Federal Republic of
Germany and the Italian Republic on the Settlement of certain Property-
Related, Economic and Financial Questions, 2 June 1961.
Annex 4 Accordo tra la Repubblica Federale di Germania e la Repubblica Italiana
circa gli indennizzi a favore dei cittadi ni italiani che sono stati colpiti da
misure di persecuzione nazional socialiste, 2 giugno 1961; Treaty
Concerning Compensation for Italia n Nationals Subjected to National-
Socialist Measures of Persecution, 2 June 1961.
Annex 5 Bundesgesetz zur Entschädigung für Op fer der nationalsozialistischen
Verfolgung, 18 September 1953 (excerpt s); Federal Law Concerning the
Compensation of Victims of the Na tional Socialist Persecution, 18
September 1953, Preamble and Sections 1-4(a).
135Annex 6 Zweites Gesetz zur Änderung des Bundesentschädigungsgesetzes (BEG-
Schlussgesetz), 14 September 1965; Second Law Amending the Federal
Compensation Law (BEG Final Law), 14 September 1965, Article VI.
Annex 7 Gesetz zur Errichtung einer St iftung “Erinnerung, Verantwortung und
Zukunft”, 2 August 2000; Law on the Creation of a Foundation
“Remembrance, Responsibility an d Future”, 2 August 2000; English
translation: http://www.stiftung-evz.de/eng/about-us/foundation_law.
Annex 8 Leistungsberechtigung der Italienische n Militärinternierten nach dem
Gesetz zur Errichtung einer St iftung “Erinnerung, Verantwortung und
Zukunft”, Rechtgutachten erstattet von Pr ofessor Dr. Christian Tomuschat,
31 Juli 2001; Entitlement of Italian Military Internees to Benefit under the
Law Creating a Foundation “Remembrance, Responsibility and Future”?,
Legal Opinion drawn up by Professor Dr. Christian Tomuschat, 31 July
2001.
Annex 9 German Federal Constitutional Court, cases of A. and 942 further
complainants, decision of 28 June 2004.
Annex 10 European Court of Human Rights, Associazione nazi onale reduci dalla
prigionia, dall’internamento e dalla guerra di liberazion e (A.N.R.P.) and
275 others v. Germany, decision of 4 September 2007.
Annex 11 German Federal Supreme Court, case of the Distomo Massacre, judgment
of 26 June 2003; English translation: 42 ILM 1030 (2003).
136
Counter-Memorial of Italy