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CR 2011/19 (traduction)

CR 2011/19 (translation)

Mercredi 14 septembre 2011 à 10 heures

Wednesday 14 September 2011 at 10 a.m. - 2 -

10 Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte.

La Cour se réunit ce matin pour entendre les observations de la Grè ce sur l’objet de son

intervention en l’espèce.

Permettez-moi de vous rappeler que demain, jeudi 15, et vendredi 16, l’Allemagne et l’Italie

présenteront à leur tour des observations sur l’objet de l’intervention de la Grèce au cours de leur

second tour de plaidoiries.

J’appelle maintenant M. Stelios Perrakis, l’agent de la Grèce, à la barre.

Mr.PERRAKIS: Mr.President, distinguished Members of the Court, this is the first time

that I have appeared before your Court and I would like to begin by saying how deeply I admire

both the Court and the work it has been doing for the last 66 years, and how much I am devoted to

international justice and international law. It is a great honour and a privilege to be able to appear

before you on behalf of my country, the Hellenic Republic.

I.INTRODUCTORY REMARKS

1. The case before you is no ordinary case. It is a defining case, whose substance goes

beyond a simple bilateral dispute between States, because the real issue, the core of the matter, —

behind the established notions, whether accepted or evolving—, is the duel between State

sovereignty and the individual, between the jurisdictional immunity of the State and individuals

whose rights are infringed and who are subject to grave violations of humanitarian law.

2. An examination of State immunity, a sensitive issue in terms of its implementation, must

address the substantive rules deriving from the in ternational responsibility of the State, its

obligation to make good any damage caused and the individual right of the victim to reparation.

Th3e. Germany v. Italy case is unfolding before the Court at a time when the international

community is actively committed to promoting an international constitu tional order in which

democracy, the rule of law and human rights prev ail and in which justice reigns. As the great

Greek tragedian Aeschylus said in his work Eumenides: “[there], where Justice, triumphing over

the Erinyes, the goddesses of retribution, and th e barbaric aspects of humanity, promises Athens - 3 -

11 that its seat, the seat of justice, will be a foess, a rampart of safety, as large as the territory of

Athens, as strong as the City-State . . .” [translation by the Registry].

4. I find it difficult to believe that the fundamental question in the present dispute, of State

immunity versus the rights of the individual, risks shaking the foundations of international law, or

that development in that respect could pose a threat to international law, as is claimed. I would

point out that the international community, who se institutional and legal structure was established

by the 1945 United Nations Charter, not only affi rms the sovereign equality of States but sanctions

the establishment of human rights within the League of Nations.

5. The Hellenic Republic is here before you fu rther to the Court’s Order of 4July2011 on

the Hellenic Republic’s Application for permis sion to intervene in the case concerning

Jurisdictional Immunities of the State (Germany v. Italy). In that Order, the Court granted the

Hellenic Republic permission to intervene in the current proceedings as a non-party, in accordance

with Article 62 of the Statute of the Court.

6. On 3August, pursuant to Article85, paragr aph1, of the Rules of Court, Greece filed its

written statement; comments on that written statement were received from Germany on 26 August.

7. Greece wishes to state at the outset and most emphatically that its intervention in the case

between Germany and Italy concerning Jurisdictiona l Immunities of the State is not intended, and

was never intended, to affect in any way the exce llent relations it maintains with the two countries

which are the Parties to the dispute.

8. The purpose of Greece’s intervention was set out in its Application for permission to

intervene of 13January2011, and in its written observations of 4May2011. It was described

clearly in the Court’s Order of 4July2011. Wh at the Hellenic Republic seeks to do, within the

limits set by the Court in its Order and on the basis of the decisions rendered by the Greek courts in

the Distomo case, is to help to determine the current legal position in respect of an evolving issue

and to contribute to the progressive development of international law, in an area of such importance

to the international legal order and to the position of the individual therein.

9. We will begin today by presenting the factual background to the present case and to our

12 intervention. We will then clarify the judgm ents of the Greek c ourts in the landmark Distomo

Massacre case, by elaborating on the legal principl es deriving from both national and international - 4 -

law which underpin those judgments. This ap proach will involve discussing the factual

background to the issues underlying the Distomo Massacre case as well as the legal position

adopted by the Greek courts concerned, in the light of issues relating to State immunity, of

international liability and of the civil claims instituted in respect of the enforcement of the Distomo

judgment in Italian territory. We will also refer to the Margellos and Others judgment of the

Special Supreme Court.

10. We will then consider the judgments in the light of international law and its recent

development, so as to analyse the various components involved. Finally, we will conclude by

addressing the legal consequences that the Court’s Judgment will have on this question. While this

issue is undoubtedly of general interest to any State, we will look at the practical consequences that

the Court’s judgment will have in Greece on pending and future cases similar to those which have

already been brought before the Greek courts.

II.T HE FACTUAL AND FUNCTIONAL BACKGROUND TO THE PRESENT CASE
AND TO G REECE ’S INTERVENTION

Mr. President, distinguished Members of the C ourt, I would now like to describe the factual

and functional background to the present case and to Greece’s intervention.

11. In the dispute between Germany and Italy over the adoption and enforcement, within the

Italian legal order, of various judgments rendered by Italian court⎯ in violation, according to

Germany, of the jurisdictional immunity which it enjoys under international law ⎯ awarding

reparations to individual victims of serious viol ations of international humanitarian law committed

by the Third Reich and the German armed forces during the Second World War, one of Germany’s

complaints ⎯ the third ⎯ focuses on the enforcement in Ital y of a Greek judgment in the Distomo

Massacre case. This was the judgment rendered by the Livadia Court of First Instance

(Protodikeio), upheld by the Court of Cassation (Areios Pagos), which held the German State liable

to compensate Greek nationals who had been the victims of the massacre perpetrated at Distomo by

German armed forces on 10 June 1944, when Greece was under German occupation.

13 12. On 25September1997, the Livadia Court of First Instance found Germany liable for

serious violations of humanitarian law committed during the massacre and awarded damages to

relatives of the victims of the massacre. German y lodged an appeal before the Greek Court of - 5 -

Cassation, which, in 2000, upheld the Livadia judgment by an overwhelming majority. However,

the Livadia decision, which had become final, could not be enforced in Greece, as the authorization

required under Article 923 of the Greek Code of Civil Procedure for enforcing a decision against a

third State was not granted by the Minister for Justice.

13. Faced with the Justice Minister’s refusal to agree to the adoption of interim measures

aimed at enforcing the Livadia judgment, the claimants then brought the matter before the Council

of State, which, in its judgment 3669/2006, confirmed that the Minister’s act, being a governmental

act and not subject to review by the courts, lay entirely within the sovereign discretion of the State.

14. The claimants made an application to the European Court of Human Rights

(Kalogeropoulos and Others case) against Greece and Germany. They claimed that Article6,

paragraph1, of the European Convention had been violated, as well as Article1 of Additional

Protocol No.1 to that Convention, as a result of the refusal to comply with the judgment of the

Livadia Court. On 12 December 2002, the Strasbourg Court declared the application inadmissible.

15. The claimants also instituted proceedings before the German courts (the Bonn Regional

Court in 1997 and the Cologne Supreme Regiona l Court the following year) with a view to

enforcing the Livadia judgment in Germany. The Distomo victims’ action was unsuccessful. The

Greek applicants then lodged an appeal before the German Federal Constitutional Court, which was

rejected on 26 June 2003. The explanation for the dismissal of the individual Greek actions is to be

found in the status of German legislation on the pos sibility for victims of IHL violations to lodge

claims and in the attitude of the German courts towards the right of individual victims to justice

and reparation.

16. By contrast, the Distomo victims did succeed in securing enforcement through a decision

of the Florence Court of Appeal of 2May2005, which declared that the Livadia judgment was

enforceable in Italian territory. The decision to enforce the judgment rendered by the Livadia court

became enforceable after the Italian Supreme Court (Corte Suprema di Cassazione) upheld the

14 decision of the Florence Court of Appeal. On 7 June 2007, the Greek applicants registered with the

Como provincial office of the Italian Land Registry a legal charge over Villa Vigoni, a property of

the German State. - 6 -

17. In this context, reference is also made to the decision in Margellos and Others v.

Germany. On 17September2002 the Special Supreme Court, by a majority of six votes to five,

adopted a position contrary to that of the Court of Cassation in 2000.

18. On 13January2011, the Hellenic Republic filed an Application for permission to

intervene under Article62 of the Statute in the current proceedings between Germany and Italy.

Greece stressed the fact that its Application was in keeping with its wish to contribute, as a

non-party, to the sound administration of justice in this case.

19. In their written observations the two Parties to the present dispute did not formally object

to Greece’s Application, even though Germany raised certain considerations which indicated that

the Greek request did not meet the intervention criteria set out in the Statute.

20. The Court granted the Application for pe rmission to intervene on 4July2011. In its

Order, it finds that “Greece has sufficiently established that it has an interest of a legal nature which

may be affected by the judgment that the Court will hand down in the main proceedings”.

Mr.President, Members of the Court, we are now going to address the question of the

position of the Greek courts on State immunity in respect of reparation for violations of

humanitarian law, in the context of the developmen t of international law, and I ask, Mr. President,

if you would give the floor to my colleague, Counsel and Advocate, Professor Antonis Bredimas.

Le PRESIDENT : Je remercie M. Stelios Perrakis, l’agent de la Grèce, pour son intervention.

J’invite à présent M. Bredimas à prendre la parole.

Mr.BREDIMAS: Mr.President, Members of the Court, this is the first time I have

addressed the Court, and it is a very great honour and privilege to be able to do so on behalf of my

country. My statement will consider the judgments in the Distomo Massacre case, that is to say,

the judgment of the Court of First Instance of Livadia and, subsequently, the judgment of the

Areios Pagos, the Greek Court of Cassation. - 7 -

15 III.THE POSITION OF THE G REEK COURTS ON STATE IMMUNITY IN RESPECT OF REPARATION
FOR GRAVE VIOLATIONS OF HUMANITARIAN LAW ,IN THE CONTEXT

OF THE DEVELOPMENT OF INTERNATIONAL LAW

A. The judgments in the Distomo Massacre case

(a) The judgment of the Court of First Instance of Livadia

21. Beginning with the Court of First Instance of Livadia, in tPrefecture of Voiotia (and

others) v. Germany case, known as the Distomo Massacre case, the Prefecture of the central Greece

region and 257individuals submitted, on 27N ovember1995, a claim for compensation to the

Court of First Instance of Livadia, capital and administrative centre of the Prefecture. The

claimants asked the court to declare admissibletheir claims for compensation for pecuniary and

non-pecuniary losses suffered during the atrocities committed by the German occupying forces in

Distomo on 10 June 1944. In that horrific episode, 218 of the village’s inhabitants, including seven

babies under six months, 15 children aged between 2 and 5, and 25 children aged between 6 and 12

(a total of 47 children), 91 women, 25 elderly me n and 20 couples, not to mention numerous rapes

and murdered pregnant women ⎯ victims who were, for the most part, relatives of the

applicants— were massacred, their property w as destroyed and the village was burned to the

ground.

22. The Hellenic Republic does not find it necessa ry to dwell on the facts which form the

basis of the case brought before the Livadia court. They are well known to the Court, to the Parties

to the present dispute and indeed beyond. An excellent statement of those facts can be found in the

separate opinion of JudgeCançadoTrindade. It is undeniable that, besides engaging the

international responsibility of the German State, of course, those atrocities constitute crimes against

humanity or war crimes, similar in nature to t hose which impelled the Nuremberg Tribunal to pass

heavy sentences on various individuals, sentences that were mirrored elsewhere in other trials that

took place after the Second World War. Germany, in its comments of 26 August, does not dispute

either these facts or these legal implications, and we welcome the fact that it is not denying the

obvious. - 8 -

23. Distomo, like Kalavrita and 88 other massacre sites in Greece, is an example of a

16 widespread and systematic policy of reprisals by the occupying power, which resulted in the

destruction of Distomo and many other Greek villages and the extermination of an innocent civilian

population in a manner that has been described as “barbaric”.

24. Germany refused to be represented in the pr oceedings before the Livadia court, invoking

its jurisdictional immunity. It should be noted in this respect that in Greece there is no specific

legislation on State immunity. The question is governed in a general way by Article3,

paragraph1, of the Greek Code of Civil Procedur e, which stipulates— simply— that foreigners

enjoy immunity before the Greek courts, the latter interpreting that term to include States as well.

25. The Court of First Instance of Livadia began by automatically examining whether it had

jurisdiction under Article4 of the Code of Civil Procedure, that is to say, where the respondent

does not appear at the initial hearing, as was the ca se with Germany. The court also considered

whether it had jurisdiction in the light of a further provision referred to by that same article of the

Code of Civil Procedure, whereby “Foreign citizens shall not be subject to the jurisdiction of Greek

courts where they enjoy immunity.” That prerogative of immunity is enjoyed not just by

individuals, but also by foreign States as subjects of public international law. The court,

considering this last question, adopted the genera l approach accepted in public international law,

which is to distinguish between acts of a State which fall under private international law (acts jure

gestionis) and those by which a State exercises its authority (acts jure imperii). The Livadia court

followed extensive Greek jurispruden ce in recognizing that State acts jure imperii are covered by

the principle of immunity. It then went on to consider whether the acts committed by the German

occupying forces at Distomo were acts jure gestionis or jure imperii.

26. The court ⎯ as would any Greek court ⎯ considered this question according to the

domestic law of the forum State, but following th e principles established by international law,

including Article46 of the Regulations annexe d to the Hague Convention of 1907, under which

“Family honour [and] rights, the lives of persons, and private property... must be respected.”

This provision constitutes a specific obligation for occupying forces, which are required to comply

with it. On that basis, the Livadia court agreed that Article46 was a provision of jus cogens, as

17 accepted by public international law. The consequence of the existence of jus cogens is that a State - 9 -

cannot invoke the principle of immunity if it is prosecuted for breaching provisions of that nature.

The Livadia court based its finding on the judgment of the Nuremberg Tribunal that the right to

immunity is lost where the acts or offences in question are condemned under international law, a

reference to what was subsequently accepted as jus cogens . The court therefore reached the

following conclusions: (a) that a State which has breached a rule of jus cogens is deemed to have

implicitly waived the right to immunity, (b) that acts of a State in breach of jus cogens cannot be

classified as sovereign acts, (c) that territorial sovereignty prevails over the principle of immunity,

which cannot be relied on by a State for acts comm itted during an illegal m ilitary occupation, and

finally (d) that claiming immunity for acts committed in breach of jus cogens would be tantamount

to an abuse of law. On all those grounds the Li vadia court, reiterating that the acts committed by

the Germany occupying forces did not constitute acts of sovereign authority, held that Germany did

not enjoy immunity and that the actions brought before it by the plaintiffs were admissible.

27. The Livadia court also emphasized the principle ex injuria jus non oritur, concluding that

acts in breach of international law cannot give rise to a right to immunity for the State responsible.

28. Addressing the question of compensation for the applicants, the court deemed their

claims to be in accordance with international law, referring to Article 3 of the Hague Convention of

1907, which provides that

“A belligerent party which violates the provisions of the said Regulations

[Respecting the Laws and Customs of War on Land, in other words Article 46] shall,
if the case demands, be liable to pay compensati on. It shall be responsible for all acts
committed by persons forming part of its armed forces.”

The Livadia court discussed two points rela ting to this. First, although Greece has not

ratified the Regulations, the two States (Gre ece and Germany) are nevertheless bound by their

content since they form part of customary international law; and second, the expression “if the

case demands” used in Article3 of the Ha gue Convention does not, according to legal

18 commentators, introduce a flexibility clause into th at article, but instead emphasizes that it is

necessary for damage to have occurred.

29. The Court of First Instance went on to consider two questions arising from certain

national or international instruments that might be relevant for the issue of reparations. First, it

analysed Greek Law No.2023, under the terms of which “The state of war between Greece and - 10 -

Germany shall be lifted as of 10June1951”, but observed that that applied “subject to the

settlement of the issues and disputes that have aris en from the war, in a subsequent peace treaty”.

Second, it considered the London Agreement of 27 February 1953 on German External Debts,

which Greece ratified in 1956, Article 5 (2) of which provides as follows:

“Consideration of claims arising out of the Second World War by countries
which were at war with or were occupied by Germany during that war, and by
nationals of such countries, against the Re ich and agencies of the Reich, including
costs of German occupation, credits acqui red during occupation on clearing accounts

and claims against the Reichskreditkassen, sh all be deferred until the final settlement
of the problem of reparation.”

30. For the Livadia judges, although Germany had not concluded a formal peace treaty with

Greece, the Moscow Treaty of 1990, known as the “Two-plus-Four Treaty” ⎯ the two German

States (the Federal Republic of Germany and th e German Democratic Republic) plus the four

victorious powers (USSR, UK, USA and France) ⎯ constituted a peace treaty, since it settled

issues arising from the armed conflict of the Second World War. The court observed that the rules

contained in the Moscow Treaty satisfied the c ondition laid down in the London Agreement (that

the problem of reparation should be finally settled in a treaty).

31. Lastly, the Livadia court considered wh ich claims for compensation should be accepted

and which dismissed on the ground that they we re vague or sought pecuniary satisfaction for

mental suffering.

32. In its Decision No.137/1997, the Livadia court ordered Germany to pay the applicants

some €27,362,323, but above all adopted a decisi on which both the plaintiffs and public opinion

regarded as justice being done.

19 (b) The judgment of the Greek Court of Cassation (Areios Pagos)

33. Germany appealed in cassation against the 1997 judgment of the Court of First Instance

of Livadia in 1998. In its judgment of 1999, the First Civil Chamber of the Areios Pagos referred

the case to the full court, which rendered its judgment on 25 May 2000 upholding the judgment of

the Livadia court and dismissing Germany’s appeal in cassation.

The Court of Cassation looked at the fundamental issue in the dispute, examining the two

elements necessary for an international custom to exist, namely, general practice and opinio juris. - 11 -

It found that the principle of the sovereign immunity of foreign States is a rule of customary

international law which, according to Article 28 of the Constitution, constitutes an integral part of

Greek law and is designed to avoid “the distur bance of international relations”. The court

reiterated the judgment of the Livadia cour t concerning the distinction between acts jure imperii

and acts jure gestionis and the fact that that distinction is made on the basis of the law of the forum

State. It subsequently referred to conventi onal international law and in particular the

1972 European Convention on State Immunity, on which it made the following observations. First,

the Convention had been ratified by only eight States, one of which was Germany, but the fact that

it had not been ratified by the majority of European States did not mean that they disagreed with

the fundamental principles it contained. The Court of Cassation also considered that the

Convention codified customary international law on the subject. In any event, the court highlighted

Article 11 of the Convention, which provides that a contracting State cannot claim immunity from

another contracting State in proceedings relating to redress for injury or damage caused by crimes

committed against a person or property, regardless of whether the crime was committed by the

State jure imperii or jure gestionis. The judgment goes on to consider the cumulative conditions

laid down in the Convention, which are that there must be a connection with the forum State, that

the act must have occurred in the te rritory of the forum State, and th at the author of the injury or

damage must have been present in the territory of the State where the crime was committed.

Th4e. Areios Pagos devotes particular attention to the fact that the 1972 Convention

pioneered and influenced legislation on exceptions to the principle of immunity in a number of

States, particularly outside Europe (USA, Canada, Australia, South Africa, Singapore, etc.), while a

20 whole section of the judgment is devoted to the “Articles on Jurisdictional Immunities” drafted by

the International Law Commission in 2001, which, according to the Court of Cassation’s judgment,

reflect the opinions of the international community on questions of immunity. The court expressly

refers to Article82 of the International La w Commission’s Articles and compares it with the

corresponding text in the European Convention an d the note by the Rapporteur interpreting that

Article, which states that it is based on the prin ciple of territoriality and governs crimes committed

by State organs in the forum territory, whether they are acts jure imperii or jure gestionis. The

Court of Cassation also invokes similar rules produced in 1991 by the Institut de droit international - 12 -

as well as the jurisprudence of certain States, in particular the USA, where it expressly cites the

cases of Letelier v. Republic of Chile of 1980 and Liu v. Republic of China of 1986, in which the

American courts affirmed their jurisdiction to hear these cases even though they concerned

government acts committed jure imperii.

35. Finally, the Court of Cassation, referring to the Regulations annexed to the Fourth Hague

Convention of 1907, concluded that the criminal acts committed were “in contravention of the

peremptory norms of international law”.

36. On the basis of all these factors, as well as the opinion of many prominent writers on

public international law, the court held that this was a general practice on the part of States which

was accepted as law and, consequently, that it w as an international custom which provides that

national courts may have jurisdiction, by way of exception from the principle of immunity, over

claims for damages in relation to wrongful acts committed in the circumstances described earlier.

The court accepted that the exception from the principle of immunity did not usually cover claims

for pecuniary reparation relating to armed conflict, since such re paration is usually covered by

agreements between States (peace treaties). Howeve r, State jurisdictional immunity did not apply

where the acts committed constituted crimes ⎯ usually crimes against humanity ⎯ which were not

objectively necessary to maintain a belligerent occupation.

37. Applying those conclusions in the pr esent case, the Court of Cassation upheld the

judgment of the Livadia court, agreeing that the acts committed against the inhabitants of the
21

village of Distomo by the German occupying forces constituted armed reprisals which were not in

any way necessary to maintain the military occupati on or to suppress resistance. The court thus

upheld the decision of the Livadia court that the German State could not invoke the principle of

immunity and that it had indirectly waived that right in so far as the acts in question did not have

the character of acts of sovereign power.

Mr. President, Members of the Court, that concludes my statement, and I would now ask you

to invite our Agent, Professor Stelios Perrakis, to continue with our arguments.

Le PRESIDENT: Je remercie M.Bredimas pour son exposé. Je redonne la parole à

M. Stelios Perrakis, l’agent de la Grèce, qui va présenter ses observations. - 13 -

Mr. PERRAKIS: Mr. President, Members of the Court, I will continue our statement on the

position of the Greek courts on State immunity in respect of reparation for grave violations of

humanitarian law.

B. The judgments of other Greek courts

38. Greece was one of the worst affected countries in the Second World War, with an

unusually high loss of life in relation to the size of the population, but also because of the civilian

massacres frequently perpetrated. It should be underlined that the Distomo case was not an isolated

case in the relevant Greek case law. Massacres similar to those in Distomo were committed by the

occupying troops in 89 locations, one of the worst being in Kalavrita in the northern Peloponnese.

39. A whole series of claims for reparation were brought before the Greek courts during the

late 1990s by individuals who had been victims of the conduct of German occupying forces.

Individual actions for damages were brought be fore a number of Greek courts on the basis of

various acts committed throughout the country, most of them terrible crimes perpetrated by the

army of occupation during massacres mainly carried out as reprisals.

22 40. These gave rise to a series of different first-instance and appeal judgments, which

outlined the trend in respect of the principle of State immunity. Some did not uphold the victims’

claims, invoking the jurisdictional immunity of the German State. Others accepted that the

individual complaints were well founded, as was the case with Distomo. The latter courts, having

affirmed their jurisdiction to hear the complaints brought by individuals, upheld those complaints

and rendered satisfaction, orderi ng the German Government to pay financial compensation for

pecuniary and non-pecuniary damage. The first group of judgments includes those by the Courts of

First Instance of Thebes (17/13 of 13/1/97), Chania (No.77/1997), Piraeus (692/97), Larissa

(93/98), Patras (953 of 25/9/1998), Arta (1/26/ 1/99), etc. The second group, the “positive”

judgments, include the Courts of First Instance of Tripolis (59/1998), Aigio (92/3/6/98 and

91/25/6/1998), the Athens Court of Appeal (1122/1999), the Crete Court of Appeal

(438/20/7/2000) and the Piraeus Court of Appeal (894/2001). - 14 -

C. The judgment of the Special Supreme Court (SSC) in
the Margellos and Others case

T4e1. Margellos and Others case before the Special Supreme Court is not mentioned in the

Court’s Order within the particular field of Greece’s intervention. It is simply referred to in the

Court’s factual considerations. However, it was emphasized by Germany in its written pleadings in

the principal proceedings, its comments of 26 August on our written statement, and in its

arguments on Monday.

T4he. Margellos and Others case is based on events similar to those in the Distomo case,

which took place in Lidoriki in the Fokis region of central Greece. Pursuant to the request of the

First Chamber of the Court of Cassation, the Special Supreme Court was asked to determine

whether there was a norm in customary interna tional law whereby, in the case of wrongful acts

which violated peremptory international rules, there is an exception to the jurisdictional immunity

of a State. Having examined the case law of various national courts, as well as that of the

European Court of Human Rights in the McElhinney v. Ireland and Al-Adsani v. United Kingdom

cases, and the 1972 European Convention on Immun ity, the court concluded that, notwithstanding

the fact that a trend was developing, it was not in a position to confirm the existence of an

emerging international norm which would allow an exception to the jurisdictional immunity of the
23

State in the event of crimes perpetrated by the armed forces of a State in violation of jus cogens

international obligations. Judgment6/2001 of th e Special Supreme Court was rendered by the

barest majority of six votes to five. I repeat, six to five. Just lAl-Adsani, where it was nine to

eight. The minority, in its dissenting opinion, endo rsed the arguments of the Court of Cassation,

which my colleague discussed earlier, and insisted that the existence of an emerging customary

norm of international law barred the application of State immunity in that case.

43. With regard to the Margellos and Others case, Germany’s assessment of the judgment is

legally flawed, in our opinion, as a result of its obvious confusion concerning the status of the

Special Supreme Court. Notwithstanding its “information obtained”, the situation is not as

Germany would have us believe, which is that th e judgment of the Special Supreme Court more or

less “rejected” ⎯ the term used by the Agent for Germany, ProfessorTomuschat ⎯ or even

“overturned” the findings of the Court of Cassation. - 15 -

44. First of all, Mr. President, Members of th e Court, the Special Supreme Court is not “the

highest judicial body” in Greece, as the German Government states. According to authoritative

legal writers in Greece, the majority of publicists classify this court as a special court which is

neither independent, permanent nor hierarchically supreme, and which does not necessarily share

the same characteristics as courts of law in other countries, whose acts take clear precedence within

the national legal order. As for its judgments concerning the existence of rules of international law,

it is difficult to claim that these have an erga omnes effect, including in respect of any government

institutions.

45. The confusion lies in the jurisdiction ex ercised by the Special Supreme Court. Its

judgments must be seen in the context of its legal status as a sui generis organ in the Greek legal

system and therefore in the national legal order. Under Article 100 of the Greek Constitution, the

Special Supreme Court has a dual role. Firstly, if there is a difference of opinion between two of

the country’s highest courts regarding the validity of a rule of law, the Special Supreme Court

carries out a constitutional review in order to rule on and clarify the situation from a constitutional

24 standpoint. It can also declare that a generally accepted rule of international law (customary law

under Article28(1) of the Constitution) is applicab le in a particular case. It is therefore only

partially a constitutional court, in its first role.

46. In the light of this legal situation, and pa rticularly as regards the “identification” of an

international customary rule in a particular ca se, it should be emphasized that the judgment

rendered in Margellos and Others in 2002 and its impact on the Greek legal order raise certain

questions. This is especially so given that the Special Supreme Court concluded in its judgment

that “in the present state of development of inte rnational law, there is no generally accepted rule

which would allow an exception to the rule of s overeign immunity” (paras. 14-15). However, the

argument ⎯ namely the finding that international lawis still developing ⎯ is there, even in the

reasoning of the six-member majority (it goes without saying for the five-member minority, of

course), whereby the current state of development of the law ⎯ as at the time of the judgment ⎯

was not such as to enable the court to hold that a new norm on immunity had been established. - 16 -

47. On the other hand, the Special Court’s role in providing a “uniform interpretation” of

rules of international law does not mean that its interpretation cannot ever change. That is the view

of the Special Court itself, which states even in the judgment in Margellos and Others that its

approach is limited in time, given the continuing de velopment of international law. In practice this

means that the ordinary, “natural” judge must subsequently consider, at each stage in the

development of international law, whether a rule may be regarded as “generally accepted” or not.

It is the approach taken by the Special Court in its interpretations which becomes binding on other

courts, not the interpretations themselves in individual cases.

48. This approach of allowing for the development of international law in this field ⎯ given

the contrary position taken by the Court of Cassation in theDistomo case, as well as the changes

emerging in international law and at the national level (Greek and Italian courts)⎯ essentially

leaves the question open.

49. All this provides evidence of the important role which the national courts play, in our

opinion, in undertaking the application and interpre tation of international law. The experience of

25 recent decades says much about their role. Ma jor questions of international law and legal

developments have originated with the na tional courts, such as the effects of the Pinochet case in

terms of individual criminal responsibility, or more generally.

IV. T HE APPROACH OF THE G REEK COURTS IN THE CONTEXT
OF EVOLVING INTERNATIONAL LAW

(a) The legal context of the case and the development of international law

50. Mr.President, Members of the Court, th e question arises whether the reasoning behind

the legal analysis of the Greek courts and their judgments in the Distomo and other similar cases, or

in relation to other violations of humanitarian law, reflects the state of the debate at both national

and international level and among legal commentators, relating to the development of international

law in respect of jurisdictional immunity and othe r closely related questions of international law,

which together form a corpus, even though each co mponent of this corpus remains and embodies a

distinct issue. - 17 -

51. What is the position of this Greek inte rpretation of the principle of jurisdictional

immunity in relation to the questions of reparation and individual actions before

national/international courts in the light of developments in inte rnational law? In addressing the

priority given to State immunity from the standpoint of other rules of international law governing

the international status of the individual, are we on the right track in the effective implementation

of rights? Is the approach adopted by the Greek courts to the Distomo case and the “minority” of

the Special Supreme Court in line with developmen ts in international law, State practice, the

judgments of national or international courts, the position of international political institutions and

others and the new legal rules?

52. Mr.President, it would appear that the Greek courts are mindful of these trends, which

are moreover accompanied by considerable chang es within the international community in the

post-bipolar era. Indeed, international law h as for some time been undergoing a considerable

evolution, notably in respect of international r esponsibility, reparation for victims of human rights

26 violations and breaches of humanitarian law and rela ted rights, and State immunity. It could even

be said that the international law governing these matters is undergoing a transformation, not only

in people’s minds, but in fact and in law. Several internationalist authors, including international

judges, share this view.

53. This transformation is marked in particular by the position and new role of individuals in

the international legal order. Individuals, as holde rs of rights and international actors with rights

and responsibilities, impel States and other interna tional actors to adopt a different approach in

their practice regarding the implementation of their rights. They thus contribute to the emergence

of new international norms. Those sa me individuals, through their claims ⎯ by means of direct

action before national courts or international judicial bodies ⎯ have produced a jurisprudence

which frequently goes beyond the basic premises of the law as it was created or established in the

past, but which no longer corresponds to the stated pr iorities of the international community in this

century.

54. This aspect of the individual’s position in the international order is only a new stage in an

evolutionary process initiated, in its time, by the PCIJ (Advisory Opinion on the Jurisdiction of the

Courts of Danzig) which considered «l’objet même d’un accord international, dans l’intention des - 18 -

Parties contractantes, [est] l’adoption, par les Par ties, de règles déterminées, créant des droits et

obligations pour des individus, et susceptibles d’être appliquées par les tribunaux nationaux».

Later, Hersch Lauterpacht considered that: «la position des individus en droit international ne peut

pas ne pas être modifiée par cer taines évolutions qui leur donn ent le pouvoir de protéger leurs

droits devant des juridictions internationales et leur imposent des obligations relevant directement

du droit international» [traduction du Greffe] . These views have been taken up by legal

commentators and are reflected in the comme ntary on the ILC Draft Articles on State

Responsibility: «[aujourd’hui], les individus … [p euvent] être considérés comme les bénéficiaires

ultimes [de certaines normes internationales] et, en ce sens, comme les titulaires de droits…».

55. Of course, the new situation is substantially reflected in the role of individuals before

international courts: European and inter-Ameri can courts, as well as befo re other international

organs: the Human Rights Committee, other human rights treaty bodies within the United Nations

system and other institutions of regional or universal scope.

27 56. Recognition of individual criminal respons ibility is a further element of change in the

international status of the individual.

57. Even the views of the Security Council demonstrate the considerable progression of the

position of the individual, in particular as regards protection against violations of human rights and

humanitarian law. Evidence of this trend is to be found in several resolutions adopted after the

1990s, dealing in particular with the protection of civilians in situations of armed conflict or in

relation to the question of humanitarian assistance. In this connection, see the recent statement by

Mr. Gérard Araud, acting President of the Security Council, on 10 May 2011. In some cases where

the civilian population was at risk, the Security Council has even authorized the use of armed force.

What is the situation regarding State sovereignt y in the case of Somalia, dating back more than

20 years (in 1992) or today in Libya (2011)?

58. Moreover, the advent in the international legal order of the principle of responsibility to

protect, as set out in the 2005World Summit outcome document (A/RES/60/1, paras.138-140),

strengthens the certainty of the need to protect civilian populations under threat or victims of grave

violations of international humanitarian law. - 19 -

59. Without doubt, in this legal framework, it is in the field of international human rights

law, international humanitarian law and international criminal law that the greatest advances can be

seen.

60. In reality, this is more than just the humanization of international law, according to

Theodor Meron; it is a true reform of the global le gal architecture. Evidence of this can be seen in

international criminal law and in the new interna tional criminal courts a nd tribunals. Reference

should be made in this context to the State’s ob ligation to facilitate the possibility for individual

victims to claim reparation for a violation of international humanitarian law from an individual

perpetrator. The State’s respons ibility to facilitate is an obligation derived from Article75 of the

Statute of the International Criminal Court. While it is true that, in that case, the question of

reparation does not arise at State level, it is c onversely a demonstration of a novel development,

illustrating a turning point in international legal theory on individual reparation. Under this

approach, the individual as victim makes a direct claim for reparation against the perpetrator of the
28

crimes. Thus, the issue becomes one of the relationship between the victim and the perpetrator, the

victim and the international community.

61. This possibility for the individual to app ear and plead before a court and to institute

different types of proceedings, including in th e area of reparation, has developed in several

directions. The central role in this gradual process belongs to the doctrine of human rights and the

proclamation of human rights by the international community at the universal, regional or national

level.

62. In particular, the human rights treaties requi re States to provide for effective remedies in

the event of the violation of rights, and most of them include a specific obligation on States parties

to make provision for a right to seek reparation in domestic law. This is a firmly established

individual right in international law: Intern ational Covenant on Civil and Political Rights

(Article2.3); Convention on Racial Discrimination (Article6); Convention against Torture

(Article14); European Convention on Human Rights (Article13); American Convention on

Human Rights (Articles10 and 25); Afri can Charter on Human and Peoples’ Rights

(Article 7.1 (a)), to name only a few. These systems for the protection of human rights entail an

obligation on States parties to establish domestic remedies available to individual victims of human - 20 -

rights violations. According to General Comme nt No.31, dated 26May2004, of the Committee

on Human Rights under the International Covenant on Civil and Political Rights, Article2,

paragraph3, of the Covenant requires States pa rties to make reparation to individuals whose

Covenant rights have been violated. Without reparation, according to the General Comment, the

obligation to provide an effective remedy, which is central to the efficacy of Article 2, paragraph 3,

is not discharged.

63. Thus, as was confirmed by the Eu ropean Court of Human Rights in the Aksoy v. Turkey

case, “the notion of an effective remedy entails... the payment of compensation” by the

respondent State (para. 98). The Inter-American Court of Human Rights took a similar position in

the Velasquez Rodriguez case (paras. 174-176).

64. The same point is reaffirmed by the Commission on Human Rights in its

resolution 1999/33 entitled “The right to restituti on, compensation and rehabilitation for victims of

grave violations of human rights and fundamental freedoms” (26 April 1999).

65. In 2005, the Commission on Human Rights, followed by ECOSOC and finally the

United Nations General Assembly:

29 “Affirm[] the importance of addressing the question of remedies and reparation
for victims of gross violations of international human rights law and serious violations
of international humanitarian law in a systematic and thorough way at the national and
international levels... Recognizing that, in honouring the victims’ right to benefit

from remedies and reparation, the internati onal community keeps faith with the plight
of victims, survivors and future human gene rations and reaffirms international law in
the field.”

66. Mr.President, this is a United Nations in strument which, contrary to the assertions of

Germany, is very clear about victims’ rights to reparation, and which expresses the universal

consensus concerning the State’s obligation of re paration and its obligation to provide for an

appropriate and adequate remedy at national level.

67. Article21 of the principles adopted re fers to the obligation on States to develop

appropriate rights and remedies in favour of in dividuals whose rights have been violated.

ProfessorvanBoven had explained convincingly that the principle adopted by the General

Assembly was the outcome of difficult negotiations and a number of diplomatic compromises.

Accordingly: - 21 -

⎯ remedies for gross violations of internationa l human rights law and serious violations of

international humanitarian law include the vict im’s right to the following, as provided for

under international law: effective access to jus tice; adequate, effective and prompt reparation

for harm suffered;

⎯ in accordance with its domestic laws and international legal obligations, a State shall provide

reparation to victims for acts or omissions which can be attributed to the State and constitute

gross violations of international human rights law or serious violations of international

humanitarian law;

⎯ to that end, States should provide under their domestic laws effective mechanisms for the

enforcement of reparation judgments.

68. In another context, it should be noted that the International Commission of Inquiry on

Darfur observes in its Report that:

«L’émergence des droits de l’homme en droit international a modifié la notion
classique de responsabilité de l’Etat, qui plaçait celui-ci au centre du mécanisme
d’indemnisation. L’incorporation des dr oits de l’homme dans le droit de la
responsabilité des Etats a supprimé la r estriction procédurale selon laquelle les

victimes de guerre ne pouvaie nt demander réparations que par le biais de leurs
gouvernements et a étendu le droit à l’indemnisation aux nationaux comme aux
étrangers. La tendance majoritaire veut que l’indemnisation, au titre de la
responsabilité des Etats, soit versée non seulement aux Etats mais aussi aux
30
particuliers.» (Para. 593; footnote on p. 217.)

69. In addition, in a letter addressed to th e Secretary-General of the United Nations in

October2000, Judge C.Jorda, President of the International Criminal Tribunal for the former

Yugoslavia, stated :

«[l]a reconnaissance et l’acceptation univer selle du droit à un recours utile ont
forcément une incidence sur l’interprétati on des règles du droit international relatives

à la responsabilité des Etats pour les crimes de guerre et autres crimes de droit
international.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ainsi, le droit international reconnaît maintenant le droit des victimes de
violations graves des droits de l’homme, en particulier les crimes de guerre, les crimes
contre l’humanité et les actes de génocide à la réparation (y compris sous forme
d’indemnisation) du préjudice qu’elles ont subi du fait de ces violations.» [Traduction

du Greffe.] - 22 -

(b) The individual right to reparation and the question of violations of international
humanitarian law

70. Mr.President, Members of the Court, the fundamental argument in the position of the

Greek courts is based on the recognition that there is an individual right to reparation in the event

of grave violations of humanitarian law. We wish to draw the Court’s attention to three questions

addressed by the Greek courts: first, whether indivi duals, in the light of the current legal situation,

possess primary rights in human rights law and humanitarian law; second, whether they have the

right to seek reparation in the event of the violati on of these rights; and third, whether they have

rights that can be enforced in domestic courts.

71. Of course, under customary international la w, States have an obligation to remedy the

effects of any violations of international human itarian law committed by them. However, this

gives rise to the question as to who is the beneficiary of the right to reparation. In this connection,

there are both arguments and State practice in support of the view that humanitarian law confers

rights on individuals, including the right to compen sation for serious viola tions of international

humanitarian law. International humanitarian law ⎯ law par excellence aimed at protecting the

individual ⎯ confers rights on individual beneficiaries. That notion is implicitly accepted in a

series of international humanitarian law provisions, which are included in the 1949Geneva

Conventions and the additional Protocols of 1977, and explicitly accepted in the philosophy and the

very raison d’être of international humanitarian la w. As was noted by Georges Abi-Saab, the aim

31 of international humanitarian law is to go «au-delà du niveau interétatique et [d’atteindre] celui des

bénéficiaires réels (ou ultimes) de la protection humanitaire, à savoi r, les individus et les groupes

d’individus» [traduction du Greffe].

72. The diplomatic conference preparing for the adoption of the four humanitarian

conventions in Geneva also recognized as far back as 1949 that: «[i]l ne suffit pas d’accorder des

droits aux personnes et d’imposer aux Etats une responsabilité; il faut encore fournir aux

personnes protégées les appuis qui leur sont nécessaires pour faire valoir leurs droits ;».

73. Thus, the obligation on the State to compensate individuals for violations of the rules of

humanitarian law seems to derive from Article3 of the Fourth Hague Convention of 1907, even

though it is not expressly stated in that Article a nd even though individuals needed State mediation

through inter-State treaties. On the other hand, nor does this situation reveal the intention not to - 23 -

grant an individual right to victims of the law of the Hague Convention. That is made clear by the

fact that individuals are not excluded from the text of Article 3. This line of argument also emerges

from the travaux préparatoires of the Second Hague Conference. It should be recalled that,

according to the initial proposal of Germany, «la partie belligérante qui violerait ces dispositions au

détriment de personnes neutres sera tenue d’indemniser ces personnes au titre du préjudice subi»

[traduction du Greffe]. In its commentary of 26 August, Germany claims that

ProfessorKalshoven, a former judge of your Court, interprets the travaux préparatoires on

Article 3 d’une manière qui est «loin d’être convaincan te», but at the same time, it can be seen that

the German proposal, in its interpretation of Article 3, refers to the compensation of “persons” and

that «[i]l est vrai que [les intervenan ts] faisaient pour l’essentiel référence aux personnes lésées».

It is therefore hard to see why Kalshoven’s interp retation that Article3 «visait dès le départ à

conférer aux individus le droit de demander réparation pour les préjudices qu’ils subissent, même

s’il existait un désaccord sur la question de savoir si les ressortissants d’Etats neutres

bénéficieraient des mêmes droits» [traduction du greffe] est «loin d’être convaincante».

74. Both Judge C.Greenwood and Professor EricDavid take a similar approach: Article3

«confère des droits aux personnes individuelles, not amment le droit à indemnisation, en cas de

violation, que l’individu concerné peut revendiquer contre l’Etat auteur du préjudice».

32 T7h5e. travaux préparatoires indicate that this provision concerns cases of individual

claims against States for unlawful acts committed during armed conflict or belligerent occupation,

even though Article 3 deals only with the procedural requirements for claiming reparation.

76. It should be emphasized that, at that time and for many years, practice in this field was

based on the signature of peace treaties followi ng the cessation of hostilities, which governed the

question of reparation. However, it was often the case that such treaties were not concluded and,

consequently, the question of compensation remained open, as for example in the case of Germany

in 1990, or the case of Iraq recently, among others.

77. The right to reparation appears in Artic le91 of the 1977 additional Protocol, the

substance of which reflects customary international law. According to the ICRC commentary, «les

ayants droit à l’indemnité seront normalement des Parties au conflit, ou leurs ressortissants» (les

italiques sont de nous), even if there are procedural problems. Similarly, in 1986, when the ICRC - 24 -

commentaries where being drafted, it was re cognized that there was already «[une]

tendance…[croissante] à autoriser les personnes victimes de violations du droit international

humanitaire à demander directement réparation à l’Etat responsable».

78. Since 1986, the ICRC has carefully comp leted its study on customary international

humanitarian law, in which it provides (Rule 150) for a right to reparation for serious violations of

international humanitarian law. In order to arrive at that finding and prove the customary nature of

this obligation and the binding force of the rule, the ICRC undertook a thorough assessment of the

sources and the evidence.

79. International practice in this field is a bundant and multi-faceted. In the case concerning

the Factory at Chorzów, the Permanent Court of International Justice stated that a secondary right

to reparation was the indispensable complement of a violation of international law. Your Court

also addressed the right of individuals to reparati on in its advisory opinion on the “Wall”, where it

found that Israel had the obligation to make repa ration for the damage caused to all the natural or

legal persons concerned. The Court recalled the firmly established case law to the effect that “[t]he

essential principle contained in the actual notion of an illegal act . . . is that reparation must, as far

as possible, wipe out all the consequences of th e illegal act and re-establish the situation which
33

would, in all probability, have existed if that act had not been committed”.

Le PRESIDENT : Monsieur Perrakis, excusez-moi de vous interrompre. Les dernières pages

que vous venez de lire ne semblent pas avoir ét é traduites en anglais. Nous vous serions

reconnaissants de bien vouloir parler un peu plus lentement pour permettre aux interprètes de vous

suivre.

Mr. PERRAKIS: Certainly, Mr. President.

I was saying therefore, that, in the opinion of the Court, your Court, in the case concerning

the “Wall”, Israel also had an obligation to compensate, in accordance with the applicable rules of

international law, all natural or legal persons having suffered a ny form of material damage as a

result of the wall’s construction (paras. 149-154). - 25 -

80. This position was reaffirmed in the case concerning Armed Activities on the Territory of

the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005 , p. 257,

para. 259:

“The Court [your Court] observes th at it is well established in general

international law that a State which b ears responsibility for an internationally
wrongful act is under an obligation to make full reparation for the injury caused by . . .
(violations of international human rights la w and of international humanitarian law,
looting, plunder and exploitation of the DRC’s natural resources), [and] the Court

considers that those acts resulted in injury to the DRC and to persons on its territory.
Having satisfied itself that this injury was caused to the DRC by Uganda, the Court
finds that Uganda has an obligation to make reparation accordingly.”

81. The International Criminal Tribunal for the former Yugoslavia, for its part, in the

Furundžija case, referring to the specific category of peremptory rules of international law (jus

cogens), held that the individual victims of a violati on of such norms are automatically entitled to

seek reparation before any court of law.

82. The possibility of exercising an individual right derived from international humanitarian

law has been addressed by a number of national co urts. There are extremely wide differences in

the approach adopted by these courts. Some of them have even taken the position of refusing all

rights to individuals from the standpoint of inte rnational law, as for example in the famous

34 Shimoda case in 1963, or have held that individuals are only beneficiaries of rights and enjoy only

the indirect protection of international law. For example, the German Federal Constitutional Court

had recognized in 2004 that individuals are benefi ciaries of rights under international humanitarian

law, but it did not accept that Article 3 entailed an individual right.

83. The same approach in recent German case law stands in contrast to the position taken by

the German courts in the 1950s. Thus, a German administrative court of appeal concluded in 1952

that Article 3 of the Fourth Hague Convention provided for an individual right to compensation.

84. The possibility of exercising an individua l right in order to claim damages has been

recognized by some national courts, such as th e Amsterdam Court of First Instance in the

Dedovic v. Kok case of 2000.

85. The State’s obligations to compensate individuals for violations of the rules of

international law is also affirmed in the International Law Commission’s Articles on Responsibility

of States for Internationally Wrongful Acts, Article 33 (2) of which ⎯ a “savings clause” ⎯ states - 26 -

that it is without prejudice to “any right, arising from the international responsibility of a State,

which may accrue directly to any person or entit y other than a State” (commentary, Crawford,

p. 210).

86. Some persons have also obtained reparati on directly through a variety of procedures,

including mechanisms put in place by the Security Council, inter-State ag reements and unilateral

acts, such as national laws or responses to claims filed directly by individuals with national courts.

87. One of the most interesting mechanisms is that of the 2000 Agreement between Eritrea

and Ethiopia, establishing an Eritrea-Ethiopia Claims Commission (EECC). In this case, even if

individuals submit claims to the Commission thr ough their States, the Commission has confirmed

nevertheless in its jurisprudence that «la demande demeure la propriété de l’individu et…les

dommages-intérêts sont, le cas échéant, accordés à l’individu». Consequently, individuals are

perceived as the holders of secondary rights under international humanitarian law.

35 88. The question also arises in the context of reports submitted by fact-finding missions of

the Security Council or the Human Rights Council on situations of violations of human rights and

humanitarian law, as exemplified by the commissions of inquiry on Darfur, Lebanon and others.

89. A series of other international instruments, in the form of “soft law”, strengthen the

position of the victim and his or her right to reparation, such as General Assembly

resolution 48/153 and others on the former Yugos lavia, and resolution 1998/70 of the Commission

on Human Rights, on Afghanistan. More recently , the International Law Association adopted a

declaration on “reparation for victims of war” in 2010, Article 6 of which provides that “victims of

armed conflict have a right to reparation from the responsible parties”.

90. Thus, reparation is directly provided fo r individuals through various procedures, in

particular via mechanisms established by inter-S tate agreements, via unilateral acts of States,

national legislation, and, where appropriate, re paration claimed directly by individuals from

national courts.

With your permission, Mr.President, I shall now address the question of jurisdictional

immunity and its relative nature in relation to the question of jus cogens. - 27 -

(c) Jurisdictional immunity of the State and its relative nature and the question of jus cogens

91. The progression from absolute jurisdictional immunity to relative immunity, and the

development of the distinction between acts jure imperii and acts jure gestionis, are the result of

significant developments within the inter-State international community and the establishment of

international laws which addressed national and/or international changes. Thus, beginning with

commercial transactions, national judges were induced to protect the rights of the individuals who

were parties in those transactions. The maxim “par in parem non habet imperium” and its

consequences underwent an initial restriction in practice in relation to State immunity.

92. This evolution began with various nationa l courts, as a consequence of claims filed by

36 individuals, followed by international instruments, such as the European Convention on State

Immunity and the United Nations Convention on Jurisdictional Immunities of States and their

Property (2004), and even national legislation.

93. In a second phase ⎯ the transformation of the international community from an

inter-State community to a community of several international actors (S
tates, international

organizations, groups of individuals, NGOs, etc.) ⎯ the individual has become a conduit for the

functioning of that community and for the implementation of international law, in particular as a

legal vehicle for human rights.

94. In these circumstances, a universal demand for a system of justice could never be

furthered or satisfied by opposing State sovere ignty to human rights. And it was strongly

emphasized by the International Criminal Tribunal for the former Yugoslavia in the Tadić case that

State sovereignty cannot be invoked in the case of war crimes and crimes against humanity.

95. A direct result of this situation is a gr owing pressure on States to provide the means to

remove obstacles and enable victims to obtain reparation. A new perspective is emerging for

individuals, as a result of the obligation on States to promote the right of reparation.

96. This evolution in the law of State immunity has been accepted by a number of national

courts, which have reached their decisions on the b asis of the current state of international law and

its development. It is against this background that the Distomo Massacre case has to be viewed. - 28 -

97. The most fundamental question regarding the application of the principle of State

immunity, and one that is closely linked with that of individual reparation, concerns the rules of jus

cogens.

98. In effect, as the Greek courts held in the Distomo Massacre case, if peremptory

international rules have been violated, the jurisdic tional immunity of the State responsible for such

violations cannot be invoked. Thus, victims of serious violations of human rights and humanitarian

law wishing to seek reparation before a national court should not be faced with the obstacle of State

immunity.

99. The International Law Commission’s Ar ticles on the International Responsibility of

37 States provide an authoritative reference. Arti cle40 provides for more serious consequences for

breaches of jus cogens rules, which include serious violations of international humanitarian law.

100. The approach whereby the rule of St ate immunity does not take precedence over a jus

cogens rule would appear to suggest an opinio juris crystallizing as a new customary norm in this

area (see the dissenting opinion of a minority of the European Court of Human Rights in the

Al-Adsani v. United Kingdom case). The declarations made by three States (Norway, Sweden and

Switzerland) ratifying the Convention on Jurisdicti onal Immunities, in which they state that the

latter instrument is without prejudice to any future international development in the protection of

human rights, reflect this view.

101. Even the Polish Supreme Court, Mr. President, in its recent judgment in 2010, addresses

the question of jus cogens in relation to State jurisdictional immunity, and recognizes that there is a

tendency to deny State immunity with respect to war crimes, describing this denial as an emerging

norm.

102. Independently of the interpretations and arguments as to the relationship between jus

cogens rules and State immunity rules ⎯ in respect of their hierarchy or priority, or whether such

acts (international crimes) fall outside the area of St ate sovereignty or constitute an implied waiver

of sovereignty ⎯ the fact of the matter remains that a rule of jus cogens, by its nature and content,

prevails over any other international rule. The attempt to draw a distinction between a jus cogens

rule (substantive rule) and a State immunity rule (procedural rule) has no logical or, still less, legal

relevance, if all the relevant matters addressed above ⎯ and all the discussions within the - 29 -

international community ⎯ are taken into account. In this context, the jus cogens rule is part of a

“custom-generation process”. If, on the other hand , the procedural rule (jurisdictional immunity)

were to take precedence over the substantive rule (jus cogens), it would produce an untenable legal

situation, inconsistent with the purpose and ratio of the primary substantive jus cogens rule, which

would be violated without achieving its goal (for ex ample, with regard to torture, to provide

satisfaction or reparation for the victim, and to punish the perpetrator of the violation).

38 103. As in the Greek Areios Pagos judgment, in the Ferrini case, the Italian Supreme Court

relied on jus cogens not as a rule of jus in bello , but rather as a means of underlining the

seriousness of the acts committed by a third State wh ich might justify the denial of immunity. We

would thus stress the fact that the crimes in question are so serious ⎯ crimes against humanity,

both at the time and today ⎯ that they justify the refusal to grant immunity.

The. ratio of the operation of jus cogens rules lies in the fact that the international

community/society of today is better organized, under the rule of law, and considers certain rights

as fundamental values. The international communi ty appears not in any sense to authorize rules

opposed to a higher value (for example, the prohibition of torture), so the trend is towards their

elimination.

105. If we wish to ensure th e effective implementation of jus cogens rules, it is not enough

merely to set aside the opposing norms; rather, we must fully satisfy its inherent purpose.

106. Indeed, how can a State that is in violation of its international obligations fully and

entirely assume its responsibility, particularly as regards reparation for the victims, if the

individuals that have suffered violations ⎯ even when they are defined as jus cogens violations ⎯

are not able to initiate reparation procedures before the competent courts.

V. G ENERAL ASSESSMENT AND FINAL REMARKS

107. Mr. President, distinguished Members of the Court, the dispute before you concerns, on

the one hand, the rule of immunity deriving from State sovereignty and, on the other, the basic

rules relating to human rights, humanitarian law a nd international crimes. The former protect the - 30 -

interests of States that are independent and sovereign equals. The latter re fer to the emergence and

establishment of fundamental values and rights, whose importance and protection are the subject of

an awareness which is shared and promoted by the entire international community.

108. An examination of the application of St ate immunity must address the substantive rules

deriving from the international responsibility of th e State, the obligation to make good any damage

39 caused and the individual right of victims to reparation. If an individual victim is unable to

exercise his or her right, this has an immediate and direct negative effect on the obligation to

provide reparation, which therefore indirectly casts doubt on whether the responsibility of the State

is engaged.

109. Especially when the State responsible fo r the violations of international humanitarian

law, being aware of the facts and of its intern ational responsibility for the unlawful acts committed

by its organs, neither considers nor adopts appropria te national legislation to enable or clear the

way for individual victims under international human itarian law to seise the competent courts in

order to submit compensation claims for injury caused by the responsible State.

110. Permit me, Mr. President, to recall the Ko Otsu Hei Incidents case of 1998 in which the

Japanese court, which awarded compensation to three Korean women subjected to enforced

prostitution during the Second World War, declared: “the Government was aware of the situation

[violations of international humanitarian law] and of the fact that it was internationally responsible

under international law, and yet it failed to adopt le gislation of the kind required in order to allow

the victims the legal possibility of compensation” [translation by the Registry] . Unfortunately,

Mr. President, that judgment was later quashed, but it is a most insightful and innovative prototype.

111. International humanitarian law grants ri ghts to individuals. What is the sense of

affording an individual right for the protection of persons, which falls within the scope of

international humanitarian law, if that right cannot by enforced by the courts? What is the extent of

that right if, in the context of practical implementation, access to the courts is barred at the

procedural level? This legal situation gives rise to the conclusion that the content of the rights in

question, of the individual victims, cannot in fact be given prominence or even practical shape. - 31 -

Their implementation is dependent on the affirmation of the primary rule benefiting the individual

and the primary rule penalizing the State responsible for the acts classed as crimes, or may even be

devoid of all substance.

40 112. It should be noted that international practice seems limited because a number of

national courts are still hesitant. And this affords shelter to the State responsible for atrocities. But

the process of change is already under way. The national court is becoming the final remedy.

113. Mr.President, Members of the Court, it is utter hypocrisy to claim today that the

question of reparation should be entered into at inter-State level. How can use be made of a

diplomatic procedure if States are unwilling to jeopardize their good relations? Or, in the specific

case of Germany, if the latter does not formally respond to the Note Verbale it received from the

Greek Government in 1995? In fact, how many peace treaties have been signed after recent

conflicts (Iraq, Lebanon, Georgia— to name but a few)? What peace treaties are involved when

modern conflicts, for the most part, are neither declared nor formally ended? Why did the

signatories of the Moscow Treaty not address the ques tion of reparation in that instrument? Why,

in the past, have there been “sel ective” and “partial” responses to victims’ claims? What is meant

by how long is it necessary to wait for the question to be resolved? Certainly until such time as the

responsible States fully assume their responsibility. Who has to honour the commitment which has

been made for over a century: “he who infringes in ternational law must make reparation”? And if

the States which have undertaken that commitment fail to act at national or international level, how

should we react? What should be done? How, then, should the present situation be defined at

international level while attempting to provide credible responses to victims like those of Distomo?

How can the legal effect, under Article3, of a right to reparation for grave violations of

international humanitarian law be denied? How mu ch longer can this restrictive legal logic endure

when the international community is now sending Heads of State like Bashir of Sudan and Gaddafi

of Libya before the International Criminal Cour t for crimes against humanity, and taking measures

in favour of human rights, vulnerable populations and victims of war?

114. The current international legal order cannot accept the absolute jurisdictional immunity

of a State responsible for acts defined as war cr imes or crimes against humanity, committed by its

organs. Such a stance would appear outdated and incompatible with the requirements of justice - 32 -

41 and the rule of law and with human rights, whic h form the legal-political backdrop to a certain

culture developing within the international community as a whole. If the jurisdictional immunity

of the State were to remain inviolable, this would be in direct contradiction to other developments

in international law, in particular those relating to the international responsibility of the individual,

the lifting of the immunity of Heads of State, the rights of individuals to have recourse to national

and international courts, etc. This observation should be considered in the light of the fact that the

rules of international responsibility and, hence, those of State immunity, were shaped at a time

when the individual held a different status under international law. Today, however, we have

human rights, individual criminal responsibility, universal jurisdiction and international criminal

courts.

115. Moreover, as was recognized by the majority of the House of Lords in the Pinochet

judgment, it is incongruous to both oblige States to try or extradite war criminals and recognize

their jurisdictional immunity for such crimes. Th e legitimate invocation of a national interest by a

State, in order to secure immunity from the jurisdic tion of a national court, is deprived of its force

in view of the evolution of contemporary international law.

116. As cited by Fleck:

«Il serait paradoxal que dans les conflits armés d’aujourd’hui, alors que la
responsabilité des individus pour crimes intern ationaux fait partie intégrante du droit

international, les droits des victimes individuelles en droit international humanitaire
restent «imparfaits», en ce sens que les Etats responsables ne sont liés par aucune
obligation corrélative applicable.» [Traduction du Greffe.]

117. Nowadays, the international community and its members have a responsibility to ensure

redress for violations of international humanitarian law and access to reparation for victims, even

beyond the existence of a “peace treaty”.

118. Is it not surprising that this notion is prevailing at a time when the international

community recognizes the principle of the responsibility to protect, in the case of war crimes,

crimes against humanity, genocide or ethnic clean sing committed in a State unable or unwilling to

redress the situation, thus providi ng authority, following a decision by the Security Council, for

even a right of armed intervention for the protec tion of populations under threat or attack (see

Libya). - 33 -

42 119. Trends, orientations, emerging situa tions— such movement on a national and

international scale demonstrates that changes regarding immunity are already taking place.

120. Mr.President, the breakthrough— at both national and international level— in

granting victims the right to reparation for violations is already significant and it will not stop there.

It is a challenge for the years ahead — a new approach adopted by the community of nations as a

general notion, but which is in keeping with the very sense of the law and moral philosophy.

121. Under these circumstances, it is for the Court, in its authority and wisdom, to give an

authoritative answer to the questions which are ra ised in these proceedings and which are at the

heart of the problems faced by the Greek courts in the Distomo case, but also in others.

122. Mr.President, Members of the Court, it is necessary to question Germany’s argument

regarding the threat posed to the international le gal order by the flood of individual claims that

would be brought before the national courts if there were any change in State jurisdictional

immunity. On the other hand, Mr.President, we be lieve that the international order is threatened

by the conduct of States which fail to comply with the rules of international law, which defy human

rights, which do not commit themselves to promoting the values of justice and the rule of law.

International law is at risk of being undermin ed by those sorts of attitudes and not by the

ascendancy of human rights.

123. A decision of the International Court of Justice on the effects of the principle of

jurisdictional immunity of States when faced with a jus cogens rule of international law ⎯ such as

the prohibition on violation of fundamental rules of humanitarian law ⎯ will guide the Greek

courts in this regard. It will thus have a significant effect on pending and potential lawsuits brought

by individuals before those courts.

T1he. Margellos and Others judgment of the Special Supreme Court, like the decision of

the Corte di Cassazione in 2000 and the dozens of judgments re ndered by various courts of first

instance and courts of appeal, show that the Greek courts still appear to be divided on the question

of immunity, and this can be said without overlooking or underestimating the dynamic trend

exemplified by Areios Pagos and the Livadia court, which is being shaped by developments in

international law in that area, as expressed in particular by the courts in the Distomo case. - 34 -

43 125. We have confidence in the wisdom of the Court to resolve the complex and delicate

question of State jurisdictional immunity. In the past, for example in the Arrest Warrant case, the

Court has established the boundaries between individua l immunity and universal jurisdiction. In

our case, it may also systematically and usefully define the conditions under which jurisdictional

immunities may be exercised, thereby avoiding a doomsday scenario.

126. The Greek Government considers that the effect of the judgment that your Court will

hand down in this case concerning jurisdictional im munity will be of major importance, primarily

to the Italian legal order and certainly to the Greek legal order. In fact, Article28 of our

Constitution stipulates that “[t]he generally recognized rules of international law... shall be an

integral part of domestic Greek law and shall prevail over any contrary provision of the law”.

127. Through this provision in the Constitution, customary international law can be applied

directly by the Greek courts. It is also cl ear from this provision in the Constitution that, as

customary law evolves, its state of development mu st be identified and applied by the courts in

each particular case.

128. In summary, Mr. President, the Greek Government believes that the legal analysis in the

Distomo Massacre case and the interpretation given to the development of international law reflect

a widely held view in burgeoning national and in ternational practice, as well as the emergence of a

new situation in this sensitive area, involving the international responsibility of the State, the

obligation of the State to make reparation, the in dividual’s right to reparation for violations of

international humanitarian law and the principle of State immunity. A refusal to apply jus cogens

in the face of the rule of jurisdictional immunity of the State would in practice result in impunity

for States which have committed atrocities. Such a conclusion at the present time would risk

jeopardizing all of the progress that has been made within the international community.

129. On the other hand, a decision to the contrary by the Court, which would observe and

establish that the jurisdictional immunity of the State cannot be applied in the case of heinous

international crimes, would be “a first step in a process of reconciliation with the past” for the

44 victims of massacres like that of Distomo. The victims and their relatives— some of whom are

present here— are merely claiming justice via human rights. The decision of the International

Court of Justice should reflect the intentions of the international community stated in the - 35 -

2005United Nations World Summit Outcome Docume nt regarding an international order for

peace, justice, the rule of law, human rights, democracy and development. That would be the

catharsis, so to speak, the final act of a Greek tragedy.

Mr. President, thank you for you attention.

Le PRESIDENT : Je remercie M. Stelios Perraki s, l’agent de la Grèce, pour son exposé, son

évaluation générale et ses observations finales concernant la position de la Grèce en qualité d’Etat

intervenant. Ainsi s’achève l’audience de ce matin . La Cour se réunira de nouveau demain de

10heures à 12h30 pour entendre l’Allemagne, qui présentera ses observations sur l’objet de

l’intervention de la Grèce au cours de son second tour de plaidoiries.

L’audience est levée.

L’audience est levée à 11 h 40.

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