INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
Press Release
Unofficial
No. 2010/22
20 July 2010
Jurisdictional Immunities of the State
(Germany v. Italy)
The Court finds Italy’s counter-claim inadmissible as such and fixes
time-limits for the filing of additional written pleadings
THE HAGUE, 20July2010. The International Court of Justice(ICJ) made an Order on
6 July 2010 on a counter-claim submitted by Ital y in its Counter-Memorial in the case concerning
Jurisdictional Immunities of the State (Germany v. Italy). By that Order, the Court, by thirteen
votes to one, “[f]inds that the counter-claim presented by Italy . . . is inadmissible as such and does
not form part of the current proceedings” and, unanimously, authorizes Germany to submit a Reply
and Italy to submit a Rejoinder and fixes 14Oc tober2010 and 14January2011, respectively, as
the time-limits for the filing of those pleadingThe subsequent procedure has been reserved for
further decision.
In its Application instituting proceedings da ted 23December2008 and in its Memorial of
23 June 2009:
“Germany prays the Court to adjudge and declare that the Italian Republic:
1. by allowing civil claims based on viola tions of international humanitarian law by
the German Reich during World War II from September 1943 to May 1945, to be
brought against the Federal Republic of Germany, committed violations of
obligations under international law in that it has failed to respect the jurisdictional
immunity which the Federal Republic of Germany enjoys under international law;
2. by taking measures of constraint against ‘Villa Vigoni’, German State property
used for government non-commercial pur poses, also committed violations of
Germany’s jurisdictional immunity;
3. by declaring Greek judgments based on occurrences similar to those defined above
in request No.1 enforceable in Italy,committed a further breach of Germany’s
jurisdictional immunity. - 2 -
Accordingly, the Federal Republic of Germany prays the Court to adjudge and
declare that:
4. the Italian Republic’s international responsibility is engaged;
5. the Italian Republic must, by means of its own choosing, take any and all steps to
ensure that all the decisions of its cour ts and other judicial authorities infringing
Germany’s sovereign immunity become unenforceable;
6. the Italian Republic must take any and all steps to ensure that in the future Italian
courts do not entertain legal actions against Germany founded on the occurrences
described in request No. 1 above”.
At the end of its Counter-Memorial filed on 23December2009, Italy presented the
following submissions, including, in the second paragraph, a counter-claim:
“On the basis of the facts and arguments set out..., and reserving its right to
supplement or amend these Submissions, Italy respectfully 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 Article80 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 obligation with regard to Ita lian victims of such crimes
by denying them effective reparation.
2. Germany’sinternati onal responsibility is engaged for this conduct.
3. Germany must cease its wrongful conduc t 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.”
Reasoning of the Court
In its Order, the Court seeks to ascertain whether Italy’s counter-claim meets the
requirements laid down by Article80 of the Rules of Court. Under paragr aph1 of that Article,
“[t]he Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and
is directly connected with the subject-matter of the claim of the other party”.
The Court recalls that Germany, while r eserving its position on the question whether the
requirement of direct connection is met in this case, denies expressly that the counter-claim meets
the requirement of jurisdiction.
It notes that Italy bases the Court’s jurisdiction over its counter-claim on Article1 of the
European Convention for the Peaceful Settlement of Disputes (hereinafter the “European
Convention”), and that Germany contends that, under Article27 (a) of that same Convention, the
Court does not have jurisdiction ratione temporis over the counter-claim, because the provisions of
the Convention “shall not apply to . . . disputes relati ng to facts or situations prior to the entry into
force of this Convention as between the parties to the dispute”, which, according to Germany, is the
case in this instance. - 3 -
The Court observes that its task is therefore to determine, in the light of the provisions of
Article 27 (a) of the European Convention, whether the dispute that Italy intends to bring before the
Court by way of its counter-claim relates to fact s or situations prior to 18April1961, when the
Convention came into force as between Germany and Italy.
It notes that, in accordance with its earlier case law, the facts and situations it must take into
consideration are those “with regard to which the dispute has arisen or, in other words, only those
which must be considered as being the source of th e dispute, those which are its ‘real cause’ rather
than those which are the source of the claimed rights”.
The Court first observes that the dispute that Italy intends to submit to the Court by way of
its counter-claim relates to the existence and the scope of the obligation of Germany to make
reparation to certain Italian victims of serious violations of humanitarian law committed by Nazi
Germany between 1943 and 1945, rather than to the violations themselves. According to the Court,
while those violations are the source of the alleged rights of Italy or its citizens, they are not the
source or “real cause” of the dispute. Consequently, those violations are not the “facts or situations
to which the dispute in question relates”.
The Court then turns to the Peace Treat y which the Allied Powers concluded on
10February1947 with Italy, and to the two ag reements concluded between the Parties on
2 June 1961 relating to compensation to be paid by Germany to the Italian Government. In respect
of the 1947Treaty, it notes in particular that this formed part of a legal régime designed to settle
various property and other claims arising out of the events of the Second World War and that it
included a provision (Art. 77, para. 4) whereby Ital y agreed, with certain exceptions, to waive “on
its own behalf and on behalf of Italian nationals all claims against Germany and German nationals
outstanding on May8,1945”. With regard to the 1961Agreements, the Court observes that they
provided to Italy, for certain of its nationals, forms of compensation extending beyond the régime
established in the aftermath of the Second World War, but that they did not affect or change the
legal situation of the Italian nationals at issue in the present case.
The Court adds that the legislation wh ich Germany enacted, between 1953 and 2000,
concerning reparation for certain categories of vict ims of serious violations of humanitarian law
committed by the Third Reich, and the fact that under this legislation certain Italian victims did not
receive compensation, do not constitute “new situations” with regard to any obligation of Germany
under international law to pay compensation to the Italian nationals at issue in the present case and
did not give rise to any new dispute in that regard.
The Court proceeds to find that the dispute th at Italy intends to bring before the Court by
way of its counter-claim relates to facts and situa tions existing prior to the entry into force of the
European Convention as between the Parties, namely , the legal régime established in the aftermath
of the Second World War. That dispute accord ingly falls outside the temporal scope of the
Convention; the counter-claim therefore does not come within the Court’s jurisdiction as required
by Article80, paragraph1, of the Rules of Court. Having found thus, the Court observes that it
need not address the question whether the count er-claim is directly connected with the
subject-matter of the claims presented by Germany.
Further, having noted that the proceedings relating to the claims brought by Germany
continue, the Court refers to the views expr essed by the Parties at a meeting held on
27January2010 with the President of the Court, regarding the submission of a Reply by the
Applicant and a Rejoinder by the Respondent, and the time-limits to be fixed for the filing of those
pleadings. - 4 -
The Court was composed as follows: President Owada; Vice-President Tomka;
JudgesKoroma, Al-Khasawneh, Buergenthal, Si mma, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov, Cançado Trindade, Greenwood; Judge ad hoc Gaja; Registrar Couvreur.
JudgesKeith and Greenwood append a joint declaration to the Order of the Court;
Judge Cançado Trindade appends a dissenting opinion to the Order of the Court;
Judge ad hoc Gaja appends a declaration to the Order of the Court.
___________
The full texts of the Order and the appended declarations and opinion will be available
shortly on the Court’s website (www.icj-cij.org). Summaries of the declarations and opinion
appended to the Order are annexed to this Press Release.
___________
Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394) Annex to Press Release No. 2010/22
Joint Declaration of Judges Keith and Greenwood
In their joint declaration, supporting the Order made by the Court, Judges Keith and
Greenwood address two matters which they consider strengthen the Court’s reasoning. Both relate
to the requirement, in terms of Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes, that the source or real cau se of the dispute which Italy wishes to present by
way of its counter-claim lay in facts or situations arising after 18 April 1961, the date when the
Convention came into force between Italy and Germ any. In that respect, Italy refers to the
1961Agreement which came into force in 1963 and to a German Law of 2000 along with later
German actions.
The first matter the two Judges address is the failure of Italy in its Counter-Memorial to
establish the existence of any international legal dispute relating to the Agreements, the 2000 Law
on later German actions. That failure is refl ected by the absence from the Counter-Memorial of
any diplomatic correspondence from Italy to Germany identifying any such dispute.
Second, the Judges conclude that even if such a dispute did exist, its source or real cause lay
in facts before 18 April 1961. Any dispute about the scope and effect of the 1961 Agreements and
German action was inextricably bound up with the provisions of the 1947 Peace Treaty between
the Allied Powers and Italy.
For Judges Keith and Greenwood, Italy itself provided clear confirmation that the dispute
submitted in the counter-claim did not fall within the Court’s jurisdiction because its source or real
cause is to be found in facts or situations arising long before 18 April 1961. In the first and second
substantive sentences of the chapter of the Count er-Memorial setting out the counter-claim, Italy
states:
“As permitted by Article 80 of the Court’s Rules, Italy hereby submits a
counter-claim with respect to the question of the reparation owed to Italian victims of
grave violations of international humanitarian law committed by forces of the German
Reich.
The present Chapter sets forth Italy’s counter-claim in this case. Italy asks the
Court to find that Germany has violated its obligation of reparation owed to Italian
victims of the crimes committed by Nazi Germany during the Second World War and
that, accordingly, Germany must cease its wrongful conduct and offer effective and
appropriate reparation to these victims.”
Dissenting opinion of Judge Cançado Trindade
1 Judge Cançado Trindade, in his dissenting opinion, composed of 14parts, begins by
recalling the emergence and rationale of counter-claims in international legal procedure, with
attention turned to international legal doctrine as to its prerequisites, characteristics and effects
(PartsI-III). He further recalls that, in the case- law of the PCIJ and ICJ, a counter-claim has a
duality of character in relation to the original claim: it is, at a time, both independent from the
original claim, as an autonomous legal act, while at the same time being directly linked to it. 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 orig inal claim. It is thus “distinguishable from a
defence on the merits” (Part IV). - 2 -
2. While in the four preceding cases concerni ng counter-claims the Court’s jurisdiction had
either not been contested by the applicant Stat es, or else the Court had had the opportunity to
establish its own jurisdiction in an incidental phase, previous to the filing of the counter-claims, in
the present case of Jurisdictional Immunities of the State Germany has challenged the jurisdiction
of the Court over Italy’s counter-claim. Such pro cedural history shows that the Court’s practice in
relation to counter-claims is still in the making.
3. Be that as it may, the Court should have at least instructed properly the dossier of the case,
by holding, prior to the decision it has taken, public hearings to obtain further clarifications from
the contending parties. In the view of JudgeCa nçadoTrindade (PartV), the same treatment is to
be rigorously dispensed to the original claim and the counter-claim as a requirement of the sound
administration of justice (la bonne administration de la justice) . They are, both, autonomous, and
should be treated on the same footing, with a strict observance of the principe du contradictoire .
Only in this way the procedural equality of the parties (applican t and respondent, rendered
respondent and applicant by the counter-claim) is secured.
4. After examining the factual complex of the present case (including the 2008Joint
Declaration of Italy and Germany), JudgeCan çadoTrindade reviews the arguments of the
contending parties on the counter-claim, focusing on the scope of the dispute, the substance of the
dispute and the notion of “continuing situation” (PartVI). Next, he examines the origins of the
notion of a “continuing situation” in international legal doctrine (Part VII), and its configuration in
international litigation and case-law, in Public International Law as well as in the International Law
of Human Rights (Part VIII). He then moves his analysis onto the configuration of a “continuing
situation” in international legal conceptualization at normative level (Part IX).
5. He ponders that the present Order of the Court makes abstraction of the configuration of
the notion of “continuing situation” in those distinct aspects, and its emphasis falls solely on waiver
of claims (of war reparations), ag ain oblivious of the incidence of jus cogens, rendering certain
waivers of claims devoid of any juridical effects; he regrets that this is the case, in the light of the
scope of the present dispute before the Court (Parts X-XI). Judge Cançado Trindade then turns, in
Part XII of his dissenting opinion, to the true bearers (titulaires) of the originally violated rights, the
individuals, and warns against the dangers of the Court’s paying lip service to State voluntarism.
6. In his conception, the individuals’ rights (i ncluding herein their vindication of reparations
for war crimes) are not the same as their State’s rights, and any purported waiver by a State of the
rights inherent to the human person would be against the international ordre public, and would be
deprived of any juridical effects. To substantiate his thesis, he examines developments in
conventional international law (i nternational humanitarian law, in ternational labour conventions,
and international law of human rights) as well as general international law, and stresses the
relevance of the legacy of the Martens clause. To him, the “dictates of the public conscience”
invoked therein is to the benefit of humankind as a whole.
7. In Part XIII of his Dissenting Opinion, Judge Cançado Trindade sustains that the gradual
awakening of human conscience led to the evolution from the conceptualization of the delicta juris
gentium to that of the violations of international humanitarian law (in the form of war crimes and
crimes against humanity) ⎯ the Nuremberg legacy ⎯ and from these latter to that of the grave - 3 -
violations of international humanitarian law (with the four Geneva Conventions on International
Humanitarian Law of 1949, and their I Additional Protocol of 1977). States cannot waive claims of
reparations of violations of the fundamental hu man rights and of serious or grave breaches of
International Humanitarian Law that amount to war crimes (such as deportation to forced labour).
8. After assessing the incidence of jus cogens , in the light of the submissions of the
contending parties, Judge Cançado Trindade concludes (PartXIV) that neither the tragic
occurrences of the IIWorld War, nor the purported waiver of claims of Article77(4) of the
1947Peace Treaties between the Allied Powers and Italy, are controverted by the contending
parties to the point of constituting the real cause of the present dispute (on State immunity in direct
connection with war reparation claims). On the other hand, the two 1961 bilateral Agreements
between Germany and Italy constitute the real cause of the present dispute, and form the triggering
point of a continuing situation persisting to date. The Court is thus endowed with jurisdiction
ratione temporis on the basis of Article27 (a) of the 1957European Convention for the Peaceful
Settlement of Disputes, and the Court should thus have declared the counter-claim admissible, as it
is furthermore “directly connected” with the original claim, in conformity with Article 80 (1) of the
Rules of Court.
9. In Judge Cançado Trindade’s view, th e present case does not concern State immunities in
abstracto, or in isolation: it pertains to State immunity in direct connection with reparations for war
crimes. It is thus necessary to go well beyond the strict inter-State outlook, so as to reach the
ultimate bearers (titulaires) of rights, the human beings, confronted with waiver of their claims of
reparation of serious breaches of their rights by St ates supposed to protect, rather than to oppress,
them. Any such waiver is in breach of jus cogens.
10. In JudgeCançadoTrinda de’s perception, one cannot bu ild (and try to maintain) an
international legal order over the suffering of huma n beings. At the time of mass deportation of
civilians, sent to forced labour (along the two World Wars of the XXthcentury, not only the
IIWorld War), everyone already knew that that was a wrongful act, a serious violation of human
rights and of international humanitarian law, wh ich came to be reckoned as amounting also to a
war crime and a crime against humanity. In his final observation, the voluntarist-positivist outlook
does not stand, as above the will stands con science, moving the Law ahead as its ultimate material
source, and removing manifest injustice.
Declaration of Judge ad hoc Gaja
In his declaration, Judge ad hoc Gaja states that in deciding on the admissibility of Italy’s
counter-claim the Court applies for the first time Article 80 of the Rules of Court as amended with
effect from 1 February 2001. Unlike the previous provision, the new text requires the Court to take
a decision “after hearing the parties” also on an obj ection raised by the claimant State with regard
to the Court’s jurisdiction on the counter-claim.
He declares that, in the case in hand, an oral hearing would probably have helped the Court
to identify more precisely the date when the disput e arose and the facts and situations to which the
dispute related.
___________
Jurisdictional Immunities of the State (Germany v. Italy) - The Court finds Italy's counter-claim inadmissible as such and fixes time-limits for the filing of additional written pleadings