INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Press Release
Unofficial
No. 2011/21
15 July 2011
Jurisdictional Immunities of the State
(Germany v. Italy)
Application for permission to intervene submitted by Greece
The Court grants Greece permission to intervene
in the proceedings as a non-party
THE HAGUE, 15July2011. By an Order dated 4July2011, the International Court of
Justice(ICJ), the principal judicial organ of the United Nations, granted the Hellenic Republic
(hereinafter “Greece”) permission to interv ene as a non-party in the case concerning Jurisdictional
Immunities of the State (Germany v. Italy).
Whilst drawing the Court’s attention to certa in considerations which would indicate that
Greece’s Application did not meet the criteria set out in Article62, paragraph1, of the Statute of
the Court, Germany had expressly stated that it did not “formally object” to this Application being
allowed. Italy, for its part, had indicated that it did not object to the Application being granted.
In its Order, the Court first briefly described the factual context of Greece’s Application for
permission to intervene. It recalled that, on 10June1944, during the German occupation of
Greece, German armed forces had committed a massa cre in the Greek village of Distomo, killing
many civilians. It noted that a Greek court of first instance had rendered a judgment in 1997
against Germany and awarded damages to relatives of the victims of the massacre, and that that
judgment had later been confirmed by the Hellenic Supreme Court in the year 2000, but that it had
not been possible to enforce those two judgments in Greece because the Greek Minister for Justice
had not granted the authorization required in order to enforce a judgment agai nst a foreign State.
The Court also observed that the claimants in the Distomo case had subsequently brought
proceedings against Greece and Germany before the European Court of Human Rights but that, in
2002, the latter, invoking the principle of State imm unity, had held that the claimants’ application
was inadmissible. The Court recalled that the Greek claimants had then sought to enforce the
judgments of the Greek courts in Italy and that the Italian court had held that the first Greek
judgment (delivered in 1997) was enforceable in Italy.
In its Order, the Court subsequently declared that, in the judgment that it will render in the
case concerning Jurisdictional Immunities of the State (Germany v. Italy), it might find it necessary
“to consider the decisions of Greek courts in the Distomo case, in light of the principle of State
immunity, for the purposes of making findings with regard to the third request in Germany’s
submissions”. The Court concluded that this was sufficient to indicate that Greece had an interest
of a legal nature which might be affected by th e judgment in the case between Germany and Italy. - 2 -
It should be recalled that the third request in Germany’s submissions reads as follows: “that the
Italian Republic... (3) by declaring Greek j udgments based on [violations of international
humanitarian law by the German Reich during World WarII] enforceable in Italy, committed a
further breach of Germany’s jurisdictional immunity”.
The Court made clear that where it permits an intervention, it may limit the scope thereof
and allow intervention for only one aspect of the s ubject-matter of the application which is before
it. Taking account of its conclusions regarding Greece’s legal interest in the present case, the Court
found that Greece could be permitted to intervene as a non-party “in so far as this intervention is
limited to the decisions of Greek courts [in the Distomo case]”, as referred to above.
In concrete terms, intervening as a “non-party” in the case concerning Jurisdictional
Immunities of the State (Germany v. Italy) allows Greece to have acce ss to the Parties’ written
pleadings and “to inform the Court of the nature of [its] legal rights and interests . . . that could be
affected by the Court’s decision in light of the claims advanced by Germany” in the principal
proceedings. To this end, by the same Order, the Court fixed 5 August 2011 as the time-limit for
the filing of the written statement of Greece, and 5 September 2011 as the time-limit for the filing
of the written observations of Germany and Italy on that statement. The subsequent procedure was
reserved for further decision. Article85 of the Rules of Court provides, inter alia, that “[t]he
intervening State shall be entitled, in the course of the oral proceedings, to submit its observations
with respect to the subject-matter of the intervention”.
It should be noted that its non-party status denies Greece the possibility of asserting rights of
its own in the context of the principal proceedings between the Parties (Germany and Italy), and
that the judgment that the Court will render on the merits of the case will not be binding on Greece,
whereas it will have binding force and be without appeal for the Parties.
Composition of the Court
The Court was composed as follows: President Owada; Vice-President Tomka;
Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,
Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue; Judge ad hoc Gaja; Registrar Couvreur.
Judge CançadoTrindade appended a separate opinion to the Order of the Court;
Judge ad hocGaja appended a declaration to the Order of the Court. Summaries of that opinion
and that declaration are published below, as an annex to this press release.
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Note: The Court’s press releases do not constitute official documents. This press release is a
concise summary of the decision taken by the Court, for information purposes only.
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The history of the proceedings and a brief description of the factual context of Greece’s
Application for permission to intervene can be f ound in paragraphs 1 to14 of the Order, the full
text of which can be found in the “Cases” section of the website.
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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Char ter in June1945 and began its activities in
April1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are w ithout appeal for the Parties concerned); and,
second, to give advisory opinions on legal questi ons referred to it by duly authorized United
Nations organs and agencies of the system. The Court is composed of 15judges elected for a
nine-year term by the General Assembly and the Security Council of the United Nations. It is
assisted by the Registry, its international secretariat, whose activities are both judicial and
diplomatic, as well as administrative. The official languages of the Court are French and English.
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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)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396) Annex to Press Release 2011/21
Separate opinion of Judge Cançado Trindade
1. Judge Cançado Trindade, in his Separate Opinion, composed of five parts, begins by
pointing out that, given the importance that he ascribes to the matters dealt with by the Court in the
present Order, and those underlying it, he feels obliged to leave on the records his own examination
of, and personal position on, the issues raised ⎯ as he perceives them ⎯ in the six documents
relating to the proceedings before the Court concerning Greece’s Application for permission to
intervene (two submitted by the applicant Stat e, Greece, and two presented by each of the two
Parties in the main case before the Court, Germany and Italy ⎯ part I).
2. He next points out, as to Greece’s Application for Permission to Intervene (partII), that,
although Germany submitted that it did not formally object to it, it in fact substantially contradicted
the grounds of Greece’s purported intervention under Ar ticle 62 of the ICJ Statute. Italy, in turn,
plainly stated that it had no objection to Greece’s aforementioned Application. Greece made clear
that it was not requesting to intervene as a party to the present case, but that it had in mind only
clearly circumscribed aspects of the procedure, co ncerning decisions of its own domestic courts on
claims pertaining to occurrences during the IIWorl d War, intended to be enforced by Italian
Courts.
3. Greece’s Application hinged on Italian Court decisions which inter alia rendered possible
the enforcement in Italy of Greek Court decisions that had granted civil claim damages against
Germany, pertaining to grave violations of human rights and international humanitarian law
perpetrated by German troops in Greece, particularly in the Greek village of Distomo, during the
IIWorld War. Given the difficulties faced in Greece, the Greek nationals concerned sought
recognition and enforceability of those decisions in Ital y. Germany, for its part, is seeking, in the
main case, a determination by the ICJ of what it considers a breach by Italy of its jurisdictional
immunity.
4. Judge Cançado Trindade observes that the consent of the parties in the main case was not
strictly or formally at issue in the cas d’espèce, and, in any case, such consent does not play a role
in the proceedings conducive to the Court’s d ecision whether or not to grant permission to
intervene (partIII). He upholds that State consen t has its limits, and that the ICJ is not always
restrained by State consent, in rela tion not only to intervention, but also in respect of other aspects
of the procedure before the Court; the ICJ is not an arbitral tribunal.
5. Judge Cançado Trindade then proceeds to the more extensive part of his Separate Opinion,
concerning the co-existence of rights of States and rights of individuals in the jus gentium of
the XXIst century (part IV). As to the States’ titularity of rights, he first reviews the decisions of
Greek Courts, as referred to by Germany, namely : a)the judgment of 1997 of the First Instance
Court of Livadia in the Distomo Massacre case; b) the judgment of 2000 of the Court of Cassation
(Areios Pagos) in the same Distomo Massacre case; and c)the judgment of 2002 of the Greek
Special Supreme Court in the Margellos and Others case.
6. He recalls, in this connection, that, in 1995, over 250relatives of the victims of the
massacre (of 1944) in the village of Distomo ins tituted proceedings against Germany before Greek
Courts, claiming compensation for loss of life a nd property for acts perpetrated in June1944 by
German occupation forces (under the Third Reich) in Greece. On 25.09.1997, the First Instance - 2 -
Court of Livadia found that a State cannot rely on immunity when the act attributed to it was
perpetrated in breach of norms of jus cogens, and affirmed that a State committing such a breach
had indirectly waived immunity. Accordingly, the Court of Livadia held Germany liable and
ordered it to pay compensation to the relatives of the victims of the massacre of Distomo.
7. This judgment became object of enforc ement proceedings in Italy, which Germany
referred to in its pleadings in the case before the Court. In connection with jus cogens, the Court of
Livadia expressly referred to the IVHagueC onvention of 19.10.1907, Article46 of the
Regulations on the Laws and Customs of Wa r annexed thereto, as well as to customary
international law, and to the general principle of law ex injuria jus non oritur . Germany then
brought the case before the Court of Cassation (Areios Pagos) in Greece, claiming immunity from
the jurisdiction of Greek Courts. On 04.05.2000, the Court of Cassation found, in the Distomo
Massacre case, that the Greek Courts were competent to exercise jurisdiction over the case.
8. On the substantive law, the Court held fi rst that State immunity is a generally accepted
rule of international law, and is part of the Greek legal order. The Court of Cassation held that
immunity is tacitly waived whenever the acts at issue are performed in violation of jus cogens
norms (again referring to Article 46 of the Regul ations on the Laws and Customs of War Annexed
to the IV Hague Convention of 1907). The Areios Pagos also held, in the Distomo Massacre case,
that an exception to the immunity rule should apply when the acts for which compensation was
sought (especially crimes against humanity) had ta rgeted individuals in a given place who were
neither directly nor indirectly connected with the military operations; moreover, immunity was
tacitly waived whenever such acts, as already indicated, were in breach of jus cogens.
9. Parallel to that, proceedings in a similar but yet another case (the Margellos and Others
case) were also on-going before Greek courts. The Court of Cassation referred the Margellos and
Others case to the Greek Special Supreme Court, which, by a majority of six votes to five, held, on
17.09.2002, inter alia, that, under customary international law, a foreign State continued to enjoy
sovereign immunity in respect of a tort committe d in the forum State irrespective of whether the
conduct at issue violated jus cogens norms or whether the armed forces were participating in an
armed conflict. As a result of th at, the effect of the latter Speci al Supreme Court judgment in the
Margellos case, was essentially to ove rrule the judgment of the First Instance Court of Livadia
awarding compensation to the plaintiffs, as confirmed by the Court of Cassation in the same case.
10. Still dwelling on the question of States astitulaires of rights, the approaches by Germany
and Greece are next reviewed by Judge Cançado Tr indade, who upholds the view that it could
hardly be denied that the question of the enforceability of judgments of a State’s Judiciary, which is
part and parcel of the State concerned, conforms an interest of a legal nature of that State, for the
purposes of its purported intervention in international litigation. This is so, even if the ultimate
beneficiaries of the enforcement of those judgments are individuals, human beings, nationals of
that State. An interest relating to the enforc ement (abroad) of judicial decisions can only be
qualified as an interest of a legal nature, and not of another kind or of a distinct nature.
11. Judge Cançado Trindade then moves on to his considerations as to the individuals’
titularity of rights, ⎯ an issue raised in the present proceedings by Germany itself. In this respect,
he regrets that Italy’s counter-claim in the present case was dismissed by the Court (in its Order of
06.07.2010), with his Dissenting Opinion. His unders tanding is that claims as to rights which are - 3 -
inherent to human beings (such as, in the amb it of that counter-claim, the right to personal
integrity, not to be subjected to forced labour) cannot be waived by States by means of inter-State
agreements; there can be no tacit or express waiver in that respect, as the rights at stake are not
rights of States, but of human beings.
12. As to Greece’s Application for permission to intervene, he recalls: a)the legacy of the
individual’s subjectivity in the law of nations; b) the individual’s presence and participation in the
international legal order; c) the rescue of the indi vidual as subject of international law; and d) the
historical significance of the international subjectivity of the individual. Judge Cançado Trindade
sustains that human beings effectively possess rights and obligations which emanate directly from
International Law, with which they find themselves in direct contact. There is nothing intrinsic to
International Law that impedes or renders such direct contact impossible.
13. To him, it is perfectly possible to con ceptualize as subject of International Law any
person or entity, titulaire of rights and bearer of obligations, which emanate directly from norms of
International Law. Such is, in his understanding, the case of human beings, who have thus fostered
and strengthened their direct contact ⎯ without intermediaries ⎯ with the international legal order.
The reassuring expansion of both international legal personality and accountability ensue
therefrom. The idea of absolute State sovereignty, ⎯ which led to the irresponsibility and the
alleged omnipotence of the State, not impeding successive atrocities against human beings (such as
the massacre of Distomo, of 10.06.1944), ⎯ appeared with the passing of time entirely unfounded.
14. Judge Cançado Trindade adds that the advent of the juridical category of the international
legal personality of individuals, ⎯ bearing witness of the historical process of humanization of
international law, ⎯ came to fulfil one of the necessities of the international community, precisely
one which appeared with prominence, namely, that of providing protection to the human beings
who compose it, in particular those who find themse lves in a situation of special vulnerability. It
has lately become clear that State immunity is not a static concept, tied up immutably to its
historical origins, but that it also readjusts it self within the evolving conceptual universe of
contemporary jus gentium.
15. This evolution, ⎯ contributing ultimately to the rule of law at national and international
levels, ⎯ is to be appreciated in a wider dimension. In Judge Cançado Tr indade’s outlook, the
Court has now before itself a case concerning th e jurisdictional immunities of the State, with
repercussions to all titulaires of rights, States and individuals alike. This is a case which has a
direct bearing on the evolution of International Law in our times. In his view, there is no reason for
keeping on overworking the rights of States while at the same time overlooking the rights of
individuals. One and the other are meant to develop pari passu in our days, attentive to superior
common values. State immunity and the fundamental rights of the human person are not to
exclude each other, as that would make immunity unacceptably tantamount to impunity.
16. Part V of the Separate Opinion of Judge Cançado Trindade is devoted to the resurrectio
of intervention in contemporary international litigation. He notes that in the ambit of the
circumstances of the present case, intervention has at last seen the light of the day. This is
reassuring, ⎯ he adds, ⎯ as the subject-matter of the cas d’espèce is closely related to the
evolution of International Law itself in our times, being of relevance, ultimately, to all States, to the
international community as a whole, and, in his perception, pointing towards an evolution into a
true universal international law. In his view, the Court’ s decision, in the present Order, to grant to
Greece permission to intervene, gives a proper expression to the principle of the sound
administration of justice (la bonne administration de la justice) in the context of the cas d’espèce. - 4 -
17. Judge Cançado Trindade concludes that one cannot approach a matter like that of the
jurisdictional immunities of the State, in circum stances such as the presen t ones (having as factual
origin grave breaches of human rights and inte rnational humanitarian law), from a strictly
inter-State dimension. In the present proceedings before the Court, consideration has duly been
given to States as titulaires of rights, as well as to individuals as titulaires of rights. The resurrectio
of intervention in such circumstances may come to satisfy the needs not only of the States concerned,
but of the individuals concerned as well, and ultimately of the international community as a whole, in
the conceptual universe of the newjus gentiumof our times.
Declaration of Judge ad hoc Gaja
One can well understand the Greek Government’s wish to be involved in a discussion on the
jurisdictional immunity of foreign States with re gard to claims by individuals who suffered from
infringements of international humanitarian law during belligerent o ccupation. However, the only
opportunity provided by the Statute and Rules for a State which is not a party to the proceedings to
express its views is to intervene. The State is requi red by the Statute to have an interest of a legal
nature which may be affected by the decision in the case. The interest in question must exist
according to international law. In the absence of any rule of international law providing for the
enforcement of the relevant Greek judgments in Italy, Greece cannot be said to have an interest of a
legal nature in seeing the Greek judgments enforced in Italy. The question whether, by making the
Greek judgments enforceable in Italy under its do mestic law, Italy breached an obligation towards
Germany is a matter which concerns only Germany and Italy.
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Jurisdictional Immunities of the State (Germany v. Italy) - Application for permission to intervene submitted by Greece - The Court grants Greece permission to intervene in the proceedings as a non-party