Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) - The Court finds that Italy has violated its obligation to respect the immunity enjoyed by Germany under international la

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. 2012/7
3 February 2012

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)

The Court finds that Italy has violated its obligation to respect the immunity
enjoyed by Germany under international law

THE HAGUE, 3February2012. The Interna tional Court of Justice (ICJ), the principal
judicial organ of the United Nations, has today rendered its Judgment in the case concerning
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening).

In its Judgment, which is final, without appeal and binding on the Parties, the Court,

(1) finds, by twelve votes to three, that the Italian Republic has violated its obligation to respect the
immunity which the Federal Republic of Germany enjoys under international law by allowing
civil claims to be brought against it based on violations of interna tional humanitarian law

committed by the German Reich between 1943 and 1945;

(2) finds, by fourteen votes to one, that the Italian Republic has violated its obligation to respect the
immunity which the Federal Republic of Germany enjoys under international law by taking
measures of constraint against Villa Vigoni;

(3) finds, by fourteen votes to one, that the Italian Republic has violated its obligation to respect the
immunity which the Federal Republic of German y enjoys under international law by declaring
enforceable in Italy decisions of Greek courts based on violations of international humanitarian
law committed in Greece by the German Reich;

(4) finds, by fourteen votes to one, that the Italian Republic must, by enacting appropriate
legislation, or by resorting to other methods oits choosing, ensure that the decisions of its
courts and those of other judicial authorities infringing the immunity which the Federal
Republic of Germany enjoys under international law cease to have effect;

(5) rejects, unanimously, all other submissions made by the Federal Republic of Germany.

1. Subject-matter of the dispute and jurisdiction of the Court

The Court recalls that, on 23December2008 , Germany filed an Application instituting

proceedings against Italy. In its Application,Germany requests the Court to find that Italy has
failed to respect the jurisdictional immunity which Germany enjoys under international law by
allowing civil claims to be brought against it in the Italian courts, seeking reparation for injuries - 2 -

caused by violations international humanitarian law committed by the German Reich during the
Second World War; that Italy has also violated Germany’s immunity by taking measures of

constraint against Villa Vigoni, German State property situated in Italian territory; and that it has
further breached Germany’s jurisdictional immunity by declaring enforceable in Italy decisions of
Greek civil courts rendered against Germany on the basis of acts similar to those which gave rise to
the claims brought before Italian courts.

The Court recalls that Germany’s Applicati on was filed on the basis of Article1 of the
European Convention for the Peaceful Settlement of Disputes, and that Italy has raised no objection
of any kind to the Court’s jurisdiction or the admissibility of the Application. The Court considers

that the clause in Article 27 of the said Convention imposing a limitation ratione temporis , namely
that the Convention shall not apply to “disputes relating to facts or situations prior to the entry into
force of the Convention as between the parties to the dispute”, is not applicable to Germany’s
claims. In effect, the “facts or situations” which have given rise to the present dispute are

constituted by Italian judicial decisions that deni ed Germany the jurisdictional immunity which it
claimed, and by measures of constraint applied to property belonging to Germany. The Court notes
that those decisions and measures were adopt ed between 2004 and 2011, thus well after the
European Convention entered in to force as between the Parti es. The Court accordingly has

jurisdiction to deal with the dispute.

The Court considers that, while it is not ca lled upon to rule on the question of whether
Germany has a duty of reparation towards the It alian victims of the crimes committed by the

German Reich, it must nonetheless determine whether the failure of a State to perform completely a
duty of reparation which it allegedly bears is capab le of having an effect, in law, on the existence
and scope of that State’s jurisdictional immunity before foreign courts.

2. The alleged violation of Germany’s jurisdictional immunity in the proceedings brought by
the Italian claimants

The Court begins by observing that the proceedings in the Italian courts have their origins in
acts perpetrated by German armed forces and organs of the German Reich. The Court considers
that the question which it is called upon to decide is not whether those acts were illegal ⎯ a point

which is not contested ⎯ but whether, in proceedings regarding claims for compensation arising
out of those acts, the Italian courts were obliged to accord Germany immunity. The Court notes
that, as between the Parties, any entitlement to immunity can be derived only from customary
international law. The Court considers that it must examine and apply the law on State immunity

as it existed at the time when the Italian courts refused immunity and exercised their jurisdiction,
and not as it was in 1943-1945.

A. Italy’s first argument: the territorial tort principle

The Court observes that the essence of the first Italian argument is that customary
international law has developed to the point wh ere a State is no longer entitled to immunity in

respect of acts occasioning death, personal injury or damage to property on the territory of the
forum State, even if the acts in qu estion were performed jure imperii . This is the “tort exception”
to State immunity. After conducting an in-depth examination of the relevant national and
international practice, the Court concludes that customary international law continues to require

that a State be accorded immunity in proceedings for torts allege dly committed on the territory of
another State by its armed forces and other organs in the course of conducting an armed conflict.
The Court accordingly concludes that the decision of the Italian courts to deny immunity to
Germany cannot be justified on the basis of the territorial tort principle. - 3 -

B. Italy’s second argument: the subject-matter and circumstances of the cl aims in the Italian
courts

The Court notes that Italy’s second argument is that the denial of immunity was justified on
account of the particular nature of the acts form ing the subject-matter of the claims before the
Italian courts and the circumstances in which those claims were made.

The Court notes that the first strand of this argument is based upon the proposition that
international law does not accord immunity to a Stat e, or at least restricts its right to immunity,
when that State has committed serious violations of the law of armed conflict. Since the actions of

the German armed forces and othe r organs of the German Reich giving rise to the proceedings
before the Italian courts were serious violatio ns of the law of armed conflict, Germany should
accordingly be deprived of its entitlement to imm unity. After examining the relevant State and
international practice, the Court concludes that , under customary international law as it presently

stands, a State is not deprived of immunity by reason of the fact that it is accused of serious
violations of international human rights law or the international law of armed conflict.

The Court then turns to the second strand in Ital y’s argument, namely that the rules violated

by Germany during the period 1943-1945 are jus cogens rules. The Court observes that this strand
of the argument rests on the premise that there is a conflict between jus cogens rules forming part
of the law of armed conflict and according immunity to Germany. It notes Italy’s argument that
jus cogens rules always prevail over any inconsistent rule of international law and that, in

consequence, since the rule which accords one State immunity before the courts of another does not
have the status of jus cogens, the rule of immunity must give way. The Court concludes that, even
assuming that the rules of the law of armed conf lict which prohibit murder, deportation and forced
labour are rules of jus cogens , there is no conflict between those rules and the rules on State

immunity. It considers that the two sets of rules address different matters: the rules of State
immunity are confined to determining whether or not the courts of one State may exercise
jurisdiction in respect of another State; they do not bear upon the question whether or not the
conduct in respect of which the proceedings are brought was lawful or unlawful. The Court further

points out that the argument based on the primacy of jus cogens over the law of State immunity has
been rejected by national courts, and that th ere is no national legisl ation which has limited
immunity in cases where violations of jus cogens are alleged. The Court concludes that, even on

the assumption that the proceedings in the Italian courts involved violations of jus cogens rules, the
applicability of the customary international law on State immunity was not affected.

The Court observes that the third and final stra nd of the Italian argument is that the Italian

courts were justified in denying Germany im munity because all other attempts to secure
compensation for the various groups of victims invol ved in the Italian proceedings had failed. The
Court can find no basis in the relevant national and international practice that international law
makes the entitlement of a State to immunity depe ndent upon the existence of effective alternative

means of securing redress. The Court accordingly rejects Italy’s argument.

The Court observes that, in the course of the oral proceedings, counsel for Italy maintained
that the three strands of Italy’s second argument had to be viewed together; in other words, it was

because of the cumulative effect of the gravity of th e violations, the status of the rules violated and
the absence of alternative means of redress that the Italian courts ha d been justified in refusing to
accord immunity to Germany. The Court is not pe rsuaded that the three strands would have this
effect if taken together. - 4 -

C. Conclusions

The Court holds that the action of the Italian courts in denying Germany the immunity to
which the court has held that it was entitled under customary international law constitutes a breach
of the obligations owed by the Italian State to Germany.

3. The measures of constraint taken against property belonging to Germany located on
Italian territory

The Court now turns to the question of whether the legal charge registered against the Villa

Vigoni following an Italian judicial decision decl aring enforceable in Italy judgments rendered by
Greek courts ordering Germany to pay compensation constitutes a measure of constraint in breach
of Germany’s immunity from enforcement. The Court finds that there is at least one condition that
has to be satisfied before any measure of constr aint may be taken against property belonging to a

foreign State: that the property in question must be in use for an activity not pursuing government
non-commercial purposes, or that the State which owns the property has expressly consented to the
taking of a measure of constraint, or that that State has allocated the property in question for the

satisfaction of a judicial claim. However, the Court finds that the Villa Vigoni is being used for
governmental purposes that are entirely non-commercial; nor has Germany in any way expressly
consented to the taking of a measure such as the le gal charge in question, or allocated the property
for the satisfaction of the judicial claims against it. In these circumstances, the Court finds that the

registration of the legal charge constitutes a violation by Italy of its obligation to respect the
immunity owed to Germany.

4. The decisions of the Italian courts declarin g enforceable in Italy decisions of Greek courts
upholding civil claims against Germany

The Court notes that, in its third submission, Germany complains that its jurisdictional
immunity was also violated by decisions of Italian courts declaring enforceable in Italy civil

judgments rendered by Greek courts against Germ any in proceedings arising out of the Distomo
massacre committed by the armed forces of the German Reich in 1944.

The Court considers that the relevant question is whether the Italian courts did themselves

respect Germany’s immunity from jurisdicti on in allowing the application for exequatur , and not
whether the Greek court having rendered the judgment of which exequatur is sought had respected
Germany’s jurisdictional immunity. The Court obser ves that a court seised of an application for

exequatur of a foreign judgment rendered against a third State has to ask itself whether, in the event
that it had itself been seised of the merits of a dispute identical to that which was the subject of the
foreign judgment, it would have been obliged under international law to accord immunity to the
respondent State. The Court finds that, in light of this reasoning, it follows that the Italian courts

which declared enforceable in It aly the decisions of Greek courts rendered against Germany have
violated the latter’s immunity. It concludes that the decisions of the Italian courts declaring
enforceable in Italy the civil judgments rendered against Germany by Greek courts in the Distomo
massacre case constituted a violation by Italy of its obligation to respect the jurisdictional immunity

of Germany.

Composition of the Court

The Court was composed as follows: President Owada ; Vice-President Tomka ;
Judgesoroma, Simma, Abraham, Keith, Se púlveda-Amor, Bennouna, Skotnikov,
Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue; Judge ad hoc Gaja; Registrar Couvreur. - 5 -

Judges Koroma, Keith and Bennouna append a separate opinion to the Judgment of the
Court; Judges Cançado Trindade and Yusuf appe nd a dissenting opinion to the Judgment of the

Court; Judge ad hoc Gaja appends a dissenting opinion to the Judgment of the Court.

*

A summary of the Judgment appears in the document “Summary No.2012/2”. This press
release, the summary, and the full text of th e Judgment can be found on the Court’s website
(www.icj-cij.org), under the heading “Cases”.

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Note: The Court’s press releases do not constitute official documents.

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