Summary of the Judgment of 3 February 2012

INTERNATIONAL COURT OF JUSTICE

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Summary
Not an official document

Summary 2012/2
3 February 2012

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

Summary of the Judgment of 3 February 2012

I. Historical and factual background of the case (paras. 20-36)

The Court recalls that, on 23 December 2008, the Federal Republic of Germany (hereinafter
“Germany”) filed in the Registry of the Court an Application instituting proceedings against the

Italian Republic (hereinafter “Italy”) in respect of a dispute originating in “violations of obligations
under international law” allegedly committed by Ital y through its judicial practice “in that it has
failed to respect the jurisdictional immunity whic h... Germany enjoys under international law”.
The Court further recalls that, by an Order of 4 July 2011, the Court authorized Greece to intervene
in the case as a non-party, in so far as this interven tion was limited to the decisions of Greek courts

which were declared as enforceable in Italy. The Court then briefly describes the historical and
factual background of the case, and in particular th e proceedings brought before Italian courts by
Italian and Greek nationals.

II. The subject-matter of the dispute and the jurisdiction of the Court (paras. 37-51)

Germany requests the Court, in substance, 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, seeki ng reparation for injuries caused by violations of

international humanitarian law co mmitted 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 sim ilar to those which gave rise to the claims
brought before Italian courts.

Italy, for its part, requests the Court to adjudge Germany’s claims to be unfounded and
therefore to reject them, apart from the submission regarding the measures of constraint taken

against Villa Vigoni, on which point the Respondent indicates to the Court that it would have no
objection to the latter ordering it to bring the smeasures to an end. In its Counter-Memorial,
Italy submitted a counter-claim “with respect to the question of the reparation owed to Italian
victims of grave violations of international hum anitarian law committed by forces of the German
Reich”; this claim was dismissed by the Court’s Order of 6July2010, on the grounds that it did

not fall within the jurisdiction of the Court a nd was consequently inadmissible under Article80,
paragraph 1, of the Rules of Court. - 2 -

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, under the terms of which:

“The High Contracting Parties shall submit to the judgement of the International
Court of Justice all international lega l disputes which may arise between them
including, in particular, those concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international

obligation.”

The Court notes that Article 27, subparagraph (a), of the same Convention limits the scope of
that instrument rationetemporis by stating that it shall not apply to “disputes relating to facts or

situations prior to the entry into force of this C onvention as between the parties to the dispute”. It
states in this connection that the Convention entered into fo rce as between Germany and Italy on
18 April 1961.

Having observed that the claims submitted byGermany related to “international legal disputes”
within the meaning of Article1 as cited above, between two States which were both parties to the
European Convention on the date when the Application was filed, the Court finds that the clause in
the above-mentioned Article 27 imposing a limitation ratione temporisis not applicable to Germany’s

claims. In fact, the “facts or situations” which ha ve given rise to the dispute before the Court are
constituted by Italian judicial decisions that deni ed Germany the jurisdictional immunity which it
claimed, and by measures of c onstraint applied to property belonging to Germany. The Court
observes, however, that those decisions and m easures were adopted be tween 2004 and 2011, thus

well after the European Convention entered into force as between the Parties. The Court therefore
has jurisdiction to deal with the dispute.

The Court notes that, while the Parties have not disagreed on the analysis set out above, they

have on the other hand debated the extent of the Co urt’s jurisdiction in the context of some of the
arguments put forward by Italy and relating to the alleged non-performance by Germany of its
obligation to make reparation to the Italian and Greek victims of the crimes committed by the

German Reich in 1943-1945. It states in that connection that, although it is no longer called upon to
rule on the question of whether Germany has a duty of reparation towards the Italian victims of the
crimes committed by the German Re ich, having decided, by Order of 6July2010, that Italy’s
counter-claim was inadmissible, it must nevertheless determine whether the failure of a State to

perform completely a duty of reparation which it allegedly bears is capable of having an effect, in
law, on the existence and scope of that State’s ju risdictional immunity before foreign courts. The
Court observes that, if this answer is in the affirmative, the second question will be whether, in the
specific circumstances of the case, taking account in particular of Germany’s conduct on the issue

of reparation, the Italian courts had sufficient grounds for setting aside Germany’s immunity. - 3 -

III. Alleged violations of Germany’s jurisdicti onal immunity in the proceedings brought by

the Italian claimants (paras. 52-108)

The Court first considers the issues raised by Germany’s first submission, namely whether,
by exercising jurisdiction over Germany with rega rd to the claims brought before them by the

various Italian claimants, the Italian courts acted in breach of Italy’s obligation to accord
jurisdictional immunity to Germany.

1. The issues before the Court (paras. 52-61)

The Court begins by observing that the proceedings in the Italian courts have their origins in
acts perpetrated by German armed forces and other organs of the German Reich. It distinguishes
three categories of cases: the first concerns the la rge-scale killing of civilians in occupied territory
as part of a policy of reprisals, exemplified by the massacres committed on 29June1944 in

Civitella in Val di Chiana, Cornia and San Pancrazio by members of the “Hermann Göring”
division of the German armed forces, involving th e killing of 203 civilians taken as hostages after
resistance fighters had killed four German so ldiers a few days earlier; the second involves

members of the civilian population who, like Mr.Lu igiFerrini, were deported from Italy to what
was in substance slave labour in Germany; the th ird concerns members of the Italian armed forces
who were denied the status of prisoner of war, together with the protections which that status
entailed, to which they were entitled, and who were similarly used as forced labourers.

While the Court finds that there can be no doubt that this conduct was a serious violation of
the international law of armed conflict applicable in 1943-1945, it considers that it is not called
upon to decide whether these acts were illegal, a point which is not contested, but whether, in

proceedings regarding claims for compensation aris ing out of those acts, the Italian courts were
obliged to accord Germany immunity. In that cont ext, the Court notes that there is a considerable
measure of agreement between the Parties regard ing the fact that immunity is governed by
international law and is not a mere matter of comi ty. It states that, as between the Parties, the

entitlement to immunity can be derived only from customary international law. Therefore, the
Court must determine, in accordance with Article38(1)(b) of its Statute, whether “international
custom, as evidence of a general practice accepted as law” conferring immunity on States, exists
and, if so, what is the scope and extent of that immunity.

The Court notes that, although there has been much debate regarding the origins of State
immunity and the identification of the principles underlying that immunity in the past, the
International Law Commission (hereinafter the “ILC”) concluded in 1980 that the rule of State

immunity had been “adopted as a general rule of cu stomary international law solidly rooted in the
current practice of States”. In the opinion of the Court, that conclusion was based upon an
extensive survey of State practice and is confirmed by the record of national legislation, judicial
decisions and the comments of States on what became the United Nations Convention on the

Jurisdictional Immunities of States and their Property (hereinafter the “United Nations
Convention”). It believes that practice to show that, whether in claiming immunity for themselves
or according it to others, States generally proceed on the basis that there is a right to immunity
under international law, together with a corres ponding obligation on the part of other States to

respect and give effect to that immunity.

The Court observes that the Parties are thus in broad agreement regarding the validity and
importance of State immunity as a part of customar y international law. It notes that their views

differ, however, as to whether, as Germany cont ends, the law to be applied is that which
determined the scope and extent of State immunity in 1943-1945, i.e., at the time that the events
giving rise to the proceedings in the Italian cour ts took place, or, as Italy maintains, that which

applied at the time the proceedings themselves o ccurred. The Court states that, in accordance with
the principle stated in Article 13 of the ILC Articles on Responsibility of States for Internationally - 4 -

Wrongful Acts, the compatibility of an act with international law can be determined only by
reference to the law in force at the time when th e act occurred. Since the relevant Italian acts,

namely the denial of immunity and exercise of jurisdiction by the Italian courts, did not occur until
the proceedings in the Italian courts took place, the Court concludes that it must examine and apply
the law on State immunity as it existed at the time of the Italian proceedings, rather than that which
existed in 1943-1945. In support of that conclusi on, the Court adds that the law of immunity is

essentially procedural in nature; it regulates the ex ercise of jurisdiction in respect of particular
conduct and is thus entirely distinct from the substantive law which determines whether that
conduct is lawful or unlawful.

The Court notes that the Parties also differ as to the scope and extent of the rule of State
immunity. Although both agree that States are generally entitled to immunity in respect of
acta jure imperii, they disagree as to whether immunity is applicable to acts committed by the
armed forces of a State (and other organs of that State acting in co-operation with the armed forces)

in the course of conducting an armed conflict. Germany maintains that immunity is applicable and
that there is no relevant limitation on the immun ity to which a State is entitled in respect of
acta jure imperii. Italy, for its part, maintains that Germ any is not entitled to immunity in respect
of the cases before the Italian courts for two reasons : first, that immunity as to acta jure imperii

does not extend to torts or delicts occasioning de ath, personal injury or damage to property
committed on the territory of the forum State, and, secondly, that, irrespective of where the relevant
acts took place, Germany was not entitled to immunity because those acts involved the most

serious violations of rules of international law of a peremptory character for which no alternative
means of redress was available. The Court addresses each of Italy’s arguments in turn.

2. Italy’s first argument: the territorial tort principle (paras. 62-79)

The Court considers that it is not called upo n in the present proceed ings to resolve the
question whether there is in customary interna tional law a “tort exception” to State immunity
applicable to acta jure imperii in general. The issue before th e Court is confined to acts committed
on the territory of the forum State by the armed forc es of a foreign State, and other organs of State

working in co-operation with those armed forces, in the course of conducting an armed conflict.

The Court begins by examining whether Article 11 of the European Convention or Article 12
of the United Nations Convention affords any support to Italy’s contention that States are no longer

entitled to immunity in respect of the type of act s specified above. It explains that, as neither
Convention is in force between the Parties to the present case, they are relevant only in so far as
their provisions and the process of their adoption and implementation shed light on the content of

customary international law.

Article 11 of the European Convention sets out the territorial tort principle in broad terms:

“A Contracting State cannot claim immuni ty from the jurisdiction of a court of

another Contracting State in proceedings wh ich relate to redress for injury to the
person or damage to tangible property, if the facts which occasioned the injury or
damage occurred in the territory of the Stat e of the forum, and if the author of the
injury or damage was present in that territory at the time when those facts occurred.”

The Court notes that that provision must, however, be read in the light of Article 31, which
provides:

“Nothing in this Convention shall affe ct any immunities or privileges enjoyed
by a Contracting State in respect of anythi ng done or omitted to be done by, or in
relation to, its armed forces when on the territory of another Contracting State.” - 5 -

The Court finds that Article31 excludes from the scope of the Convention all proceedings
relating to acts of foreign armed forces, irrespective of whether those forces are present in the

territory of the forum with the consent of the forum State and whether their acts take place in
peacetime or in conditions of armed conflict. It considers that Article 31 takes effect as a “saving
clause”, with the result that the immunity of a St ate for the acts of its armed forces falls entirely

outside the Convention and has to be determined by reference to customary international law. In
the Court’s view, however, the consequence is that the inclusion of the “territorial tort principle” in
Article11 of the Convention cannot be treated as support for the argument that a State is not
entitled to immunity for torts committed by its armed forces.

The Court notes that, unlike the European Convention, the United Nations Convention
contains no express provision excluding the acts of armed forces from its scope. However, the
ILC’s commentary on the text of Article 12 1states that that provision does not apply to “situations

involving armed conflicts”. The Court further observes that no State questioned this interpretation
and that two of the States which have so far ratif ied the Convention made declarations in identical
terms stating their understanding that the Convention does not apply to military activities, including

the activities of armed forces during an armed conf lict and activities undertaken by military forces
of a State in the exercise of their official duti es. The Court concludes that the inclusion in the
Convention of Article 12 cannot be taken as affording any support to the contention that customary
international law denies State immunity in tort proceedings relating to acts occasioning death,

personal injury or damage to property committed in the territory of the forum State by the armed
forces and associated organs of another State in the context of an armed conflict.

Turning to State practice in the form of nationa l legislation, the Court notes that nine of the

ten States referred to by the Parties which have le gislated specifically for the subject of State
immunity have adopted provisions to the effect that a State is not entitled to immunity in respect of
torts occasioning death, personal injury or damage to property occurring on the territory of the

forum State. The Court observes that two of these statutes contain provisions that exclude
proceedings relating to the acts of foreign armed fo rces from their application. It further observes
that, while none of the other seven States referred to by the Parties makes provision in its
legislation for the acts of armed forces, the c ourts have not been called upon to apply that

legislation in a case involving the armed forces of a foreign State, and associated organs of State,
acting in the context of an armed conflict.

The Court next turns to State practice in th e form of the judgments of national courts

regarding State immunity in relation to the acts of armed forces. In the Court’s opinion, that
practice supports the proposition that St ate immunity for actajureimperii continues to extend to
civil proceedings for acts occasioning death, persona l injury or damage to property committed by

the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant
acts take place on the territory of the forum St ate. The Court notes that that practice is
accompanied by opiniojuris , as demonstrated by the positions taken by States and the
jurisprudence of a number of national courts which have made clear that they considered that

customary international law required immunity. It finds that the almost complete absence of
contrary jurisprudence is also significant, as is the absence of any statements by States in
connection with the work of the ILC regarding State immunity and the adoption of the United
Nations Convention or, so far as the Court has been able to discover, in any other context asserting

that customary international law does not require immunity in such cases.

1
Article 12 of the United Nations Convention provides:
“Unless otherwise agreed between the Stateconcerned, a State cannot invoke immunity from
jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to
pecuniary compensation for death or injury to the person, or damage to or loss of tangible property,

caused by an act or omission which is alleged to be attributable to the State, if the act or omission
occurred in whole or in part in the territory of that other State and if the author of the act or omission was
present in that territory at the time of the act or omission.” - 6 -

In light of the foregoing, the Court concludes that customary international law continues to
require that a State be accorded immunity in proceedings for torts allegedly committed on the

territory of another State by its armed forces and other organs of State in the course of conducting
an armed conflict. It adds that that conclusion is confirmed by the judgments of the European
Court of Human Rights. Accordingly, the Court finds that the decision of the Italian courts to deny
immunity to Germany cannot be justified on the basis of the territorial tort principle.

3. Italy’s second argument: the subject-matter and circumstances of the claims in the Italian
courts (paras. 80-106)

The Court notes that Italy’s second argument, whic h, unlike its first argument, applies to all
of the claims brought before the Italian courts, 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 tho se claims were made. There are three strands to

this argument. Firstly, Italy contends that the acts which gave rise to the claims constituted serious
violations of the principles of international la w applicable to the conduct of armed conflict,
amounting to war crimes and crimes against humanity. Secondly, Italy maintains that the rules of
international law thus contravened we re peremptory norms (jus cogens) . Thirdly, Italy argues that

the claimants having been denied all other forms of redress, the exercise of jurisdiction by the
Italian courts was necessary as a matter of last resort. The Court considers each of these strands in
turn, while recognizing that, in the oral proceedi ngs, Italy contended that its courts had been
entitled to deny immunity to Germany because of the combined effect of these three strands.

The gravity of the violations (paras. 81-91)

The Court notes that the first strand is b ased upon the proposition that international law does

not accord immunity to a State, or at least rest ricts its right to immunity, when that State has
committed serious violations of the law of armed conflict. It recalls that, in the present case, the
Court has already made clear that the actions of the German armed forces and other organs of the
German Reich giving rise to the proceedings before the Italian courts were serious violations of the

law of armed conflict which amounted to crimes under international law. In the Court’s view, the
question is, therefore, whether that fact operates to deprive Germany of its entitlement to immunity.

The Court begins by inquiring whether customary international law has developed to the

point where a State is not entitled to immunity in the case of serious violations of human rights law
or the law of armed conflict. After examining St ate 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. In reaching that conclusion, the Court emphasizes that it is
addressing only the immunity of the State itself from the jurisdiction of the courts of other States;
the question of whether, and if so to what exte nt, immunity might apply in criminal proceedings
against an official of the State is not in issue in the present case.

The relationship between jus cogens and the rule of State immunity (paras. 92-97)

The Court next turns to the second strand in Italy’s argument, which emphasizes the

jus cogens status of the rules which were violated by Germany during the period 1943-1945. It
notes 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.
According to Italy, since jus cogens rules always prevail over any inc onsistent rule of international

law, and since the rule which accords one State im munity before the courts of another does not
have the status of jus cogens, the rule of immunity must give way. - 7 -

The Court is of the opinion that there is no conflict between a rule, or rules, of juscogens ,
and the rule of customary law which requires one State to accord immunity to another. Assuming

for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in
occupied territory, the deportation of civilian inha bitants to slave labour and the deportation of
prisoners of war to slave labour are rules of juscogens , the Court takes the view that there is no
conflict between those rules and the rules on State immunity. The two sets of rules address

different matters. The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one Stat e 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. Th at is why the application of the contemporary

law of State immunity to proceedings concerni ng events which occurred in 1943-1945 does not
infringe the principle that law should not be applied retrospectively to determine matters of legality
and responsibility.

The Court observes that, in the present case, the violation of the rules prohibiting murder,
deportation and slave labour took place in the peri od 1943-1945. The illegality of these acts is
openly acknowledged by all concerned. The appli cation of rules of State immunity to determine
whether or not the Italian courts have jurisdiction to hear claims arising out of those violations

cannot involve any conflict with the rules which we re violated. The Court adds that the argument
about the effect of juscogens displacing the law of State imm unity has been rejected by the
national courts. It states that the judgments of the Italian courts which are the subject of the present

proceedings are the only decisions of national courts to have accepted the reasoning on which
Italy’s argument is based. It observes, moreove r, that none of the national legislation on State
immunity has limited immunity in cases where violations of jus cogens are alleged.

The Court concludes that, even assuming that th e proceedings in the Italian courts involved

violations of juscogens rules, the applicability of the customary international law on State
immunity was not affected.

The “last resort” argument (paras. 98-104)

The Court notes that the third and final strand of the Italian argument is that the Italian courts
were justified in denying Germany the immunity to which it would otherw ise have been entitled,
because all other attempts to secure compensation for the various groups of victims involved in the

Italian proceedings had failed.

The Court considers that it cannot accept Italy’ s contention that the alleged shortcomings in
Germany’s provisions for reparation to Italian victims entitled the Italian courts to deprive

Germany of jurisdictional immunity. It can find no basis in the State practice from which
customary international law is derived that inte rnational law makes the entitlement of a State to
immunity dependent upon the existence of effective alternative means of securing redress. Neither
in the national legislation on the subject, nor in th e jurisprudence of the national courts which have

been faced with objections based on immunity is there any evidence that entitlement to immunity is
subjected to such a precondition. States also did not include any such condition in either the
European Convention or the United Nations Conve ntion. Moreover, the Court cannot fail to

observe that the application of any such conditi on, if it indeed existed, would be exceptionally
difficult in practice, particularly in a context such as that of the present case, when claims have
been the subject of extensive intergovernmental discussion.

Accordingly, the Court rejects Italy’s argumen t that Germany could be refused immunity on
this basis. - 8 -

The combined effect of the circumstances relied upon by Italy (paras. 105-106)

The Court observes that, in the course of the oral proceedings, counsel for Italy maintained
that the three strands of Italy’s second argument ha d to be viewed together; it was because of the
cumulative effect of the gravity of the violations, the status of the rules violated and the absence of
alternative means of redress that the Italian courts had been justified in refusing to accord immunity

to Germany.

The Court states that it has already determined that none of the three strands of the second
Italian argument would, of itself, justify the action of the Italian courts. It is not persuaded that

they would have that effect if taken together. According to the Court, in so far as the argument
based on the combined effect of the circumstances is to be understood as meaning that the national
court should balance the different factors, assessi ng the respective weight, on the one hand, of the
various circumstances that might justify the exercise of its jurisdiction, and, on the other hand, of

the interests attaching to the protection of immun ity, such an approach would disregard the very
nature of State immunity.

Co4n.clusions (paras. 107-108)

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

IV. The measures of constraint taken against property belonging to Germany located on
Italian territory (paras. 109-120)

The Court recalls that, on 7 June 2007, certain Greek claimants, in reliance on a decision of
the Florence Court of Appeal of 13 June 2006, declaring enforceable in Italy the judgment rendered
by the Court of First Instance of Livadia, in Greece, which had ordered Germany to pay them
compensation, entered in the Land Registry of th e Province of Como a legal charge against Villa

Vigoni, a property of the German State located near Lake Como. It further recalls that Germany
argued that such a measure of constraint violates the immunity from enforcement to which it is
entitled under international law and that Italy, for its part, has not sought to justify that measure. It

notes that the charge in question was suspende d, in order to take account of the pending
proceedings before the Court in the present case. The Court further notes that a dispute still exists
between the Parties, inasmuch as Italy has not fo rmally admitted that the legal charge on Villa
Vigoni constituted a measure contrary to its intern ational obligations; nor has it put an end to the

effects of that measure.

The Court observes that the immunity from enfo rcement enjoyed by States in regard to their
property situated on foreign territory goes further than the jurisdictional immunity enjoyed by those

same States before foreign courts. Even if a judgment has been lawfully rendered against a foreign
State, in circumstances such that the latter coul d not claim immunity from jurisdiction, it does not
follow ipsofacto that the State against which judgment has been given can be the subject of
measures of constraint on the territory of the forum State or on that of a third State, with a view to

enforcing the judgment in question. Similarly, any waiver by a State of its jurisdictional immunity
before a foreign court does not in itself mean that that State has waived its immunity from
enforcement as regards property belonging to it situ ated in foreign territory. The Court considers
that, in the present case, the distinction between the rules of customary international law governing

immunity from enforcement and those governing jurisdictional immunity (understood stricto sensu
as the right of a State not to be the subject of judicial proceedings in the courts of another State)
means that the Court may rule on the issue of whether the charge on Villa Vigoni constitutes a
measure of constraint in violation of Germany’s immunity from enforcement, without needing to

determine whether the decisions of the Greek courts awarding pecuniary damages against - 9 -

Germany, for purposes of whose en forcement that measure was taken, were themselves in breach
of that State’s jurisdictional immunity.

Relying on Article19 of the United Nations Convention, inasmuch as it reflects customary
law on the matter, the Court finds that there is at least one condition that has to be satisfied before
any measure of constraint 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 prope rty 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 concludes th at it is clear in the present case that the property

which was the subject of the measure of constraint at issue is being used for governmental purposes
that are entirely non-commercial, and hence fo r purposes falling within Germany’s sovereign
functions. Villa Vigoni is in fact the seat of a cultural centre intended to promote cultural
exchanges between Germany and Italy. Nor, th e Court adds, has Germany in any way expressly

consented to the taking of a measure such as the le gal charge in question, or allocated Villa Vigoni
for the satisfaction of the judicial claims against it.

In these circumstances, the Court finds that the registration of a legal charge on Villa Vigoni

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

V. The decisions of the Italian courts declaring enforceable in Italy decisions of Greek courts

upholding civil claims against Germany (paras. 121-133)

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

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.

According to the Court, 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 ob serves that when a court is seised, as in the
present case, of an application for exequatur of a foreign judgment against a third State, it is itself

being called upon to exercise its jurisdiction in respect of the third State in question. Although the
purpose of exequatur proceedings is not to decide on the merits of a dispute, but simply to render
an existing judgment enforceable on the territory of a State other than that of the court which ruled
on the merits, the fact nonetheless remains that, in granting or refusing exequatur , the court

exercises a jurisdictional power which results in the foreign judgment being given effects
corresponding to those of a judgment rendered on the merits in the requested State. The
proceedings brought before that court must therefore be regarded as being conducted against the
third State which was the subject of the foreign j udgment. According to the Court, it follows that

the court seised of an application for exequatur of a foreign judgment rendered against a third State
has to ask itself whether the respondent State enjoys immunity from jurisdiction — having regard
to the nature of the case in which that judgment was given— before the courts of the State in
which exequatur proceedings have been instituted. In ot her words, it 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 concludes that, in the light of this reasoning, it

follows that the Italian courts which declared en forceable in Italy the decisions of Greek courts
rendered against Germany have violated the latter’ s immunity. The Court considers that, in order
to reach such a decision, it is unnecessary to rule on the question whether the Greek courts did
themselves violate Germany’s immunity, a question which is not before the Court, and on which,

moreover, it cannot rule. - 10 -

The Court concludes, therefore, that the decisi ons of the Italian courts declaring enforceable
in Italy judgments rendered by Greek courts agai nst Germany in proceedings arising out of the

Distomo massacre constitute a violation by Italy of its obligation to respect the jurisdictional
immunity of Germany.

VI. Germany’s final submissions and the remedies sought (paras. 134-138)

The Court upholds Germany’s first three requests, which ask it to declare, in turn, that Italy
has violated the jurisdictional immunity whic h Germany enjoys under international law by

allowing civil claims based on violations of in ternational humanitarian law by the German Reich
between 1943 and 1945; that Italy has also co mmitted violations of the immunity owed to
Germany by taking enforcement measures against Villa Vigoni; and, lastly, that Italy has violated
Germany’s immunity by declaring enforceable in Italy Greek judgments based on occurrences

similar to those referred to above.

In respect of Germany’s fourth submission, the Court does not consider it necessary to
include an express declaration in the operative cl ause that Italy’s international responsibility is

engaged.

With regard to Germany’s fifth submission, in which it asks the Court to order Italy to take,
by means of its own choosing, any and all steps to ensure that all the decisions of its courts and

other judicial authorities infringing Germany’s sovereign immunity become unenforceable, the
Court begins by recalling that the State responsible for an internationally wrongful act is under an
obligation to cease that act, if it is continuing, and, even if the act in question has ended, the State
responsible is under an obligation to re-establish, by way of reparation, the situation which existed

before the wrongful act was committed, provided that re-establishment is not materially impossible
and that it does not involve a burden for that State out of all proportion to the benefit deriving from
restitution instead of compensation. The Court fi nds that the decisions and measures infringing
Germany’s jurisdictional immunities which are still in force must cease to have effect, and the

effects which have already been produced by t hose decisions and measures must be reversed, in
such a way that the situation which existed before the wrongful acts were committed is
re-established. The Court adds that it has not b een alleged or demonstrated that restitution would
be materially impossible in this case, or that it would involve a burden for Italy out of all

proportion to the benefit deriving from it. On the other hand, it observes that Italy has the right to
choose the means it considers best suited to achieve the required result. Thus the Respondent is
under an obligation to achieve this result by enacting appropriate legislation or by resorting to other
methods of its choosing having the same effect.

The Court, however, does not uphold Germany’s sixth submission, in which it asks the Court
to order Italy to 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 its first submission (namely

violations of international humanitarian law co mmitted by the German Reich between 1943 and
1945). As it has stated in previous cases, the Court recalls that, as a general rule, there is no reason
to suppose that a State whose act or conduct has be en declared wrongful by the Court will repeat
that act or conduct in the future, since its good fa ith must be presumed. Accordingly, while the

Court may order the State responsible for an inte rnationally wrongful act to offer assurances of
non-repetition to the injured State, or to take specific measures to ensure that the wrongful act is
not repeated, it may only do so when there are sp ecial circumstances which justify this, which the

Court must assess on a case-by-case basis. In the present case, however, the Court has no reason to
believe that such circumstances exist. - 11 -

VII. Operative clause (para. 139)

For these reasons,

T HE COURT ,

(1) By twelve votes to three,

Finds 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 internationa l humanitarian law committed by the German Reich
between 1943 and 1945;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,

Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Greenwood, Xue, Donoghue;

AGAINST : Judges Cançado Trindade, Yusuf; Judgead hoc Gaja;

(2) By fourteen votes to one,

Finds that the Italian Republic has violated its obligation to respect the immunity which the
Federal Republic of Germany enjoys under intern ational law by taking measures of constraint

against Villa Vigoni;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,

Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenw ood, Xue, Donoghue;
Judge ad hoc Gaja;

AGAINST : Judge Cançado Trindade;

(3) By fourteen votes to one,

Finds that the Italian Republic has violated its obligation to respect the immunity which the

Federal Republic of Germany enjoys under intern ational law by declaring enforceable in Italy
decisions of Greek courts based on violations of international humanitarian law committed in
Greece by the German Reich;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenw ood, Xue, Donoghue;
Judge ad hoc Gaja;

AGAINST : Judge Cançado Trindade;

(4) By fourteen votes to one,

Finds that the Italian Republic must, by enacting a ppropriate legislation, or by resorting to
other methods of its choosing, ensure that the decsions 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;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenw ood, Xue, Donoghue;
Judge ad hoc Gaja;

AGAINST : Judge Cançado Trindade; - 12 -

U(na)nimously,

Rejects all other submissions made by the Federal Republic of Germany.

Judges Koroma, Keith and Bennouna append separate opinions to the Judgment of the Court;

Judges CançadoTrindade and Yusuf append dissenti ng opinions to the Judgment of the Court;
Judge ad hoc Gaja appends a dissenting opinion to the Judgment of the Court.

___________ Annex to Summary 2012/2

Separate opinion of Judge Koroma

In his separate opinion, Judge Koroma states that he has voted in favour of the Court’s
Judgment, which in his view accurately reflects the current state of international law with respect to
the jurisdictional immunity of a State. Judge Koroma emphasizes, however, that the Court’s

Judgment should not be read as a licence for States to commit acts of torture or other similar acts
tantamount to crimes against humanity.

Judge Koroma states that the case before the Court is not about the conduct of Germany’s

armed forces during the Second World War or Ge rmany’s international responsibility for such
conduct. The question, in his view, is limited to whether Germany is legally entitled to immunity
before the Italian domestic courts with respect to the conduct of its armed forces in the course of
the armed conflict. Judge Koroma adds that the Court’s jurisdiction is limited to addressing only

the issue of immunity. According to Judge Koroma, the Court did not need to address the
substantive matter of the legality of Germany’s conduct to resolve the issue of jurisdictional
immunity.

Judge Koroma notes that it is clear that the acts of the German armed forces in Italy during
the Second World War constitute acta jure imperii . According to Judge Koroma, acts committed
by a State’s armed forces in the course of an international armed conflict are acts taken in exercise
of sovereign power, because the execution of such acts is necessarily the sovereign prerogative of a

State. Judge Koroma adds that it is well establis hed that States are generally entitled to immunity
for acta jure imperii. The question, in his view, is whether any exception to this general rule exists
that would deny States sovereign immunity for un lawful actions committed by their armed forces
on the territory of another State during armed conflict or in the course of an occupation.

Judge Koroma observes that the law on sovereign immunity has evolved to provide a limited
exception to immunity for certain types of tortious ac ts. He notes that this exception is codified in
Article12 of the United Nations Convention on Jurisdictional Immunities of States and Their

Property, which can be considered to reflect the current state of customary international law.
JudgeKoroma points out, however, that the International Law Commission’s commentary on the
Convention makes clear that the drafters intended Ar ticle 12 to apply mainly to situations such as
traffic accidents, and did not intend for the Article to apply to situations involving armed conflicts.

Judge Koroma concludes that, therefore, States c ontinue to be entitled to sovereign immunity for
acta jure imperii committed by their armed forces during armed conflict. He emphasizes, however,
that the Court’s task is to apply the existing law, and that nothing in the Court’s Judgment prevents
the continued evolution of the law on State immunity.

Judge Koroma also considers it important to acknowledge and address the arguments made
by Greece, a non-party intervenor in this case. In its written statement, Greece emphasized,
inter alia, the “individual right to reparation in the even t of grave violations of humanitarian law”.

JudgeKoroma states that Gre ece is correct that international humanitarian law now regards
individuals as the ultimate benefi ciaries of reparations for human rights violations. In his view,
however, it does not follow that international law pr ovides individuals with a legal right to make
claims for reparation directly against a State. Judge Koroma notes that nothing in the Fourth

Hague Convention of 1907 or Article 91 of th e 1977 Protocol Additional to the Geneva
Conventions of 12 Augus t 1949 supports such a proposition. The relevant Articles of these two
Conventions provide that States must “pay compensation” if they violate the Conventions, but,

according to Judge Koroma, they do not purport to require that States pay compensation directly to
aggrieved individuals . Judge Koroma observes that a provision requiring State payments to
individuals would have been inconceivable in 1907, when the Fourth Hague Convention was
concluded. - 2 -

Judge Koroma concludes that the Court correctly found that Germany is entitled to sovereign
immunity for the acts committed by its armed forc es in Italy during the Second World War. He

adds, however, that this finding does not preclude the Parties from entering into negotiations to
resolve outstanding issues raised in this case, but that its resolution does not necessitate the
overthrow of the existing law on jurisdictional im munity, which justly protects and preserves the
sovereignty and sovereign equality of States.

Separate opinion of Judge Keith

Judge Keith agrees with the conclusions of th e Court, and largely with its reasons. His
purpose in preparing the opinion is to emphasize how international rules on State immunity are
firmly based on principles of international law and on policies of the international legal order.

A fundamental principle at play in this area is that of the sovereign equality of States,

according to which all States have equal rights and duties and are juridically equal. In cases raising
issues of State immunity, that principle applies to two States: the State in whose court the case is
brought and the foreign State which is the intended defendant. While, on the one hand, the court’s

jurisdiction arises from the sovereignty of the forum State, conversely, the sovereign equality and
independence of the foreign State are principles supporting immunity from that jurisdiction.

For the last 200 years, national courts and national legislatures, in seeking to reconcile these

two propositions, have given particular attention to the character of the act in issue: is it to be seen
as the exercise of sovereign authority, or is it indistinguishable from the act of any other person
subject to the local law? The same approach has been followed in more recent treaties and the
diplomatic and other processes leading to them. Long-standing practice also underlines the

distinction, critical in this case, between the s ubstantive obligations of a foreign State and the
procedural or institutional means by which that obligation is to be enforced.

With respect to the claims brought before Italian courts, JudgeKeith emphasizes that

Germany has accepted responsibility for the untold suffering which resulted from its illegal acts
between 1943 and 1945. However it is not that illegality which is the subject of the present case. It
is rather the question whether Italian courts ma y exercise jurisdiction over claims based on those
facts, brought against Germany.

One basis for exercising that jurisdiction, Italy had argued, was the local tort rule. While that
rule has long been recognized, JudgeKeith conc ludes that it does not encompass the conduct in
question in this case. First, this rule would apply to what were in essence damages claims under

local law in respect of injury and damage which w ould in general be insurable. It would not apply
to acts committed in the course of armed conflict between States: those are acts at the international
level, of a sovereign nature and are to be assessed according to international law rather than local
law. Second, Judge Keith notes the analogy between foreign State immunity and the rules on the

immunity of the domestic sovereign from proceedings in their own courts, and recalls that domestic
legislation even as it has narrowed that immunity has generally precluded claims arising from
actions of the armed forces of the State. Third, at the international level claims in respect of war
damages and losses against former belligerents are in practice dealt with by inter-State negotiations

and agreements. This practice reflects post-war realities and strongly supports the conclusion that a
former belligerent State may not be subject, withou t its consent, to the jurisdiction of a foreign
court in cases such as those which are the subject of these proceedings. - 3 -

Separate opinion of Judge Bennouna

Although he voted in favour of that part of the operative clause which found that Italy had
violated Germany’s jurisdictional immunity, Judge Bennouna considers that he cannot endorse the
approach adopted by the Court, or support the logic of its reasoning. In JudgeBennouna’s view,

the fact that responsibility is indissociable from the exercise of sovereignty means that it is only,
where appropriate, by assuming its responsibility that a State can justify its claim to immunity
before foreign courts on the basis of sovereign equality. Judge Bennouna takes the view that it is
only in exceptional circumstances, where a State presumed to be the author of unlawful acts rejects

any attribution of responsibility, in whatever form, that it could lose the benefit of immunity before
the courts of the forum State. It is for the C ourt, in ruling on immunity, to ensure the unity of
international law by taking account of all of its constituent elements.

Dissenting opinion of Judge Cançado Trindade

1. In his Dissenting Opinion, composed of 27 parts, JudgeCançadoTrindade presents the
foundations of his personal dissenting position, pe rtaining to the Court’s decision as a whole,

encompassing the adopted methodology, the approach pursued, the whole reasoning in its treatment
of issues of substance, as well as the conclusi ons of the Judgment. He begins his Dissenting
Opinion by identifying (partI) the wider framework of the settlement of the dispute at issue,

ineluctably linked to the imperative of the realization of justice , in particular in the international
adjudication by the Court of cases of the kind on the basis of fundamental considerations of
humanity, whenever grave breaches of human rights and of international humanitarian law lie at
their factual origins, as in the cas d’espèce.

2. Preliminarily, as to the inter-temporal dimension in the consideration of State immunity
(partII), he sustains that one cannot take account of inter-temporal law only in a way that serves
one’s interests in litigation, accepting the passing of time and the evolution of law in relation to

certain facts but not to others, of the same continuing situation. In approaching the interrelatedness
between State immunities and war reparations claims, the evolution of law is to be kept in mind.
The relationship between State immunities and war reparation claims in the present case is, in his

view, indeed an ineluctable one.

3. Thus, despite the Court’s Order of 06 July2010 summarily dismissing the Italian
counter-claim (with his dissent), it so happens that the facts underlying the dispute between the

Parties, and conforming its historical background, continued to be referred to by the contending
parties (Germany and Italy), throughout the whole proceedings (wri tten and oral phases) before the
Court. Judge Cançado Trindade a dds that this confirms what he upheld in his previous Dissenting

Opinion in the Court’s Order of 06.07.2010 in the present case, namely, that State immunities
cannot be considered in the void, and they cons titute a matter which is ineluctably linked to the
facts which give origin to a contentious case (part III).

4. Next, Judge Cançado Trindade singles out the significance of the commendable initiative
of Germany to recognize, repeatedly before the Court (in the written and oral phases), State
responsibility for the wrongful acts lying in the factual origins of the cas d’espèce , i.e., for the
crimes committed by the Third Reich during the II world war (partIV). This discloses the

uniqueness of the present case concerning the Jurisdictional Immunities of the State , an
unprecedented one in the history of the ICJ, in that the complainant State recognizes its own
responsibility for the harmful acts forming the factual background of the cas d’espèce. - 4 -

5. In sequence, he reviews some doctrinal developments (part V), from a generation of jurists
which witnessed the horrors of two world wars in the XXthcentury, which did not pursue a strict

State-centric approach, and were centred on fundamental human values, and on the human person,
guarding faithfulness to the historical origins of the droit des gens, as Judge Cançado Trindade thinks
ought to be done nowadays as well. In his view,State immunities are a prerog ative or a privilege, and
they cannot keep on making abstraciton of the evolution of internato inal law, taking place nowadays in

the light of fundamental human values . He adds that the work of learned institutions in international
law (such as, e.g., the Institut de Droit International and the International Law Association) can
further be recalled to the same effect.

6. JudgeCançadoTrindade observes that the tension between State immunity and the right
of access to justice is thus to be rightly resolved in favour of the latter, particularly in cases of
international crimes (part VI). He expresses the concern with the need to abide by the imperatives

of justice and to avoid impunity in cases of perpetration of international crimes, thus seeking to
guarantee their non-repetition in the future. And he proceeds that the threshold of the gravity of the
breaches of human rights and of international humani tarian law removes any bar to jurisdiction, in
the quest for reparation to the victimized individua ls (part VII). All mass atrocities are nowadays

to be considered, in his view, in the light of the threshold of gravity , irrespective of who committed
them; criminal State policies and the ensuing perpetration of State atrocities are not to be covered
up by the shield of State immunity.

7. In part VIII of his Dissenting Opinion, Judge Cançado Trindade sustains that States cannot
waive, inter se , rights which are not their own, but which are rather inherent to human beings.
Purported inter-State waivers of rights inherent to the human person are, in his view, inadmissible;

they stand against the international ordre publi, and are to be deprived of any juridical effects. This is
deeply-engraved in human conscience, in the universal juridical conscience , the ultimate material
source of all Law.

8. He demonstrates, in part IX of his dissent, that, well before the II world war, deportation to
forced labour (as a form of slave work) was al ready prohibited by international law. Its
wrongfulness was widely acknowledged, at normative level, by the IV Hague Convention of 1907

and by the 1930 ILO Convention on Forced Labour. There was recognition of that prohibition in
works of codification of the epoch, and that pr ohibition has, furthermore, met with judicial
recognition. The right to war reparation claims was likewise recognized well before the end of the
II world war (in the IV Hague Convention of 1907) (part XII).

9. To JudgeCançadoTrindade, what jeopardizes or destabilizes the international legal order,
are the international crimes, and not the indivi duals’ quest for reparation. What troubles the

international legal order, are the cover-up of such international crimes accompanied by the
impunity of the perpetrators, and not the victims’ search for justice (parts X and XIII). When a
State pursues a criminal policy of murdering segments of its own population, and of the population
of other States, it cannot, later on, place itself behind the shield of sovereign immunities, as these

latter were never conceived for that purpose.

10. JudgeCançadoTrindade proceeds to a review of all the responses provided by the

contending parties (Germany and Italy), as well as the intervening State (Greece), to the questions
he put to them at the end of the oral hearings before the Court, on 16.09.2011 (part XI). He
sustains that grave breaches of human rights and of international humanitarian law, amounting to
international crimes, are anti-juridical acts, are breaches of jus cogens , that cannot simply be

removed or thrown into oblivion by reliance on State immunity (parts XII-XIII). - 5 -

11. In sequence, JudgeCançadoTrindade proceeds to a review of the prevailing tension, in
the international and national case-law, between State immunity and the individual victims’ right of

access to justice (part XIV); he ascribes greater weight to this latter, in the current age of the rule
of law at national and international levels (as reckoned nowadays by the United Nations General
Assembly itself). Furthermore, he discards the traditional and eroded distinction between acta jure
gestionis and acta jure imperii as being immaterial in the pr esent case; in his understanding,

international crimes perpetrated by States (such as those committed by the Third Reichin the II world
war) are not acts jure gestionis, nor acts jure imperii; they are crimes, delicta imperii, for which there
is no immunity (part XV).

12. The next line of considerations by Judge CançadoTrindade pertains to the human person
and State immunities. This counterposition leads international law (the droit des gens) to free itself
from the strict and short-sighted inter-State outlook (part XVI) of times past. He recalls that the term

“immunity” (from Latin immunitas, deriving from immunis) entered the lexicon of international law
by reference to “prerogatives” of the sovereign State, being associated with “cause of impunity”. The
term was meant to refer to something quite except ional, an exemption from jurisdiction or from
execution. It was never meant to be a principle, nor a norm of general application. It has certainly

never been intended to except jurisdiction on, and to cover-up, international crimes, grave violations of
human rights and of international humanitarian law.

13. Thus, in case of such crimes or grave violations, JudgeCançadoTrindade sustains that the
direct access of the individuals concerned to the international jurisdiction is thus fully justified, to
vindicate the individual victims’ ri hts, even against their own State (part XVII). To him, beyond the
inter-State myopia, individuals are indeed subjects of international law (not merely “actors”), and

whenever legal doctrine departed from this, the consequences and results were catastrophic.
Individuals are titulaires of rights and bearers of duties which emanate directly from international
law (the jus gentium ). Converging developments, in recent decades, of the International Law of
Human Rights, of International Humanitarian La w, and of the International Law of Refugees,

followed by those of International Criminal Law, give unequivocal testimony of this.

14. To JudgeCançadoTrindade, it is not at all State immunity that cannot be waived. There

is no immunity for crimes against humanity (part XVIII-XIX). In cases of international crimes, of
delicta imperii, what cannot be waived is the individual’s right of access to justice, encompassing
the right to reparation for the grave violations of the rights inherent to him as a human being.
Without that right, there is no credible legal system at all, at national or international levels. One is

here in the domain of jus cogens.

15. Accordingly, there are no State immunities for delicta imperii , such as massacres of

civilians in situations of defencelessness (e.g., the massacre of Distomo, in Greece, in 1944, and the
massacre of Civitella, in Italy, also in 1944), or deportation and subjection to forced labour in war
industry (e.g., in 1943-1945) (part XVIIII). In the understanding of Judge Cançado Trindade, the
finding of particularly grave violations of human rights and of international humanitarian law

provides a valuable test for the removal of any bar to jurisdiction, in pursuance of the necessary
realization of justice. It is immaterial whether the harmful act in grave breach of human rights was
a governmental one, or a private one with the acquiescence of the State, or whether it was
committed entirely in the forum State or not (deportation to forced labour is a trans-frontier crime).

State immunity does not stand in the domain of redress for grave violations of the fundamental
rights of the human person. - 6 -

16. In sequence, Judge Cançado Trindade sustains that the right of access to justice lato sensu
comprises not only the formal access to justice (the right to institu te legal proceedings), by means

of an effective remedy, but also the guarantees of the due process of law (with equality of arms,
conforming the procès équitable ), up to the judgment (as the prestation juridictionnelle ), with its
faithful execution, with the provision of the reparation due (part XIX). Contemporary international
case-law contains elements to this effect, pointing towards jus cogens (partsXX-XXI). The

realization of justice is in itself a form of reparation, granting satisfaction to the victim. In this way
those victimized by oppression have their right to the Law (droit au Droit) duly vindicated
(part XXII).

17. Even in the domain of State immunities properly, ⎯ he proceeds, ⎯ there has been
acknowledgment of the changes undergone by it, in the sense of restricting or discarding such
immunities in the occurrence of those grave breaches, due to the advent of the International Law of

Human Rights, with attention focused on the right of access to justice and international
accountability. JudgeCançadoTrindade adds that the State’s duty to provide reparation to
individual victims of grave violations of human ri ghts and of international humanitarian law is a
duty under customary international law and pursuan t to a fundamental general principle of law

(part XXII).

18. He then ponders that there is nowadays a growing trend of opinion sustaining the

removal of immunity in cases of international crimes, for which reparation is sought by the victims.
In effect, ⎯ he adds, ⎯ to admit the removal of State immunity in the realm of trade relations, or
in respect of local personal tort (e.g., in tra ffic accidents), and at the same time to insist on

shielding States with immunity, in cases of international crimes ⎯ marked by grave violations of
human rights and of international humanitarian law ⎯ in pursuance of State (criminal) policies,
amounts, in his view, to a juridical absurdity.

19. JudgeCançadoTrindade asserts that, in cases disclosing such gravity as the present one
opposing Germany to Italy (and withGreece intervening), the right of accessto justice lato sensuis to
be approached with attention focused on its essence as a fundamentalright (as in the case-law of the

Inter-American Court of Human Rights), rather than on permissible or implicit “limitations” to it (as in
the case-law of the European Court of Human Ri ghts). In his understanding, grave breaches of
human rights and of international humanitarian law amount to breaches of jus cogens , entailing
State responsibility and the right to reparation to the victims (partsXXI and XXIII). This is in

line, ⎯ he adds, ⎯ with the idea of rectitude (in conformity with the recta ratio of natural law),
underlying the conception of Law (in distinct legal systems ⎯ Recht / Diritto / Droit / Direito /
Derecho / Right) as a whole (part XXIII).

20. The next line of reflections by Judge CançadoTrindade pertains to the individual
victims’ right to reparation, the indispensable complement of the grave breaches of international

law which harmed them. This indissoluble whole, of breach and reparations, ⎯ he adds, ⎯ is
recognized in the jurisprudence constante of The Hague Court (PCIJ and ICJ), and the wrongly
assumed incidence of State immunity herein cannot dismantle that indissoluble whole. It appears
groundless to him to claim that the regime of reparations for grave breaches of human rights and of

international humanitarian law would exhaust itself at inter-State level, to the detriment of the
individuals who suffered the consequences of war crimes and crimes against humanity.

21. JudgeCançadoTrindade adds that it is clear from the records of the present case that
there are “Italian Military Internees” (IMIs, i.e., fo rmer soldiers who were imprisoned and denied
the status of prisoners of war), ⎯ who were sent, also with civ ilians, to forced labour in the - 7 -

German war industry in the II world war (in 1943-1945), ⎯ victims of Nazi Germany’s grave
violations of human rights and of international humanitarian law, who have in fact been left

without reparation to date (partXXIV). Desp ite the fact that, as a result of the two 1961
Agreements between Germany and Italy, payments for reparation were made by Germany to Italy,
it so remains that there were victims who re mained uncovered by those Agreements. And
Germany itself admits that there are “IMIs” who have not received reparation, on the basis of an

interpretation given of the 2000 German law on the “Remembrance, Responsibility and Future”
Foundation.

22. On the basis of an expert opinion, Germany did not make reparation to the “IMIs”
through the Foundation; it resorted instead to an appraisal which led to a treatment of those victims
which incurs, in JudgeCançadoTr indade’s understanding, into a double injustice to them: first,
when they could have benefited from the rights att ached to the status of prisoners of war, such

status was denied to them; and secondly, now that they seek reparation for violations of
international humanitarian law of which they were victims (including the violation of denying them
the status of prisoners of war), they are seen to be treated as prisoners of war (partXXV). It is
regrettably too late to consider them prisoners of war (and, worse still, to deny them reparation):

they should have been so considered during the II world war and in its immediate aftermath (for the
purpose of protection), but they were not.

23. In sum, there are victims of Nazi Germ any’s grave violations of human rights and of
international humanitarian law who have in fact been left without reparation. In
Judge Cançado Trindade’s assessment, such individual victims of State atrocities cannot be left
without any form of redress. State immunity is not supposed to operate as a bar to jurisdiction in

circumstances such as those prevailing in the present case concerning the Jurisdictional Immunities
of the State. It is not to stand in the way of the realization of justice . The pursuit of justice is to be
preserved as the ultimate goal; securing justice to victims encompasses, inter alia, enabling them to

seek and obtain redress for the crimes they suffered.

24. And the realization of justice is in itself a form of reparation (satisfaction) to the victims.
It is the reaction of the Law to those grave violations, bringing one into the realm of jus cogens . In

Judge Cançado Trindade’s conception, through reparatio (from the Latin term reparare , “to dispose
again”), the Law intervenes to cease the effects ofits violations, and to guarantee the non-repetition of
the harmful acts. The reparatiodoes not put an end to the human rights violations already perpetrated,
but, in ceasing its effects, it at least avoids the aggravation of the harm already done (by the

indifference of the social milie, by impunity or by oblivion).

25. The reparatio is endowed, in JudgeCançadoTrindade’s understanding, with a double

meaning: it provides satisfaction (as a form of reparation) to the victims, and at the same time it
re-establishes the legal order broken by such violations⎯, a legal order erected on the basis of the full
respect for the rights inherent to the human person. The legal order, thus re-established, requires the

guarantee of non-repetition of the harmful acts.

26. In the remaining line of reflections of his Dissenting Opinion, JudgeCançadoTrindade
sustains the primacy of jus cogens and presents a rebuttal of its deconstruction (part XXVI). In his

view, one cannot embark on a wrongfully assume d and formalist lack of conflict between
“procedural” and “substantive” rules (cf. infra), unduly depriving jus cogens of its effects and legal
consequences. The fact remains that a conflict does exist, and the primacy is of jus cogens , which
resists to, and survives, such groundless attempt at its deconstruction. There can be no prerogative

or privilege of State immunity in cases of intern ational crimes, such as massacres of the civilian - 8 -

population, and deportation of civilians and prisone rs of war to subjection to slave labour: these
are grave breaches of absolute prohibitions of jus cogens, for which there can be no immunities.

27. He stresses that one cannot approach cases of the kind ⎯ involving grave breaches of
human rights and of international humanitarian law ⎯ without close attention to fundamental

human values. Unlike what legal positivism assumes, la w and ethics go ineluctably together, and
this should be kept in mind for the faithful realization of justice, at national and international levels.
The central principles at issue here are, in hi s perception, the principle of humanity and the
principle of human dignity. State immunity cannot, in his view, be unduly placed above State

responsibility for international crimes and its inel uctable complement, the responsible State’s duty
of reparation to the victims.

28. The opposite (majority) view is arrived at , in pursuance of an empirical factual exercise
of identifying the incongruous case-law of national courts and the inconsistent practice of a few
national legislations on the subject-matter at is sue. This exercise is characteristic of the
methodology of legal positivism, over-attentive to facts and oblivious of values. Be that as it may,

even in its own outlook, the examin ation of national courts’ decisions, ⎯ in
Judge Cançado Trindade’s view, ⎯ is not at all conclusive for upholding State immunity in cases
of international crimes.

29. Such are, in his perception, positiv ist exercises leading to the fossilization of
international law, and disclosing its persistent underdevelopment , rather than its progressive

development, as one would expect. Such undue methodology is coupled with inadequate and
unpersuasive conceptualizations, such as that of the counterposition between “procedural” and
“substantive” rules. It is, in his understanding, wrong to assume that no conflict exists, or can exist,
between the substantive “rules of jus cogens” (imposing the prohibitions of “the murder of civilians

in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of
prisoners of war to slave labour”) and the procedur al rules of State immunity. This tautological
assumption leads to the upholding of State immunity even in the grave circumstances of the present
case.

30. There is thus a material conflict, even though a formalist one may not prima facie be
discernible. To him, the fact remains that a conflict does exist, and it is regrettable to embark on

such a groundless deconstruction of jus cogens , depriving this latter of its effects and legal
consequences. Judge Cançado Trindade observes that this is not the first time that this happens; it
has happened before, e.g., in the last decade, in the Court’s Judgments in the cases of the Arrest
Warrant (2002) and of the Armed Activities on the Territory of the Congo (D.R. Congo versus

Rwanda, 2006), recalled by the Cour t with approval in the present Judgment. It is, in his view,
high time to give jus cogens the attention it requires and deserves.

31. Its deconstruction, as in the present case, is ⎯ in his perception ⎯ to the detriment not
only of the individual victims of grave violations of human rights and of international humanitarian
law, but also of contemporary international law itself. In sum, in his understanding, there can be no
prerogative or privilege of State immunity in cases of international crimes, such as massacres of the

civilian population, and deportation of civilians and prisoners of wa r to subjection to slave labour:
these are grave breaches of absolu te prohibitions of jus cogens , for which there can be no
immunities. - 9 -

32. State immunities cannot keep on being approached in the light of an atomized or
self-sufficient outlook (contemplating State immun ities in a void), but rather pursuant to a

comprehensive view of contemporary international la w as a whole, and its role in the international
community. He adds that international law cannot be “frozen” by continued and prolonged
reliance on omissions of the past, either at normative level (e.g., in the drafting of the
2004 U.N. Convention on Jurisdictional Immunities of States and Their Property), or at judicial

level (e.g., the majority decision of the Grand Ch amber of the European Court of Human Rights in
the Al-Adsani case, 2001, invoked by the Court in the present case).

33. In sum, ⎯ Judge Cançado Trindade concludes, ⎯ jus cogens stands above the
prerogative or privilege of State immunity, with all the consequences that ensue therefrom, thus
avoiding denial of justice and impunity. On the basis of all the aforesaid, his firm position is that
there is no State immunity for international crimes , for grave violations of human rights and of

international humanitarian law. In his understanding, this is what the International Court of Justice
should have decided in the present Judgment.

Dissenting opinion of Judge Yusuf

In his dissenting opinion, Judge Yusuf states that he is unable to concur with the Court’s
majority in its finding because of the marginal way in which the core issue in dispute between the

Parties was dealt with in the Judgment. This core issue is the link between the lack of reparations
for international crimes and the denial of jurisdictional immunity to Germany. Could the
protection of victims of international crimes fro m denial of justice constitute a violation of
international law? Judge Yusuf considers that the Court has failed to seize a unique opportunity to

clarify the law and to pronounce itself on the effect that the absence of other remedial avenues for
reparations could have on immunity before domestic courts. This is an area in which international
law is clearly evolving, and the Court, as the principal judicial organ of the United Nations, should
have provided guidance on this evolution.

In addition, his disagreement relates to the fo llowing main points: the lack of adequate
analysis of the obligation to make reparations afte r violations of international humanitarian law (an
issue intimately linked to the denial of State immunity); the reasoning and conclusions on the

scope and extent of immunity a nd the derogations that may be made from it; and the majority’s
approach towards the role of domestic courts in the identification and evolution of international
customary norms particularly in the area of State immunity.

Noting that the issue of jurisdictional immunity of foreign States before national courts for
cases concerning serious violations of internationa l humanitarian law (hereafter, IHL) has been the
subject of significant scholarly debate and has recently given rise to conflicting judicial decisions,
JudgeYusuf states that the question presented to the Court is of a much limited and narrower

scope, namely whether the refusal of Italian cour ts to grant jurisdictional immunity to Germany
with respect to claims for reparation of victims of Nazi crimes who lacked other remedial avenues
constituted an internationally wrongful act. The C ourt, however, directs its analysis to the more
general issue of whether immunity is applicable to unlawful acts committed by armed forces of a

State during armed conflict. In Judge Yusuf’s view , this formulation of the core issues is “too
abstract and formalistic” as compared to the real life situation of certain categories of Italian
victims of Nazi crimes who have sought redress for over 50years, found it lacking, and have

consequently submitted their claims to Italian courts in search of an alternative means of redress.
This “last resort” argument is central to the dis pute between Germany and Italy, but the Court does
not assess the legal implications of Germany’s failure to provide reparations to certain categories of
victims on the grant or denial of immunity to Germany in the courts of the forum State under

international law, and instead only expresses “regret” that this has been the case. - 10 -

Judge Yusuf finds it regrettable that the C ourt did not examine the obligation to make
reparations for violations of IHL in international law in as far as it has a direct bearing on the

granting of immunity in the current proceedings. He states that this obligation is enshrined in
Article 3 of the Hague Convention IV (1907) and Article 91 of the Additional Protocol I of 1977 to
the Geneva Conventions (1949), and while compensation for such breaches has been handled at the
inter-State level for a long time, this does not mean that individuals are not or were not meant to be

the ultimate beneficiaries of such mechanisms or that they do not possess the right to make claims
for compensation. In the last two decades, there have been more and more examples of individual
claimants seeking compensation for serious breaches of IHL, e.g., the claims brought before the
Japanese courts in the 1990s by persons who were subject to slave labour or torture, or were forced

to work as comfort women during the Second World War; claims brought before United States
courts by the Holocaust Restitution Movement on behalf of wartime labour slaves; the
Distomo case in Greece and the Ferrini case in Italy. The law on St ate responsibility does not rule
out the possibility that rights may accrue to individuals as a result of a wrongful act committed by a

State and the International Committee of the Red Cross Commentary to Article91 of the
Additional ProtocolI recognizes that since 19 45 there has been a tendency to recognize the
exercise of such rights by individuals. The key question before the Court therefore is what happens

in the case of humanitarian law violations for which responsibility has been recognized by the
foreign State but some victims are not covered by reparation schemes and are thus deprived of
compensation. Should such a State be allowed to use immunity before domestic courts to shield
against the obligation to make reparations?

On the scope of jurisdictional immunity, Judge Yusuf states that while State immunity is a
rule of customary law and not merely a matter of comity, its coverage has been contracting over the
past century as international law evolves from a State-centred legal system to one which also

protects the rights of human beings vis-à-vis the State. The shrinking of immunity coverage has
been spearheaded by domestic courts, and while immunity law is significant for the conduct of
harmonious relations between States, it is not a rule of law whose coverage is well defined for all
circumstances or whose stability is unimpaired. State immunity is as full of holes as Swiss cheese.

Thus, it is not persuasive to characterize some exceptions to immunity as part of customary
international law, despite the continued existence of divergent domestic judicial decisions, while
interpreting other exceptions, based on sim ilarly conflicting decisions, as supporting the
non-existence of customary norms. It would be more appropriate, in his view, to recognize that

customary law in this area remains fragmentary and unsettled. Judge Yusu f contends that these
uncertainties of customary law cannot be resolved through a formalistic ex ercise that surveys the
conflicting judicial decisions of domestic courts, which are already sparse as regards human rights
and humanitarian law violations, and by conduc ting a mathematical calculation. For him,

customary international law is not a question of relative numbers. Further, State immunity from
jurisdiction cannot be interpreted in a vacuum. The specific features and circumstances of each
case, the nature of the issues involved and the evolu tion of international law all have to be fully
taken into account. Thus, when jurisdictional im munities come into conflict with basic rights

consecrated under human rights or humanitarian la w, a balance has to be sought between the
intrinsic functions and purposes of immunity and the protection and realization of fundamental
human rights and humanitarian law principles. In the present case these are the right to an effective

remedy, the right to compensation for damages suffered as a result of breaches of humanitarian
law, and the right to protection from denial of justice. Recourse should be had to those principles
and there should be an assessment of the proportionality and legitimacy of purpose of granting
immunity, whenever the customary law rules on State immunity or the exceptions to it are found to

be either fragmentary or unsettled, as is the case here . Finally, the preliminary nature of immunity
from jurisdiction does not preclude national courts , in this case the Italian courts, from assessing
the context in which the claim has been made to ensure a proper legal characterization of the acts
for which immunity is claimed and, where necessary, to balance the different factors underlying the

case to determine whether the Court can assert jurisdiction. - 11 -

Judge Yusuf further observes that the law relating to State immunity has historically evolved
through the decisions of domestic courts and many exceptions currently accepted as such, for

example the tort exception or the employment exception, were initially established by one or
twocourts at a time. Important exceptions to immunity, such as these, could have met a very
different fate if, for example, the Austrian judgment in Holubek v. Government of the United States
of America (ILR, Vol. 40, 1962, p. 73) had been found to be in violation of the international law on

immunity. A nascent norm, which has come to reflect a widely-held opinio juris and State practice,
would have been nipped in the bud. Similarl y, the Italian decisions, as well as the Distomo
decision, may be viewed as part of a broader evol utionary process in which decisions of domestic
courts have given rise to a number of exceptions to jurisdictional immunity. It is evident that the

rules on State immunity and the entitlement of indi viduals to reparations for international crimes
committed by State agents are undergoing transformati on. To the extent that there is a conflict
between immunity from jurisdiction of States and claims arising from international crimes, State
immunity should not be used as a screen to a void reparations to which victims of crimes are

entitled. In exceptional circumstances, such as those before the Court, where no other means of
redress is available, such a conflict should be resolved in favour of the victims of grave breaches of
international humanitarian law. This does not harm the independence or the sovereignty of States.

It simply contributes to the crystallization of an emerging exception to Stateimmunity, which is
based on the widely-held opinio juris of ensuring the realization of certain basic rights of human
beings such as the right to an effective remedy, in those circumstances where otherwise the victims
would otherwise remain deprived of remedial avenues.

In the final analysis, Judge Yusuf states that his comments should not be taken to mean that
immunity is to be set aside whenever claims for reparations of international crimes committed by a
foreign State are submitted to domestic courts. Th ey rather indicate the necessity of interpreting

the law in the sense in which it is already evolvi ng of a limited and workable exception to State
immunity in those circumstances where the victims of international crimes have no other means of
redress. The assertion of jurisdiction by domestic courts in those exceptional circumstances where
there is a failure to make reparations through ot her remedial avenues cannot upset the harmonious

relations between States nor affect the sovereignty of another State. The protection of victims of
international crimes from denial of justice by domestic courts cannot c onstitute a violation of
international law. Such an exception to jurisdictional immunity, according to Judge Yusuf, brings
the law on State immunity in line with the growing normative weight attached by the international

community to the protection of human rights and hu manitarian law and the realization of the right
to effective remedy for victims of international crimes.

Dissenting opinion of Judge ad hoc Gaja

1. The Court finds that “customary internati onal law continues to require that a State be
accorded immunity in proceedings for torts allegedly committed on the territory of another State by

its armed forces and other organs of State in the course of conducting an armed conflict”.
However, an analysis of the relevant State practice concerning the “tort exception” to State
immunity does not appear to justify such a clear-cut conclusion.

2. The United Nations Convention on Jurisdic tional Immunities of States and Their Property
provides for a “tort exception”. It does not grant foreign States immunity with regard to their
military activities although the preparatory work includes elements suggesting that “situations

involving armed conflicts” are not covered by the Convention.

3. Nine out of ten States which enacted legi slation on foreign State immunity provide for a
“tort exception”. Some of these statutes consider th at immunity nevertheless exists with regard to

the conduct of foreign military forces, but they only refer to visiting forces, not to those of an - 12 -

occupying foreign State. The unchallenged practice of these nine States is significant. Were the
stated exceptions to immunity unfounded under gene ral international law, these States would incur

international responsibility.

4. The variety of national judicial decisions shows that the issue lies in a “grey area” in

which States may take different positions without necessarily departing from the requirements of
general international law.

5. One factor that could contribute to justif ying a restrictive approach to State immunity

when applying the “tort exception” is the nature of the obligation (e.g., an obligation under a
peremptory norm) for the breach of which a claim to reparation is brought against a foreign State.

6. The Court should have considered that at le ast for certain decisions of Italian courts the
exercise of jurisdiction could not be regarded as contravening general international law.

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