Counter-Memorial of Italy (Chapter VII ("Counter-Claim ") and Submissions)

INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING

JURISDICTIONAL IMT MUNI IES OF THE STATE

(GERMANYV.ITALY)

COUNTER-MEMORIAL

OFITALY

22 DECEMBER 2009 CHAPTER VII

COUNTER-CLAIM

Section 1. Introduction

7.1 As permitted by Article 80 of the Court's Rules, Italy hereby submits a counter-claim

with respect to the question of the reparation owed to Italian victims of grave violations of

international humanitarian law committed by forces of the German Reich. Article 80 of the

Rules of the Court provides as follows:

"1. The Court may entertain a counter-claim only if it cornes within the

jurisdiction of the Court and is directly connected with the subject-matter of the

claim of the other party. .

2. A counter-claim shall be made in the Counter-Memorial and shaH appear

as part of the submissiçms contained therein. The right of the other party to present

its views in writing on the counter-claim, in an additional pleading, shaH be

preserved, irrespective of any decision of the Court, in accordance with Article 45,

paragraph 2, of these Rules, concerning the filing of further written pleadings.

3.Where an objection is raised concerning the application of paragraph 1 or

whenever the Court deems necessary, the Court shall take its decision thereon after

hearing the parties."

7.2 The present Chapter sets forth Italy's counter-claim in this case. Italy asks the Court

to frnd that Germany has violated its obligation of reparation owed to Italian victims of the

crimes committed by Nazi Germany during the Second World War and that, accordingly,

Germany must cease its wrongful conduct and offer effective and appropriate reparation to these

victims. Section 1 of this Chapter will address the question of the Court's jurisdiction over the

counter-claim as well as the question of its admissibility. Section II will indicate the remedies

128 sought by Italy for the breaches by Germany of its obligation of reparation owed to Italian

victims.

7.3 Most of the factual and legal issues at stake in this counter-claim have been addressed

in establishing Italy's defence to Germany's claim. lndeed, the previous chapters of this

Counter-Memorial have already demonstrated that Germany has violated its obligation of

reparation owed to Italian victims. Since a detailed assessment of the facts and law upon which

Italy relies in presenting its counter-claim has already been made in previous chapters,

examination of such issues in the context of the present Chapter will be kept to an essential

minimum. Italy reserves the right to introduce and present to the Court in due course additional

facts and legal considerations in respect to the present counter-claim.

Section U. Jurisdiction and Admissibility ofthe Counter-Claim

7.4 The Court's jurisdiction over this counter-claim is based on Article 1 of the European

Convention for the Peaceful Settlement of Disputes of 29 April 1957, talœn together with

Article 36(1) of the Statute of the Court. As demonstrated in Chapter III, the applicability of the

European Convention to Italy's counter-claim is not excluded by Article 27(a) of the

Convention. Italy has already shown that the dispute on immunity brought by Germany and the

dispute on reparation brought by Italy originate out of the same facts. In particular, the source or

real cause of the disputes submitted to the Court in the present case is to be found in the

reparation regime established by the two 1961 Agreements between Germany and Italy. An

additional source is constituted by events following the establishment in 2000 of the

"Remembrance, Responsibility and Future" Foundation. Since both disputes relate to facts that

arose after 18 April 1961, i.e., the date when the European Convention entered into force

between Germany and Italy, the limitation ratione temporis provided for by Article 27(a) of the

European Convention does not apply to the dispute brought by Italy through its counter-claim.

7.5 Italy's counter-claim is also directly connected with the subject-matter of Germany's

claim. In its Order of 29 November 2001 in the case concerning Armed Activities on the

Territory ofthe Congo (Democratie Republic ofthe Congo v. Uganda), this Court observed:

129 "Whereas the Rules of Co1,1rt do. not, however define what is meant by

'directly connected'; whereas it is for the Court to assess whether the counter-claim

is sufficiently connected to the principal claim, taking account of the particular

aspects of each case; and whereas, as a general mIe, whether there is the necessary
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direct connection between the claims must be assessed both in fact and in law' 238.

7.6 Manifestly, there i� a direct connection bet\yeen the facts and law upon which Italy

relies in rebutting Germany's claim and the facts and law upon which Italy relies to support its

counter-claim. While Gennany has claimed that Itflly violated Germany's jurisdictional

immullity, Italy submits that .no violati()ll has been committed,since, under international law, a

State responsible for violations of fundamental mIes is not entitled to immunity in cases in

which, if granted, immunity would be tantamount to exonerating the State from bearing tlle legal

consequences of its unlawful conduct. Thus, in assessing the well-foundedness of Germany's
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claim, the Court will have to address many of the ame factual and legal issues as lie at the heart
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of Italy's counter-claim. Under such circumstances, it seems inevitable to conclude that

Germany's principal claim and Italy's counter-claim "form part of the same factual complex"

and that, by submitting their respective claims, both parties "are pursuing the same legal
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aims 239.

7.7 Obviously, Itàly's counter-claim does not simply aim to "counter" Germany's

principal claim. However,' the fact that this counter-claim has also the effect of widening the

subject-matter orthe dispute to be decided bythe Court does not affect its admissibility. As this

Court stated in its Order of 17 December 1997 in the Application ofthe Genocide Convention

case,

"the thrust of a counter-claim is thus to widen the original subject matter of
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the dispute by pursuing objectives other than the mere dismissal of the claim of the

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Applicant in the main proceedings 240.

7.8 Significantly, even before submitting its Application to the Court, Gerrria ' ny was weIl

aware of the strict link existing. in the present case' between immunity and reparation. The
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238l. .J.Re orts 2001, p. 678, para. 36.
p
2 9Ibid., p. 679, para. 38.
l. J.
240 . Reports 1997, p. 256, para. 27.

130 existence of a complex 'issue li:tùcirig together quéstions of immunity with questions bf

reparatièri emerges uriequivocally frorri' thé iJoint Dedaration adopted cm the occasion of the

German-Italian governineritaJ constlltation held on 18 November 2008 i,ri Trieste. lri the Joint

Declaration, while Germany, together with Italy, fully àclcnowledged '�the untold suffering

inflicted on Italian men andwomen in parj:icular during massacres and on fonner I�alian military
, ; ,' , j ' " . :1, t . ' " , '; • •

internees" (i.e., the groups of individuals who have instituted procee4i.ngs before Italian courts

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in order to -6btain fin"ncial comp"nsation for t'e harm suffered as a result of the activities of , .. .
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German armed forces i 41, Italy declared that it respected "Germany's decision to apply �o the
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Internat �onal Court of Justiçe for a ruling, on the pr . � lc�ple of State immunity", find�ng that "the
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ICJ's ruling on State immunity will h�lp to clarify this complex issue,,"42. Now that Germany
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has brought proceedings on the question of immunity, Italy finds it important to seize this

opportuni"o/ and to entrust the Court with the task of rendering a decision with regard to the

entire "complex issue" dividing the parties.

Section nX.Rémedies Sought by Haïy

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7.9 In Chapter V Italy has demonstrated that Germany has obligations of reparation

arising out of the serious violations of international humanitarian law committed by the Third

Reich against Italian victims, However, as clearly emerges from thefacts.described in Chapter

II, the measures adopted so far by Germany (both under the relevant agreements as weIl as in

unilateral acts) have proved insufficient, in particular because such measures did not coyer

several categories of victims such as the Italian military internees and the victims of massacres

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perpetrated by German forces during the last months of Second World War. In its Memorial

Germany argues that the conclu�ion of the two 1961 Agreements between Italy and Germany

extinguished aIl reparation claims, since Italy agreed to waive for itself ançl for aIl of its

nationals all claims against Germany resulting from the period of Second World War?43 This

argument has been disproved in Chapter V.

241 GM, para. 13.

242 ANNEX 1.
243
GM, para. Il.

131 7.10 For all these reasons, Italy asles the Court to adjudge that Germany is still under an

ongoing obligation to make reparations for the large number of the unlawful,acts committed by

the Third Reich and that Germany's international responsibility is engaged by its failure to

provide effective reparation more than 60 years after the relevant facts.

7.11 Theremedy to make good this violation should consist in an obligation on Germany

to establish an· apptoprüite 'and effective meèhanism for 'addréssing 'the reparation claims of

Italirui victims'. The establishment of such a mechanism would �ot only provide the necessary

remedy for the hréaches by Germany of its international obligations. It would also provide

Italian victims with a legal avenue other than resort to natio aljudges. A s a1ready indicated in
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the previous chapters, it is because of the absence of any alternative mechanisin for reparation

that Italian victims of Nazi crimes brought their claims be forè Italianjudges; and it is ecause of

Germany's failure to offer effeCtive reparation that Itàlianjudges have li ed State imni lIDty.

7.12 While Ita�y is entitled to an order from the Court that Germany must cease its

wrongful conduct and provide reparation to Italian victims of Nazi crimes, admittedly the choice

of means as to how reparation should be provided isJo be left primarily to Germany. However,

this freedom in the choice of means is not without qualification: any mechanism to which

Germany may entrust the assessment of the reparation c1aims must ensure that Italian victims

are offered appropriate and effeçtive reparation.

7.13 Among the available options, due consideration must be given to the possibilitythat

the Parties fmdari:agreed solutionthrough negotiatibns. 'In its Memorial, Germanyrepeaiedly

asserts· that the'tràditional and preferred tnethod of settlingwar' claiins consists of conduding

agreements at inter-State levee44. While Germ any' argués that iri thè relationship'betweèn Italy

and Germany there was' (and there is)' no· rieed for a'new' àgteenient 'covèring t e';teparation

claims of the vidims' of graveviolations ofhiunanitarlaii'la\v'cbmmiriêd by:Nazi Geriiiâny, its

view is based solely brithe' c1aim thatItaly, by con ltiding thé 1 47 Pèace Treaty aiid thè i961
9

Agreements, has renounced a11 claims agamst German)' anci German nationals resulting from the
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period of Second Wodd War245• Now, as shown above Italy{did not waive all'the clriiIhs, since
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the 1 947 clause had a very specific and limited scope, and the 1961 Agreements only partially

244OM, paras. 32, 55 and 59.
245OM, para. 59:

132addressed the issue of reparations. In àny:case,t i f6 question whether Italy has validly renounced

aU reparation claims against Gennany is now before the Court. Once the Court has clarified that

Gennany's position concerning Italy's renunciation to all claims is completely unfounded, the

negotiation of an agreement at inter-State level may be regarded as a viable solution for sorting

out the complex situation arising as a result of the denial of effective reparation suffered by

Italian victims of Nazi crimes. Italy wouldcertainly'welcome any initiative on the part of

Gennany leÊiding to the establishment,· on -the basis of specific convel1t1onàl'uiiderstàndirigs, of

mechanisms for addressing reparation claims: Thus; in Italy's view, adeclarationby the Cou t r

ordering Gennany to provide effective reparation, including through negotiation of an

agreement with Italy, may, under the circumst"nces of1t.e.presen,t case, c.ns.itute a..appropriate"

remedy.

Section IV. Conclusions

7.14 Italy's counter-claim is based on ÇJ�rrnany's denial of effe�tive,reparation to Italian

victims of the grave violations of international humanitarian law committed by Nazi Gennany

during the Second World War. This cbunter-'Claim is within thejurisdi6tion of the Court and is

directly connected with the subject:-m:atter ofGéimany's claim. Italy asles the'Court to frnd that

Gennaily has violated its ongoing obligation to provide effective reparation to Italian victims of

Nazi crimes and that Gennany must cease its wrongful conduct and bear international

responsibility for such conduct. Italy frnds that under the circunistances of the present case an

appropriate remedy consists in an order of the Court that Gennany must offer effective

reparation to Italian victims of Nazi crimes by means ofits own choosiilg as'well as through the

conclusion of an agreement with Italy.

133 Sl]BMISSIONS

On the basis of,the facts..and arguments set out above, and reserving its right to

supplement or; amend these Submissions, Italy respec,tfully requests that the Court adjudge and
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declare that aIl the claims ofGermany are rejected.

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With respect to its counter-claim, and in accordance with Article 80 of the Rules of

the Court, Italy asks respectfully the Court to adjudge � d declare that, consi dering the existence

under intemational law of an obligatiort,of reparation owed to the victims of war crimes and

crimes against humanity perpetrated by the I11° Reich:

1. GermaI1Y has violated,thi� obligation with regard to Italian victims of such crimes
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by denying them effective reparation.

2. Germany's intematiortal'responsibility is engag�ci for'this cortduct.
i,�'

3. Gennany must cease: its ;wrong;fuJ,coriduct and;: affèr appropriate and effective

reparation ta these;;victims, by means oOts own choosing, a . s weIl as through.the conclusion of

agreel11ents,'YÏth Italy.

Rome, 22 Decem�er 2 00 9

Ambas�ador PaoloPuccLdi Benis�chi

Agent of the Govemment of the Italian Republic

Dr. Giacomo Aiello

Agent of the Govemment of the Italian Republic

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