INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY)
REJOINDER
OF ITALY
10 JANUARY 2011 SUMMARY
I – The Subject-Matter of the Dispute after the Court’s Order of 6 July 2010........ 3
II – General Observations on Germany’s Reply......................................................... 4
III – The Lack of Reparation in favour of Italian Victims of Nazi Crimes as the
Main Convincing Reason for the Italian Judges Not to Accord Jurisdictional
Immunity to Germany ........................................................................
......................... 11
Section 1 – The Issue of Reparation is Still at the Core of the Present Dispute... 11
Section 2 – Lack of Appropriate Repara tions as the Background to the Italian
Case Law which Gave Rise to the Present Dispute.............................................. 12
Section 3 – Article 77(4) of the 1947 Peace Treaty and Subsequent Developments.
........................................................................
....................................................... 14
Section 4 – The 1961 Agreements and Their Waiver Clauses. ............................ 21
Section 5 – The Large Number of Victims that Remain Without any Reparation22
Section 6 – The Power of States to Enter into Agreements to Organize Reparation
for Serious IHL Violations........................................................................
............ 23
Section 7 – Conclusion ........................................................................
................ 26
IV – The Impact of Developments in International Law on the Application of the
Principles on State Immunity........................................................................
.............. 27
Section 1 – The Time Element Issue .................................................................... 27
Section 2 – The Territorial Clause........................................................................
29
Section 3 – The Impact of Jus Cogens on the Law of State Immunity................. 32
Section 4 – In the Circumstances, the Conduct of Italian Judges Has to Be
Considered as Justified........................................................................
.................. 39
Submission........................................................................
............................................. 42
2 In this Rejoinder, presented within the time-limits fixed by the International
Court of Justice (hereinafter the Court) in the Order of 6 July 2010, the Italian Republic
(hereinafter Italy) intends to submit its objections to the arguments raised in the Reply
of the Federal Republic of Germany (hereina fter Germany), highlighting in particular
why the Court’s decision to consider the Italian counter-claim inadmissible ratione
temporis does not change its reque st that the Court adjudge and declare that all the
claims of Germany are rejected.
I – The Subject-Matter of the Dispute after the Court’s Order of
6 July 2010
1.1 The Court ruled the Italian counter-claim inadmissible because it found that
“the dispute that Italy intend( ed) to bring before the Cour t by way of its counter-claim
relates to facts and situations existing prio r to the entry into force of the European
Convention as between the Parties”, and “acco rdingly falls outside the temporal scope
1
of this Convention”. But if the Court has defined th e counter-claim “inadmissible as
2
such”, it also stated that by contrast “the pr oceedings relating to the claims brought by
3
Germany continue” and did not in any way preclude the invoking by Italy of the events
to which the counter-claim referred and Germany’s unfulfilled reparation obligations by
way of a “defence on the merits” against Germany’s claims, that is, in order to decide
whether the failure to recogni ze jurisdictional immunity to Germany by Italian judges
approached by victims of Nazi crimes in search of redress does or does not constitute an
internationally wrongful act attributable to the Italian State.
1.2 This is, moreover, implicitly but cl early admitted by Germany itself in its
Reply. The numerous argument s on which it dwells in seek ing to show that Germany
did not commit an internationally wrongful act despite its non-reparation of the IMIs (or
of the victims of Nazi massacres in Italy, completely forgotten in the latest German
submissions) are proof in themselves that Ge rmany is fully aware that the Court cannot
fail to analyse this issue in deciding whether the conduct of Germ any in this respect
1Order of 6 July 2010, para. 30.
2Order, finding, para. 35 (A).
3Order, para. 34.
4
Order, para. 13.
3does or does not justify the denial of immun ity. In other words, if the Order prevents
Italy from pursuing its counter-claim in th e present case, it obvious ly does not in any
way affect the solution of the question raised by Germany’s main claim, and in
particular does not prevent Italy’s using the arguments on which the counter-claim was
based in order to disp rove it. Therefore, the startling allegation by Germany that “the
Italian defence has virtually collapsed as a consequence of the Court’s decision of 6 July
5
2010” has no merit; nor does the claim that wh at Italy points out regarding reparations
“lies outside the scope of the Court’s task” and is therefore “irrelevant for the purposes
of the present proceedings”. 6 On the contrary, the questi on of non-reparation is crucial
for resolving the dispute over immunity: the Court’s jurisdiction to take cognizance of it
incidentally is thus indisputable.
1.3 It should be stressed again, in fact, that the root cause of the dispute brought
by Germany to the Court is constituted precise ly by the failure to make reparations to
the vast majority of Italian victims of atrocious war crimes and crimes against humanity
perpetrated by the Nazis in the last phase of World War II. The question on which the
Court is called upon to answer is whether the refusal of reparations must – as Italy
requests and Germany disputes – be given importance in order to ascertain whether
indeed the cases brought by victims of these crimes before Italian judges have given rise
to international responsibility of Italy for the fact that these judges felt unable
exceptionally to recognize Germany’s immunity from jurisdiction, in view of the very
special features of the cases submitted to them. These are, in fact, cases of individuals to
whom no possibility of obtaining compensation was ever granted, even though they had
suffered acts which indisputably engage the international responsibility of Germany and
of which no one doubts the character as war crimes and crimes against humanity.
II – General Observations on Germany’s Reply
2.1 The central assumption from which Germany starts is summarized thus in
the Reply: “Recent developments in the field of human rights, in particular the
emergence of the concept of jus cogens, have not overturned the regime of jurisdictional
5
6Reply of the Federal Republic of Germany (hereinafter GR), para. 9.
GR, para. 39.
4immunity. States derive their exemption from the jurisdiction of the courts of other
States from the principle of sovereign equality, which constitutes one of the basic pillars
of the international legal order (UN Charter, Art. 2 (1)) and may also be regarded as a
rule of jus cogens.”7
2.2 Contrary to what Germany claims, It aly has not challenged in the Counter-
Memorial – and is careful not to challenge today – the importance of the rule of
international law that in principle every State shall grant the other States immunity from
jurisdiction before its domestic courts with respect to acts jure imperii. However, it
should be immediately stressed that such recognition does not imply acceptance of the
idea suggested by Germany (and sure ly incorrect) that the rule is to be classified as
belonging to jus cogens: unquestionably, for example, th e beneficiary of a rule of jus
cogens may not renounce its applic ation in their own favour and exempt another State
from compliance with it, whereas no one doubts that a State may legitimately renounce
its judicial immunity and voluntarily submit to a foreign court. Similarly, a waiver of
sovereign immunity agreed between States through a special inte rnational agreement
would certainly not void th e agreement (as it should if the immunity rule were
peremptory in nature).
2.3 Italy, however, while unhesitatingly seeing as fundamental in nature (though
not jus cogens) the rule of immunity with regard to acts jure imperii, is convinced that –
as already illustrated in the Counter-Memorial – this rule is subject to derogations or
allows for exceptions broader than t hose admitted by Germany, and growing. In
assessing the likelihood and ex tent of these exemptions and exceptions Italy is not
asking the Court to “invent” new law, but si mply to determine the legal consequences
arising from principles of international law which are already fully in force. It is in this
very limited perspective that it is possible to identify borderline cases where it may be
justified not to recognize the immunity of a State in respect of acts jure imperii :
borderline cases concerning very special si tuations involving serious and unanimously
recognized violations of peremptory norms followed by a basic refusal of reparation in
favour of the victims. Admitting the existence of such extreme cases would not entail
any of the catastrophic consequences envisaged by Germany.
7GR, para. 3.
5 2.4 Germany seeks instead specifically to allege that the Italian argument would
have catastrophic consequences because it would reopen before domestic courts a
dispute without end regarding all the violations of international humanitarian law
committed in World War II, whereas such litigations had been permanently closed by a
series of agreements between States that t ook into account and resolved at international
level the issues of reparations, and that it would be unthinkable to call in question again.
2.5 But this is not Italy’s position. Italy does not in any way deny that “in the
relationship between States at the international level, settlement of harm caused [is
8
permitted] in a well-pondered manner, through negotiation and treaty”. For Italy, the
point is first to analyse and interpret th e agreements to which Germany refers, to
ascertain if they truly and clearly close d, in a legally correct way, the issue of
reparations in favour of Italian victims of the serious crimes committed by the Nazi
authorities. To the extent that they had not, then the reparation obligation on Germany
would remain, and as this was denied to most of the victims, the question arises whether
the non-application of jurisdictional immunity in casu may be justified in order to allow
the victims themselves to access the only tool left that may be usable in order to secure
it, namely recourse to domestic courts.
2.6 But there is a further perspective to c onsider: if the agreements in question
were to be interpreted as having simply discharged Germany from its obligation to grant
reparation to the Italian victims of the heinous crimes committed by the Nazi
authorities, then it is not possible to pret end that they have b een made “in a well-
pondered manner”: they would ipso facto, in this respect at least, be contrary to the
peremptory principles of international law wh ich already existed at the time, and at any
rate indisputably exist at the present day. Th ese principles would therefore be relevant
in any case, namely even in respect of pre-existing international treaties, as they would
then appear to constitute jus cogens superveniens (1969 Vienna Convention on the Law
of Treaties, Article 64). 9In other words, these agreements must be interpreted in a
8
9GR, para. 4.
It should be emphasized that ev en if the claims in the German Reply, para. 57, (according to
which “jus cogens, taken as a concept of positive international law, is an offspring of the last four
decades, long after the occurrences of World War II”) we re correct, this would not preclude the need to
take into account new peremptory rules of international law for the purpose of interpreting and applying
existing treaties.
6manner consistent with those principl es, excluding that they could have sic et
simpliciter abolished the reparation obligation. It therefore remains necessary for the
Court to determine whether the illegal re fusal of reparation for Nazi crimes has
implications with regard to State immunity before the domestic courts, when recourse to
the domestic judge appears the only viable way for the victims to seek redress.
2.7 Obviously, the matter would look comple tely different if the victims were
offered the possibility, which they at pr esent do not en joy, of access to adequate
reparations without the need for recourse to the Italian courts. Italy wishes to reiterate
its full readiness – already displayed earli er through the formulation of the counter-
claim – to open new negotiations with Ge rmany in this connection, in the firm
conviction that they would make it possible to find satisfactory solutions to overcome
the current situation.
2.8 Before coming to the central issues raised by this case in order to take a
position on the arguments set out in the German Reply, Italy considers that some
unjustified criticisms of language used in its Counter-Memorial should be rejected at the
outset: this language is judged by the German side as wrong and excessive, whereas it
has simply been misunderstood. The criticis ms in question concern the expression
immunity does not mean impunity , used several times by Italy, taking over a famous
phrase of the International Court of Justice. 10 Germany expresses vigorous but
inappropriate protest to challenge the use by the Italian side of this expression, arguing
that it had been referred by the Court to criminal responsibility of individuals accused of
international crimes, whereas in this case what is at stake is the international (not
11
criminal) responsibility of the German State.
2.9 Italy is well aware that the responsi bility of Nazi Germany for its war
crimes and crimes against humanity, a res ponsibility which now rests upon democratic
Germany (as it admits de plano), 12has an international and no t a criminal character, as
10
11Arrest Warrant of 11 April 2000, I.C.J. Reports 2002, para. 60.
12GR, para. 11.
Memorial of the Federal Republic of Germany (hereinafter GM), pp. 1-2, and paras. 3, 7, 15,
59.
7is moreover confirmed by the Court’s well-known case law. 13 In citing the expression
immunity does not mean impunity , then, Italy had no intention of alluding to some sort
of collective criminal respons ibility of the German Stat e; nor does it question the
considerable financial effort made by Germa ny to make reparations for war damage. It
is also undeniable – and not disputed in the Italian Counter-Memorial – that the
expression was used by the International Cour t of Justice with respect to individual
crimes. It should be stressed, however, that the basic concept set out in the expression in
question is perfectly relevant with regard to the immunity of States too. The point is, in
effect, to highlight a truth that is incontrovertible, and that Germany – we feel – cannot
but share: the immunity from jurisdiction enjoyed by a subject under international law
cannot imply either exemption from complian ce with the internatio nal obligations to
which that subject is bound, or absolution fr om liability for thei r violation (with all
resulting consequences, including that of re parations). Now, the Italian argument with
reference to the present case is precisely that “ immunity would mean impunity ” if
Germany’s jurisdictional immunity were also recognized in those exceptional cases in
which: a) serious violations of international peremptory norms for which Germany
admits it bears the international respons ibility were undoubtedly committed; b) no
effective redress was provide d to victims, either directly (through the creation of
effective domestic remedies) or through inte rnational agreements with the State of
nationality; and c) the only way left open to the victims to secure reparation remains
recourse to their own national courts. These are precisely the conditions in the case of
13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) , 26 February 2007, para. 170: “The Court now
considers three arguments, advanced by the Respondent which may be seen as contradicting the
proposition that the Convention imposes a duty on the Contracting Parties not to commit genocide and the
other acts enumerated in Article III. The first is as a matter of general principle, international law
does not recognize the criminal responsibility of the State, and the Genocide Convention does not provide
a vehicle for the imposition of such criminal responsibility. On the matter of principle the Respondent
calls attention to the rejection by the ILC of the concept of international crimes when it prepared the final
draft of its Articles on State Responsibility, a decisreflecting the strongly negative reactions of a
number of States to any such co ncept. The Applicant accep ts that general international law does not
recognize the criminal responsibility of States. It contends, on the specific issue, that the obligation for
which the Respondent may be held responsible, in the event of breach, in proceedings under Article IX, is
simply an obligation arising under international law, in this case the provisions of the Convention. The
Court observes that the obligations in question in this case, arising from the terms of the Convention, and
the responsibilities of States that would arise from breach of such obligations, are obligations and
responsibilities under international law. They are not of a criminal nature. This argument accordingly
cannot be accepted.” (Emphasis added).
8the IMIs and the victims of the massacres, as demonstrated in the Italian Counter-
Memorial and repeated in the present Rejoinder.
2.10 One final point of a general nature should still be made regarding the
accusation made by Germany of the inconsistenc y of the Italian judges. This charge is
based on an order of the Italian Cour t of Cassation of 5 June 2002, no. 8157 (the
14
Markovic case) in which the Court declared the lack of jurisdiction of the Italian
courts in respect of an application to enfor ce the (civil) liability of the Italian State, as
well as its obligation to make reparations, for damage resulting from an act of military
violence (jointly) attributable to Italy, ca rried out within the framework of the NATO
operations in Serbia and Montenegro in 1999 (the bombing of the radio and television
station in Belgrade). In the words of the S upreme Court, the individuals’ request sought
to obtain a determination by the Italian court that the Ita lian State had “...a
responsibility claimed to depend on an act of war, particularly from one mode of
conduct of military hostilities represented by air war”; according to the individuals
concerned, in fact, the court was required to investigate whether, in this case, the
bombing was directed against a target to be characterized as civilian, not military, and
therefore – it was alleged – in violation of the relevant rules of international law of
armed conflict. As Germany correctly po ints out, the Supreme Court denied the
existence of jurisdiction in this case, stating th at “(t)he choice of the means that will be
used to conduct hostil ities is an act of government. These are acts through which
political functions are performed and the Cons titution provides for them to be assigned
to a constitutional body. The nature of such functions precludes any claim to a protected
interest in relation thereto …. With respect to acts of this type, no court has the power to
review the manner in which the function was performed.” 15 Now, according to
Germany, between this case-law approach in favour of the Italian State and the one
adopted by the same Supreme Court in the Ferrini and subsequent cases in relation to
Germany a flagrant inconsistency leaps to the eye: “the Supreme Court – alleges the
German Reply – ... considers actions brought against Italy before It alian courts to be
inadmissible to the extent that military activities are concerned, while on the other hand
14
15Annex 28 to the GM.
Germany’s translation of the Order, GM, para. 57.
9it has no scruples to rule on the merits of claims brought against Germany on account of
16
military activities on Italian soil.”
2.11 The German critical remarks do not, however, hit the mark, since the
situations are quite different and not comparable in any relevant respect. First, in the
Markovic case what was at issue was the application of rules and prin ciples of Italian
domestic law relating to the allocation of powers between the executive and judiciary,
not the application of rules of internati onal law on the immunity of States from
jurisdiction: as was, moreover, duly noted by the European Court of Human Rights. 17
But above all, what the petitioners, Markovi c and others, were asking the Italian court
was to analyse and evaluate a piece of wa rtime conduct (jointly) attributable to the
Italian State to determine whether or not it constituted a war crime and draw, if
appropriate, the consequences in terms of reparation obligat ions in their favour. In the
Ferrini and subsequent judgments, on the contrary, neither the nature as war crimes and
crimes against humanity of the relevant acts of the Nazi au thorities, nor the
responsibility of Germany in this respect, were chal lenged by the German side
(Germany having instead only claimed State immunity from the jurisdiction of the
Italian courts). The same applies to this pr esent case before the In ternational Court of
Justice, by express and repeated admission of Germany.
2.12 Nor is it irrelevant to note also that the 1999 NATO military actions in
Serbia were subjected to judicial scrutiny by the ad hoc International Criminal Tribunal
for the Former Yugoslavia, which has the pow er to determine whether war crimes were
committed or not in the course of those actions. It is known that dete rminations of this
kind have not been made, since the Prosecu tor of the ICTY found that there were no
18
sufficient grounds to urge the judicial bodies to do so. Thus in that case there was an
international court competent to decide whether war crimes had been committed by
NATO forces, and it is clear that any positive decision to this effect would have meant
for the victims the opening of channels likely to ensure the obtaining of redress from the
16
17GR, para. 55.
European Court of Human Rights [GC], Case of Markovic and Others v. Italy, Application no.
1398/03,18udgment, 14 December 2006, para. 111 and 113.
See Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia, at
http://www.icty.org/x/file/Press/nato061300.pdf
10responsible parties. Instead, the Italian victims of war crimes and crimes against
humanity indisputably perpetrated by Nazi Germany (and for which today's democratic
Germany has taken on full responsibility) have not been offered access to any viable
way to obtain reparations. The application by the Italian courts of the principle put
forward by Germany concerning immunity from jurisdiction would th erefore, in this
case, preclude the only way to avoid a substantial denial of justice.
III – The Lack of Reparation in favour of Italian Victims of Nazi
Crimes as the Main Convincing Reason for the Italian Judges Not to
Accord Jurisdictional Immunity to Germany
Section 1 – The Issue of Reparation is Still at the Core of the Present
Dispute.
3.1 As clarified above, Italy considers that it is important to look at what was
called the other side of the coin, i.e. the issue of reparations. There is nothing that
prevents the Court from examining this crucial issue when addressing the issue of
determining whether or not Italy has vi olated any obligation concerning the
jurisdictional immunities accruing to Germany under international law. 19
3.2 Italy argues that the substantial lack of reparation for hundreds of thousands
of Italian victims of war crim es, and the lack of possible avenues for victims to pursue
effective remedies in any other way, have ju stified Italian judges in setting aside the
immunity of Germany.
3.3 In the present case, there is no disput e on the characterization of Germany’s
wrongdoing during World War II as “serious violations of the laws of war” 20. Nor is
there any dispute as to Germany’s responsib ility for those violations. Nor is there a
dispute about the fact that the immunity of Germany as a State was set aside by Italian
Courts in cases in which th e victims of those violations had received no compensation.
In reality, what is fundamentally disputed is whether or not reparation for the heinous
19
20Supra, paras. 1.1-1.3.
GR, para. 2.
11crimes committed against specific Italian victims (those to whom the case law of the
Supreme Court applies) has been provided a nd whether or not the fact that reparation
has not been offered justifies setting immunity aside. That the issue of reparations is
central to the present dispute is attested by the very fact that Germany devoted large
portions of its Reply to the issue.21
In this section Italy will demonstrate that reparation for the large majority of
Italian victims of serious war crimes for which Germany assumed responsibility has not,
contrary to what Germany claims in its Reply, been made, nor does any effective
remedy exist for them.
Section 2 – Lack of Appropriate Repa rations as the Background to the
Italian Case Law which Gave Rise to the Present Dispute.
3.4 In its Reply Germany argues that “the charge that Germany did not bother to
22
compensate the victims is totally misplaced and misleading. It distorts the truth”. Italy
does not deny (and has never denied) th at post-war Germany has made efforts
worldwide to try to make reparations for the evil done by the Nazi regime. Nonetheless,
there is also little doubt that with specific regard to Italian victims these measures have
been very partial. Germany it self recognized this in its Reply, where it states that it
made “partial” compensation. 23 Furthermore, at least broadly speaking the fact that
Germany has had to intervene in numerous subsequent rounds progr essively to adjust
the reparation mechanisms originally set up shows that the measures taken just after
World War II were far from being exhaustive. Without engaging in a reconstruction of
the entire range of reparation régimes for victims of serious vi olations of International
Humanitarian Law (hereinafter IHL) and human rights committed by the Third Reich,
let us focus on the specific situation of reparations due to Italy and to Italian victims.
3.5 The fact that Germany has not made satisfactory reparations in favour of
Italian victims is indirectly attested a nd demonstrated by Germany’s very arguments
with regard to the issue of reparations. The position of Germany concerning Italy and
21
22GR, paras. 10-32 and 37-47.
23GR, para. 33.
Ibid.
12Italian victims of war crimes and crimes against humanity is pretty clear. First of all,
Italy (and Italian victims) ha d no right to invoke reparation, since Article 77(4) of the
1947 Peace Treaty contained, according to Ge rmany, a wide-ranging waiver of all
claims. This is a fundamental position of Germany which from th e outset has vitiated,
and still vitiates, its appraisal of this matter. S econdly, Germany argues that the
conclusion of the two Agreements of 1961 was done ex gratia. And it clarifies that “on
grounds of equity, the Federal Republic of Germany later agreed to provide at least
24
partial compensation to Italy ”. The erroneous belief that no reparation was due
explains why Germany has only made very part ial reparations. Thirdly, Germany states
that Italian victims could always turn to German national le gislation to seek
compensation under the various applicable national laws (which have never provided an
effective avenue of reparation for the large majority of Italian victims). That
substantially no reparation was made dire ctly flows from Germany’s incorrect
assumption that all Italian claims were waived after the war. This position clearly
confirms what Italy has explained in its Counter-Memorial, viz. the fact that hundreds of
thousands of victims did not receive any compensation for serious IHL violations
committed against them by the Third Reich.
3.6 Italy reiterates that although the arguments provided by Germany may seem
convincing at first glance, none of them is really conclusive and all must fail on a closer
look. In particular, Italy will demonstrate agai n that Germany’s position is vitiated by a
wrong interpretation of Article 77(4) of the 1947 Peace Treaty, as well as a mistaken
reading of the obligation to provide repara tion for serious violations of IHL amounting
to war crimes and crimes against humanity. Italy also reaffirms that the subsequent 1961
Agreements, providing some measure of reparation (according to Germany exclusively
ex gratia), were of limited scope and did not cover serious violations of IHL, apart from
those originating in discriminatory practices. In addition, the waiver clauses contained
therein logically covered only the claims within the limited subject matter of the
agreements themselves. Finally, Italy maintains that the temporal sequence of reparation
agreements and the overall policy towards German reparations clarifies that the issue of
reparation of crimes committed against Italian victims was not settled definitively in the
immediate aftermath of the war, as Germ any contends. On the contrary, the London
24GR, para. 33. (Emphasis added).
13Agreement on External Debt of 1953 clearly shows that the overall settlement of
reparation for war crimes of World War II wa s postponed to a later date; it was to be
resumed only after Germany’s reunification, in the 1990s. 25
Section 3 – Article 77(4) of the 1947 Peace Treaty and Subsequent
Developments.
3.7 At the outset it is important to restate that Italy considers that Germany
bases its position on an unconvincing interpretati on of the scope of Article 77(4) of the
1947 Peace Treaty in two main respects. First, as already explained in the Counter-
Memorial, this clause was not intended to operate to the benefit of postwar Germany,
but only in favour of the Alli ed Powers, to allow them to preserve and use Germany’s
reduced economic potential after the war for their benefit and for the goals they had
26
chosen. Secondly, even assuming that the clause operates to the benefit of Germany as
a third State, this provision was never inte nded to cover reparati on claims relating to
27
serious violations of IHL by the Third Reich authorities. In particular , Article 77(4)
did not and could not cover reparation claims involving the rights of individuals who
were victims of serious violations of IHL amounting to war crimes and crimes against
humanity. Without going back to the arguments already set out in the Counter-Memorial
on the interpretation of Article 77(4), Italy merely wishes to recall that the above-
mentioned provision cannot be interpreted as simply wiping out State responsibility for
serious violations of IHL. There are only two possible interpre tations of this provision:
first, Italy argues that it doe s not (and was never intended to) cover State responsibility
for serious IHL violations. Secondly, even a ssuming that it did encompass war-crimes
reparation claims (which is not the case) , the effects of the provision are to be
considered as only temporary in nature, give n that the provision was simply intended to
allow the Allied Powers to use the economic potential of Germany for their own goals.
25The Law on the Foundation of 2000 confirms that this was done in broader terms. However,
the measures adopted in this case were insufficient to provide reparation to the vast majority of Italian
victims. Thereafter, Italian victims realized that there were no further measures to wait for and thus filed
their claims with Italian judges. Against this backgr ound, the Italian Supreme Court felt that all avenues
for obtaining reparation had been exhausted and that there was no other option than to rely on the exercise
of jurisdiction by Italian courts setting immunity aside, see Counter-Memorial of Italy (hereinafter CM) at
paras. 6.4-6.6 and 6.19-6.35.
26CM, paras. 5.47 and 5.51.
27
CM, paras. 5.48-5.55.
14 3.8 It may be useful to recall that Article 77(4) reads as follows:
“Without prejudice to these and to any other dispositions in favour of
Italy and Italian nationals by the Powe rs occupying Germany, Italy waives
on its own behalf and on behalf of It alian nationals all claims against
Germany and German nationals outstanding on May 8, 1945, except those
arising out of contracts and other obligations entered into, and rights
acquired, before September 1, 1939. This waiver shall be deemed to include
debts, all intergovernmental claims in respect of arrangements entered into
in the course of the war, and all claims for loss or damage arising during the
war.” (Emphasis added).
This provision must be interpreted in the light of the criteria set out in Article 31
of the Vienna Convention on the Law of the Treaties. Firstly, according to the literal
interpretation of this provi sion, it seems pretty clear that the subj ect matter revolves
around economic matters. No reference is made to State responsibility for serious
violations of IHL. Italy waived its claims “except those arising out of contracts and
other obligations entered into … before September 1 1939” and “in respect of
arrangements”. There is no doubt that this provision a contrario means that Italy
waives all its claims (and those of its na tionals) arising out of contracts and other
obligations entered into after 1 September 1939, until 8 May 1945. The text is clear in
that it covers only economic arrangements, a nd as will be shown, this seems to be the
only reasonable interpretation of the provision.
3.9 Secondly, this reading of Article 77( 4) is confirmed by a systematic
interpretation of the provision. Placing Article 77(4) in context and comparing it to other
provisions in the same Article as well as in other Articles of the same Treaty, it becomes
evident that the clause refers merely to economic relationships. In particular, it must be
noted that the waiver clause of Article 77 (4) is included in a pr ovision dealing with
28
questions of property : Italian property in Germany (in paras. 1 to 3), and German
28Article 77 paras. 1 to 3 read as follows: “1. From the coming into for ce of the present Treaty
property in Germany of Italy and of Italian nationals shall no longer be treated as enemy property and all
restrictions based on such treatment shall be removed. 2. Identifiable property of Italy and of Italian
nationals removed by force or duress from Italian territory to Germany by German forces or authorities
after 8 September 1943 shall be eligible for resttion. 3. The restoration and restitution of Italian
15 29
assets in Italy (in para. 5). As mentioned above paragr aph 4 itself sp ecifically
mentions in a sub-clause “[claims] arising out of contracts and other obligations entered
into, and rights acquired”. It appears that the focus of the provision is only on economic
relationships and contracts between German and Italian parties.
3.10 Thirdly, the Italian waiver in Article 77(4) must be seen in the context of,
and in comparison with, another waiver clause of the Peace Treaty: Article 76, by which
Italy waived claims against the Allied and Associated Powers. This provision states that
“1. Italy waives all claims of any description against the Allied and
Associated Powers on behalf of the Italian Government or Italian nationals
arising directly out of the war or out of actions taken because of the
existence of a state of war in Euro pe after September 1, 1939, whether or
not the Allied or Associated Power was at war with Italy at the time,
including the following:
(a) Claims for losses or damages su stained as a consequence of
acts of forces or authorities of Allied or Associated Powers;
(b) Claims arising from the presence, operations, or actions of
forces or authorities of Allied or Associated Powers in Italian territory;
(c) Claims with respect to the decr ees or orders of Prize Courts of
Allied or Associated Powers, Italy agreeing to accept as valid and binding
all decrees and orders of such Prize Courts on or after September 1, 1939,
concerning Italian ships or Italian goods or the payment of costs;
(d) Claims arising out of the exercise or purported exercise of
belligerent rights.” (Emphasis added).
Moreover, paragraph 2 adds that
“[the] provisions of this Article shall bar, completely and finally, all
claims of the nature referred to herein, which will be henceforward
extinguished, whoever may be the partie s in interest. The Italian
property in Germany shall be eff ected in accordance with measures which will be determined by the
Powers i29occupation of Germany.”
Article 77(5) provides that “Italy agrees totake all necessary measures to facilitate such
transfers of German assets in Italy as may be determined by those of the Powers occupying Germany
which are empowered to dispose of the said assets.” See Annex 2 to the CM.
16 Government agrees to make equitable compensation in lire to persons who
furnished supplies or services on requi sition to the forces of Allied or
Associated Powers in Italian territo ry and in satisfaction of non-combat
damage claims against the forces of A llied or Associated Powers arising in
Italian territory.…” (Emphasis added).
3.11 A comparison of Article 77(4) with Article 76 of the Peace Treaty
reveals certain important differences. While Article 77(4) uses th e phrase “all claims
against Germany and German nationals” (implying all claims relating to issues
concerning properties and other economic questions), Article 76(1) refers to “all claims
of any description”. Moreover, Article 76(1) me ntions specifically “claims for losses or
damages sustained as a consequence of acts of forces or authorities of Allied or
Associated Powers” (subpara. a), “claims arising from the presence, operations, or
actions of forces or authorities of Allied or Associated Powers in Italy” (subpara. b), and
“claims arising out of the exercise or purporte d exercise of belligerent rights” (subpara.
c). None of these claims are specifically me ntioned in Article 77(4) which, in contrast,
only speaks in general terms of “all claims for loss or damage arising during the war”.
According to Article 76(5), the waiver of claims by Italy under Article 76(1)
includes, inter alia, “any claims and debts arising out of the Conventio ns on prisoners
of war now in force”. Again, a similar te rm is missing in Article 77(4), where the
question of prisoners of war is not mentioned at all.
Even more importantly, according to Article 76(2), the claims waived by Italy in
accordance with the article “will be hencefor ward extinguished”. No similar expression
is included in Article 77(4). Here again it ca nnot be that the drafte rs forgot to add the
expression. The thing is that the meaning of the two provisions and of the waiver
clauses is very different.
We must therefore rule out the possi bility that the waiver clause of
Article77(4), despite the expression “ all claims for loss or damage arising during the
war”, covers claims arising out of the war crimes or crimes against humanity committed
against members of the Italian armed forces or of the Italian civil population in violation
17of international law. 30 While such claims – based on c onduct arising from torts – could
possibly be covered, in relation to the Allie d and Associated Powers, by the terms of
Article 76, 31 such claims are not arguably addr essed by Article 77(4), the focus of
which – in the context of the other paragraphs of the article, all of which deal with
private property rights – is clearly on claims arising under private law, in particular
“claims arising out of contra cts and other obligations entered into” as well as “debts”
32
and “claims in respect of arrangement s entered into the course of war”, and not on
claims arising from violati ons of the laws of war a nd humanitarian law by Germany.
This is confirmed by the plain language of Article 77(4), which in essence refers to
contractual claims and “ordinary” war damage, in particular damage to p roperty. 33
3.12 There is really no need to add a ny further words commenting on the two
provisions. It seems pretty clear that, as in the well-known maxim ubi lex voluit dixit,
ubi noluit tacuit, where the drafters want ed to cover the “claim s for losses or damages
sustained as a consequence of acts of forces or authorities of Allied or Associated
Powers” they did it explicitly; where they did not mention them, clearly they never
intended to cover those claims. Thus, in Article 76 they explicitly referred to actions by
forces or authorities of the Allied countries, occupation powers, and other forms of
exercise of the rightful activities of the belligerents. On the other hand, in Article 77(4)
they did not refer to these, because they did not intend to cover these claims and because
they were fully aware of th e gravity of the crimes comm itted by the personnel of the
Third Reich. There was no justification for absolving Germany of State responsibility
for those serious violations of IHL.
3.13 Fourthly, the provision must be cons trued taking into account the object
and purpose of the Treaty. In this respect, it is clear that the sc ope and the purpose of
Article 77(4) could not have been to brush aside all repa ration claims forever; it was
30CM, paras. 2.5-2.8.
31 Art. 76(1): “claims for losses or damages sustained as a consequence of acts of forces or
authorities”, “claims arising from the presence, opertions, or actions of forces or authorities” and,
especially, “claims arising out of the exercise or purported exercise of belligerent rights”, and Art. 76(5):
“any claims and debts arising out of the Conventions on prisoners of war now in force”. ( Emphasis
added).
32 In the French version of the Treaty, the expression “inter-gov ernmental claims in respect of
arrangements entered into the course of the war” r eads “toutes les réclamations de caractère
intergouvernemental relatives à des accords conclus au cours de la guerre”. (Emphasis added).
33
CM, para. 5.49.
18merely intended to preserve for the Allies, and in their exclusive interest, the economic
resources of Germany. In that framework, the question of reparations to Italy, which had
been a former Ally of Germany, could be postponed to a later date. In addition, Italy
never intended to waive those claims and c ould not have done so: as clarified in the
Counter-Memorial those claims cannot be waived, since th ey are the object of a régime
of reparations which cannot be the object of derogation by States. Italy thus maintains
that the only interpretation of Article 77(4) which is in line with Article 31(3) of the
Vienna Convention on the Law of Treaties is that this provision did not cover claims for
war crimes. This would be the only interpretation consistent with the régime of IHL,
which imposes obligations of reparation that cannot be simply brushed away by States.
Hence, reparation claims for war crimes and other international crimes committed
against the civilian population have always been outside the scope of that provision.
3.14 Finally, a last argument must be ma de relating to the nature of the
stipulation in Article 77(4), which Germany considers to be a provi sion in favour of a
Third State. While it is true that such pr ovisions can be formulated in international
treaties, it is also clear that intheir interpretation the principle of lex mitior must be
applied. If between two equally possible in terpretations there is one which is less
burdensome for the State which is assuming ob ligations in favour of a third State, the
less onerous interpretation must prevail. Hence, assuming that Germany’s interpretation
is also possible – which Italy does not be lieve can really be maintained – it would
clearly be unreasonably burdensome for Italy and Italian victims of war crimes.
3.15 Even turning to the hypothetical argument that Article 77(4) could cover
all claims irrespective of their nature, ther e are good arguments to suggest that in any
case the provision would only produce effect s to the benefit of the occupying powers.
Italy’s reparation claims were frozen for the time necessary to the Allied Powers to use
Germany’s economic potential for their goa ls, not to provide Germany with an
unjustified advantage. As Germa ny itself states in the Reply “ priority was given to the
nations which could be considered innocent victims of German aggression. Apparently,
the Allied Powers saw no justification for Italy’s participation in the reparation scheme
as a quasi-victorious power”. 34 The reasoning is quite correct and rightly uses the word
34GR, para. 14. (Emphasis added).
19priority! This means that at the outset the Al lied Powers wanted to use the German
35
economic potential for themselves and other nations victims of aggression; however
nothing in Article 77, nor in the rest of the Treaty, suggests that after the fulfilment of
this goal, ordinary reparation regimes could not be put in place in the bilateral
relationships between Germany and Italy, once th ese resumed. In this regard it must be
clarified that the waiver clauses were in fact not so much clauses in favour of Germany
36
but in favour of the Allied Powers themselves. Moreover, this is confirmed by the
subsequent developments in the 1950s and 60s, and after Germany’s reunification.
3.16 In particular, relevance in this respect must be given to the 1953 London
Agreement on German External Debts. This Agreement, concluded in 1953 and ratified
by Italy in 1966, established th at matters relating to repa rations were frozen and
postponed to a later date, after Germany’s reunification. This explains why in the
relationships between Germany and Italy in the years 1966 to 1989 nothing happened:
reparation was explicitly postponed to the moment of Germany’s reunification. It is only
after reunification that the issue of repara tion for war crimes committed against Italian
37
victims could be resumed.
35
See Eberhard Menzel (ed.), Introduction to Die Friedensverträge von 1947 mit Italien,
Ungarn, Bulgarien, Rumänien und Finnland, 1948 , p. 53. See also Menzel, Die
Forderungsverzichtsklauseln gegenüber Deutschland in den Friedensverträgen von 1947 –
Rechtsgutachten – (Hektographierte Veröffentlichungen de r Forschungsstelle für Völkerrecht und
ausländisches öffentliches Recht der Univers ität Hamburg, Nr. 20), Hamburg 1955, p. 21 et seq. That
reason was also stated in a decision of the Civil Court of L’Aquila of 7 December 1960 in the case Ditta
Pomante v. Federal Republic of Germany . See Pierre d’Argent, Les réparations de guerre en droit
international public: La responsabilité internationale des États à l’épreuve de la guerre , Bruxelles/Paris
2002, p. 266 (referring to 40 ILR 64, p. 71): “Son objectif [the objective of Art. 77(4) of the Peace Treaty]
était d’éviter que les ressources de l’Allemagne, qui devaient servir à compenser les dommages de
puissance36victorieuses, puissent être partiellement affectées au bénéfice de ses anciens alliés.”
That view was also taken by the German Supreme Court (Bundesgerichtshof) in a decision of
14 December 1955 (Decisions of the Bundesgerichtshof in Civil Matters [BGHZ] vol. 19, p. 258 et seq.,
at 265): “The Allied Powers demanded the waiver fro m Italy exclusively in their own interest. They
wanted to prevent that the economic capabilities of Germany would be impaired by claims of states
formerly allied with the Reich and by claims of nationa ls of these states, in order better to realize their
own claims and those of their nationals.”
37In this connection, it must be noted that Article 77(4) of the P eace Treaty constitutes a
standard clause which was included, in more or less identical terms, in the p eace treaties of 10 February
1947 concluded by the Allied Powers with the other former allies of Nazi Germany, namely Bulgaria
(Article 26(4)), Hungary (Article 30(4)) and Romania (Article 28(4)). Under all of these provisions, those
nations had to renounce any claims against Germany and German nationals outstanding on 8 May 1945.
Two purposes were pursued by the victorious Allie d Powers, which had much leeway in designing the
contents of the treaties they wished to bring about. On the one hand, their intention was to clear up the
rubble caused by the war, putting a brake on endless juridical fighting over reparation for war damages
that otherwise would have had to be expected. On the other hand, as already hinted, the imposed waiver
20 Prior to becoming a party to the 1953 Agreement, in the late 1950s Italy joined a
number of other countries that requested reparations from Germany. This led to the
1961 Agreements; showing that already at that time the interpretation given by Italy to
Article 77 was precisely that it was temporary in character. Let us now turn to the
examination of these Agreements and of some waiver clauses contained therein.
Section 4 – The 1961 Agreements and Their Waiver Clauses.
3.17 The two Agreements of 1961 to which Germany refers did cover some
damages, but their scope ratione materiae was clearly limited. As already clarified in
the Counter-Memorial and in the Observation on the counter-claim, 38the two 1961
Agreements 39 do not cover claims for serious viol ations of IHL, and logically the
waiver clauses do not relate to these claims either. The first Agreement has nothing to
do with the subject matter of the cases which have led to this dispute. It refers to the
settlement of economic claims, and it is only concerned with economic matters. The
second Agreement is to a certain extent ev en narrower in that it specifically, and
exclusively, refers to persons who were victims of persecution on discriminatory
grounds. On the basis of these agreements It aly received substantial amounts of money,
which it distributed to those falling within the scope of the Agreements on the basis of
their requests and in compliance with the Decrees implementing the Agreements.
3.18 As Germany correctly states, both Ag reements contain waiver clauses.
Germany’s arguments, however, are unconvinci ng where they try to imply that these
waiver clauses covered any other present and future claim of any nature. Clearly, this
was not and could not be the case. The two wa iver clauses, which are nearly identical,
merely cover claims within the subject-matter of the Agreements. Since the scope of the
Agreements was limited on the one hand to economic questions and on the other to
was also meant as a kind of sanction against the States that had formed an Alliance with Germany and
Italy, the so-called “Axis”. Those States could not hope to get through the end of the war totally
unscathed. In the same way as Germany had to renounce any claims against them, they also had to waive,
on their38art, any claims against Germany.
CM, paras. 2.15, and 5.57-5.59; see also the Observations of Italy on the Preliminary
Objections of the Federal Republic of Germany Regarding Italy’s Counter-Claim, Section IV, paras. 39-
58. 39
Annexes 3 and 4 to the CM.
21persecutions on discriminatory grounds, clearl y other claims for serious violations of
IHL were not waived.
3.19 Moreover, that this is the correct inte rpretation in this case is indirectly
confirmed by Germany’s other argument, wh ich basically implies that these two
Agreements were made ex gratia and that for the rest (i.e. what was not covered by the
Agreements) the waiver clause of Article 77(4) would still appl y. This indirectly
confirms that the serious violations of IHL are not covered by the Agreements; for it is
by the waiver clause of Article 77(4) that they would be covered. On the contrary, as
clarified above, the 1947 waiver clause has a very different explanation than the one
provided by Germany and thus the claims for serious violations of IHL are still
unanswered.
Section 5 – The Large Number of Victims that Remain Without any
Reparation
3.20 The claims referred to above have remained unanswered for several
decades, and they involve a substantial tally of victims. There are three categories of
victims: the members of the Italian army that were not granted the treatment of prisoners
of war, the civilians that had been unlaw fully deported to Germany and compelled to
forced labour, and the civilian victims of mass atrocities in various villages attacked by
the forces of the Third Reich.
3.21 The first category of victims consists of the so-called IMIs – the Italian
military internees. These people were taken in Italy and elsewhere, and then deported to
Germany to be employed as forced labourers. According to the data collected by various
organizations of victims there are about 700,000 persons that have never received
compensation for forced labour. 40 For the reasons set out in more detail in the Counter-
Memorial, these people were first denied the status of prisoners of war by Nazi
Germany, and subsequently denied repara tions by the new post-war Germany on the
40CM, para. 2.7.
22grounds that prisoners of war were excluded from the reparation laws adopted by post-
41
war Germany.
3.22 The second category consists of civilians unlawfully deported to
Germany to be employed as forced labourers. No specific figure is possible to produce
concerning the very many civilians involved.
3.23 Concerning the third ca tegory, one should note th at cases relating to
thousands of civilians, vict ims of massacres carried out by German forces during the
retreat in 1944-45 in numerous villages mainly in the Apennines, came to the courts
only in very recent times, since for a long time the documents and other evidentiary
materials establishing the criminal responsib ility of several members of the German
forces had not been discovered and criminal prosecution had not started. 42
The waiver clauses could not cover clai ms which were not pending at the time
or which, as is the case with the mass murders which occurred in several villages in the
Appenines (e.g. Civitella, Marzabotto, Sant’Anna di Stazzema, etc.), had not even been
established. Most of the victims were pa tiently waiting for a solution which would be
designed for their situations. Therefore, the va st majority of the other victims were not
compensated in any way.
Now these victims were not compensa ted and perhaps could not even be
compensated since the crimes were largely undemonstrated at the time. Today there are
a number of proceedings taking place, and th e truth about many of those massacres has
only recently been discovered and revealed. How could these victims be covered by the
1947 waiver and 1961 agreements? Clearly th e claim of these vi ctims materializes
today, and it is today that they must obtain reparation.
Section 6 – The Power of States to Enter into Agreements to Organize
Reparation for Serious IHL Violations
3.24 Italy must also make a few remark s on a recurrent statement made by
Germany in its submissions to the Court, both in the Memorial and in the Reply.
41
42CM, e.g. at paras. 2.30, 5.19.
See the cases referred to in the CM, paras. 2.7, 2.37, 2.44, 5.13.
23Germany has often stated that “in respect of international armed conflict, immunity has
kept its justification as a rule of reason which permits, in the relationship between States
at the international level, settlement of harm caused in a well-pondered manner, through
negotiation and treaty” 43. Italy cannot but agree with this statement. However, it must
qualify it in the sense that in these treatie s and in these negotiations States cannot do
whatever they want; they must ensure that certain rules are indeed respected. One of
these is that no State is aut horized to just be absolved of any responsibility for war
crimes. Victims must receive some form of recognition and reparation. The problem
with the Italian victims referre d to above is that they have never received any form of
reparation.
Italy does not claim (and has never claime d) that “after the actual cessation of
hostilities every individual in jured by a violation of inte rnational humanitarian law
(IHL) [should be] able to raise a personal cl aim against the State whose armed forces
have to shoulder responsibility for the inju ry caused” and agrees that “[t]housands or
even millions of claims could not be ade quately dealt with by the domestic judges of
44
either one of the parties” . Here the issue is that the St ates involved in the conflict and
mainly the State responsible for serious war crimes stigmatized by the whole
international community (a State which ha s made vast reparations to many other
categories of victims) did not adopt sufficient measures to make reparations available
for several categories of Italian victims.
3.25 As far as the issue of waiver of individual reparation claims is concerned,
Italy believes that some clarification shoul d be made regarding the observations made
by Germany in paras. 43-47 of its Reply.
Italy does not, as Germany suggests, imply that reparation claims are
untouchable. Italy argues, and Germany does not seem having produced any convincing
argument to the contrary, that the reparati on regime set out in IHL cannot be simply
wiped out by States in their negotiations. In other words, there is no prohibition on
arranging the modalities and amounts of reparation due through inter-state
arrangements, but it is not possible to simply cancel such reparations. Otherwise, what
43
44GR, para. 4.
Ibid.
24would be the point in having set up a system which Germany recognizes could be seen
45
as a precursor of jus cogens – which means not open to derogation by States?
3.26 Italy concurs that arrangements be tween States are the proper way to
proceed in these cases. The problem with re gard to Italian victims of serious IHL
violations for which Germany has assumed responsibility is precisely that such an inter-
state arrangement has never been satisfactorily made. First, Germany denied having any
obligation towards Italy and Italian vict ims; subsequently, it entered into ex gratia
agreements which did not cover these victim s; finally, Germany proclaimed that its
national system was open to receiving the claims of these victims of serious IHL
violations, but even these measures resulted ineffective.
Italy is still ready to enter into inte r-state arrangements for the purpose of
granting reparation to the three categories of victims referred to above, but in the first
place Germany should be available to enter in to negotiations for the conclusion of such
an agreement. In the absence of any agreemen t the fact remains that these victims have
never received compensation and that a denial of justice is still ongoing.
3.27 Germany brings, as an example of agreements through which waivers of
claims for violations of IHL were made, the Potsdam Accord between Germany and the
Allied Countries. However, in the case of that agreement, as Germany itself puts it, the
Allied waived claims for IHL violations “on account of the reparations imposed on
Germany by virtue of the Potsdam Accord and implemented by the Paris Agreement on
reparation from Germany, on the establishment of an inter-allied reparation agency and
46
on the restitution of monetary gold”.
Italy reiterates that it does not challenge the idea that reparations can be made
through negotiations and lump-s um agreements between the Parties, such as those
concluded by Germany with the Allied Powers. However, in the case of Italy and Italian
victims no such agreement between Germany and Italy has ever been concluded. In
none of the agreements cited by Germany, neither the 1947 Peace Treaty nor the 1961
Agreements, was the issue of serious viola tions of IHL specifically addressed, nor was
45
46GR, para. 45.
GR, para. 28.
25any reparation for this purpose made. Italy’ s position remains that no waiver has been
made for claims concerning serious violati ons of IHL. Furtherm ore, no waiver could
have been made without reasonable compensation in exchange, which is exactly what
happened in the relationships between Germany and the Allied Powers. Therefore the
arguments by Germany must fail also in this regard.
Section 7 – Conclusion
3.28 It is clear on the basis of the fact ual circumstances evidenced above that
no reparation has been made for a large number of victims. This is a circumstance that
Germany does not deny. On this basis, a nd considering that no effective remedy was
available to these victims, Italian judges set aside immuni ty and accorded reparations.
Although Italy recognizes that after a conflict States can enter into agreements to
organize reparation régimes for war damages and all sort of other claims, Italy also
suggests that these agreements must be well pondered and balanced and that their
effects cannot amount to a denial of reparati on for victims of serious IHL violations. In
this connection it is slightly paradoxical to note that Germa ny insists in its Reply, as it
had in its Memorial, on the f act that States can enter into such agreements and that
immunity protects such a right. The position of Germany in this respect is surprising,
since Germany has never entered into any such agreements with Italy. First, it invoked
and still invokes the waiver clause of Article 77(4) of 1947; secondly, it considers the
1961 Agreements were made purely ex gratia. Hence, Germany does not deny that it
never entered into agreements with Italy to make reparations to the benefit of victims of
serious violations of IHL.
Italy is still convinced that entering into such agreements is indeed the best way
to settle these matters, but it cannot agree with Germany’s position that the reparation
issue is definitively closed. This position was not accepted in 1947, and was rejected
again after the conclusion of the 1961 Agreements (and confirmed by subsequent
agreements such as, for example, the treaty concluded on 19 October 1967 “about the
settlement of issues of a proprietary, economic and financial character connected with
26 47
the Second World War” ); and this is evidenced also by the Italian ratification, in 1966,
of the London Agreement of 1953, which postpone d the issue of reparations to a later
date.
If Germany agrees to enter into such agreements, Italy is ready to consider any
proposal, but it does not understand why and where its judges erred in setting aside
Germany’s immunity in the light of such an evident denial of just ice for a very large
number of victims of seri ous IHL violations, amounting to war crimes and crimes
against humanity, which had occurred immediat ely after the decision by Italy to break
the insane alliance with the Third Reich and to join the Allies in the fight against Nazi
Germany.
IV – The Impact of Developments in International Law on the
Application of the Principles on State Immunity
Section 1 – The Time Element Issue
4.1 In its Counter-Memorial, Italy showed that the customary rule on State
immunity to be applied in the present case must be assessed in accordance with the
specific content of this rule at the time when judicial proceedings were instituted against
Germany before Italian courts. In its Repl y Germany failed to engage itself in any
meaningful discussion of the several instances of practice referred to by Italy to support
its view. Instead, it continued to argue that since the proceedings before Italian courts
relate to facts which occurred in the period between 1943 and 1945, it is in the light of
the international law in force at that time that the Court should assess the content of the
rule of immunity to be applied in the pres ent case. For this purpose, it relied on the
contention that, if the rule of State immunity was to be applied according to its content
at the time when proceedings are institute d, this would lead to “absurd results”.
47This is the Abkommen zwischen der Bundesrepublik Deutschland und der Italienischen
Republik über die Regelung vermögensrechtlicher, wi rtschaftlicher und finanzieller, mit dem Zweiten
Weltkrieg zusammenhängender Angelegenheiten – Accordo fra la Repubblica Federale di Germania e la
Repubblica Italiana per il regolamento di questioni pa trimoniali, economiche e finanziarie connesse alla
Seconda Guerra Mondiale , whereby Italy and Germany agreed that Italian nationals who suffered war
damage to property in Germany shall have the same rights for compensation as enjoyed by German
nationals under the relevant German legislation (Art. 2(1). See Bundesgesetzblatt 1969 II, 356).
27Germany also found its view but tressed by the specific soluti on retained in respect to
this issue by the UK State Immunity Act of 1978. 48
4.2 With regard to the time element issue, Italy stands by the analysis presented
in paragraphs 1.14-1.17 and 4.43-4.50 of its Counter-Memorial. It does not find it useful
to reiterate here the reasons why it considers that immunity, being a procedural rule, has
to be assessed in the light of the law in force at the time when domestic courts are
seized. This is all the more so since, as already observed, Germany’s Reply makes
substantially no efforts to dispute Italy’s analysis of the nati onal and international
practice pertinent to the issue under examination.
4.3 It is hard to see why the acceptance of Italy’s view would lead to absurd
results. To the contrary, it is quite logical that, immunity being a rule which affects the
jurisdictional competence of domestic judges, the content of that rule must be assessed
in the light of the law in force at the ti me when judges are asked to exercise their
jurisdictional competence in cases in which foreign States are involved. When codifying
the rule on jurisdictional immunities of States, the International Law Commission
(hereinafter ILC) faced the question of the nature and ex tent of the non-retroactive
effect of the application of the draft articles. It identified the time when proceedings are
instituted as the relevant point in time at which the articles would apply as between the
49
States that had accepted these provisions. Significantly, in their comments on the
ILC’s work, States did not oppose this soluti on, nor argued that it would lead to absurd
50
results. The same solution was later incorporated in Article 4 of the United Nations
51
Convention on Jurisdictional Immuniti es of States and Their Property. Against the
clear indication which comes from the work of the ILC and from the 2004 New York
Convention, Germany attempts to bolster its argument by referring to section 23, para.
3, of the 1978 UK State Immunity Act. Le aving aside here a ny assessment of the
precedential value of this Act, it must be highlighted that this is the only piece of
evidence referred to by Germany – a clea r sign that Germany’s view does not find
effective support in State practice.
48GR, paras. 36-38.
49
See Article 4 of the Draft Articles on Jurisdictional Immunities of States and their Property,
Yearbook50f the International Law Commission, 1991, vol. II, Part 2, p. 22.
51Yearbook of the International Law Commission, 1988, vol. II, Part 1, p. 46et seq.
See the text in CM, para. 4.50.
28 4.4 Since the question of whether Italy ha s violated its obligation to accord
immunity to Germany must be assessed according to the law of State immunity in force
at the time when proceedings against Germany were brought before Italian courts, there
is little point in determining what was the cont ent of the rule of immunity at the time of
the facts which gave rise to the proceedings. The existence of exceptions to the rule of
immunity, particularly in the case of breaches of jus cogens rules, must be determined
in the light of the law as it stands today, a nd not as it was at the end of World War II.
This notwithstanding, Italy wishes to reiter ate its conviction that already during World
War II there were rules having a non-derogable character, wh ich represented a sort of
jus cogens. As has already been noted, interna tional humanitarian rules concerning
protected persons, and in particular prisone rs of war, were generally regarded as
presenting such a character. 52 While in its Reply Germany emphasizes that “ jus cogens,
taken as a concept of positive international law, is an offspring of the last four
decades”, 53 Italy recalls that on at least one pr evious occasion, Germany itself appeared
to accept the view that in some areas non-derogable obliga tions existed prior to the
1969 Vienna Convention on the Law of Treaties. 54
Section 2 – The Territorial Clause
4.5 In its Reply, Germany has not disputed that immunity from jurisdiction does
not cover all acts jure imperii. In particular, Germany acknowledges that the distinction
between acta jure imperii and acta jure gestionis does not always apply in lawsuits
concerning personal injuries caused by a State’s activities on the territory of the forum
State.55 Germany only disputes that the enlargement of the scope ratione materiae of
the tort exception to acts jure imperii also covers situations involving armed conflicts.
4.6 In its Counter-Memorial, Italy had given a number of reasons supporting the
applicability of the personal-injuries territori al clause to situati ons relating to armed
conflicts.56 At present, Italy limits its argumen ts to replying to Germany’s narrow
52CM, paras. 5.15-5.21.
53GR, para. 57.
54CM, para. 5.19. Anyhow, as it has been stressed supra, para. 2.6, and will be stressed again
infra, para. 4.26, the impact of peremptory rules of international law cannot be excluded even if they
constitute jus cogens superveniens.
55GR, para. 52.
56CM, paras. 4.37-4.42.
29interpretation of the rule now embodied in Article 12 of the UN Convention on
57
Jurisdictional Immunities of States and Their Property – a Convention that is the
culmination of more than 25 years of works of the ILC and of the General Assembly’s
Sixth Committee, and represents a compromise upon which the great majority of States
in the world have agreed as a codification of a body of universally-recognized law.
First of all, Italy would like to stress that nothing in the letter of Article 12
precludes its application to situations involving armed conflicts, nor is there a general
clause excluding the application of the UN Convention to such a situation. To support
its interpretation of Article 12, Germany has no other option than to give weight to
certain elements of the travaux préparatoires. Such an approach does not fit with the
general rules of treaty interpretation codifi ed by the Vienna Convention on the Law of
Treaties. Article 32 of the Convention allows recourse to supplementary means of
interpretation, including the preparatory wo rk, only in order to confirm the meaning
resulting from the application of general ru les of interpretation provided in Article 31,
or when the application of those rules leaves the mean ing ambiguous or obscure, or
leads to a result which is manifestly absurd or unreasonable. However, the ordinary
meaning to be given to the terms of Article 12 fairly clearly establishes only three
conditions for its applicability: the proceeding must relate to pecuniary compensation
for death or injury, the injurious act or omission has to have occurred in whole or in part
in the territory of the forum State, and the author of the act or omission has to have been
present in that territory at the time of the act or omission. Since the meaning of Article
12 is neither ambiguous nor obscure, recourse to the travaux préparatoires seems
inappropriate.
Secondly, it is doubtful that the travaux préparatoires really support Germany’s
narrow interpretation of the rule provided in Article 12. In its Reply, Germany reiterated
57
GR, paras. 52-55. United Nations Convention on Jurisdictional Immunities of States and Their
Property, Article 12: “Personal injuries and damage to property . - Unless otherwise agreed between the
States concerned, 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 pesent in that territory at the time of the act or
omission.”
30the reference to the statement of the Chai rman of the working group of the Sixth
Committee of the General Assembly, Gerhard Hafner, according to which
“One of the issues that had been raised was whether military activities
were covered by the Convention. The general understanding had always
prevailed that they were not.” 58
Italy is well aware that General A ssembly resolution 59/38 adopting the
Convention contains a general reference to statements of the Chairman of the Ad Hoc
Committee. However, this general reference cannot be considered as an endorsement of
each and every view expressed by Hafner in his statement. This is confirmed by the fact
that when the General Assembly expresse d its agreement with certain understandings
reached within the Ad Hoc Committee with re gard to the scope of the Convention – in
particular with regard to the exclusion of criminal proceedings – it did so explicitly.
Moreover, the ILC and States within the Sixth Committee addressed the question of the
general scope of the Convention. Article 3 ex pressly defines privileges and immunities
not affected by the Convention. No mention is made of the fact that armed forces and
their activities are excluded from the scope of the Convention. It is revealing that within
the Sixth Committee, the Netherlands ha d proposed to introduce into the draft
Convention a provision clarifying that Article 12 would not apply in cases relating to
59
armed conflict. This proposal did not meet with support from other States, and there
are no echoes of it in th e Convention, nor is ther e any reference in the Understandings
annexed to the Convention to the proposition that Article 12 does not apply to armed
conflicts.
4.7 To confirm its assertion, Germany cite s the declarations of Norway and
Sweden annexed to their instruments of ratification of the C onvention, to the effect that
60
the Convention does not apply to military activities. Italy considers that those
declarations, far from proving the existence of a general opinion of non-applicability of
the Convention to situations relating to armed conflicts, show quite the opposite. If
Norway and Sweden felt the need to make such a declaration it is exactly because the
text of Article 12 points to a different interpretation.
58
59UN Doc. A/C.6/59/SR.13, para. 36.
60Statement by Mr. Lammers, in A/C.6/54/SR.18, para. 45.
GR, para. 55.
31 4.8 In its Memorial, Germany recognizes that almost all the lawsuits object of
the present dispute originate in acts which occurred in Italy. 61This is clearly the case
for massacres of civilian population, but also for the great major ity of deported people
who were captured in Italy. As a consequence, according to the rule embodied in Article
12 of the UN Convention, which can be c onsidered as declaratory of general
international law, Italian Courts were not under a duty to recognize immunity to
Germany on almost all the lawsuits, independently of the circumstance that the injurious
acts were also violations o f jus cogens.
Section 3 – The Impact of Jus Cogens on the Law of State Immunity
4.9 There is little doubt that the grave violations of human rights and
humanitarian law which gave rise to the pr oceedings brought before Italian courts may
be characterized as violations of jus cogens rules. Germany does not dispute that
“egregious violations of in ternational humanitarian law” were perpetrated by Nazi
Germany against Italian citizens. 62 However, at the heart of th is case there continues to
be a substantial disagreement between the Pa rties concerning the consequences of the
violations of jus cogens rules with regard to the r ecognition to the wrongdoing State of
immunity from the jurisdiction of another St ate. Italy submits that, under international
law as it stands today, there may be cases in which a State is entitled to deny immunity
to another State in case of breaches of jus cogens rules. This is so, in particular, when
the recognition of immunity would inevitably lead to denying the victims of such
breaches any possibility of obtaining redr ess from the wrongdoing State. Germany, for
its part, denies that immunity of a State may be affected by the jus cogens character of
the breaches attributable to it.
4.10 In its Reply, Germany attempts to buttress its view by arguing that “jus
cogens is entirely made up of primary rules, rules of conduct that prohibit specific
63
conduct”. It also argues that “the character of a rule as jus cogens does not determine
64
what consequences are entailed by its breach”. In Italy’s view, the position held by
Germany reflects a far too narrow concept of jus cogens. This position does not find
61
62GM, para. 71.
63GM, para. 15.
64GR, para. 65.
Ibid.
32support in the work of such an aut horitative body as th e ILC nor in the opinio juris of
States. It is also contradicted by previous statements by Germany.
4.11 In its Commentary to the Articles on State Responsibility, the ILC
observed that “it is necessary for the ar ticles to reflect that there are certain
consequences flowing from the basic concepts of peremptory norms of international law
and obligations to the intern ational community as a whole within the field of State
responsibility”. 65Thus, the ILC expressly acknowledged that, contrary to Germany’s
contention, peremptory rules do not simply regulate substantive conduct. The very
concept of peremptory rules implies that ther e are certain inherent consequential effects
flowing from such rules.
4.12 In its Reply Germany refers to the consequences which, in the ILC’s
view, flow from the concept of jus cogens within the field of State responsibility, and
attempts to show that the ILC’s Articles tend to support its view. This it sees as being so
because “Article 41 does not provide a victim State with extra-legal remedies that
would allow it to assert the rights it believe s to have by way of self-help, resorting for
66
that purpose to its judicial machinery”. This argument is clearly mistaken. True,
Article 41 does not expressly contemplate, among the consequences of a serious breach
of an obligation arising unde r a peremptory norm of gene ral international law, the
possibility of denying immunity to the wrongdoi ng State. However, first, it might be
held that, under specific circumstances, the de nial of immunity might be regarded as a
consequence of the obligation laid down in Ar ticle 41(2) of the ILC’s Articles, not to
recognize violations of peremptory rules and not to assist in main taining the situation
67
arising from such violations. But above all, Germany’s contention is clearly
contradicted by the non-prej udice clause contained in paragraph 3 of Article 41.
Paragraph 3 provides that “[t]his article is without prejudi ce to the other consequences
referred to in this Part and to such further consequences that a breach
to which this
Chapter applies may entail under international law”. This clause is of the utmost interest
for the purposes of the present analysis becau se, contrary to what Germany contends, it
65
Yearbook of the International Law Commission, 2001, vol. II, Part 2, p. 111. ( Emphasis in the
original66
67GR, para. 66.
Alexander Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords
Got It Wrong’, 18 European Journal of International Law (2007), 955-970, p. 967.
33points to the existence of possible additiona l consequences stemming from the concept
of peremptory rules. This point has been clearly stated by the ILC in the following
terms:
“Paragraph 3 accordingly allows that international law may recognize
additional legal consequences flowi ng from the commission of a serious
breach in the sense of article 40. The fact that such further consequences are
not expressly referred to in Chapter III does not prejudice their recognition
in present-day international law, or to their further development.” 68
4.13 The fact that in 2001 the ILC felt th e need to insert a non-prejudice
clause with regard to additional legal c onsequences stemming from the concept of jus
cogens is not surprising if one considers that, in 1999, the ILC’s Working Group on
Jurisdictional Immunities of States and Thei r Property had considered it necessary to
draw the attention of the General Assembly’s Sixth Committee to a “recent
development in State practice and legisla tion” concerning “the argument increasingly
put forward that immunity should be denied in the case of deat h or personal injury
resulting from acts of a State in violation of human rights norms having the character of
69
jus cogens, particularly the prohibition of torture”.
4.14 As is well-known, at that time the Sixth Committee decided not to reopen
the codification exercise so as to include in the Draft Articles on Jurisdictional
Immunities a provision dealing with the issue of immunity in the case of breaches of jus
cogens rules. However, a brief examination of the discussion held on this issue in the
Sixth Committee is particularly instructive, as it reveals that States were well aware of
the impact of the concept of jus cogens on the law of State immunity.
4.15 Among the views expressed by States in that context, attention must be
drawn in particular to the position take n in 1999 by the Director-General of Legal
Affairs of Germany’s Ministry for Foreign Affairs. He observed :
68
Yearbook of the International Law Commission , 2001, vol. II, Part 2, p. 116Emphasis
added). 69
Yearbook of the International Law Commission , 1999, vol. II, Part 2, p. 172. See also CM,
para. 4.99.
34 “Recent developments in State practice and legislation had shown that
the issue of jurisdictional immunity in the case of violations by acts of
States of human rights norms having the character of jus cogens was central
to the subject of jurisdictional immunity and deserved further attention.” 70
Thus, at that time Germany, far from holding the view that immunity was not
affected by the jus cogens character of the norms viol ated, acknowledged the existence
of an inevitable in teraction between jus cogens rules and the law of State immunity. It
also recognized the existence of “developm ents in State practice and legislation”
relevant to this issue.
4.16 The position of Germany on this issue was far from being isolated within
the Sixth Committee. Thus, for instance, the re presentative of Cyprus, referring to the
question of the existence of immunity in actions arising out of breaches of jus cogens
rules, stated that “[h]is delegation noted and agreed with the view of the German
delegation that the question was of enormous importance and was an essential part of
the subject of jurisdictional immunity”. 71With regard to the same issue, the
representative of Mexico observed that, “[l]ike the Commission, it [i.e. the Mexican
delegation] believed that such questions were not dealt with directly in the draft articles
on jurisdictional immunities of States and th eir property, but that the evolution of the
principles referred to would have a major impact on the international legal order and
relations between States”. 72
4.17 It may be noted incidental ly here that the view th at, as regards cases of
serious breaches of internat ional rules of fundamental importance, the law of State
immunity is undergoing a pr ocess of change appears to be finding more and more
support in statements and declarations by States. Suffice it here to refer to the following
interpretative declaration made by Swit zerland when depositing its instrument of
ratification of the 2004 New York Convention on 16 April 2010:
“Switzerland considers that article 12 does not govern the question of
pecuniary compensation for serious human rights violations which are
70
71Statement by Mr. Westdickenberg, in A/C.6/54/SR.15, para. 56, p. 6.
72Statement by Mr. Jacovides, in A/C.6/54/SR.26, para. 77, p. 10.
Statement by Mr. Sepulveda, in A/C.6/54/SR.18, para. 36, p. 7.
35 alleged to be attributable to a State and are committed outside the State of
the forum. Consequently, this C onvention is without prejudice to
73
developments in international law in this regard.”
4.18 Statements whereby States acknowledge the impact of the concept of jus
cogens on the law of State immunity or refer to developments in international law in
this regard must necessarily be taken into account when assessing the content of the rule
of immunity. These statements testify to th e increasing awareness of States that with
regard to breaches of jus cogens rules the law of State immunity is in a state of flux and
that the current movement – aimed at reconciling immunity with the effective
enforcement of jus cogens rules – is towards a narrowi ng of the scope of immunity.
74
They can therefore be regarded as an expression of the opinio juris, namely the opinio
that the law of State immunity is not impe rmeable to the legal consequences stemming
from the existence of jus cogens rules.
4.19 In its Reply, Germany attempts to portray the decisions rendered by
Italian courts as “an isolated incident”, which has no other precedent than, possibly, the
awkward views expressed by certain authors. 75It is apparent, however, that the picture
is far more complex than Germany pretends. In its Counter-Memorial, Italy has already
referred to several pieces of evidence show ing that domestic judge s and legislators are
increasingly challenging the rule of immunity in cases of breaches of jus cogens rules.
Germany’s Reply seeks to downplay the releva nce of these elements by arguing that
they do not corroborate the contention that “State immunity must yield in case an
applicant pursues a claim based upon an alleged infringement of jus cogens”. 76
However, Germany’s position appears to be founded on an error of perspective.
According to Germany, reference to practice would serve only to prove the existence vel
non of a new customary rule allowing States to deny immunity with regard to each and
every case arising from a breach of a jus cogens rule. In Italy’s view, practice must not
be looked at having in mind only the problem of determining whether a new rule
73Switzerland’s Interpretative D eclaration Concerning Article 12 , 16 April 2010, available at
http://treaties.un.org. (emphasis added). See also the declarations made by Sweden and Norway when
ratifying the same Convention.
74Military and Paramilitary Activities in and against Nicaragua , I.C.J. Reports 1986 , paras.
188-190, p. 100.
75GR, para. 7. See also paras. 58 and 64.
76
GR, para. 58.
36providing for a general exception to immunity ha s crystallized. Statements of States as
well as decisions of domestic and internationa l courts are of major significance insofar
as they show how Germany errs in pretending to deny the existence of any relations
between the substance of jus cogens rules and their enforcement. Contrary to
Germany’s contention, States are increasingl y aware of the overridi ng impact of the
existence of jus cogens rules on the law of State immun ity. It is primarily with this
question in mind that State practice must be assessed. Seen from th is perspective, the
fact, for instance, that in the Al-Adsani case eight out of se venteen judges of the
European Court of Human Rights were ready to admit the existence of an exception to
77
the rule of immunity is far from being irrelevant; it rather reveals the mounting
conviction among judges that jus cogens rules have consequen tial effects which also
affect the scope of the rule on State immunity.
4.20 Germany’s strategy in focusing exclusively on the existence vel non of a
general exception to immunity is clear. By simply relying on the contention that there is
not yet a wide and consistent practice supportin g the existence of a ru le to that effect,
Germany seeks to achieve the broader resu lt of demonstrating that nowadays the
existence of jus cogens rules has no legal consequences at all as regards the law of
immunity. In fact, however, what Germ any is asking the Court has broader
implications. Germany is asking it, in clear contradiction with the indications emerging
from the work of the ILC within the context of the law of State responsibility, to reject
the view that the concept of jus cogens has inherent consequential effects. Germany is
also asking it to brush aside the statements of States acknowledging the impact of jus
cogens rules on the law of State immunity, and to consider these statements as devoid of
any legal significance. Finally, Germany is asking it to disregard the several signs
coming from domestic and international courts that testify to the existence of an
ongoing process of change in the law of State immunity in cases of breaches of jus
cogens rules.
4.21 Italy is well aware of the difficultie s faced by the Court when it is called
upon to determine the content of a given rule at a time when that rule is undergoing a
process of change. However, Italy is convinced that the question for the Court is not so
77GR, para. 62.
37much that of assessing whether the thresh old has been crossed and a new customary
rule providing for a general exception to immunity in every case of breach of jus cogens
rules has crystallized. The que stion before the C ourt is very specific and must be
addressed and answered in the light of the unique circumstances of the present case.
Italy has already referred several times to the particular circumstances which make the
present case exceptional. They are: a) that the violations of IHL committed by Nazi
Germany, most of them on Italian territory, undeniably amounted to grave breaches of
jus cogens rules; b) that Germany has acknowledge d that those most serious crimes, of
concern to the international community as a whole, were committed and that it has to
bear responsibility for such crimes; c) that Germany did not enter into any agreement
with Italy in order to provide reparation for the victims of these crimes; d) that, despite
all the attempts made by the victims to obtai n redress by resorting directly to German
authorities, including German courts, they were not given effective remedies under
German law; finally, e) that after more th an 50 years since the criminal acts of which
they were victims, resort to Italian courts represented for these individuals the last and
only possibility of obtaining some form of redress.
4.22 It is because of such unique circumstan ces that it is easy to detect in the
present case the existence of an irreconc ilable conflict betwee n the recognition of
immunity and the enforcement of perempto ry rules. Germany seeks to minimize any
such conflict by repeating the argument that immunity does not exclude a possibility of
obtaining redress by other means, in partic ular by resorting to agreements between
States, and by observing that “Italian citizen s have never been de nied access to the
78
German judicial system on account of the grievances they held against Germany”.
However, Germany’s representation of the situation which lies at the heart of the
present dispute is misleading. As has been said, the truth is that most of the Italian
victims of the grave violations of human itarian law committed by Nazi Germany were
not included in any postwar reparation scheme agreed upon between Italy and Germany
nor were they included in the reparation schemes set up unilaterally by Germany. These
victims attempted to obtain redress before the German judicial system, but the remedies
available under German law provided no reasonable possibility of obtaining effective
78GR, para. 34.
38redress. In fact, the lawsuits submitted by Italian victims were all dismissed by German
courts.
4.23 It is submitted that, given the unique features of the present case, where
according immunity to the wrongdoing State would inevitably be tantamount to denying
any possibility of enforcing obligations having a jus cogens character, Italian judges
rightly thought to be under no obligation to recognize immunity to Germany. Thus,
there is no need to address the question of whether a new rule providing for a general
exception to immunity has crystallized. The question to be addressed is that of
assessing, in the light of the current principles of internat ional law, the consequences
stemming from an exceptional situation in which a clear and inescapable conflict is
detectable between immunity and enforcement of jus cogens rules. In these exceptional
circumstances, jus cogens rules, by reason of their oper ation, must have the effect of
exempting from the obligation to accord immunity. Immunity cannot be used as a tool
for exonerating the State which is the author of grave breaches of jus cogens rules from
bearing the consequences of its wrongful conduc t. In situations in which the victims of
grave crimes, having been denied any e ffective avenues for obtaining reparation,
including resort to the domestic courts of the wrongdoing State, have no other means at
their disposal than resorting to the domes tic courts of the State of which they are
citizens and where the crimes were committe d, the scope of the obligation to recognize
immunity must be considered to be already limited under current international law. This
is so because of the overriding normative force of jus cogens rules. Italian judges were
therefore entitled to deny Germany immunity from jurisdiction.
Section 4 – In the Circumstances, the Conduct of Italian Judges Has to Be
Considered as Justified
4.24 In the previous section Italy has demonstrated that in exceptional
circumstances jus cogens rules, by reason of their operati on, have the effect of limiting
the scope of the obligation to accord im munity to a foreign State for acts jure imperii.
Thus, taking into account the unique circumstances of the present case, it must be
concluded that Italian judges were under no ob ligation to accord immunity to Germany
with regard to the cases brought before them by the victims of the grave violations of
IHL committed by Nazi Germany during World Wa r II. In the present section Italy will
show that even admitting that it was under an obligation to recognize
39immunity to Germany, non-performance of that obligation did not engage the
international responsibility of Italy vis-à- vis Germany, because in the circumstances
Italy’s conduct was dictated by the need not to contribute to maintaining a situation
which was clearly inconsistent with the effective enforcement of jus cogens rules.
4.25 Within the context of its work of codification of the rules on State
responsibility, the ILC referred to the possibility that a trea ty or a rule of customary
international law, “apparently lawful on its face and innocent in its purpose, might fail
to be performed in circumstances where its performance would produce, or substantially
assist in, a breach of a peremptory norm”. 79There was broad agreement within the ILC
that, if a situation of this kind arises, peremptory norms would have the effect of
80
excusing non-compliance with the conflicting obligations. In the end the ILC decided
not to include in the draft arti cles a provision dealing specifically with this situation; it
found it unnecessary to insert such a provis ion because “peremptory norms of general
international law generate strong interpretative principles which will resolve all or most
apparent conflicts”. 81
4.26 The ILC’s recognition that “peremptor y norms of general international
law generate strong interpretative principles” is highly si gnificant for the purposes of
the present case. It confirms Italy’s view that, when a conflict between immunity and
the effective enforcement of jus cogens rules arises, it must be resolved taking into
account the overriding impact of jus cogens rules. Moreover, it provides further support
to what has been said in previous secti ons of this Rejoinder with regard to the
interpretation of the waiver clauses of the 1947 Peace Treaty and the 1961 Agreements:
these clauses must be interpreted in a manne r consistent with the principles governing
reparation of grave violations of IHL, inde pendently of whether these principles had
already acquired the status of jus cogens rules in 1947 – as Italy submits – or not. While
in this regard Italy cannot but reiterate its position, the point Italy wishes to make here is
that the work of the ILC clearly supports the view that under specific circumstances
79James Crawford, Second report on State responsibility, UN doc. A/CN.4/498/Add.2, p. 38.
80See Draft Article 29 bis formulated in 1999 by the Special Rapporteur, James Crawford, ibid.,
p. 56. It provided that “[t]he wrong fulness of an act of a State conformity with an international
obligation of that State is precluded if the act is re quired in the circumstances by a peremptory norm of
general 81ternational law”.
Yearbook of the International Law Commission, 2001, vol. II, Part 2, p. 85.
40peremptory rules have the effect of excu sing non-compliance with an international
obligation.
4.27 In his well-known Separate Opinion rendered in the case concerning
Application of the Convention on the Pr evention and Punishment of the Crime of
Genocide, Judge ad hoc Lauterpacht referred to a situation which presented certain
analogies with the one under discussion here. He observed:
“Now, it is not to be contemplated that the Security Council would
ever deliberately adopt a resolution cl early and deliberately flouting a rule
of jus cogens or requiring a violation of hu man rights. But the possibility
that a Security Council re solution might inadvertently or in an unforeseen
manner lead to such a situation cannot be excluded.” 82
Significantly, Judge ad hoc Lauterpacht noted that, if situations of this kind
were to arise, UN Member States would be “free to disregard” th e obligations flowing
from the Security Council resolution. 83
4.28 There is little doubt that , if Italian courts had recognized immunity to
Germany, the ensuing result would have been to deny to Italian victims of Nazi crimes
the very last possibility of obtaining redress. Italian courts therefore had no choice:
either they recognized immunity to Germany with reference to the cases in point, but by
so doing they would have substantially cont ributed to the definitive consolidation of a
situation of complete lack of enforcement of the legal consequences flowing from the
crimes committed more than 50 years ago by Nazi Germany; or they lifted immunity,
thereby rendering justice to the victims of those crimes. They opted for this second
solution. Italy submits that, even assuming, arguendo, that Italy was under an obligation
to recognize immunity to Germany, in the ci rcumstances of the present case denial of
immunity is to be considered as just ified because of the overriding effect of jus cogens
rules. Accordingly, the conduct of Italian courts did not give rise to responsibility of
Italy vis-à-vis Germany.
82
83I.C.J. Reports 1993, para. 102, pp. 440-441.
Ibid, para. 103, p. 441.
41 Submission
On the basis of the facts and argume nts set out above and in its Counter-
Memorial, and reserving its right to suppl ement or amend these Submissions, Italy
respectfully requests that the Court adj udge and declare that all the claims of
Germany are rejected.
Rome, 10 th January 2011
Ambassador Paolo Pucci di Benisichi
Agent of the Government of the Italian Republic
Dr. Giacomo Aiello
Agent of th
e Government of the Italian Republic
42
Rejoinder of Italy