INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY v. ITALY): GREECE INTERVENING
WRITTEN STATEMENT OF THE HELLENIC REPUBLIC
3 August 2011
[Translation by the Registry]2 T ABLE OF CONTENTS
I. Introduction........................................................................
............................................................. 1
II. Greece’s Application to intervene........................................................................
......................... 2
A. The factual and functional background to the present case...................................................... 2
B. The purpose of Greece’s request for leave to intervene and the Court’s Order ....................... 4
III. The position of the Greek courts on State immunity in respect of reparation for grave
violations of humanitarian law, in the context of the development of international law............. 5
A. The judgments in the Distomo Massacre case........................................................................
. 5
(a)The judgment of the Court of First Instance of Livadia...................................................... 5
(b)The judgment of the Court of Cassation (Areios Pagos) .................................................... 6
B. The approach of the Greek courts in the context of evolving international law....................... 7
(a)The legal context of the case and the development of international law ............................ 7
(b)The individual right to reparation and the question of violations of international
humanitarian law (IHL)........................................................................
.............................. 8
(i) The position of the Greek courts ........................................................................
.......... 8
(ii) International/national jurisprudence and practice in the area ..................................... 11
(b)(sic) Jurisdictional immunity of the State and its relative nature................................. 12
(d)The Question of Jus Cogens........................................................................
...................... 13
C. The judgment of the Special Supreme Court (SSC) in the Margellos and Others case......... 14
IV. By way of conclusion........................................................................
......................................... 15
V. Annexes3 I. NTRODUCTION
1. This Written Statement of the Hellenic Re public (Greece) is submitted to the ICJ pursuant
to the Order of 4July2011 issued by the International Court of Justice (the Court) on the
Application for permission to intervene submitted by the Hellenic Republic in the case concerning
Jurisdictional Immunities of the State (Germany v. Italy). In that Order the Court granted the
Hellenic Republic permission to intervene in the current proceedings, as a non-party, in accordance
with Article 62 of the Statute of the Court, and fixed the time-limit for the filing of said Statement,
as provided for in Article 85, paragraph 1, of the Rules of Court.
2. Greece wishes to state at the outset and most emphatically that its intervention in the case
between Germany and Italy concerning Jurisdictiona l Immunities of the State is not intended, and
was never intended, to affect in any way the excellent relations it maintains with those two
countries, the Parties to the dispute.
3. The purpose of Greece’s intervention was set out in its Application for permission to
intervene of 14January2011, and in its Written Observations of 4May2011. It was described
clearly in the Court’s Order of 4 July 2011. Th rough this intervention the Hellenic Republic seeks,
within the limits set by the Court in its Order, to contribute to ascertaining the current legal position
in respect of an evolving issue, and to the progressi ve development of international law, in an area
of such importance to the international legal order and to the position of the individual therein.
4. Greece’s Written Statement briefly sets out th e legal considerations which the intervening
State wishes to submit to the Court, in order to clarify its position on aspects regar1ing the
procedure and substantive scope of the present dispute as defined by the Court . That is to say,
firstly to clarify the judgments of the Greek courts in the landmark Distomo Massacre case, by
elaborating on the legal principles deriving from both national and international law which
underpin those judgments. This approach will involve discussing the factual and functional
background to the issues underlying the Distomo Massacre case, which arose out of serious
violations of international humanitarian law, as well as the legal position adopted by the Greek
courts, in light of issues relating to State immunity and international liability and of the civil claims
instituted in respect of the enforcement of the Distomo judgment on Italian territory. We will also
refer to the judgment of the Special Supreme Court in the Margellos and Others case . 2
4 5. Greece will then consider the legal conseque nces that the ICJ Judgment will have on this
question, which is of the utmost importance for th e Greek domestic legal order. Not only is this
question undoubtedly of general interest to any State, but the Court’s judgment will also have
practical consequences on pending and future cases similar to those which have already been
brought before the Greek courts mentioned above.
1
ICJ, Order of 4 July 2011, para. 25.
2Although this judgment is not cited as being within the area ofintervention as defined by the Court’s
Order, but because it is mentioned in th e Order and in the Separate Opinion of Judge Cançado Trindade, as well as in
Germany’s Memorial (12 June 2009), para. 65. - 2 -
II.G REECE ’SA PPLICATION TO INTERVENE
A. The factual and functional background to the present case
6. On 23December2008, the Federal Republic of Germany filed an Application instituting
proceedings against Italy in respect of a dispue originating in “violations of obligations under
international law” allegedly committed by Italy as a result of its judicial practice, “in that it has
failed to respect the jurisdictional immunity which . . . Germany enjoys under international law”.
7. More specifically, in its Application Germ any requests the Court to adjudge and declare
that the Italian Republic:
“⎯ by allowing civil claims based on violati ons of international humanitarian law by
the German Reich during World War II from September 1943 to May 1945, to be
brought against the Federal Republic of Germany, committed violations of
obligations under international law in that it has failed to respect the jurisdictional
immunity which the Federal Republic of Germany enjoys under international law;
⎯ by taking measures of constraint against ‘Villa Vigoni’, German State property
used for government non-commercial purposes, also committed violations of
Germany’s jurisdictional immunity;
⎯ by declaring Greek judgments based on occurrences similar to those defined
above in request No.1 enforceable in Italy, committed a further breach of
Germany’s jurisdictional immunity”.
8. It is thus a dispute between Germany and Italy over the adoption and enforcement, within
the Italian legal order, of various judgments rendered by Italian courts ⎯ in violation, according to
Germany, of the jurisdictional immunity whic h that State enjoys under international law ⎯
awarding reparations to individual victims of serious violations of international humanitarian law
committed by the Third Reich and the German armed forces during the Second World War. One of
5 Germany’s complaints ⎯ the third ⎯ focuses on the enforcement in Italy of a Greek judgment in
the Distomo Massacre case. It is the judgment rendered by the Protodikeio/Livadia Court of First
Instance, upheld by the Areios Pagos/Court of Cassation, which held the German State liable to
compensate Greek nationals who had been the victims of the massacre perpetrated at Distomo in
Greece by German armed forces in 1944.
9. The Distomo massacre dates back to 10June1944, when Greece was under German
occupation. On 25September1997, the Livadia Court of First Instance (Protodikeio) found
Germany liable for serious violations of humanitarian law committed during the massacre and
awarded damages to relatives of the victims of the massacre. Germany lodged an appeal before the
Greek Court of Cassation, which, in 2000, uphe ld the Livadia judgment by an overwhelming
majority. However, the Livadia decision, which had become final, could not be enforced in
Greece, as the authorization required under Article 923 of the Greek Code of Civil Procedure for
enforcing a decision against a third State was not granted by the Minister for Justice.
Faced with the refusal to enforce the Li vadia judgment, in July and August2000 the
plaintiffs instituted enforcement proceedings.Germany lodged an objection and a request for the
proceedings to be stayed. On 19December2000, by its decision8206/2000, the Athens Court of
First Instance upheld that request and, by its decision 3667/2001 of 10 July 2001, dismissed
Germany’s objection, holding that Article923 of the Code of Civil Procedure was incompatible - 3 -
with the right to proper justice guaranteed by Artic le6, paragraph1, of the European Convention
on Human Rights (ECHR).
Germany lodged an appeal on 12July2001. The Athens Court of Appeal, in its
decision 6848/2001 of 14 September 2001, held that the limitation laid down in Article 923 was not
in breach of the ECHR provision.
The case brought before the Court of Cassati on in October2001 was examined by the full
court, after it had been referred by its Sevent h Division. By its judgment36/2002, the Court of
Cassation upheld the position of the Athens Court of Appeal, namely that the limitation imposed on
an award of reparations against Germany was not incompatible with Article 6, paragraph 1, of the
ECHR . 3
Faced with the Justice Minister’s refusal to agree to the adoption of interim measures aimed
at enforcing the Livadia judgment, the claimants then brought the matter before the Council of
State, which, in its judgment3669/2006, confirme d that the Minister’s act, being a governmental
act and not subject to review by the courts, lay entirely within the sovereign discretion of the State.
10. The claimants then made an application to the European Court of Human Rights
6 (Kalogeropoulos and Others case) against Greece and Germany. They claimed that Article6,
paragraph1, of the Convention on Human Right s had been violated, as well as Article1 of
Additional Protocol No.1 to that Convention, as a result of the refusal to comply with the
1997judgment of the Livadia Court. On 12 December 2002, the Strasbourg Court declared the
application inadmissible.
11. The applicants also instituted proceedings before the German courts (the Bonn Regional
Court/Landgericht in 1997, and the Cologne Supreme Regional Court/ Oberlandesgericht in 1998)
with a view to enforcing the Livadia judgment in Germany. The Distomo victims’ action was
unsuccessful. The Greek applicants then lodg ed an appeal before the German Federal
Constitutional Court, the Bundesgerichtshof (BGH). On 26 June 2003, the Bundesgerichtshof
rejected the Greek plaintiffs’ appeal .
12. By contrast, the Distomo victims did succeed in securing enforcement through a decision
of the Florence Court of Appeal of 2 May 2005, which declared that the Livadia judgment was
enforceable in Italian territory. The decision to enforce the judgment rendered by the Livadia court
became enforceable after the Italian Supreme Court (Corte Suprema di Cassazione) upheld the
decision of the Florence Court of Appeal. That position regarding enforcement of the judgment
was recently reconfirmed (in May 2011).
On 7 June 2007, the Greek applicants regist ered with the Como provincial office of the
Italian Land Registry a legal charge (ipoteca giudiziale) over Villa Vigoni, a property of the
German State.
13. In the general context of the case, the decision in Margellos and Others v. Germany is
also cited. In that case, which is procedura lly distinct from the judgments handed down in the
3
Nomiko Vima 2002, 856-858 (in Greek).
BGH, decision of 26 June 2003, III ZR 245/98, published in NJW 2003, 3488 et seq. For the German judgments,
see M. Rau, “State Liability for Violations of International Humanitarian Law ⎯ The Distomo Case Before the German
Federal Constitu tional Court”, 7 German LJ 2005, 701-720; S. Pittrof, “Compensation Claims for Human Rights
Breaches Committed by German Armed Forces Abroad During the Second World War: the Federal Court of Justice
Hands Down Decision in the Distomo Case”, 5 German LJ, 2004, 15-21. - 4 -
Distomo Massacre case, Greek claimants sought compensation for acts perpetrated by German
armed forces in the Greek village of Lidoriki in 1944. Notwithstanding the 2000 judgment of the
full Court of Cassation, the First Chamber of the Greek Court of Cassation referred the case to the
Special Supreme Court (Anotato Eidiko Dikastirio) , requesting it to decide whether the rules on
State immunity covered the acts referred to in the Margellos case. On 17September2002 the
Special Supreme Court, by a majority of six votes to five, adopted a position contrary to that of the
Court of Cassation in 2000.
14. Finally, it should be underlined that the Distomo Massacre and Margellos and Others
were not isolated cases in relevant Greek case law. Indeed, a whole series of claims for reparation
7 were brought before the Greek courts during that period by individuals who had been victims of the
conduct of German occupying forces. These gave rise to a series of first-instance and appeal
judgments, which outline the trend in respect of the principle of State immunity (e.g.,
Judgments59/1998 of the Tripoli Court of First Instance, 1122/99 of the Athens Court of Appeal
5
and 894/2001 of the Piraeus Court of Appeal) .
15. All the above-mentioned decisions address the issue of the conflict
between the principle
of State immunity and the individual right to reparation.
B. The purpose of Greece’s request for leave to intervene and the Court’s Order
16. On 13 January 2011, the Hellenic Republic filed a request for leave to intervene under
Article 62 of the Statute of the Court in the current proceedings between Germany and Italy. In its
request, having first explained and established its legal interest in the outcome of the case, Greece
asked the Court to grant it permission to intervene and participate in the proceedings, in accordance
with the provisions of Article 85 of the Rules of Court. Greece stressed the fact that its request was
in keeping with its wish to contribute, as a non-party, to the sound administration of justice in this
case. It proposed to make submissions with a view to clarifying extremely sensitive legal questions
regarding the relationship between international responsibility, reparations and immunity, an
evolving area of law in which Greek nationals and Greek courts have to a certain extent been
leading the way at national and international level.
17. In their written observations the two Parties to the present dispute did not formally object
to Greece’s request, even though Germany raised cer tain considerations which indicated that the
Greek request did not meet the intervention criteria set out in the Statute.
18. On 4 July 2011, the ICJ granted the Application for permission to intervene. In its Order,
the Court finds that “Greece has sufficiently established that it has an interest of a legal nature
which may be affected by the judgment that the Court will hand down in the main proceedings” . 6
19. Thus the Court stated that it
“might find it necessary to consider the decisions of Greek courts in the Distomo case,
in light of the principle of State immunity, for the purposes of making findings with
regard to the third request in Germany’s submissions, concerning the question whether
5
For an overview of the case law of the Greek courts, see ICRC Customary Humanitarian Law Study, Greece
(National case law on reparations) at: http://www.icrc.org/customary-ihl/eng/docs/v2_cou_gr_rule150.
6
Order of 4 July 2011, para. 26. - 5 -
Italy committed a further breach of Germany’s jurisdictional immunity by declaring
Greek judgments based on occurrences similar to those defined in the first request as
enforceable in Italy”
and that
8 “this is sufficient to indicate that Greece has an interest of a legal nature which may be
affected by the judgment in the main proceedings” .7
III.THE POSITION OF THE GREEK COURTS ON S TATE IMMUNITY IN RESPECT OF
REPARATION FOR GRAVE VIOLATIONS OF HUMANITARIAN LAW ,IN THE
CONTEXT OF THE DEVELOPMENT OF INTERNATIONAL LAW
A. The judgments in the Distomo Massacre case
(a) The judgment of the Court of First Instance of Livadia
20. In the Prefecture of Voiotia (and others)v. Germany case, known as the Distomo
Massacre case, the Prefecture of the central Gr eece region and 257individuals submitted, on
27 November 1995, a claim for compensation to the Court of First Instance of Livadia, capital and
administrative centre of the Prefecture. The cl aimants were seeking compensation for damages
suffered during the atrocities committed by the German occupying forces in Distomo on
10June1944. In that horrific episode, 218 of th e village’s inhabitants, including infants aged
sixmonths,— for the most part relatives of the applicants— were massacred, their property was
destroyed and the village was burned to the ground.
21. The Hellenic Republic does not find it necessary to dwell on the facts which form the
basis of the case brought before the Court of First Instance of Livadia. They are well known to the
Court, to the Parties to the present dispute and indeed beyond. An excellent statement of those
facts can be found in the separate opinion of JudgeCançadoTrindade 8. It is undeniable that,
besides engaging the international responsibility of the State, those atrocities constitute crimes
against humanity or war crimes, similar in nature to those which impelled the Nuremberg Tribunal
to pass heavy sentences on various individuals, sen tences that were mirrored elsewhere in other
trials that took place after the Second World War.
22. Germany refused to be represented in the proceedings, invoking the jurisdictional
immunity of the German State. It should be noted in this respect that in Greece there is no specific
legislation on State immunity. The question is governed in a general way by Article3,
paragraph1, of the Greek Code of Civil Procedur e, which stipulates— simply— that foreigners
enjoy immunity before the Greek courts, the latter interpreting that term to include States as well.
23. The Court of Livadia considered the case and in its judgment No. 137/1997, rendered on
9
25 September 1997 and published on 30October1997, ruled t9at a sum of approximately
€27,362,323 should be paid to the claimants by Germany .
7Order of 4 July 2011, para. 25.
8
Separate opinion appended to the Order, para. 29.
9Nomiko Vima, 1999, pp. 972-975; International Law Reports (ILR), Vol. 129, p. 726, para. 22. - 6 -
24. Before arriving at this conclusion, the Livadia judges had first examined whether they
had jurisdiction, taking account of the distinction between acts jure imperii and acts jure gestionis.
They concluded that Germany was not covere d by jurisdictional im munity, because the acts
perpetrated by the members of its armed forces were in breach of international rules of jus cogens.
The court based this determination on the obl igation incumbent upon the occupying power, under
the Regulations annexed to the Fourth Hague Convention of 1907 (Art. 46), to respect the right to
life, the right to property, etc. The court considered that this obligation was part of jus cogens.
Therefore, it concluded, inter alia, that when a State violates the peremptory norms of international
law, it tacitly waives its right to jurisdictional immunity.
25. The Livadia court also emphasized the principle “ex injuria jus non oritur”, concluding
that acts in breach of international law cannot give rise to a right to immunity for the State
responsible.
26. Further, the Livadia court found that the applicants had locus standi to bring a claim for
compensation. It concluded that such a step was not precluded by the London Agreement of 1953
on German External Debts, to which Greece had b ecome a party in 1956. Under the terms of that
Agreement, the consideration of claims relati ng to Germany’s activities during the Second World
War was suspended until the question of reparation was finally settled by means of a peace treaty.
The Livadia court asserted that this suspension was lifted in 1990 by the Moscow Treaty (relating
to the German question), the so-called “2 plus 4” instrument signed by the Federal Republic of
Germany, the German Democratic Republic, France, the United States of America, the USSR and
the United Kingdom.
(b) The judgment of the Court of Cassation (Areios Pagos)
27. Judgment No.137/1997 of the Court of First Instance of Livadia was challenged by
Germany before the Greek Court of Cassation (Areios Pagos) on 24 July 1998. Germany’s appeal
in cassation was examined by the Court’s First Ch amber, which, by its decision 1357/99, referred
10
the case to the full Court. In its judgment No.11/20011 , rendered on 13April and published on
10 4May2000, the full Greek Court of Cassation upheld the Livadia judgment. The Court
confirmed the distinction between acts jure imperii and acts jure gestionis and made it clear that the
principle of State immunity was applicable only in the case of the former, the distinction being
made on the basis of the law of the forum State, having regard, as fundamental criterion, to the
nature of the act in question. The Court of Cassat ion affirmed that those rules, codified by the
European Convention on State Immunity, had achieved the status of customary international law as
confirmed by State practice.
28. The Court of Cassation went on to cite Article 11 of the said Convention, which provides
that a State which has caused injury or da mage cannot claim immunity in compensation
proceedings instituted by the victim of the in jury or damage, irrespective of whether the
responsible State was acting jure imperii or jure gestionis. The only condition laid down by the
European Convention is that the act or omission is linked to the territory of the forum State and that
the authors of the acts or omissions were present on that territory at the time when they occurred.
29. The Court then provided evidence of the customary nature of the exception from State
immunity, as provided for in a variety of national legislation, such as the 1976 Sovereign
10Nomiko Vima, 2000, pp. 212-219; ILR, Vol. 129, p. 513, 4 May 2000.
11
Comprising 20 judges and the Court’s Prosecutor. - 7 -
Immunities Act of the United States of America, the 1978 Sovereign Immunities Act of the United
Kingdom and similar legislation adopted by Cana da (1982), Australia (1985), South Africa (1981),
Singapore (1979) and others. The Court of Cassation also cited the International Law
Commission’s draft articles on Jurisdictional Immunities of the State and their Property, and the
resolution on the matter of the Institut de droit international. In addition, it cited the jurisprudence
of the United States courts in support of its ar gument that there is an exception from State
immunity, even when the wrongful acts were committed jure imperii.
30. Finally, the Court of Cassation, referring to the Regulations annexed to the Fourth Hague
Convention of 1907, concluded that the criminal acts committed were “in contravention of the
peremptory norms of international law”, and hence in violation of the rules of jus cogens.
B. The approach of the Greek courts in the context of evolving international law
(a) The legal context of the case and the development of international law
30. (sic) The reasoning behind the legal analysis of the two Greek courts and their judgments
reflects the state of the debate, at both na tional and internationa l level and among legal
11 commentators, relating to the development of inte rnational law in respect of State jurisdictional
immunity and other closely related questions of in ternational law, which t ogether form a corpus,
even though each component of this corpus remains and embodies a distinct issue.
31. For some time now, international law has been undergoing a significant evolution, with
particular consequences, notably in respect of inte rnational responsibility, reparation for victims of
human rights violations and breaches of humanitarian law and the related rights, and State
immunity. It could even be said that the inte rnational law governing those matters is undergoing a
transformation, not just in people’s minds, but in fact and in law . 12
32. This transformation is marked in particular by the position and new role of individuals in
the international legal order: individuals, holde rs of rights, impel States and other international
actors to adopt a different approach in their pr actice relating to the impl em13tation of individual
rights, thus contributing to the em ergence of new international norms . Those same individuals,
through their claims— by means of direct action be fore national courts or international judicial
bodies — have produced a jurisprudence which freque ntly goes beyond the basic premises of the
law as it was created or established in the past, but which no longer corresponds to the stated
12See A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium — General
Course on Public International Law”, Part(I),Collected Courses of The Hague Academy (RCADI) , Vol. 316 (2005),
Chaps. IX-X, pp. 252-317 and Part (II), RCADI, Vol. 317 (2005), Chap. XXV, pp. 217-245.
13The trend concerning the new position of the individual in the international order was explained by the PCIJ in
its 1928 Advisory Opinion on the Jurisdiction of the Courts of Danzig (SeriesB — No. Jurisdiction of the Courts of
Danzig, 1928, PCIJ), in which it found that “it cannot be disputthat the very object of an international agreement,
according to the intention of the contracting parties, mathe adoption by the parties of some definite rules creating
individual rights and obligations and enforceable by the national courts”. For his part, Hersch Lauterpacht took the view
that “the position of the individual in international cannot be unaffected by certai n developments that empower
individuals to protect their rights before international tribunals and impose on th em duties directly under international
law”. See L.Oppenheim, International Law, p.636 (H.Lauterpacht (ed.), 8th edition, 1955). The trend becomes the
situation: see E.Roucounas, “Facteurs privés et droit international public”, RCADI, Vol.299 (2002) and by the same
author, “The Users of International Law”, in Arsanjani. Cogan, Sloane & Wiessner: Looking to the Future: Essays on
International Law in Honor of W.Michael Reisman , Martinus Nijhoff, 2011, Chap.13; C.Bassiouni, “International
recognition of victims’ rights”, Human Rights Law Review , 2006, pp.203-279 and A.Orakhelashvili, “The position of
the individual in international law”, California Western International Law Journal , Vol. 31, 2001 pp. 241 and 245. See
also D. Shelton, Remedies in International Human Rights Laws, OUP, Oxford, 2000. - 8 -
priorities of the international community of th e twenty-first century. Even the views of the
Security Council demonstrate the considerable progression of the position of the individual, in
14
particular as regards protection against violations of human rights and humanitarian law .
33. Without doubt, it is in the field of international human rights law, international
12 humanitarian law and international criminal law th at the greatest advance can be seen. In reality,
this is more than just the humanization of internatio nal law; it is a true reform of the global legal
15
structure . Evidence of this can be seen in internatio nal criminal law and in the new international
criminal courts and tribunals. Reference should be made in this context to the possibility
potentially deriving from Article 75 of the Statute of the International Criminal Court for individual
victims to seek reparation for a violation of international humanitarian law. More importantly still,
human rights treaties require States to make provision for a remedy in the event of violations . At 16
a regional level, both the Inter-American Court of Human Rights and the European Court of
Human Rights have awarded reparation to victims of human rights violations, which were also
violations of international humanitarian law. Th ey have done so in respect of both international
and non-international armed conflicts. Some indi viduals have also received reparation directly,
through various procedures, in particular me chanisms established by the Security Council,
inter-State agreements and unilateral acts such as nationa17laws or the settlement of claims
submitted directly by individuals to national courts . The matter is also raised in the reports of the
fact-finding missions dispatched by the Security Council and the Human Rights Council to areas
where violations of human rights and humanitarian law are taking place, such as Darfur for
example .18
(b) The individual right to reparation and the question of violations of international
humanitarian law (IHL)
(i) The position of the Greek courts
34. The fundamental argument in the position of the Greek courts is based on the recognition
that there is an individual right to reparation in the event of grave violati ons of humanitarian law.
14
See the Security Council position: speech by Gérard Ara ud, President of the Security Council (10 May 2011);
resolutions 1265 (1999) and 1296 (2000), which clearly confirm the Security Council’s role of intervener in situations of
armed conflict in which civilians are threatened or humanitarian assistance is deliberately hampered. Also see
resolutions 1325 (2000), 1612 (2005), 1674 (2006), 1738 (2006), 1820 (2008), 1882 (2009), 1888 (2009) and
1894(2009). This latter marks an important step by providing directions for the effective protection of civilians on the
ground. Also see the principle of the “Responsibility to Protect” in the 2005 World Summit Outcome Document (60/1),
paras. 138-140.
1See T.Meron, The Humanization of International Law , Nijhoff, 2006, and by the same author, “International
law in the age of human rights”, RCADI, Vol. 301, 2004, pp. 9-490.
1International Covenant on Civil and Political Rights, Art.2(3); European Convention on Human Rights,
Art.13; American Convention on Human Rights, Arts.10 and25; African Charter on Human and Peoples’ Rights,
Art. 7 (1) (a) (implicit).
In this connection see, inter alia, Karine Bonneau, “Le droit à réparation de s victimes des droits de l’homme : le
rôle pionnier de la Cour interaméricaine des droits de l’homme” in Droit fondamentaux No6.,
January 2006-December 2007, available at: http://www.droits-fondamentaux.org/ (last accessed on 1June2009);
P. Leach, Taking a Case to the European Court of Human Rights, 2nd edition, OUP, Oxford, 2005, pp. 397-454.
17
See the United Nations Compensation Commission, crea ted by Security Council resolutions687(1991) and
692(1991), which processes compensation cla ims for losses and damage suffered as a direct result “of Iraq’s unlawful
invasion and occupation of Kuwait”. See F. Wooldridge and Olufemi Elias, “Humanitarian considerations in the work of
the United Nations Compensation Commission”, International Review of the Red Cross (IRRC), Vol.85,
September 2003, pp. 555-581.
18
See the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General ,
25 January 2005, para. 148 (tp://www.un.org/News/dh/sudan/com_inq_darfur_pdf). - 9 -
13 In this regard, there are powerful arguments, as we ll as State practice, to support the view that IHL
confers rights on individuals, including the right to be compensated for grave violations of IHL . 19
35. Thus under customary international law, St20tes have an obligation to remedy the effects
of any violations of IHL committed by them . However, this gives rise to the question as to who
is the beneficiary of that right to reparation.
In this respect, it cannot be argued with any seriousness that IHL— law par excellence
aimed at protecting the individual and his rights— does not confer direct rights on individuals 21
which are opposable to States. That notion is implicitly accepted in a series of IHL provisions
and explicitly accepted in the philosophy and very raison d’être of IHL . 22
36. Thus, the obligation on the State to compensate individuals for violations of the rules of
humanitarian law derives directly from Article3 of the Fourth Hague Convention of 1907, even
though it is not expressly stated in that Article . In this connection, account should be taken of the
travaux préparatoires for that Convention, which confirm that the Article in question concerns
19
IHL aims to go “beyond the interstate levels and [to reach] for the level of the real (or ultimate) beneficiaries of
humanitarian protection, i. e., individuals and groups of individuals”, Abi-Saab, “The Specificities of Humanitarian
Law”, in C. Swinarski (ed.), Studies and Essays of International Humanitarian Law and Red Cross Principles in Honour
of Jean Pictet, ICRC, Geneva/The Hague, 1984, p. 269.
2See P. d’Argent, Les reparations de guerre en droit international public: La responsabilité internationale des
États à l’épreuve de la guerre , Brussels, Bruylant, 2002; A. Rande lzhofer and C. Tomuschat (eds.), State Responsibility
and the Individual: Reparation in Instances of Grave Violations of Human Rights , The Hague. M. Nijhoff, 1999;
P.Klein, “Responsibility for serious breaches of obligationsderiving from peremptory norms of international law and
UN law”, European Journal of International Law (EJIL), Vol. 13, 2002, pp. 1241-1255.
21
In particular: Art. 7 of the First Geneva Convention; Arts. 6 and 7 of the Second Geneva Convention; Arts. 7,
14, 84, 105 and 130 of the Third Geneva Convention; Arts. 5, 7, 8, 27, 38, 80 and 146 of the Fourth Geneva Convention;
Arts.44(5), 45(3), 75 and 85(4) of the First Additional Protocol of 1977; and Art.6(2) of the Second Additional
Protocol.
22
In 1949, the Diplomatic Conference preparing for the adopt ion of the four humanitarian conventions in Geneva
recognized that “it is not enough to grant rights to protecte d persons and to lay responsibility on the States: protected
persons must also be furnished with the support they require to obtain their rights; they would otherwise be helpless from
a legal point of view in relation to the Power in Whose hands they are”, Final Record of the Di plomatic Conference of
Geneva of 1949 , Vol.IIA, p.822. This declaration was made during a discussion on Art.30 of the Fourth Geneva
Convention.
23
Moreover, every treaty text should be interpreted, according to Article 31 of the 1969 Vienna Convention on the
Law of Treaties, as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.” - 10 -
cases of individual claims against States for unlawful acts committed during armed conflict or
belligerent occupation . 24
37. The right to reparation reappears in Ar ticle91 of the 1977 Additional Protocol, the
14 25
substance of which reflects customary international law . Reference can also be found in
Article 38 of the Second Protocol to the Hague Convention for the Protection of Cultural Property
in the Event of Armed Conflict of 1999.
38. Finally, a right to reparation for grave violations of IHL is also provided fo26in Rule 150
of the ICRC’s codification of customary international humanitarian law and confirmed in the
texts of “soft law” . 27
39. The obligation on the State to compensate individuals for violations of the rules of
international law is also affirmed in the Inte rnational Law Commission’s articles on Responsibility
2Second Hague Conference, Actes et Documents , Vol.3, p.142. It is inte resting to note that the proposal
initially put forward to the Conference by the German delegate vonGundell, aimed at introducing two articles on the
subject of compensation for victims and di stinguishing the treatment of nationals of neutral States from those of enemy
States, was not agreed, although the recognition of indi vidual compensation was uncontested. See G.Aldrich,
Individuals as Subjects of International Hu manitarian Law, in J.Makarcyk(ed.), Theory of International Law at the
Threshold of the 21st century: Essays in Honour of KrzystofSkubiszweski , 1996, pp.851-859; L.Zegveld, “Remedies
for victims of violations of in ternational humanitarian law”, 2003, IRRC, Vol.85, p.497(506); C.Greenwood,
International Humanitarian Law (Law of War), in F.Kalshoven, The Centennial of the First International Peace
Conference 2000, 2000, p. 161 (250).
On the travaux préparatoires, see F.Kalshoven, “State responsibility for warlike acts of the armed forces”,
International and Comparative Law Quarterly (ICLQ), Vol.40, 1991, p.827, and al so his article, “Article3 of the
Convention (IV), respecting the laws and customs of war on land”, in H. Fujita, I. Suzuki and K. Nagano (eds.), War and
Rights of Individuals, Nippon Hyoron-sha Co. Ltd. Publishers, Tokyo, 1999, p. 37. See also the opinions of E. David and
C.Greenwood on the same body of work, and the analysis of P.d’Argent, “Des règlements collectifs aux règlements
individuals (collectivisés) : la question des reparations en cas de vi olation massive des droits de l’homme”, International
Law Forum du droit international, Vol.5, 2003, p.10; J.dePre ux, “Article91”, in ICRC (ed.), Commentary on the
Additional Protocols of 8June1977 to the Geneva Conventions of 12August1949 , Martinus Nijhoff, Geneva, 1986,
p.1082, No.3656, which states that “[t]hose entitled to compensation will normally be Parties to the conflict or their
nationals” (emphasis added) [sic]; E.David, Principes de Droit des Conflits Armés , 2nd edition, Brussels, Bruylant,
1999, p.570, No.4.27. According to T.vanBoven (E/CN.4/Sub.2/1993/8 and E/CN.4/1996/17, revised on
16January1997 by E/CN.4/1997/104) and C.Bassiouni, the right to obtain reparation is directly conferred by
international law to the victims of grave human rights violati ons, and those victims also hold a genuine right of access to
justice, as well as a right of access to factua l information on the violations; see C. Bassiouni, Report of the independent
expert on the right to restitution, compensation and rehabilitati on for victims of grave violations of human rights and
fundamental freedoms, 8February1999, E/CN.4/1999/65; The right to restitution, compensation and rehabilitation for
victims of gross violations of human rights and f undamental freedoms, final report of 18 January 2000, E/CN.4/2000/62.
For the final version of this draft, as adopted by the UN General Assembly, see Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (UN Doc.A/RES/60/147), 21 March 2006.
25
Y. Sandoz, C. Swinarski and B. Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12August1949 , ICRC, Geneva, 1987 (hereinafter the “Commentary on the Additional
Protocols”), pp. 1056-1057, paras. 3656-3657.
26
“There is an increasing trend in favour of enabling individual victims of violations of international humanitarian
law to seek reparation directly from the responsible State.”
27
See also The Chicago Principles on Post-Conflict Justice , 2007, by the International Human Rights Law
Institute, the Chicago Council on Global A ffairs, the Istituto Superiore Internazionale di Scienze Criminali and the
Association Internationale de Droit Pénal; Sixty-firs t session of the Commission on Hu man Rights. In 2003, the
International Law Association drafted a report on the questi on of “Compensation for victim s of war”. Having analysed
the humanitarian law and the human rights law concerning the ri ght of victims to compensation, it adopted a Declaration
in 2010, Art.6 of which provides that “[v]ictims of armed conflict have a right to reparation from the responsible
parties”. See also The Hague Agenda for Peace and Justice for the 21st century , 15 May 1999, Recommendation I,
para.17, which refers to st rengthening the protection of and providing repa ration for the victims of armed conflict,
annexed to A/54/98, Fifty-fourth session of the General Assembly, 20 May 1999. - 11 -
of States for Internationally Wrongful Acts, Articl e 33 (2) of which — a “savings clause” — states
that it is without prejudice to “any right, arisi ng from the international responsibility of a State,
28
which may accrue directly to any person or entity other than a State” .
(ii)International/nationaljurisp rudence and practice in the area
40. In the case concerning the Factory at Chorzów , the Permanent Court of International
Justice stated that a secondary right to reparation was the indispensable complement of a violation
29
of international law .
This was reaffirmed by the Court in the case concerning Reparation for Injuries Suffered in
30
15 the Service of the United Nations . The Court also addressed the rights of individuals in its
Advisory Opinion on the “Wall” . 31
41. In 2004, the German Federal Constituti onal Court recognized that individuals are
32
beneficiaries of rights under IHL, but it did not accept that Article 3 entails an individual right .
It is interesting, however, to note that a Germ an administrative court of appeal concluded in
33
1952 that Article 3 of the Fourth Hague Convention provided for an individual right to reparation .
42. The possibility of exercising a right deriving from IHL has been recognized by a number
of national courts. In addition to the judgments of the Greek courts in the Distomo Massacre case,
34
see, for example, the decisions of the Gerechtshof Amsterdam (Amsterdam Court of Appeal) , the
28
See J. Crawford, The International Law Commission’s Articles on State Responsibility, CUP, Cambridge, 2002,
p.210 and the International Law Commission’s articles on Responsibility of States for Internationally Wrongful Acts ,
annexed to General Assembly resolution 56/83, UN doc.A/56/49, Vol. I (Corr. 4) (ILC Articles on State Responsibility).
29
See the judgment of the Permanent Court of International Justice (PCIJ). According to the PCIJ, any breach of
an engagement (under international law) i nvolves an obligation to make reparation: Factory at Chorzów, Merits,
Judgment No.13, 1928, P.C.I.J., SeriesA, No.17 , p.29. See also the International Court of Justice (ICJ): Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), paras. 152 and 153; Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, I.C.J. Reports 2005, para. 259.
3The Court recognized that “a State seeking redress fo r damage inflicted upon one of its nationals, the United
Nations as an international organization may claim reparation for damages not only caused to itself but also in respect of
damages suffered by its agents”, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
I.C.J. Reports 1949, p. 179, para. 84 [sic].
31
In the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, the Court further notes that Israel has the obligation to make reparation for the damage caused to all the natural
or legal persons concerned. It recalls the well-established jurisprudence, according to which “[t]he essential principle
contained in the actual notion of an illegal act . . . is that reparation must, as far as possible, wipe out all the consequences
of the illegal act and reestablish the stuation which would, in all probability, have existed if that act had not been
committed”. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules
of international law, all natural and legal persons having suffered any form of material damage as a result of the wall’s
construction; paras. 149-154.
32
(BVerfG) 2 BvR1379/01 of 28June2004, available at: http://www.bverfg.de/entscheidungen/rk20040628_
2bvr137901.html.
33
It is interesting, however, to note th at a German administrative court of appeal concluded in 1952 that Art. 3 of
the Fourth Hague Convention provided for an individual right to reparation, Germany, Administrative Court of Appeal of
Munster, ILR, Vol. 19 (1952), pp. 632-634.
34
Gerechtshof Amsterdam , Vierde meervoudige burgerlijke kamer, Dedovic v. Kok et al., judgment of
6 July 2000. - 12 -
35
Hague Court of Appeal on Srebrenica and the Italian Corte Suprema di Cassazione (Italian
Supreme Court of Cassation) in the Ferrini case in 2004 . 36
(b)(sic) Jurisdictional immunity of the State and its relative nature
43. The progression from absolute jurisdictional immunity to relative immunity, and the
development of the distinction between acts jure imperii and acts jure gestionis, are the result of
significant developments within the inter-State international community and the establishment of
international laws which addressed the needs raised by national and/or international trade. Thus it
16 began with commercial transactions , national courts being induced to protect the rights of the
individuals who were parties in those transactions . The maxim “par in parem no habet imperium”
and its consequences underwent an initial restriction in practice in relation to State immunity.
44. This evolution began with various national courts 37, followed by international
instruments, such as the European Convention on State Immunity and the United Nations
Convention on Jurisdictional Immunities of Stat es and Their Property (2004), and even national
legislation .8
45. In a second phase— the transformation of the international community from an
inter-State community to a community of several international actors (States, international
organizations, groups of individuals, NGOs, etc.) — the individual has become a conduit for the
functioning of that community and for the implementation of international law, in particular as a
legal vehicle for human rights. The human person— as an individual or a group of individuals
which are the subjects of international rules, beneficiaries and user(s) 39 of international norms—
now holds a much stronger position in the face of interventions by States.
46. A universal demand for a system of justice could never be furthered or satisfied by
opposing State sovereignty to human rights. And it was strongly emphasized by the International
Criminal Tribunal for the former Yugoslavia in the Tadic case that State sovereignty cannot be
40
invoked in the case of war crimes and crimes against humanity .
47. A direct result of this situation is a gr owing pressure on States to provide the means to
remove obstacles and enable victims to obtain reparation. A new perspective is emerging for
individuals, as a result of the obligation on States to promote the right of reparat41n for victims of
violations of international law that are so widespread throughout the world .
48. This evolution in the law on State immun ity has been accepted by a number of national
courts, which have reached their decisions on the b asis of the current state of international law and
3The Hague Court of Appeal, 5July2011, at: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR0132
&u_ljn=BR0132.
3242 Corte Suprema di Cassazione , Ferrini v. Federal Republic of Germany (Cass.Sez.Un.5044/04),
11 March 2004, reproduced in Rivista di diritto internationale, Vol. 87 (2004), p. 540.
37
See, for example, the Counter-Memorial of Italy, p. 45 et seq.
38
See the references in the Memorial of Germany and the Counter-Memorial of Italy.
3See E. Roucounas, Facteurs privés . . ., op. cit.
4Tadic appeal decision on jurisdiction, para. 58.
4See the preamble to General Assembly resolution 60/147, UN doc. A/RES/60/147 (16 Dec. 2005). - 13 -
its development. It is against this background that the Distomo Massacre case (see below) has to
be viewed, where two Greek courts, the Court of First Instance of Livadia and the Court of
Cassation, rendered judgments precisely in light of what they considered to be the law, at this
stage in the development of international law, in particular as regards the application of the
principle of State immunity.
49. For its part, the European Court of Human Rights explained its position on the subject of
developments in the area in its judgments in Al-Adsani v. United Kingdom (21Nov.2001),
17 Kalogeropoulos v. Greece and Germany (12 Dec. 2002) and Grosz v. France (16 June 2009), of
which the latter two concerned the commission of grave violations of international humanitarian
law during the Second World War. The Kalogeropoulos case was a continuation of the Distomo
Massacre case. The Strasbourg court found that, even though its conclusions were true, “at least as
regards the current rule of public internationa l law,” they did not preclude a development in
customary or conventional international law in the future (Grosz).
(d) The Question of Jus Cogens
50. The most fundamental question regarding the application of the principle of State
immunity, and one that is closely linked with that of individual reparation, concerns the rules of jus
cogens.
51. In effect, as the Greek courts held in the Distomo Massacre case, if peremptory
international rules have been violated, the jurisdic tional immunity of the State responsible for such
violations cannot be invoked. Thus victims of serious violations of human rights and humanitarian
law wishing to seek reparation before a national court should not be faced with the obstacle of State
immunity.
52. The International Law Commission’s article s on the international responsibility of States
provide an authoritative reference. Article 40 provides for more serious consequences for breaches
of jus cogens rules, which include serious violations of international humanitarian law.
53. The approach whereby the rule of St ate immunity does not take precedence over a jus
cogens rule would appear to suggest an opinio juris crystallizing as a new customary norm in this
42
area . The43eclarations made by three States ratifying the Convention on Jurisdictional
Immunity , in which they state that the latter instrument is without prejudice to any future
international development in the protection of human rights, reflect this view.
54. Independently of the interpretations and arguments as to the relationship between jus
cogens rules and State immunity rules ⎯ in respect of their hierarchy or priority, or whether such
acts (international crimes) fall outside the area of St ate sovereignty or constitute an implied waiver
of sovereignty ⎯ the fact of the matter remains that a rule of jus cogens, by its nature and content,
prevails over any other international rule. The attempt to draw a distinction between a jus cogens
rule (substantive rule) and a State immunity rule (procedural rule) has no logical or, still less, legal
18 relevance, if all the relevant matters addressed above ⎯ and all the discussions within the
42
In this respect, see the Dissenting Opinion of Judge Rozakis et al., paras.1-2, in Al-Adsani v. the
United Kingdom (21 November 2001).
4See the declarations by Norway, Sweden and Switzerland at: http://treaties.un.org/Pages/View
Details.aspx?src=IND&mtdsg_no=III-13&chapter=3&lang=en . - 14 -
44
international community ⎯ are taken into account . In this context, the jus cogens rule is part of a
“custom-generation process” . If, on the other hand, the procedur al rule (jurisdictional immunity)
were to take precedence over the substantive rule (jus cogens), it would produce an untenable legal
situation, inconsistent with the purpose and ratio of the primary substantive jus cogens rule, which
would be violated without achieving its goal.
55. In the Ferrini case, the Italian Supreme Court relied on jus cogens not as a rule of jus in
bello, but rather as a means of underlining the seriousness of the acts committed by a third State
which might justify the denial of immunity. We would thus stress the fact that the crimes in
question are so serious ⎯ crimes against humanity, both at the time and today ⎯ that they justify
46
the refusal to grant immunity .
56. Such an interpretation reflects a widely held view, as well as the emergence of a new
situation in this sensitive area, involving the international responsibility of the State, the
individual’s right to reparation for violations of international humanitarian law and State immunity.
A refusal to apply jus cogens in the face of the rule of jurisdictional immunity of the State would in
practice result in impunity for States which have committed atrocities 47. Such a conclusion does
not merit the support of any actor on the interna tional scene today and would jeopardize all of the
progress made within the international community.
C. The judgment of the Special Supreme Court (SSC) in the Margellos and Others case
T5he. Margellos a48 Others case is not mentioned in the Court’s Order, but it is cited or
emphasized by Germany in its written pleadings in the principal proceedings. The Margellos and
Others case is based on events similar to those in the Distomo case, which took place in Lidoriki in
49
19 the Fokis region of Central Greece . Pursuant to the request of the First Chamber of the Court of
Cassation and in accordance with Article 100 of the Greek Constitution, the Special Supreme Court
was asked to determine whether there was a norm in customary international law whereby, in the
case of wrongful acts which violated peremptory international rules, there is an exception to the
jurisdictional immunity of a State. Having exam ined the case law of various national courts, as
well as that of the European Court of Human Rights in the McElhinney v. Ireland and Al-Adsani v.
the United Kingdom cases, and the 1972 European Convention, the Court concluded that,
notwithstanding the fact that a trend was emerging, it was not in a position to confirm the existence
of an emerging international norm which would allow an exception to the jurisdictional immunity
of the State in the event of crimes perpetrated by the armed forces of a State in violation of jus
cogens international obligations. Judgment 6/2001 was rendered by the barest majority of six votes
4See Ferrini, decision No. 5044/2004, at 669, para. 9.1.
4See C. Focarelli, “Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects”, 77 Nordic J. of
Int’l L. 429, 457 (2008).
46
“For the Court, the characterization of jus cogens appears to be one element whic h supports ‘the priority status,
which... now attaches to the protecti on of fundamental human rights over and a bove the protection of States interests
through the recognition of immunity from foreign jurisdiction’.” See State Immunity and the Promise of Jus Cogens.
47
See Judge Rozakis, dissenting opinion in the Al-Adsani case of 21 November 2001; see also ICJ Arrest
Warrant case, supra note13, I.C.J. Reports 2002, p.25, para.60: “The Court emphasizes, however, that thimmunity
from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity with
respect of any crimes they might have committed, irrespective of their gravity.”
4Germany’s Memorial, 12 June 2009, para. 65 and Germany’s Reply, 5 October 2010, para. 7.
49
Greece was one of the worst affected countries in the S econd World War, with an unusually high loss of life in
relation to the size of the population, but also because of the civilian massacres frequently perpetrated by the German
occupying army. Massacres similar to those in Distomo a nd Lidoriki were committed in 88 locations by German troops,
one of the worst being in Kalavrita in the northern Peloponnese. - 15 -
to five. The minority, in its dissenting opinion, endorsed the arguments of the Court of Cassation
(Areios Pagos) discussed above and insisted that the existence of an emerging customary norm of
international law barred the application of State immunity in that case.
58. Under Article100 of the Greek Constitutio n of 1975, the Special Supreme Court has a
dual role. Firstly, if there is a difference of opi nion between two of the country’s highest courts
regarding the validity of a rule of law, the Special Supreme Court carries out a constitutional
review in order to rule on and clarify the situ ation from a constitutional standpoint. It can also
declare that a generally accepted rule of interna tional law (customary law under Article28(1) of
the Constitution) is applicable in a particular case. This second aspect of the Special Supreme
Court’s jurisdiction rarely comes into play. Nevertheless, the Special Supreme Court “is a special
50
court rather than hierarchically supreme” , which does not necessarily share the same
characteristics as courts of law in other countries, whose acts or decisions take clear precedence
within the national legal order. It is only partially a constitutional court, which, moreover, does not
have jurisdiction to receive individual applicati ons challenging the constitutionality of a legal rule
in force.
59. In the light of this legal situation, and pa rticularly as regards the “identification” of an
international customary rule in a particular case, it should be emphasized that the judgment
rendered in Margellos and Others in 2002, by a bare six-to-five majority, and its impact on the
Greek legal order, certainly raises questions. This is especially so given that the Special Supreme
Court concluded in its judgment that
“in the present state of development of in ternational law, there is no generally
accepted rule which, as an exception to the rule of sovereign immunity, would allow
proceedings to be brought against a foreign State before the courts of another State,
relating to a claim for compensation for wrongful acts committed in the forum State in
which the armed forces of the defendant State were involved— in whatever manner
20 51
and whether in time of war or of peace” .
However, the argument ⎯ namely the finding that inte rnational law is still developing ⎯ is there,
even in the reasoning of the majority (sixmembers) of the Speci al Supreme Court, whereby the
current state of development of the law ⎯ as at the time of the judgment ⎯ was not such as to
enable the Court to hold that a new norm had been established in that area. This goes without
saying for the minority (five members) of the Special Supreme Court.
Such a nuanced approach, allowing for the de velopment of international law in this area ⎯
given the contrary position taken by the Court of Cassation in the Distomo case, as well as the
changes emerging in international law and at the national level (Italian courts) ⎯ in fact leaves the
question open.
IV. B Y WAY OF CONCLUSION
60. Under these circumstances, it is for the Court to give an authoritative answer on the
questions which are raised in these proceedings and which are at the heart of the problems faced by
the Greek courts in the Distomo case.
50
See J. Iliopoulos-Strangas, Les Décisions de la Cour Spécial Sême Grecque et Leur Mise en Oeuvre ,
available at: http://www.tribunalconstitucional.ad/docs/coloqui_justicia/10-JULIA%20I….
51
Paras. 14-15. - 16 -
61. The Greek Government considers that the effect of the judgment that the ICJ will hand
down in this case concerning the jurisdictional immu nity of the State will be of major importance
to the Italian legal order and certainly to the Gr eek legal order. Thus Article28 of the Greek
Constitution states:
“1. The generally recognized rules of in ternational law, as well as international
conventions as of the time they are ratifie d by statute and become operative according
to their respective conditions, shall be an integral part of domestic Greek law and shall
prevail over any contrary provision of the law.”
Through this provision in the Greek Constitution, customary international law can be applied
directly by the Greek courts. It is also cl ear from this provision in the Constitution that, as
customary law evolves, its state of development must be identified and applied by the Greek courts
in each particular case.
62. Further, an ICJ decision on the effects of the principle of jurisdictional immunity of
States when faced with a jus cogens rule of international law ⎯ such as the prohibition on violation
of fundamental rules of humanitarian law ⎯ will guide the Greek courts in this regard. It will thus
have a significant effect on pending and potential lawsuits brought by individuals before those
courts.
63. Moreover, the Greek Government cons iders that the legal analysis in the Distomo
Massacre case, and the interpretation given to the de velopment of international law, reflect a
21 widely held view, and the emergence of a new situation in this sensitive area involving the
international responsibility of the State, the individual’s right to reparation for violations of
international humanitarian law and State immunity. A refusal to apply jus cogens in the face of the
rule of jurisdictional immunity of the State would in practice result in impunity for States which
have committed atrocities. Such a conclusion at the present time would moreover risk jeopardizing
all of the progress that has been made within the international community.
___________
Written Statement of the Hellenic Republic