INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY)
GREEK INTERVENTION
GERMANY’S COMMENTS
ON THE GREEK DECLARATION
OF 3 AUGUST 2011
26 AUGUST 2011 2
Outline of Argument
GeOnIrsaelrvations (section 1)
II. Immunity (sec2ions
III. Individual Reparation Claims (sect5n16)
under IHL ?
IV. Concluding Observations (section7) 3
I. Genera l bservations
1. Germany has taken note of the Written Declaration which
Greece submitted to the Court on 3 August 2011, having been authorized to
do so by the order of the Court of 4 July 2011 admitting it as intervenor. In
Germany’s view, Greece has not been able to add any new substantive
elements to the dispute between Germany and Italy which the Court is
called upon to adjudicate. Neither has a ny new light been shed on the issue
of immunity nor has Greece produced evidence susceptible of showing that
an individual right of reparation arises for individual victims under
customary international law on account of violations of international
humanitarian law (IHL). It is to be welcomed, on the other hand, that all of
the data relating to the Distomo case are now plainly before the Court
(Greek Declaration, paras. 8-13, 20- 30). Germany does not object to the
facts as presented by Greece.
II. Immunity
2. Regarding the central issue of immunity, Greece has very little
to say. Rightly, it acknowledges that no rule has emerged as yet that would
have restricted the scope of jurisdicti onal immunity of States in respect of
instances of grave violations of in ternational human rights law (IHRL) or
IHL. Instead, it refers to an ongoing pr ocess of change (“mutation”) (para.
31) and to a “renovation of the global legal architecture” (para. 33), without
however producing any evidence to the effect that this alleged
transformation has already come to a cl ose. In its submissions, international
practice is conspicuously lacking. It is true that many of the international
treaties for the protection of human rights, which have all come into
existence many years after the occurrences which form the subject-matter of
the present dispute, provide for reme dies to the benefit of victims.
Invariably, such remedies may be f iled with internati onal review bodies.
However, no trace can be found in the recent practice of a right for 4
individuals to sue foreign States before their own courts if the conduct in
issue consists of acta jure imperii, sovereign acts of a foreign State.
3. No support can be obtained for the Greek viewpoint from Art.
40 of the ILC’s Articles on responsibility of States for internationally
wrongful acts. 1 Greece is of the view that Art. 40 may serve as an indication
that sovereign immunity must yiel d in instances of violations of jus cogens
norms (para. 52). However, this infere nce has no basis in the text of that
provision. Deliberately, the ILC has s hown great caution in outlining the
consequences of a jus cogens rule. As a perusal shows at first glance, the
ILC avoided attaching any procedural consequences to a breach of a
peremptory norm of general internationa l law. Even when an allegation to
that effect is made, the normal procedural conditions obtain. Without having
to endure any forfeiture of its sovere ign rights, a State charged with gross
misconduct rests on a par with its fello w nations regarding any procedure
that may be open for a review of the controversial conduct.
4. When referring to the Tadic judgment of the International
2
Criminal Tribunal for the Former Yugoslavia (para. 46), Greece commits
the same error as the Italian Corte di Cassazione in Ferrini: it fails to see
that individual immunity and State immunity must be carefully
distinguished. Today, the international community is in broad agreement to
accept, and even to require, the criminal prosecution of persons having
perpetrated grave crimes under international law. Germany belongs to those
States that have actively promoted the elaboration and conclusion of the
Rome Statute of the International Criminal Court. It is an imperative of
justice that everyone charged with such crimes must stand trial. Yet it is a
different matter altogether after an armed conflict to devise appropriate
ways and means suited to provide reparation for injuries suffered. There is
1
2Taken note of by General Assembly Resolution 56/83 of 12 December 2001.
Of 2 October 1995, ILM 35 (1996), p. 32. 5
no need to dwell on that aspect of the dispute at any great length since
ample observations were already submitted to the Court on this issue.
Accordingly, the uncontested fact that perpetrators of grave international
crimes may be prosecuted before international courts and, within certain
limits, also before national judicial bodies pursuant to the principle of
universal jurisdiction, 3 does not permit the inference that private individuals
may bring reparation claims before their own judicial system against wrong-
doing States.
III. Individual Reparation Claims under IHL?
5. Notwithstanding its endeavours to argue that any private victim
of gross violations of IHRL and IHL is the holder of an individual
entitlement to reparation (para. 34), Greece does not succeed in providing
persuasive evidentiary elements to sust ain that contention. In fact, in para.
35 it sets out – apparently against its intention – the true legal position: such
an entitlement does not exist.
6. Germany acknowledges that some authors have believed to
derive from the travaux préparatoire s of Hague Convention IV of 1907 the
conclusion that Art. 3 of that C onvention was meant to establish an
4
individual right to reparation (see fn. 24). Art. 3 does not specify to whom
reparation is due. It reads:
A belligerent party which violates the provisions of the said Regulations
shall, if the case demands, be liable to pay compensation. It shall be
3See ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment, ICJ Reports 2002, p. 3, at 24.
4See, in particular, Frits Kalshoven, “State Responsibility for Warlike Acts of the Armed
Forces“, ICLQ 40 (1991), p. 827, at 830-2; reconfirmed: “Some Comments on the
International Responsibility of States”, in: Wolff Heintschel von Heinegg & Volker Epping
(eds.), International Humanitarian Law Facing New Challenges (Berlinet al.: Springer,
2007) 207, at 212. 6
responsible for all acts committed by pe rsons forming part of its armed
forces.
The assertion that the States partie s present in The Hague intended to
provide for individual entitlements has never had a solid background.
Before World War I, international la w was generally conceived of as a
system of rights and duties operating exclusively between States. To bestow
individual rights on victim s of IHL would have been an oddity within that
intellectual framework. A nd the subsequent practice has never endorsed
such a revolutionary vision of the international legal order. After World War
I, the settlement brought about by th e Treaty of Versailles was an
arrangement between States, the vict orious powers, on the one hand, and
Germany, on the other. The Treaty di d not provide for individual rights of
reparation on account of violations of IHL – which of course would have
had to be allocated to victims on both sides.
7. Additionally, the analysis of the proceedings of the 1907 Peace
Conference undertaken by Kalshoven is far from persuasive – and even
flatly wrong. The following observations will shed a clear light on the issue.
8. At the Conference the German Government introduced some
amendments in one of the Commissions of the Peace Conference. 5 In one of
these amendments, reference was made to compensation for “persons”. This
proposed rule, however, was confined to “neutral persons”, i.e. citizens of
neutral countries, an exception in the course of warfare. The other proposed
rule said in a very unspecific manner that in case of prejudice to the adverse
party “the question of indemnity will be settled at the conclusion of peace.”
In other words, no suggestion was made that generally individual war
victims should be compensated, just the contrary: the German proposal
5
Deuxième Conférence Internationale de la Paix, La Haye 15 Juin-18 Octobre 1907, Actes
et Documents, Tome III, La Haye 1907, 247, ANNEX 1. For the English version see The
Proceedings of the Hague Peace Conferences. The Conference of 1907. Acts and
Dcouments (Vol. III, New York: Oxford University Press, 1921) 139, ANNEX 2. 7
proceeded from the assumption that the traditional pattern of making
reparation for war damages to the “a dverse party” by way of inter-State
treaties should be maintained. In the ensuing debate, a controversy arose
concerning the possibility of distingui shing between neutral persons and
nationals of the opponent party. It is true that the speakers referred mostly to
persons having sustained injury. But the Br itish delegate, Lord Reay, also
said that indemnification of members of the hostile party:
“depends upon the conditions which will be inserted in the treaty of peace
6
and which will be the result of negotiations between the belligerents”.
Eventually, the texts were merged a nd got their final shape – where the
beneficiary of the proposed reparati on claim is not mentioned. A sober
assessment of the materials referred to yi elds no real clue that eventually, at
the end of their delibera tions, the drafters intended to set forth individual
entitlements. Instead, the conclusion seems to be warranted that they
renounced setting forth a special rule in favour of nationals of neutral
countries. 7
9. The codification of the custom ary rules of IHL produced by the
ICRC does indeed state under Rule 150, as rightly pointed out in the Greek
Declaration (para. 38), that 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”. 8 First of all, it is
highly significant how cautious the au thors producing the study were in
framing the relevant sentence. A “trend” is not a rule. Additionally, it stands
to reason that the materials asse mbled by the ICRC stem from recent
developments and lack any pertinence in respect of events that took place
more than 60 years ago.
6Loc. cit. (note 5) 142.
7See also the careful assessment of the drafting history by the Tokyo district court in the
judgment of 7 December 1963, Tokyo District Court, 7 December 1963, 32 ILR 627.
8ICRC (ed.), Customary International Humanitarian Law, Vol. I, Cambridge 2005, p. 541. 8
10. Similar criticism may be directed against the reference made to
Art. 33 (2) of the ILC’s Article s on Reponsibility of States for
internationally wrongful acts. What the ILC did was to complete its draft by
a saving clause. It did not take a st and on whether, and to what extent,
subjective rights may accrue to individua ls in case of the violation, by a
State, of its obligations under international law. The basic fact is, again, that
within the framework of “classic” inte rnational law, as it obtained during
World War II, individual reparation cl aims under general international law
were unknown in practice. Following this line, the ILC confined its
codification of the law of State responsibility to relationships between States
as the traditional subjects of international law.
11. In para. 41, Greece mentions a decision of the German Federal
Constitutional Court (FCC) of 28 June 2004. It admits openly that that
decision does not support the notion of individual rights arising from
violations of IHL. It may neverthe less be useful to quote the relevant
passage textually:
“Art. 3 of the Hague Convention of 1907 does not establish, in principle, an
individual right to repa ration, but codifies only the general principle of
international law of res ponsibility between the cont racting parties. This
secondary reparation claim, however, ex ists only in the relationship under
international law between the States concerned. The reparation claim differs
in that regard from the primary right of the persons concerned to respect of
the prohibitions of international humanitarian law which exists between the
State occupying a territory and the population living in that area.” 9
9„Art. 3 des Haager Abkommens von 1907 begründet grundsätzlich keinen individuellen
Entschädigungsanspruch, sondern positiviert nur den allgemeinen völkerrechtlichen
Grundsatz (…) einer Haftungsverpflichtung zwischen den Vertragsparteien. Dieser
sekundärrechtliche Schadensersatzanspruch besteht jedoch nur in dem
Völkerrechtsverhältnis zwischen den betroffenen Staaten. Der Schadensersatzanspruch
unterscheidet sich insoweit von dem primärrechtlichen Anspruch der betroffenen Personen
auf Einhaltung der Verbote des humanitären Völkerrechts, der in dem
Völkerrechtsverhältnis zwischen dem ein Territorium besetzenden Staat und der in diesem
Gebiet lebenden Bevölkerung besteht.“, Europäische Grundrechte Zeitschrift 31 (2004), p.
439, at 441. 9
The FCC thus carefully distinguishes between primary and secondary rules.
Even if individuals are holders of rights under primary rules, this does not
mean that they acquire automatically rights under the relevant secondary
rules that govern the consequences of a breach of those primary rules.
12. Greece has also adduced (footnot e 35) a recent judgment of the
Court of Appeal of The Hague of 5 July 2011 (without providing the text
and even less so a translation into one of the official languages of the
Court). Nonetheless, Germany has studied the judgment in its Dutch
version. The perusal has made clear that the judgment does not say what the
Greek Declaration wishes it to say. Obviously, in a proc eeding concerning
alleged misconduct of the “Dutchbat” (Dutch military contingent) deployed
in Srebrenica in 1995 the Court of Appeal of The Hague did not have to d
eal
with issues of immunity. However, the question of the legal foundations of a
reparation claim had to be addresse d. In paras. 6.3 and 6.20, the Court
specifies that it derives a reparation claim from the Bosnian law of
obligations – and not from IHL.
13. Germany also draws attention to the recent decision of the
European Court of Human Rights in Sfountouris and Others. 10 The main
applicant counts among th e victims of the Distom o massacre, having been
deprived of his parents when he was a child. The Strasbourg Court notes,
without raising any objection, the view of the German courts seized with the
issue denying «l’existence d’un dro it individuel des requérants à être
indemnisé fondé directement sur le droi t international public, en particulier
sur l’article 3 de la Convention de La Haye et de l’article 23 lit. g) du
règlement annexe». Accordingly, it held that the applicants «ne sont pas
fondés de prétendre qu’ils avaien t une espérance légitime de pouvoir
bénéficier d’une indemnisation pour le pr éjudice subi». On that basis, the
application was declared inadmissible.
10
Application 24120/06, 31 May 2011. 10
14. In para. 56, Greece submits that the application of the immunity
rule as well as the denial of individual reparation entitlements would, in the
final analysis, lead to “l’irresponsa bilité des Etats ayant commis des
atrocités”. This statement comes as a su rprise since it fails to take into
account the fact that the en tire edifice of international law rests on a clear
distinction between substantive law, rules of conduct, on the one hand, and
procedures for the enforcement of t hose rules, on the other. Unlike under
domestic law, judges are not generally available in intern ational law. But
many other procedures exist, in partic ular diplomatic procedures, that may
be as effective as judicial procedures. It is therefore erroneous to assume
that the lack of a judicial remedy undermines the significance of substantive
rules of international law to a point where a total loss of responsibility
would occur. It should not go unnoticed that, in particular, the ILC’s
Articles lack a procedural part. It was found sufficien t to regulate the
substance of the relevant secondary rules on State respon sibility without
attempting, at the same time, to supplement them by provisions on
mechanisms and procedures of enforcement.
15. Germany notes that Greece is fairly hesitant in acknowledging
that in Margellos the Highest Court under Art. 100 of the Greek
Constitution departed from the Distomo judgment of the Areios Pagos,
holding that the traditional rule of i mmunity was still in existence (paras.
57-59). However, Greece could not possi bly deny that its highest judicial
body, which is specifically entrusted with “the settlement of controversies
related to the designation of rules of international law as generally
acknowledged” (Art. 100(1) f)) has opt ed for maintainin g the traditional
rule, whose raison d’être stands still in splendid vitality. According to the
information obtained by Germany, judgments of the Highest Court in 11
respect of the existence and the scope of general rules of international law
would appear to have an erga omnes effect, to be respected by all
11
governmental institutions.
16. Since Greece seems to suggest that international law is
continually developing and that since the Margellos judgment of its Special
Court under Art. 100 of the Constitu tion the legal position may have
changed, Germany will present three judgments from a recent past, coming
from different regions of the world, which all confirm the traditional rule of
immunity without any hesitation. In all of these cases, Germany was the
Respondent, and the historical background was similarly World War II.
These three judgments are the following:
12
a) a judgment of the Federal Court in Rio de Janeiro of 9 July 2008,
b) a summary decision of the Israeli District Court in Tel Aviv-Jaffa of 31
13
December 2008,
c) a judgment of the Polish Supreme Court of 29 October 2010. 14
The three judgments show that ther e can be no question of a “trend”
pointing to a reduction in scope of the jurisdictional immunity of States in
cases of grave breaches of IHRL and IHL.
At this juncture, Germany refrains from going into the details of these
decisions. They will be fully co mmented upon during the forthcoming
hearings before the Court.
11Art. 54(1) of Law 345 (1976).
12ANNEX 3.
13ANNEX 4.
14ANNEX 5. 12
IV. Concluding Observations
17. Germany welcomes the fact that Greece will be given an
opportunity to express itself on some of the legal issues raised by the present
dispute. Germany trusts that at thhearing Greece will remain within the
confines traced by the Court’s order of 4 July 2011.
Berlin, 26 August 2011
Christanuschat SusWaasem-Rainer
Agent of the Government of the Director General for Legal Affairs
Federal Republic of Germany and Agent of the Government of
the Federal Republic of Germany 13
List of Annexes
Annex 1 Deuxième Conférence Internationale de la Paix, La Haye 15 Juin-
18 Octobre 1907, Actes et Documents, Tome III, La Haye 1907, 247
Annex 2 The Proceedings of the Hague Peace Conferences. The Conference of
1907. Acts and Documents, Volume III, New York 1921, 139
Annex 3 Federal Court Rio de Janeiro, Judgement of 9 July 2008, Ordinary
Proceedings Number 2006.5101016944-1, Barreto v. Federal Republic
of Germany
Annex 4 District Court Tel Aviv-Yafo, Decision of 31 December 2009, Case
2143-07, Orith Zemach et al. v. Federal Republic of Germany
Annex 5 Polish Supreme Court, Decision of 29 October 2010, File ref. IV CSK
465/09, Natoniewski v. Federal Republic of Germany
Written Observations of Germany on the Written Statement of Greece