INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANYV.ITALY)
PRELIMINARY OBJECTIONS
OF
THE FEDERAL REPUBLIC OF GERMANY
REGARDING ITALY'S COUNTER-CLAIM
10MARCH 2010 1
Outline of Argument
1. Subject-Matter of the Counter-Claim (section 1)
II. Legal Basis of Preliminary Objections (sections 2-3)
III. Bases of Jurisdiction (sections 4-19)
1) Gerrnany's Declaration of 30 April 2008 (sections 5-6)
2) The German-Italian Joint Declaration of 18 November 2008
(sections 7-12)
3) The European Convention for the Peaceful Settlement of Disputes
(sections 13-19)
IV. Italy's Attempts to Push the Origin of the Dispute Beyond the
Time-Limit of 18 April 1961 (sections 20-38)
1) A Continuing Violation? (sections 20-29)
2) The Two Settlement Agreements of 1961 as the Real Cause of the
Dispute? (sections 30-36)
3) The Enactment of the German Law of 2 August 2000 Establishing the
Foundation "Remembrance, Responsibility and Future"(section 37)
4) Conclusion (section 38)
V. Requests (section 39) 2
I. Subject-Matter of the Counter-Claim
1. In its Counter-Memorial (CM) of 22 December 2009, Italy
has not only requested the Court to reject Germany's claims regarding
the merits of the case (violation of Germany's jurisdictional immunity),
but has also filed a Counter-Claim. Italy prays the Court to adjudge and
declare that,
"considering the existence under international law of an obligation of
reparation owed to the victims of war crimes and crimes against
. humanity perpetrated by the IIIrd Reich:
1. Germany has violated this obligation with regard to Italian victims
of such crimes by denying them effective reparation.
2. Germany's international responsibility is engaged for this conduct.
3. Germany must cease its wrongful conduct and offer appropriate and
effective reparation to these victims, by means of its own choosing,
as weIl as through the conclusion of agreements with Italy."
Germany is ofthe view that these requests do not come within the scope
of the Court's jurisdiction. The occurrences from which Italy purports to
derive a right to reparation lie more than 60 years bac1c. However,
World War II with aIl of its deplorable violations of human rights and
international humanitarian law (IHL) is not encompassed by the
jurisdiction of the Court in the relationship between the two parties,
neither ratione temporis nor ratione materiae. The following
submissions will be confined to demonstrating that Italy, by introducing
its Counter-Claim, has misjudged the authority of the Court to look into
facts that belong to the historical past. They will not focus on the
defences invoked by Italy to justify its disregard for Germany's
jurisdictional immunity as a sovereign State, and they will touch upon
those defences only marginally to the extent necessary for the
explanation of the present preliminary objections. Germany will deal
with the substance of the case as soon as this incidental proceeding has
come to its close. 3
II. Legal Basis of Preliminary Objections
2. Germany bases its preliminary objections on Article 80 (3)
of the Rules of Court. This provision permits objections to be raised
against a counter-claim filed by the respondent party. Pursuant to
Article 80 (1) of the Rules of Court, a counter-claim must meet two
requirements. In the first place, it must come within the jurisdiction of
the Court. Second, it must be directly connected with the subject-matter
of the application. It stands to reason that these two requirements do not
constitute an exhaustive list of all factors conditioning the admissibility
of a counter-claim. In addition to the two requirements explicitly
mentioned by Article 80 (1) of the Rules of Court, other legal obstacles
may be present rendering an application inadmissible. Germany reserves
the right to raise such additional preliminary objections, if need be, at a
later stage.
3. Germany deliberately refrains from taking a stance on the
inter-relatedness of the claim brought by it against the Respondent and
the Counter-Claim. It is of the view that the issue may remain open for
the time being although many good grounds militate for considering that
the Application and the Counter-Claim are l()cated widely apart from
one another. Indeed, a significant disparity can be observed. As far as
substance is concerned, Italy wishes the Court to pronounce on
violations of international law that were committed by the armed forces
and the occupation authorities of Nazi Germany when they held sway
over Italy and Italian nationals. By contrast, Germany objects to the
practice of the Italian courts, in particular the Corte di Cassazione, to
deny it the sovereign right of jurisdictional immunity. Moreover, time
wise the distance between the two claims is enormous. The factual basis
of the Italian claims is located in the years from September 1943 to May
1945, after Italy had joined the Allied Powers that eventually defeated
the Nazi regime in Germany. By contrast, Germany complains about the
case law of the Italian tribunals, initiated by thFerrini judgment of the 4
1
Corte di Cassazione of Il March 2004. Notwithstanding the huge gap
between the two claims, Germany does not deem it useful at this stage
of the proceedings to engage in a legal battle about the links between
them. In fact, the lack of jurisdiction ratione temporis as weH as ratione
materiae is evident. On this ground alone, the Counter-Claim must fail.
III. Bases of Jurisdiction
4. None of the instruments governing the relationship between
Italy and Germany provides a suitable foundation for the jurisdiction of
the Court. Italy cannot validly contend that the Court may entertain the
.Counter-Claim.
1) Germany's Declaration of30 April 2008
5. On 30 April 2008, Germany accepted the jurisdiction of the
Court under Article 36 (2) of the Statute. The relevant parts of this
declaration are worded as foHows:
"1. The Government of the Federal Republic of Germany declares that it
recognizes as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction
of the International Court of Justice, in conformity with paragraph 2 of
Article 36 of the Statute of the Court, until such time as notice may be
given to the Secretary-General of the United Nations withdrawing the
declaration and with effect as from the moment of such notification,
over aH disputes arising after the present declaration, with regard to
situations or facts subsequent to this date other than:
(i) ...
(ii) any dispute which
(a) relates to, arises from or is connected with the deployment of armed
forces abroad, involvement in such deployments or decisions thereon."
6. At first glance already, the reader can see that Germany's
Declaration does not provide a legal basis for Italy's claim. The
jurisdiction is accepted only profuturo ("aH disputes arising after the
present declaration, with regard to situations or facts subsequent to this
1 Memorial ofGermany (MG), p.1 fn. 1. 5
date"); the declaration has no retroactive effect. World War II is hence
excluded from the temporal scope of the declaration. Additionally,
Germany has explicitly excluded from the scope of the Declaration any
disputes that are related to the activity of its armed forces abroad.
Furthermore, to date Italy has not submitted to the jurisdiction of the
Court pursuant to Article 36 (2) of the Statute. The condition of
reciprocity is not met. Accordingly, no argument is conceivable that
might be capable of bringing the Counter-Claim within the scope of the
Declaration of 30 April 2008. It should also be noted that Italy has not
even attempted to advocate such an erroneous reading of the
Declaration.
2) The German-Italian Joint Declaration of 18 November 2008
7. The text of the Counter-Memorial suggests in two places
that the Joint Declaration, issued on the occasion of the German-Italian
2
Governmental Consultations heId on 18 November 2008 in Trieste,
may be interpreted as an implicit acceptance of the jurisdiction of the
Court (CM, p. 7 para. 1.5, p. 131 para. 7.8). A careful reading of this
document does not yield any clues corroborating such a construction of
the Joint Declaration. In order to set the record straight, the text of the
Declaration should be reproduced in full in this submission:
"Italy and Germany share the ideals of reconciliation, solidarity and
integration, which form the basis of the European construction that both
countries have contributed to with conviction, will continue to
contribute to and drive forward.
In this spirit of cooperation they also jointly address the painful
experiences of World War II; together with Italy, Germany fully
acknowledges the untold suffering inflicted on Italian men and women
in particular during massacres and on former Italian Military internees, 3
and keeps alive the memory of these terrible events.
2MG, ANNEX 2.
3Italian military internees, in abbreviation !MIs,were Italian soldiers taken prisoners
by the German armed forces after Italy had left the alliance with Germany in
September 1943. Although their legal status could not be altered by Germany, large
numbers ofthem were deported to Germany to perform forced labour in particular in
the armaments industry. Many times, they were badly treated in violation ofthe 6
With this in mind, Deputy Chancellor and Federal Minister for Foreign
Affairs Frank-Walter Steinmeier, accompanied by Foreign Minister
Franco Frattini, visited the Risiera di San Sabba in what can be
considered a gesture of great moral and humanitarian value to pay
tribute to the Italian military internees who were kept in this transit
camp before being deported to Germany, as weIl as to aIl the victims for
whom this place stands.
Italy respects Germany's decision to apply to the International Court of
Justice for a ruling on the principle of state immunity. Italy, like
Germany, is a state party to the European Convention of 1957 for the
Peaceful Settlement of Disputes and considers international law to be a
guiding principle of its actions. Italy is thus of the view that the ICJ's
ruling on state immunity will help to clarify this complex issue."
8. Primarily, Germany observes that the Joint Declaration is
nothing else than a political document, intended to manifest to the world
at large that the introduction of the dispute would not adversely affect
the bonds of friendship and cooperation existing between the two
countries. The two governments, in full agreement, wished to avert the
impression that bringing their dispute to the Court might indicate a state
of tension existing between them. The German Government, as the
representative organ of a democratic State having embraced the rule of
law, manifested once again its deep regrets over the harm and suffering
inflicted on the victims of ruthless violence during World War II, and
the Italian Government, also in the spirit of partnership found by the two
nations after that War, accepted that the legal controversy surrounding
Germany's legal status in proceedings before Italian courts should be
settled by amicable peaceful means, in accordance with the Charter of
the United Nations (Articles 2 (3), 33). In sum, the Joint Declaration
was conceived by both parties as a political commentary to the legal
action envisaged and held to have become indispensable for resolving
an intricate legal difficulty, namely proceedings before the Court.
guarantees ofthe 1929 Red Cross Convention relative to the Treatment ofPrisoners of
War, to which both countries were parties. 7
4
9. In its Aegean Sea judgment, the Court engaged in a long
discussion on whether a joint communiqué of31 May 1975, adopted by
the Prime Ministers of Greece and Turkey, amounted to an acceptance
of the jurisdiction of the Court concerning the delimitation of the
continental shelf in the Aegean Sea. After a long and tortuous
examination of the history of diplomatie relations between the two
countries on that issue, the Court eventually arrived at the conclusion
that a commitment by TUl'key to take the dispute to The Hague could
not be perceived. The Court did not dismiss the Greek action a limine,
refraining from arguing that a communiqué reflecting the result of a
ministerial meeting could in no case be taken as a formaI legal
. commitment. However, in that case the eventuality of having the dispute
judicially settled was explicitly mentioned. The relevant text referred to
a possible resolution of the delimitation problem by the Court. In the
present case, by contrast, not a single word can be found in the Joint
Declaration to the effect that the issue of responsibility of Germany for
violations of human rights and IHL during World War II should be
unearthed and submitted to the Court together with the controversy
about German immunity. The only subject-matter mentioned in
connection with the (then awaited) proceeding before the Court is State
immunity.
10. Similar observations can be made regarding the case
concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain. 5In this case, the relevant document, Minutes of a
high-Ievel meeting that took place in December 1990, mentioned
explicitly that the controversy might eventually be brought to the
cognizance of the Court. The only question that had to be solved was
whether the Minutes had been intended as a formally binding legal
undertaking or were instead to be considered as a simple step in an
extended negotiating process. At the end of its examination of the
document and its context, the Court reached the conclusion that indeed
4Aegean Sea Continental Shelf, Judgment, J.c.J. Reports 1978, 1, at 39-44.
5Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction andAdmissibility, Judgment, ICJ Reportsp.112. 8
an international agreement had been concluded. Here, such an
interpretation is excluded a priori since the issue of German reparations
for damage caused during World War II is not mentioned in the Joint
Declaration of 18 November 2008. The suggestion that the dispute
about Germany's immunity is part of a "complex question" is
interesting as a reference to the historical context. But it lacks any
substantiation. In sum, it boils down to a cautious comment underlining
that politically the dispute has a wider dimension. Legally, however, it is
devoid of any relevance.
Il. In any event, the text of the declaration shows that, even if
construed as an agreement having a legal nature, it could under no
circumstances serve as the foundation of the jurisdiction of the Court in
the instant case. The only paragraph relevant for the issue presently
discussed is paragraph 4. Only this last paragraph gives a voice to
Italy's position. The first sentence reflects Italy's preparedness to
conduct before the Court a judicial proceeding concerning the issue of
Germany's State immunity. The third sentence reaffirms the gist of the
first one. It again refers to a pronouncement of the Court on State
immunity, commenting additionally that such a pronouncement will be
useful for the elucidation of a "complex issue". No other subject-matter
is explicitly mentioned. Politically, it may have been important for Italy
to emphasize that the issue was "complex". But this unsubstantiated hint
cannot possibly be interpreted as meaning that the entire background
and context of the current dispute has been submitted to the jurisdiction
of the Court. Paragraph 4 of the Declaration reflects nothing else than
Italy's perception of the case. However, in order to establish the
jurisdiction of the Court in a case against Germany with regard to any
claims allegedly flowing from factual occurrences of the past,
Germany's consent would be essential. Although unnecessary before the
Court, it may be re-stated that consent of both parties is the basis of
international dispute settlement. Such consent on the part of Germany
cannot be perceived in the Joint Declaration. 9
12. A simple perusal of the Joint Declaration also reveals that
the European Convention is explicitly mentioned in paragraph 4. In
other words, the parties were in agreement that the European
Convention was the only legal foundation of the forthcoming
proceedings before the Court. There was no need for them to look for,
or to establish, any other basis enabling them to bring the dispute about
Gennany's immunity, the only subject-matter referred to in paragraph 4,
before the Court.
3) The European Convention for the PeacefuI Settlement of
Disputes
13. Essentially, Italy seeks to base the Counter-Claim on the
European Convention for the Peaceful Settlement of Disputes of 29
April 1957 (hereinafter: European Convention). Both States are parties
. to this Convention. However, the instant dispute is not covered by its
provisions. Article 27 sets forth that it has no retroactive effect. Its
applicability does not encompass
"disputes relating to facts or situations prior to the entry into force of
this Convention as between the parties to the dispute."
Italy ratified the Convention on 29 January 1960, Germany did so on 18
April 1961. Accordingly, the Convention carne into force for legal
relationships between both parties on 18 April 1961. All "facts or
situations" that happened before this date are not encompassed by the
jurisdiction of the Court ratione temporis. Clearly, the occurrences
relied upon by Italy to support its counter-claim lie before the relevant
time-limit.
14. It should be clarified from the very outset that the date when
the dispute arose is not acknowledged as a relevant criterion under the
European Convention. It only matters when the facts or situations that
entailed the dispute occurred. Obviously, however, there must be a
6Council ofEurope Treaty Series (CETS) No. 23. 10
connection between the relevant facts or situations and the dispute.
Accordingly, an assessment must establish what the determinative
factual circumstances are from which the dispute emerged. It is
obviously the occupation of Italy from September 1943 to May 1945
with aIl the ensuing consequences also for Italian prisoners of war
which caused the injury Italy is complaining of.
15. This conclusion is made clear by Italy's own submissions.
On p. 134 of its Counter-Memorial, in order to explain its requests, Italy
explicitly refers to the "obligation of reparation owed to the victims of
war crimes and crimes against humanity perpetrated by the lllrd
Reich". 7 In many places of the Counter-Memorial, this conclusion is
explained and reiterated. Thus, on p. 37 para. 3.15, one can read:
"There is no dispute between the parties that these claims [for
reparation] arose out of the grave violations of international
humanitarian law committed by Nazi Germany during the Second
World War. It is the issue of reparation ... which forms the central point
of the dispute brought by Italy."
In other words, Italy states openly that it derives all of its claims from
the unlawful acts and activities committed by the German forces and
other authorities during the 20 months when Italy was placed under
occupation and Italian armed forces were treated as enemy forces.
16. The Court has a rich jurisprudence dealing with the temporal
applicability of treaties or unilateral declarations under Article 36 (1)
and (2) of the Statute accepting its jurisdiction. It has followed a
constant line in subsuming the facts of a given case under the relevant
clauses, notwithstanding the fact that the formulation of these clauses
appears in two different configurations, either focusing solely on the
date of the relevant occurrences or taking into account additionally the
date of the origin of the dispute. Vnder both formulations, however, the
main task is to determine when the facts giving rise to the dispute
happened.
7Emphasis added. 11
17. Basing itself on the jurisprudence of the Permanent Court of
International Justice (hereinafter: Permanent Court), in particular in the
case concerning the Electricity Company of Sofia and Bulgaria, 8 the
9
Court confirmed in the Right of Passage case that the "real cause" of
the dispute had to be clarified and that accordingly a distinction had to
be drawn between
"the situations or facts which constitute the source of the rights claimed
by one of the Parties and the situations or facts which are the source of
the dispute. Only the latter are to be taken into account for the pur roose
of applying the Declaration accepting the jurisdiction of the Court." 0
18. In the case concerning Certain Property, Il III which
Germany was the respondent party, these findings were again re
affirmed. The Court held that, in order to determine the "real cause" of
the dispute, the date of the facts or situations in relation to which the
dispute arose had to be focused upon. Thus, it is not the source of the
rights claimed by the party submitting a request to the Court that is
decisive in this regard but the factual configuration giving rise to the
dispute. Rightly, the Court found that at the heart of the dispute lay the
confiscation measures talœn by Czechoslovakia after World War II. AlI
the judicial proceedings that took place in Germany at a later date could
not change this basic given. It was the allegedly unlawful measure that
had to be taken as the point of departure in assessing the time criterion.
19. In the instant case, the legal position is unequivocally clear.
A duty of reparation can have arisen for Germany only as a consequence
of unlawful activities of its armed forces or other occupation authorities
in Italy from September 1943 to May 1945. As already pointed out, this
P.C.I.J., Electricity Company ofSofia and Bulgaria (Preliminary Objections), AlB
77, 4 April 1939.
9Case concerning Right ofPassage over Indian TerritOl'Y (MeritsJ, Judgment12f
April 1960,IC.J. Reports 1960, p. 12.
JIbid., at 35.
Il
Case concerning Certain Property (Liechtenstein v. GermanyJ, Prelimina/'Y
Objections, IC.J. Reports 2005, 6, at 22-25 paras. 39-46. 12
is in fact the reason given by Italy to burtress the requests contained in
its Counter-Claim. As to the legal foundation, Italy bases its claims on
general international law inasmuch as such general rules, as today
codified in the ILC's Articles on Responsibility of States for
12
internationally wrongful acts, provide for reparation of any injury by
an internationally wrongful act. No later events are mentioned as giving
rise to the alleged rights to reparation. Throughout its submissions in the
Counter-Claim, Italy emphasizes that Germany has failed to comply
with the duties of reparation that arose for it during World War II.
Invariably, the focus of its demonstration is on the events of that time.
Accordingly, the facts from which the dispute arose occurred before the
entry into force of the European Convention. Bence, ratione temporis
the Court lacks jurisdiction.
IV. Italy's Attempts to Push the Origin of the Dispute Beyond the
Time-Limit of 18 April 1961
1) A Continuing Violation?
20. Artempting to overcome the temporal hurdles standing in the
way of its Counter-Claim, Italy purports to construct a continuing
violation which Germany has allegedly commirted (and is still
commirting) by denying to Italian victims the reparations to which they
were entitled. In its Counter-Memorial, Italy argues as follows (p. 32
para. 3.4):
"Italy submits that the dispute on immunity has its 'real cause' in
Germany's refusaI to compensate the Italian victims of the grave
violations of international humanitarian law commirted by Nazi
authorities during the Second World War. It follows that the dispute on
immunity brought by Germany and the dispute on reparation brought by
Italy through its counterclaim arose out of the same 'facts and
circumstances'".
12Taken note ofby General Assembly Resolution 56/83, 12 December 2001. 13
This line of reasoning is reiterated many times in the Counter-Memorial.
Again and again, Italy contends that the dispute about Germany's
immunity and the dispute on reparation as introduced by the Counter
Memorial have one common source, namely Germany's refusaI to
compensate Italian victims. 13 Thus, Italy endeavours to shift the origin
of Italy's alleged entitlement to reparation from the time of World War
II to sorne undetermined date after the entry into force of the European
Convention.
21. The attempt to relocate the ongm of the responsibility
incurred by Nazi Germany rather arbitrarily, presenting it as a
continuing violation, must fail. In none of the cases dealt with by them
have the Permanent Court or the present Court taken any other date than
the date of the controversial interference as the critical date. The
interference with the rights of the other party is one thing - the
consequences entailed thereby are quite another thing. In a historical
perspective, claims arising from injustices of the past can be made after
decades after the OCCUlTence of such injustices. Europe was tom by
fratricidal wars for centuries, and the history of European colonialism
has many inglorious pages. However, by arguing that compensation
should be paid, one cannot bring the origins of such controversies into
the present-day legal world. In any event, law generally looks for clarity
and certainty and distinguishes itself from history and philosophy. It is
for this reason, too, that statutes of limitation are a natural component of
every legal system.
22. By a decision in principle, the Permanent Court clearly
rejected attempts by a party to overcome the time-limits indicated in a
declaration accepting its jurisdiction by relying on the procedural
consequences of the specific act of interference complained of. In the
Phosphates in Morocco caseI4 it was precisely Italy that wished to
circumvent the temporal limitation of France's acceptance of the
jurisdiction of the Permanent Court pursuant to Article 36 (2) of the
13Counter-Memorial (CM), p.Ilpara. 1.17
14P.C.U., Phosphates in Morocco (PreliminQly Objections), A/B 74, 14 June 1938. 14
Statute, which had become operative on 7 September 1931. It argued
that the Moroccan administration had, in 1925, taken measures that
inflicted long-lasting damage to an Italian entrepreneur. Therefore, the
fact that these measures had been put into operation long before France
had submitted to the Court's jurisdiction was irrelevant. It maintained
"that the dispute arises from factors subsequent to France's acceptance
of the compulsory jurisdiction, first because certain acts, which
considered separately are in themselves unlawful international acts,
were actually accomplished after the crucial date; secondly, because
these acts, taken in conjunction with earlier acts to which they are
c10sely linked, constitute as a whole a single, continuing and progressive
illegal act which was not fully accomplished until after the crucial date;
and lastly, because certain acts which were carried out prior to the
crucial date, nevertheless gave rise to a permanent situation inconsistent
,15
with international law which has continued to exist after the said date.
The Court, however, did not accept this line of reasoning. It observed
with regard to the allegation that the Moroccan Department of Mines
had acted in violation of the vested rights placed under the protection of
the relevant international conventions:
"That being so, it is in this decision that we should look for the violation
of international law a definitive act which would, by itself, directly
involve international responsibility. This act being attributable to the
State and described as contrary to the treaty right of another State,
international responsibility would be established immediately as
between the two States. In these circumstances the alleged denial of
justice, resulting either from a lacuna in the judicial organization or
from the refusaI of administrative or extraordinary methods of redress
designed to supplement its deficiencies, merely results in allowing the
unlawful to subsist. It exercises no influence either on the
accomplishment of the act or on the responsibility ensuing from it.
As regards the argument that the dispossession of M. Tassara and his
successors constituted a permanent illegal situation which, although
brought about by the decision of the Department of Mines, was
maintained in existence at a period subsequent to the crucial date by the
denial of justice to the c1aimants, the Court need only recall the
principle which it has set forth above: the complaint of a denial of
justice cannot be separated from the criticism which the Italian
Government directs against the decision of the Department of Mines of
8th ,,16
January , 1925.
15Ibid.,p.23.
16Ibid.,. 28. 15
The gist of this passage is very simple. When considering whether a
certain occurrence falls within the jurisdiction of the Court ratione
temporis, account has to be taken of the interference complained of as
such. The settlement of the damage done may extend over a lengthy
period of time. But the complaints raised against the way and method of
settlement do not count with regard to determining the applicability of
the relevant time clause.
23. The jurisprudence of the Permanent Court stands in full
harmony with the jurisprudence of the European Court of Human
Rights. On many occasions, the Strasbourg Court was faced with cases
predating the entry into force of the European Convention on Human
. Rights for the respondent country concerned. More often than not, such
cases dated back to the period of the communist dictatorships in Eastern
Europe. In order to sort out the difficuIties raised in such instances, the
Strasbourg Court has established very clear principles by which it will
be guided when ruling on the admissibility of an application ratione
temporis.
24. A first group of cases relates to acts of deprivation of
property. It stands to reason that the victims of such confiscatory acts
will always mourn the bad fate which hit them, being unable to forget
their prior more felicitous situation. But the Strasbourg Court does not
consider such measures as producing a continuing effect. In Malhous v.
Czech Republic, 17 it held that:
"deprivation of ownership or of another right in rem is in principle an
instantaneous act and does not produce a continuing situation of
'deprivation of a right"'.
This finding has been confirmed in a series of later judgments. It may
suffice to refer to a judgment of the Grand Chamber of the Court in
Bleéié v.Croatia (§ 77) where it was said that:
17European Court ofHuman Rights (ECtHR), 13 December 2000, Application
33071/96. 16
"the Court's temporal jurisdiction is to be determined in relation to the
facts constitutive of the alleged interference. The subsequent failure of
remedies aimed at redressing that interference cannot bring it within the
Court's temporal jurisdiction. ,18
Accordingly, the Court sees confiscation as an instantaneous act; later
claims for reparation do not re-open the window of jurisdiction. An
instantaneous act consummates the violation. For the victims, the
proceedings instituted to seek reparation are of course of the greatest
importance. But legally they do not form an integrated whole together
with the interference proper. Even if greatly protracted, they do not help
the applicant overcome the time hurdle.
25. This line of reasoning was also the basis of the rejection of
an application brought by a group of persons who had owned land in the
eastern territories of Germany which now belong to Poland. The
applicants argued that their assets had been taken without any
compensation and that therefore a violation of the guarantee of
"possessions" under Article 1 of the [First] Protocol to the European
Convention on Human Rights had to be found. In this case, too, the
Court stuck with its earlier jurisprudence, stating:
"[A]s the Court has consistently held, in particular in the context of
expropriation measures effected in connection with the post-War
regulation of ownership relations, the deprivation of ownership or
another right in rem is in princ w le an instantaneous act and does not
1
produce a continuing situation".
Like the ltalian victims considered in the instant case, the persons
deprived of their properties, among them also persons of Jewish
origin,20 felt that compensation was owed to them. For many years, they
had endeavoured to obtain redress from Poland for the losses they had
suffered as a consequence of World War II. But the Strasbourg Court
felt prevented ratione temporis from entertaining their claims.
18
19ECtHR, Application 59532/00, 8 March 2006.
ECtHR, Preussische Treuhand v.Poland, Application 47550/06, 7 October 2008, §
57.
20Applicant No.l,Irene Ziebolt. 17
Accordingly, it refrained from conducting an inquiry into the lawfulness
of the confiscatory measures taken by Poland against them. The
application was dismissed a limine.
26. The same grounds are relied upon by the Strasbourg Court
when it has to adjudicate cases of allegedly arbitrary killings. As a rule,
after a dubious killing has taken place, proceedings must be initiated to
establish the causes and to determine any responsibilities of third
persons. Such proceedings may drag on for long periods of time.
Nonetheless, these subsequent procedural steps are not taken into
account when the applicability ratione temporis of the European
Convention on Human Rights with regard to the death of a human
person is assessed, provided they do not as such involve a new violation
21
of guarantees of due process. In Kholodov and Kholodova v. Russia
the Court observed that the victim:
"was killed in 1994, that is before the Convention entered into force in
respect of the Russian Federation on 5 May 1998. In accordance with
the generally recognised rules of international law, the Convention only
applies in respect of each Contracting Party to facts subsequent to its
coming into force for that Party. It follows that the Court may not take
cognisance ratione temporis of the facts surrounding Mr Dmitriy
Kholodov's death in 1994.
Admittedly, the investigation intoMr Dmitriy Khodolov's death and the
trial of putative perpetrators continued long after the ratification of the
Convention by the Russian Federation. However, the Court's temporal
jurisdiction is to be determined in relation to the facts constitutive of the
alleged interference. The subsequent failure of remedies aimed at
redressing that interference cannot bring it within its temporal
jurisdiction"
27. The same reasoning was employed by the Court in a
complex case of missing persons in Cyprus. The relatives of Greek
victims of the Turkish invasion of Cyprus in 1974 sought to obtain a
judgment of the Court to the effect that a violation of the right to life
had been committed. The Court did not grant the remedy pursued by the
applicants. It drew attention to its constant jurisprudence by stating that
21ECtHR, Application 30651/05, 14 September 2006. 18
"where there are proceedings instituted by an applicant to obtain redress
for an act, omission or decision alleged to violate the Convention and
which occur or continue after the entry into force of the Convention,
these procedures cannot be regarded as part of the facts constitutive of
the alleged violation and do not bring the case within the Court's
temporal jurisdiction".22
28. It is true that the European Court of Human Rights holds
jurisdiction only in a specialized field of international law. Ratione
materiae, its jurisdiction differs widely from that of the Court. However,
the problem of how to calculate the time-limits governing the
jurisdiction of an international judicial body is a general problem of
international law. If the length of the proceedings following a tort
committed in violation of obligations under international law was taken
into account in detelmining when certain facts or situations took place,
the legal position would become totally incalculable. No State could
with good conscience accept the jurisdiction of the Court without having
to fear unforeseen and undesired consequences. According to the logic
underlying the submissions of the respondent party even the German
declaration of 8 April 2008 could then be interpreted as a foundation of
the Counter-Claim, notwithstanding the explicit reservation that it is
designed to apply solely to "aIl disputes arising after the present
declaration, with regard to situations or facts subsequent to this date".
Italy's line of reasoning is very simple and straightforward: it does not
recognize any of the cut-off dates established either by treaty or in a
unilateral declaration. Any new request of an injured party after the
critical date would suffice to bring the dispute concerned within the
jurisdiction of the Court. Such requests could be repeated ad libitum.
Thus, the basic premise of consent, the foundation stone of the
international system of judicial settlement, would be rendered nugatory
at an enormous price for the idea of judicial settlement of international
disputes.
22ECtlIR, Varnava and Others v. Turkey, Application 16046/90, 18 September 2009,
§ 130. 19
29. A similar jurisprudence has been evolved by the Ruman
Rights Committee under the International Covenant on Civil and
Political Rights. In Koutny v. Czech Republic, it held that an act of
confiscation that occurred in Czechoslovakia in 1951 was outside the
competence of the Committee, Czechoslovakia - the predecessor State -
23
having ratified the Optional Protocol to the Covenant only in 1991. No
word was lost by the Committee on the fact that the applicant felt still as
a victim of political persecution by the regime holding power at that
time.
2) The Two Settlement Agreements of 1961 as the Real Cause of
the Dispute?
30. The second attempt undertaken by Italy to bring the dispute
within the temporal field covered by the European Convention relies on
the contention that the two Settlement Agreements of 1961 brought
about a "new situation". Italy even goes so far as to state that the
"1961 Agreements, and not the Peace Treaty, must ... be regarded as
constituting the source or real cause of the disputes submitted to the
Court. ,24
It is hard to follow the Respondent in this assessment. It completely
distorts the object and pm'pose of the two Agreements.
31. In its Memorial (p. 10 para. 10), Germany pointed out that in
the fifties of the last century differences arose between the two
Governments about the scope of the waiver clause contained in the
Peace Treaty. The German Government was of the view that the clause
had brought to extinction any claims covered by it. On the other hand,
the Italian Government heId that there was ample room for additional
payments on the palt of Germany with a view to improving the good
relations between the two countries. In order to consolidate the situation
23Communication 807/1998, views of20 March 2000UN doc.
CCPR/C/68/D/807/1998, para. 6.2.
24CM, p. 39 para. 3.18; see also p. 112 para. 5.66. 20
of peace and good understanding as it had evolved after the foundation
of the new democratic Germany in 1949, and acting in a spirit of
understanding and compromise, the German Government decided that it
would be a wise course of action to make sorne concessions to Italy
instead of insisting on full respect for the waiver clause of the Peace
2S
Treaty. Just one sentence of the governmental memorandum submitted
to the legislative bodies with regard to the two Agreements of 1961
should be quoted once again:
"The only viable solution to overcome all differences seemed to make a
single lump sum payment the amount of which could be determined
without any detailed examination of the factual and legal foundations of
26
each controversial claim by way of compromise."
Thus, Germany saw the conclusion of the two Settlement Agreements as
a gesture of good will designed to put an end to legal fights about
compensation due in individual cases.
32. Accordingly, Germany rejects the contention advanced in
the Counter-Memorial (p. 39 para. 3.18; p. 108 paras. 5.55, 5.56) that by
concluding the two Settlement Agreements of 1961
"Germany renounced its availing itself of any claim based on an
interpretation of the 1947 Peace Treaty to the effect that Italy had
waived its rights of reparation for war damages, including reparation
owed to Italian victims of Nazi crimes. At the same time, in 1961
Germany acknowledged its obligation of reparation towards Italy and
Italian nationals."
This contention provides an arbitrary reading of the two Settlement
Agreements, not supported by their text nor by the circumstances
surrounding their conclusion. Germany did not acknowledge a legal
obligation to make reparation for the damage suffered by Italian citizens
during the critical months from September 1943 to May 1945. No word
of such an acknowledgement can be found in the Agreements. In spite
of its stance that a legal obligation under international law did not exist
25
MG, p.10para.10.
26Ibid. 21
for it, Germany agreed to make the payments requested by Italy with a
view to stabilizing the good relations between the two countries.
33. It is hard to see why such a gesture of good will should have
brought about a "new" situation constituting the core of the dispute
pending before the Court. The two Agreements were steps in a process
of inner-European normalization, intended to consolidate even further
the good partnership between Germany and Italy. The cause of action on
which Italy continues to rely in presenting its claims is nothing else than
the rule of general international law that any breach of a rule of
international law leads to a duty of reparation. lnevitably, this reasoning
leads back to the German occupation of Italy from 1943 to 1945 and the
state of war existing between the two countries during that time. On the
other hand, the 1961 Agreements are precisely an element in the large
process of settling the consequences of World War II. They are not the
source of any injustice or illegality. Italy does not challenge the
Agreements. They were validly concluded and they do not negatively
affect Italian rights. Italians victims of breaches of the law by German
authorities should have benefited from the payments made by
Germany ? 7Apparently, Italy feels today that the sums agreed upon in
1961 were too low and did not suffice to coyer aIl the damage sustained
by it. But such a feeling of remorse cannat be the foundation of an
entitlement to reparation. No claim is derived from the two 1961
Settlements Agreements against Germany, and accordingly Germany
does not have to shield itself against any such claim. Although the two
Agreements are seen in a different light by both countries, they are not
even portrayed by the Respondent as the source of any tort action or
other action against Germany. Moreover, Germany has fully complied
with its contractual obligations stipulated therein.
34. There is no mention in the Counter-Memorial as to any
alleged defect, inconsistency or other failure of the two 1961
Agreements with regard to Germany's obligations under international
27Apparently, the procedures ofdistribution ofthe monies paid by Germany were
defective, as admitted by Italy, CM, p. 111 para. 5.64. 22
law. Italy does not challenge these treaties as far as Germany's
·participation is concerned. It does not charge Germany with any breach
of general international law. On the contrary, Italy received the
payments promised by Germany, thereby expressing its satisfaction with
those instruments and their performance. At no point in time since their
conclusion has Italy made any representations to Germany as to their
validity. Italy's requests (CM, p. 134) do not mention the two
Agreements as a source of obligations incumbent upon Germany over
and beyond the obligations specifically stipulated therein.
35. Germany does not deny that there exists in fact a certain
divergence of opinions regarding the legal connotation of the two 1961
Agreements. While Germany is of the view that these two instruments
are to be seen as a voluntary complement to the regime ushered in by
the 1947 Peace Treaty, Italy contends that the two Agreements opened
up again the issue of reparations. But the core of the Counter-Claim is
epitomized by the contention that Germany has a continuing obligation
to provide reparation for the violations of IHL committed by the
authorities of the Nazi regime during the time of the military occupation
of Italy. Rence the real cause of the dispute is the occurrences of 1943
to 1945. The two Settlement Treaties as such are not in issue. Both sides
agree that the conclusion of these Treaties was a positive step forward
for the improvement of the mutual relationship between the two
countries. As far as Italy's claims are concerned, the 1961 Agreements
provide no basis, neither factually nor legally. There is simply no
dispute about the relevance of the Treaties with regard to the Counter
Claim. Reference may be made in this connection to the famous
definition of a dispute given by the Permanent Court in Mavrommatis
Palestine Concessions:
"A dispute is a disagreement on a point of law or fact, a conflict of legal
,28
views or of interests between two persons.
28P.C.U., The Mavrommatis Palestine Concessions, A/2, 30 August 1p.11. 23
The Court has added that for the purposes of verifying the existence of a
·legal dispute it faIls to it to determine whether
"the c1aim of one party is positively opposed by the other ,,?9
In 1961, Germany agreed to a gesture of cooperative partnership vis-à
vis Italy. But the real cause of the dispute is and remains the hostilities
and the occupation policies conducted by Germany. No tort c1aim or
other c1aim against Germany flows from the 1961 Agreements. Italy
does not invoke the Agreements as the basis of its Counter-Claim.
Accordingly, there was no need for Germany to oppose such a c1aim.
36. In sum, the contention that the dispute finds its "real source"
in the 1961 Agreements goes widely astray.
3) The Enactment of the German Law of 2 August 2000
Establishing the Foundation "Remembrance Responsibility and
,
Future,,30
37. Great emphasis is placed by Italy on the fact that the Italian
Military internees were not taken into account by the German Law of 2
August 2000 establishing the Foundation "Remembrance,
3!
Responsibility and Future". However, no legal c1aim is derived by
Italy from this omission. Rightly, it admits that the enactment of the
Law was not dictated by an existing obligation under international law
as between the two countries. In other words, Italy does not contend that
by abstaining from inc1uding the Italian Military internees in the scope
ratione materiae of the Law Germany committed a violation of its
duties vis-à-vis Italy.
29South WestAfi'ica, PreliminalY Objections, Judgment, ICJ Reports 1962, p. 316, at
328.
30CM, ANNEX 7.
31CM, p. 110 paras. 5.61, 5.62. 24
4) Conclusion
38. After this review of the factual occurrences that may be
deemed to constitute the "real cause" of the dispute, Germany cornes to
the conclusion that no other source can be found than the horrendous
activities performed during World War II in violation of IHL. No
continuing violation can be perceived, and neither the conclusion of the
two 1961 Settlement Agreements nor the enactment of the Law on the
Establishment of the Foundation "Remembrance, Responsibility and
Future" can reasonably be deemed to be the facts that gave rise to the
dispute.
V. Requests
39. Germany prays the Court to
dismiss Italy's Counter-Claim as not falling within the jurisdiction of
the Court.
Berlin, 10 March 2010
Christian Tomuschat Susanne Wasum-Rainer
Agent of the Government of the Director General for
Federal Republic of Germany Legal Affairs and Agent of the
Government of the Federal
Republic of Germany
Written Observations of the Federal Republic of Germany (Article 80 of the Rules of the Court)