INTERNATIONAL COURT OF JUSTICE
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY; GREECE INTERVENING)
COUR INTERNATIONALE DE JUSTICE
IMMUNITES JURIDICTIONNELLES DE L'ETAT
(ALLEMAGNE C. ITALIE ; GRECE (INTERVENANT))
ANSWERS TO QUESTIONS PUTTO ITALY BY JUDGES
SIMMA, CANÇADO TRINDADE AND GAJA
ATTHE END OF THE PUBLIC SITTING OF 16SEPTEMBER 2011
23 September 20Il Question putto Italy by Judge Simma
"Italy takes the view that the waiver clause stipulated in Article 77 (4) of the 1947 Peace
Treaty with Italy does not, indeed cannot, cover severe breaches of international
humanitarian law committed against Italians by Germany. According to the
Respondent, Italy was already, in 1947 and is up to the present, under an international
legal obligation not to waive daims to German responsibility for such grave breaches. In
view of the great weight thus given to these daims by Italy, let me ask the following
question, a factual question:
Please describe in detail the attempts undertaken by the Italian Government at the
diplomatie level to induce Germany to make reparation to Italian victims of German
war crimes that is precisely the category of Italian victims allegedly excluded from
German reparation measures during the period following the 1947 Peace Treaty up
until the Ferrini case."
1. The question asked by Judge Simma: Preliminary remarks.
1. Judge Simma recalled that "Italy takes the view that the waiver clause stipulated in Article
77 (4) of the 1947 Peace Treaty [...] does not, indeed cannot, cover severe breaches of
international humanitarian law cornmitted against Italians by Ge1many.According to the
Respondent, Italy was already, in 1947 and is up to the present, under an international legal
obligation not to waive daims to German responsibility for such grave breaches" and, "[in]
view of the great weight thus given to these daims by Italy", the Judge formulated what he
defined as "a factual question"; in particular, Italy has been asked to "describe in detail the
attempts undertaken by the Italian Govemment at the diplomatie level to induce Germany to
malcereparation to Italian victims of German war crimes that is precisely the category of
Italian victims allegedly excluded from German reparatio1 measures during the period
following the 1947 Peace Treaty up until the Ferrini case"
This question gives Italy the opportunity to express a few further considerations
concerning the issu o~ the lack of reparations to Italian war crime victims.
2. At the outset, prior to answering this very specifie question about the attempts undertalŒn
at the diplomatie level, it seems necessary to address, albeit briefly, the wording of the
preambular part of the question formulated by Judge Simma.
3. As far as the first sentence is concerned ("Italy takes the view that the waiver clause
stipulatedin Article 77 (4) of the 1947 Peace Treaty [...] does not, indeed cannat, caver
severe breaches of international humanitarian law committed against Italians by Germany"),
Italy has no objection, since it appropriatelysummarizes Italy's views.
4. It is respect:fully submitted, however, that the second preambular sentence summarizes the
position of Italy in a way which does not correspond to the presentation of Italy's arguments
before the Court. The sentence"[a]ccording to the Respondent, Italy was already,in 1947 and
is up to the present, under an international legal obligation not to waive claims to German
1Emphasis added.
2 responsibility for such grave breaches" presents Italy's arguments inappropriately, and it does
so in a way which, without certain indispensable clarifications, might be prejudicial to Italy's
position.
5. For Italy, the obligation to provide reparation for egregious breaches of IHL in favour of
Italian victims rests on Germany because of non-derogable principles of international law. In
this regard, Italy has never expressed any renunciation aiming at absolving Germany of its
liability, nor could Italy have cloneso. As a consequence, even if one were to suppose that
·Italy has not engaged in pressing diplomatie attempts to induce Germany to mak:ereparation
to Italian victims of war crimes committed by the Third Reich, this would not have the effect
of rendering moot or invalid Germany's obligations, nor could it deprive Italy of the right to
request, on behalf of its nationals, that Germany comply with the law. In particular,this is true
since, on the basis of the intransgressible principles of international humanitarian law, no
State is allowed to absolve itself or any other State from liability for grave breaches of IHL.
Therefore, Italy would not have been in a position to absolve Germany either through an
express agreement (which was never made), or through an implicit waiver due toits alleged
silence. Nor could Germany be relieved of its obligations in any other way. The only way to
discharge that obligation is to conclude appropriate agreements with Italy for the benefit of
Italian victims orto malŒdirect reparations to the victims. None of these measures has been
talŒnby Germany.
6. The second general remark is that, although it is true- as mentioned in Italy's first round
of pleadingl- that no continuous pressing requests have been made to Germany on account
of the friendly relationship existing between the two Countries, this was due to the specifie
legal context in which the issue of reparations developed. Moreover,. as far as war crimes
againstthe civilian population of several Italian viliages is concemed, due consideration must
also be given to the fact that in many cases clear evidence was only gathered in the 1990s, and
criminal prosecution in these cases has talŒn place in Italian criminal courts only in very
recent years.
2. The position of Italy vis-à-vis Germany in this sad story ofprotracted denia[ of justice
7. Coming now to the more factual aspect of the question by Judge Simma, Italy will first
present sorne historical data that illustrate·the diplomatie. steps·undertaken. Secondly, Italy
will outline the legal context in which formai diplomatie démarcheswere taken. In particular,
in this regard, Italy would like to emphasize that only recently did it become clear that
Germany had no intention to comply with its obligations. Thirdly, Italy will explain why the
fact that reparation was not frequently requested in a formai way does not suffice to annihilate
or extinguish the rights accruing to victims under international law.
(a) 1947-1961
8. First of all, there is no need to demonstrate that steps were undertaken between 1947
and 1961, since the two 1961 Agreements are a demonstration that Italy did not accept the
idea according to which the 1947 waiver clause covered any claim of any nature, including
war crimes reparation claims. In this regard, the fact that differences of opinion arase between
Italy and Germany as regards the scope of the waiver clause is conclusively shawn by the
German Govemment itself in the Memorandum of 30 May 1962 presented to the legislative
2
CR 2011/18, p. 37, para. 39 (Zappalà).
3 3 4
bodies, cited by Italy in its Counter-Memorial. Therefore, for the period 1947-1961 there is
intrinsic, direct evidence that the waiver clause as interpreted by Gerrnany did not satisfy
Italian requests.
(b) 1961-1990
9. Subsequently, concerning the decades from 1961 to 1990, Italy has already explained that,
as part of the overall agreement in 1961, Italy ratified the 1953 London Agreement on
German Extemal Debts and, as is well known, Article 5 of this Agreement expressly
postponed the issue of pending reparations until a fmal settlement was reached. Such a
fmal settlement has not yet occurred. Therefore, with this agreed postponement in mind there
was no point in insisting with Gerrnany about the need to make reparations for war crime
victims.
(c) 1990-2000
10. After the 1990 "4+2" Treaty, in which nothing was said on the issue ofreparations, a new
round of ex gratia reparations was unde1iaken by Gerrnany. Italy placed great expectations on
this new round of reparations. This new round was the result of a complex process which had
led to the adoption in 2000 of the Law on the Foundation Remembrance, Responsibility and
Future. In passing, one should recall that this process was due to the claims filed before
national courts, particularly in theUS by numerous war crime victims (see e.g. the Princz
5
case). This shows that, although Germany has often reiterated the ex gratia nature of many of
the reparations made under various schemes, those initiatives have not been altogether
spontaneous.
(d) The diplomatie steps undertaken by Italy since 2000
11. However, when it became evident that Germany had no intention to make reparation to
Italian victims of war crimes; and when the real intentions of Germany started to emerge, the
attitudeof the Italian Govemment changed and it became more proactive. This is admitted by
Germany when, in its Reply, it states that "after the adoption of the 2000 Gerinan law on the
'Remembrance, Responsibility and Future' Folmdation [... ] Italy made representations to
Germany on account of the ex~lus of hn Italian military.intemees ("IMis") from the scope
ratione personae ofthat law".
12. In particular, we must clarify that, on 29 November 2000, a mixed delegation of officiais
of the Ministry of Foreign Affairs together with officiais from the Ministry of Deferree met in
Berlin with officiais in the Ministry of Foreign Affairs and with the Director of the Berlin
branch of International Organization for Migration (i.e. the Organization entrusted with the
taskofhandling the requests for compensation).
On tha.toccasion, it was emphasized that IMis should be included among the beneficiaries
of the compensation scheme of the Foundation, and it was recalled that they had been
excluded· from the scope of the 1961 agreements (and Germany never objected to. this).
Moreover, the special nature of IMis was highlighted, clarifying that they could not be likened
3Drucksache des Deutsch en Bundestages JV/438, p. 9.
4Italy's CM, para. 5.56, p. 109.
5Italy's CM para. 4.75, pp. 68-9.
6See GR at para. 13.
4to other categories of prisoners or deportees. The officiais of the Auswaertiges-Amt replied
that 'prisoners of war' had been excluded for fear that this would open a 'Pandora's box'.
However, since Italian Military Internees had been deprived by the Third Reich ofthat status,
Italy had great expectations that these Italian victimsf war crimes would be included among
the beneficiariesof reparations.
13. In'November 2000 and subsequently on various occasions during the spring of 2001, the
Embassy of Italy in Berlin raised the issue of IMis with German authorities and emphasized
that an exclusion of IMis from the beneficiaries of the compensation awarded by the
Foundation would have been utterly unjust. Against this background, on 7 March 2001, the
Italian Ambassador in Berlin, H.E. Silvio Fagiolo, met with the President of the Kuratorium
of the Foundation Jansen to support the case for making reparations to IMis.
14. As also reported by the German press of the time (see e.g. the article by Juergen Jeske
in Frankfurter Allgemeine Zeitung of 12November 2001), the exclusion of the former Italian
Military Internees (IMI) and other Italian victims ofNazism from the number ofbeneficiaries
of the Foundation Remembrance, Responsibility, Future was mainly due to a financial
problem, rather than to a legal impediment, which was actually fabricated at a later stage. On
14 May 2001, in a meeting with the then-Italian Ambassador in Berlin, Silvio Fagiolo, who
was again advocating the inclusion of the IMis, the competent senior official of the Federal
Chancellery, Graf Lambsdorff/ admitted that the problem was, to a large extent, a fmancial
one.
15. The support o:fferedby the Italian Govemment to the mission ofltalian Military Internees
in Berlin on 27 June 2001, when an Italian delygation met with Professor Tomuschat, who
was acting at that time in his private capacity a·san expert requested by the Ministry of
Finance to clarify the status of IMis for the purpose of the applicability of the Foundation's
reparation scheme, is further evidence of the keen interest of Italy, as a sovereign State, to
insist on the implementation ofGermany's obligations of reparation.
16. The e:ffectsof the intervention of the Italian Govemment can also be inferred from the
decision to postpone the deadline for the filingf requests of compensation to the Foundation
until31 December 2001.
17. Finally, on 2 August 2001 the Director of Legal Affairs in the Ministry of Foreign Affairs
(Auswaertiges-Amt), Mr. WestdiclŒnberg,invited the Arnbassador of Italy in Berlin to a
meeting and officially informed him of the conclusions reached in the expert opinion of
Professor Tomuschat. In that opinion, IMis were equated to prisoners of war for the purpose
of denying them any right to obtain compensation under the Foundation's reparation scheme.
Mr. Wesdickenberg further informed the Ambassador of the German Govemment's decision
to follow Professor Tomuschat's opinion. Immediately, on that specifie occasion,Ambassador
Fagiolo with great clarity criticized the reasoning behind the expert opinion and the decision
of the German authorities to follow it as the source of blatant injustice. Obviously, the
German authorities would not have immediately informed the Ambassador ofltaly if this had
merely been an issue involving individual Italian nationals with no bearing whatsoever in the
relationships between the two Countries.
7In 1999 Lambsdorff was appointed by Chancellor Schroder as the federal envoy to the negotiations for the
compensation of the victims offorced labor in Germany during World War II, which led to the establishment of
the Foundation "Remembrance, Responsibility and Future".
518. The relationship was, at all times, one of a clear, traditional, diplomatie relationship at the
inter-State level. A level at which Germany had again failed to comply with its obligations,
because it had been consistently operating on the basis of the erroneous assumption that the
waiver clause had exempted it from all responsibilities.
4. Concluding remarks
19. While it is true that evidence of diplomatie steps in the form of official documents might
be scarce, not only are there various legal reasons that explain it, but in the most relevant time
frame (2000/200 1) there were numerous meetings between Italian and German diplomatie
authorities.
20. Furthermore, in the past Germany had systematically declared that the agreements were
without prejudice to any measure of reparation that might be granted to individuals under
German law; Italy could not imagine that this would lead German authorities to disregard the
legitimate claims of Italian victims of war crimes. Italy would have hoped, precisely in
consideration of the relationships between the two Countries and the common commitment to
European integration, that such avenues would be open and effective for Italian nationals.
21. Simply put, Italy has not waived any claims for war crimes, and has in no way acquiesced
to Germany's failure to respect the obligation to malŒreparation. In any case, even silence or
the simple lapse of time cannot extinguish such claims. War crimes are not subject to any
statute of limitations, either within national legal order or at the international level. This is
true not only with regard to the punishment of individuals but also for compensation claims
and the liability of States.
22. In conclusion, it cannot be denied that Italy has made significant steps to request Germany
to pay compensation to numerous war crimes vict1ms. It must be stressed, however, that in
any case, even if Italy had not taken any such steps (which, as seen above, is not the case),
there is no rule which justifies setting aside obligations ensuing from intransgressible
principles of international humanitarian law. Germany cannot invoke the formulation of its
own internallaws to justify, at the internationallevel, a lack of reparation for entire categories
of victims of war crimes. If these laws are flawed, or if their interpretation is mistaken, it is up
to the German authorities to find appropriate remedies. Italy.was and still isready to address
the issue of reparation to Italian war crime victims through an appropriate inter-State
settlement.
6 Questions putto both Parties by Judge Cançado Trindade
"1. In relation to your arguments in these public sittings before the Court and bearing in
mind the Settlement Agreements of 1961 between Germany and Italy, what is the
precise scope of the waiver clauses contained therein, and of the waiver clause of Article
77 (4) of the Peace Treaty of 1947? Can the issue of reparation be considered as entirely
closed today? Or has any of its aspects remained open to date?
2. Is the delicts exception (territorial torts) limited to acts jure gestionis? Can it be? Are
acts jure imperii understood to contain also a delicts exceptio? How can war crimes be
considered as acts jure - I repeat, jure imperii?
3. Have the specifie Italian victims to whom the Respondent refers effectively received
reparation? If not, are they entitled to it and how can they effectively receive it, if not
through national proceedings? Can the regime of reparations for grave breaches of
human rights and of international humanitarian law still be regarded as exhausting
itselfat inter-State level? Is the right to reparation related to the right of access to
justicelato sensu? And what is the relationship of such right of access to justice with jus
cogens?"
1. A) Wh at is the precise scope of the waiver clauses contained the Settlement Agreements
of 1961 betJ-veen Germany and Italy, and of the waiver clause of Article 77 (4) of the Peace
Treaty of 1947?
Italy recalls that the two agreements concluded in 1961 were the result of a process which
in itself showed that there were differencesof opinion between Italy and Germany as to the
scope of the waiver clause contained in the 1947 Peace Treaty, and that Germany had to talee
sorne measures to address them. The agreements were thus a measure of reparation for, on the
one hand, sorne pending economie questions (the 'Settlement' agreement) and, on the other,
.as.indemnification of victims of persecution (the 'Indemnity' agreement). While the former
primarily concerned the economie relationships between Italy and Germany (as well as Italian
and German nationals) and represents conclusive evidence that Italy had never accepted
Germany's interpretation of the waiver clause, the latter focused on a specifie category of
victims which was targeted on the basis of specifie discriminatory grounds. These two
agreements, however, only caver a given, particular subject matter: pending economie
questions and reparations to victims of persecution. Moreover, these agreements do contain
waiver clauses, and in particular the 'Settlement' agreement (which refers to pending
economie questions) contained an obligation for Italy to ensure for the future that no claim
would be brought against Germany. However, even these clauses merely referred to the
subject matter ofthe agreement and were not (and could not have been) so expansive as to
caver, in addition, war crimes.reparation claims. Therefore, it is warranted to state that the
agreements and the waiver clauses therein are specifically limited to the claims within the
scope of the relevant agreements: pending economie questions, on the one hand, and claims
by victims of persecution, on the other.
With regard to the waiver clause of Article 77(4) of the Peace Treaty of 1947, Italy recalls
that, in its written and oral pleadings, it has widely demonstrated that this clause does not
cover claims of compensation arising out of grave breaches of international humanitarian law.
7B) Can the issue of reparation be considered as entirely closed today? Or has any of its
aspects remained open to date?
As far as the second aspect of Judge Cançado Trindade's question is concerned, Italy
observes that the issue of reparations is not closed. There are several categories ofvictims that
have never been taken into account for the purpose of awarding reparations, including Italian
victims belonging to the categories referred to in the cases underlying the present dispute.
2.A) Is the delicts exceptio (territorial torts) limited to acis jure gestionis?
The "tort exception" to immunity applies to both acts jure gestionis and acts jure imperii
committed by a foreign State on the territory of the forum State. This view is confirmed by
the International Law Commission's Commentary on the Draft Articles on Jurisdictional
Immunities of States and Their Property, in Article 11 of the European Convention of on
Jurisdictional Immunity as well as in the practice of States (see, among the instances of
practice referred to during the oral pleadings, the laws of the United Kingdom, Singapore,
Canada, Israel, the United States, Argentina, South Africa, Australia and Japan (ibid., p. 44),
the judgments of the Canadian Supreme Court of Quebec in Kazemi (Estate of) and Hashemi
v. Iran, Ayatollah Ali Khamenei and ors (ibid., p. 40), of the Supreme Court of Canada in
Schreiber v. Attorney-Gen.eral of Canada and Germany (CR 2011/21, p. 33), of the US
Supreme Court in Argentine Republic v. Amerada Hess (ibid., p. 32), and of the Polish
Supreme Court in the Natoniewski case (ibid. p. 34; see also Annex 5 to Germany's
Comments on the Greek Declaration of 3 August 2011, p. 12)). The relevant legalliterature
also supports this view (see Italian Counter-Memorial, p. 52, note 96).
B) Can it be?
As the International Law Commission's Commentary on the Draft Articles on Jurisdictional
Immunities of States and Their Prope1iy acknowledges (see CR 2011/18, p. 42), the
distinction between acta jure imperii and actajure gestionis has been maintained in the case
law of certain States with respect to torts committed by a foreign State in the territory of the
forum State. This may be talŒn as implying that States are not under a prohibition to grant
immunity for acta jure imperii in such situations. However, in line with the view expressed
on this issue by the International Law Commission, Italy submits that this practice does not
affect the conclusion asto the non-existence of an obligation to accord immunity for acta iure
imperii in those cases in which the tort exception applies.
C)Are acis jure imperii understood to contain also a delicts exceptio?
There is nothing inherent in the notion of actsjure imperii which dictates the conclusion
that the tort exception does not caver this category of acts. The justification of this exception
to immunity is based on the assertion of local control or jurisdiction over torts committed
within the territory of the forum State. As stated by Professor Crawford (for references, see
CR 2011/21, p. 59, para. 32), the basis for an assertion of jurisdiction over 'govemmental
torts' is "plainly not a distinction between 'govemmental' and 'non-govemmental' acts, but
an assertion of local control over (i.e. jurisdiction over) obvious forms of harm or damage".
Moreover, as observed by the International Law Commission (for references, see CR
2011/18, p. 46, note 43),"[s]ince the damaging act or omission has occurred in the territory of
8the State of the forum, the applicable law is clearly thelex loci delicti commissi and the most
convenient court is that of the State where the delict was comrnitted". Taking into account the
justification on which the tort exception is based, it becomes clear that it applies to all acts
a foreign State which occurred on the territory of the forum State, whether performed jure
imperii orjure gestionis.
D) How can war crimes be considered as acis jure-I repeat, jure imperii?
Italy is aware of the view according to which war crimes and crimes against humanity
could not be considered to be sovereign acts for which the State is entitled to invoke the
defense of sovereign imrnunity (see Italian Counter-Memorial, pp. 65-66, where reference is
made to the view expressed by Judge Sporkin in Princz v. Federal Republic of Germany as
well as, in legal literature, by Professor Kokott and Professors Belsky, Roth-Arriaza and
Merva). While Italy acknowledges that in this area the law of State imrnunity is undergoing a
process of change, it also recognizes that it is not clear at this stage whether this process will
result in a new general exception to imrnunity - namely a rule denying immunity with respect
to every claim for compensation arising out international crimes. For this reason, Italy, taking
into account the specifie and, to a certain extent, unique circumstances characterizing the
cases submitted to Italian courts, relies on other arguments - namely the tort exception and
the existence in the present case of an irreconcilable conflict between immunity and the
effective enforcement of peremptory rules- to support its view that it had no obligation to
accord jurisdictional imrnunity to Germany.
3. A) Have the specifie Italian victims to whom the Respondent refers effectively received
reparation?
None of the categories of victims referred to in the cases underlying the present dispute
has received reparation. Sorne of them never had any chance to request compensation since no
mechanism has ever been put in place: e.g. for the relatives of the victims of the massacres
perpetrated by agents of the Third Reich against civilian population; while the Italian Military
Internees have been trying to obtain compensation for nearly a decade without any success.
Moreover there does not seem to be any sign of willingness on the part of German authorities
to conclude an agreement with Italy for the purpose of making reparation to these categories
ofvictims. ·
B) If not, are they entitled to it and how can they effectively receive it,ifnot through
national proceedings?
At the moment there is no other alternative than national proceedings. Germany's internai
mechanisms did not function in favour of the categories of victims referred to in the cases
underlying the present dispute and no agreement with Italy for the purpose of making
reparation to these victims has ever been concluded. Actually, had domestic judges not
removed immunity no other avenue would have remained open for war crime victims to
obtain reparation. The strong reluctance of German authorities to enter into any specifie
agreement providing for reparation for the Italian Military Internees, for example, has been
represented by the Italian Ambassador in Berlin during the discussions concerning the
possibilityof compensation by the Foundation.
9 C) Can the regime of reparations for grave breaches of human rights and of international
humanitarian law still be regarded as exhausting itself at inter-State leveZ?
The regime of reparations for grave breaches of human rights and international
humanitarian law does not exhaust itself at the inter-State level. Individual victims of grave
.breaches of human rights or international humanitarian law can certainly address their claims
of reparations to domestic courts. In sorne cases, domestic laws provide for specifie legal
avenues to ensure that the victims can obtain redress; in other cases, victims can rely on
international rulesas incorporated in the domestic legal order of the forum State. When resort
to domestic courts represents, for the victims of international crimes, the only and last means
available to obtain sorne form of redress, Italy submits that the removal of immunity is
justified.
D) Is the right to reparation related to the right of access tojustice lata sensu?
Since recourse to domestic judges constitutes a mechanism by which individual victims of
grave breaches of human rights or of international humanitarian law can obtain redress for
such breaches, there is certainly a relationship between the right to reparation and the right of
access to justice. Under certain circumstances, the deniai of access to justice because of the
immunity granted to a foreign State may imply a deniai of effective reparation.
E) And what is the relationship ofsuclt right of access tojustice with jus cogens?
As the question suggests, there is clearly a relationship between the right of access to
justice andjus cogens. The concept ofjus cogens does not confine itself solely to the realm of
primary rules but also relates to the remedies available in cases of grave breaches of
obligations prescribed by norms having such character. In this respect, a conflict may indeed
arise between rules which prevent individuals from having access to justice - such as the rule
of State immunity - and the effective enforcement of jus cogens rules. It is submitted that,
when this conflict arises, ifthere is no other avenue open to obtain the effective enforcement
ofjus cogens, priority must be given to jus cogens by removing immunity, thereby allowing
access to justice to individual victims.
10 Question putto both Parties by Judge ad hoc Gaja.
"Does a waiver made by State A, also on behalf of its nationals, with regard to a
category of claims against State B, imply that State B is entitled to enjoy jurisdictional
immunity should a national of State A bring to the courts of State A a claim within that
category?"
According to Italy, a waiver of the kind described by Judge ad hoc Gaja does not, and
cannot, imply per se that State B is entitled to jurisdictional immunity. Immunity and the
effectsof a waiver clause operate at two distinct levels. Immunity is a bar to jurisdiction
which is based on the status of the defendant as a sovereign State: the question of immunity
is, in other words, a procedural issue which must be addressed at the earliest stage of the
proceeding. By contrast, the waiverof claims or of rights has the effect of rendering a claim
inoperative orf depriving an individual of his/her substantive right. In principle, the question
of immunity precedes the question of the effects to be attached to a waiver clause. In its
judgment of October 2008 in the Josef Milde case, the Italian Court of Cassation carefully
distinguished the question of the immunity enjoyed by Germany under the law of State
immunity from the question of the effects to be attached to the waiver clause contained in
Article 77, paragraph 4 of the 1947 Peace Treaty (see German Memorial, Annex 16, p. 17).
Furthermore, it must be reiterated that, even if it were adrnitted, for the sake of argument,that
the waiver clauseof the Peace Treaty has, i.nd of itself, the effect of depriving Italian courts
of jurisdiction over claims against Germany arising from World War Two, this could in no
way affect the question of jurisdiction with r~spe tctgrave breaches of. interna~ional
humanitarian.law committed by Germany since (as Italy has demonstrated in its written and
oral pleadings) the waiver clause does not (and could not) cover daims arising in relation
such breaches.
The Co-Agent ofitaly
H.E. Franco Giordano, Ambassador
11
Written response of Italy to the questions put by Judge Simma, Judge Cançado Trindade and Judge ad hoc Gaja at the end of the public sitting held on 16 September 2011