Written response of Germany to the questions put by Judge Bennouna, Judge Cançado Trindade and Judge ad hoc Gaja at the end of the public sitting held on 16 September 2011

[Translation by the Registry]

I.) Question put to Germany by Judge Bennouna at the end of the public sitting of
16 September 2011

If no other remedy is available for individual victims of serious violations of human rights or

humanitarian law committed on their territory by a foreign State, would it be admissible for the
latter to raise a plea of immunity from jurisdiction jure imperii before the courts of the forum
State?

State immunity from jurisdiction in respect of acts jure imperii is a firmly established
principle in international law. It derives from the fundamental principle of the sovereign equality

of States. As regards the cases which form the subject of the present dispute, international law
provides for no exception to the principle of State immunity from jurisdiction. State practice leaves
no room for doubt on the matter. In support of this assertion, Germany has submitted the relevant
legal decisions to the Court.

Scholarly opinion also confirms the foregoing. The resolution of the Institute of
International Law on “The Immunity from Jurisdiction of the State and of Persons Who Act on
Behalf of the State in case of International Crimes”, adopted at its Naples Session in 2009, offers
no evidence to the contrary.

Article IV of that resolution reads as follows:

“The above provisions are without prejudice to the issue whether and when a
State enjoys immunity from jurisdiction before the national courts of another State in
civil proceedings relating to an international crime committed by an agent of the
former State.”1

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Yearbook of the Institute of International Law, Vol. 73 (Naples Session, 2009), p. 228.