On 3 February 2012, the International Court of Justice (“ICJ” or the “Court”) handed down its long-awaited decision in Jurisdictional Immunities of the State (Germany v. Italy) (the “Decision”). The Court held by a majority that Italy had violated Germany’s immunity under international law. Italy must now, through a method of its choosing, ensure that the decisions of the Italian domestic courts and other judicial authorities infringing Germany’s immunity cease to have effect.
The proceedings in the Italian domestic courts originated from acts perpetrated largely by German armed forces between 1943 and 1945. During World War Two, German forces occupied a significant portion of Italian territory and committed atrocities against the Italian population, including, for example, the denial of prisoner of war status, the massacre of civilians and their deportation for use as forced labour. Through efforts such as the Federal Compensation Law passed in 1953 and the “Remembrance, Responsibility and Future” Foundation established in 2000, Germany has sought to compensate victims of the Nazi regime.
Nevertheless, Italian nationals have continued to bring civil claims against Germany in the Italian domestic courts in respect of these violations of international humanitarian law. Mr. Luigi Ferrini, for example, was captured by Nazi troops in 1944 and deported to Germany where he had to undertake forced labour, later being transferred to a concentration camp. In 1998, Mr. Ferrini raised proceedings against Germany for these acts in the Tribunale di Arezzo. These claims were dismissed both by that court and on appeal to the Corte di Appello di Firenze. However, on 11 March 2004, the Italian Corte di Cassazione held that Italian courts possessed jurisdiction over Mr. Ferrini’s claims on the basis that State immunity did not, in their view, apply where the act complained of act constituted an international crime (“the Ferrini decision”). The Ferrini decision served as a catalyst, spawning hundreds of further, similar civil claims to be brought against Germany.
Against that background, on 23 December 2008, Germany instituted proceedings against Italy before the ICJ (“the Parties”). In essence, Germany requested the Court to find that Italy had failed to respect the jurisdictional immunity of Germany by allowing these civil claims to be brought against it in the Italian domestic courts.
In the present context, the immunity of Germany could only be determined by reference to customary international law. Whilst Germany is a party to the 1972 European Convention on State Immunity, Italy is not and therefore the Convention was not binding upon it. Furthermore, neither Germany nor Italy are parties to the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. Consequently, the Court remarked that State practice ‘of particular significance’ was to be found in the decisions of national courts, the legislation of States dealing with immunity, the claims of immunity put forward by States before national courts and other statements made by States.
The Rationale for State Immunity and Intertemporal law
The Court began its judgment by reiterating:
‘[T]he rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.’ (paragraph 57)
The German acts complained of had occurred in 1943-1945; therefore, in the Court’s view, international law as at that period would apply to those acts. The Court was not, however, called upon to decide whether or not these German acts were illegal. Indeed, this was not contested by the Parties. On the other hand, the Italian acts in question – the denial of immunity and the exercise of jurisdiction – did not occur until the proceedings in the Italian domestic courts took place. Consequently, the acts of Italy – the subject of the present proceedings – would be judged by the Court in light of international law as in force at the time of those Italian domestic proceedings.
Recognition of Restrictive doctrine of State immunity
The Court recognised that many States, including the Parties before it, now draw a distinction between acta jure imperii (sovereign acts) for which immunity still remains, and acta jure gestionis (private and commercial activities) for which it does not. In the present case, the acts of the German forces were, in the Court’s determination, clearly acta jure imperii. The fact that these acts were acknowledged to be illegal did not deprive them of that status.
No Conflict exists between State immunity and Rules of Jus Cogens
The Court held that immunity was preliminary in nature. As a result, national courts were required to determine whether or not a foreign State was entitled to immunity before delving into the merits of a case brought before them.
Italy argued that a conflict existed between rules of jus cogens (peremptory norms under international law from which no derogation is permitted) and the affording of State immunity to Germany. Specifically, Italy posited that by virtue of the status of the jus cogens rules which Germany had violated (by murdering and ordering the deportation of civilians for forced labour), it was not entitled to rely upon and invoke State immunity in respect of those acts. In the opinion of the ICJ, however, no such conflict existed: ‘the rules of State immunity are procedural in nature and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful’ (paragraph 93). By way of reinforcement, the Court also surveyed national jurisprudence and observed that only the Italian courts had accepted that rules of jus cogens could displace the law of State immunity (paragraph 96).
Italy violated the Jurisdictional Immunities of Germany
The Court concluded by holding that the actions of Italy in denying Germany the immunity to which it was entitled under customary international law constituted a breach of its obligations. Consequently, Italy was obliged to ensure that the decisions and measures infringing Germany’s jurisdictional immunities would cease to have effect and that any effects already created be reversed in order to re-create the situation which had existed before the wrongful acts were committed.
The Decision of the Court was widely expected. It upholds the approach taken by the vast majority of national courts and also the European Court of Human Rights with respect to State immunity and its interrelationship with alleged human rights violations. Nevertheless, this is an area of international law which continues to provoke controversy, as evidenced by the lengthy 88 page dissenting opinion filed by Judge Cançado Trindade. In light of the sensitive nature of the issues involved, it is likely to continue to do so.