Background of the case and history of the legal proceedings
In its application of 23 December 2008 Germany brought a complaint before the International Court of Justice (ICJ), claiming that in recent years, Italian judicial bodies repeatedly disregarded its jurisdictional immunity as a sovereign State. According to Germany, the critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where this court declared that Italy held jurisdiction with regard to a claim (proceedings initiated in 1998) brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict. Germany claimed that all of these claims should be dismissed since Italy lacked jurisdiction in respect of acts jure imperii performed by the authorities of the Third Reich for which present‑day Germany has to assume international responsibility.
The Italian Corte di Cassazione, however, recently confirmed its earlier findings in Ferrini in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008. Concerned that hundreds of additional cases may be brought against it and since repeated representations with the Italian Government have been of no avail, Germany decided to have recourse to the ICJ. According to Germany, recourse to the ICJ was the only remedy available to Germany in its quest to put a halt to the unlawful practice of the Italian courts, which infringes its sovereign rights. The Italian Government accepted the ICJ jurisdiction to adjudicate this dispute. Moreover, Italy acknowledged that a decision by the Court on State immunity will be helpful for clarifying this complex issue.
Incidental proceedings in this case included counter-claims entered by Italy, which were rejected by the Court on 6 July 2010 (see here for the Court’s order) and Greece’s request for permission to intervene as a non-party, which was granted by the Court on 4 July 2011 (see here for the Court’s order). Hearings were held at the Great Hall of Justice in the Peace Palace in The Hague, which is the seat of the Court, from 12 to 16 September 2011 (available here). The written submissions of the parties to the dispute can be accessed here.
Final submissions of the Parties
At the end of the oral pleadings, Germany requested the Court to adjudge and declare that,
1. by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II between September 1943 and May 1945 to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
2. by taking measures of constraint against “Villa Vigoni”, German State property used for government non-commercial purposes, also committed violations of Germany’s jurisdictional immunity;
3. by declaring Greek judgments based on occurrences similar to those defined in request No. 1 enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity.
Accordingly, the Federal Republic of Germany respectfully requests the Court to adjudge and declare that:
4. the Italian Republic’s international responsibility is engaged;
5. the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany’s sovereign immunity become unenforceable;
6. the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above.”
Italy requested the Court to adjudge and hold the claims of Germany to be unfounded. This request is subject to the qualification that . . . Italy has no objection to any decision by the Court obliging Italy to ensure that the mortgage on Villa Vigoni inscribed at the land registry is cancelled”.
Questions by the Judges
A number of questions were asked to the parties by three Judges of the Court and Judge ad hoc Gaja.
Judge Simma asked:
Please describe in detail the attempts undertaken by the Italian Government at the diplomatic 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.
Judge Bennouna asked:
Est-ce que, s’il n’existe aucun autre recours disponible pour les personnes victimes de graves violations des droits de l’homme et du droit humanitaire commis sur leur territoire par un Etat étranger, ce dernier serait recevable à opposer aux tribunaux du for son immunité de juridiction jure imperii?
Judge Cançado Trindade asked the following questions to Germany and Italy:
- 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?
- Is the delicts exceptio (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?
- Have the specific 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 régime of reparations for grave breaches of human rights and of international humanitarian law still be regarded as exhausting itself at inter-State level? Is the right to reparation related to the right of access to justice lato sensu? And what is the relationship of such right of access to justice with jus cogens?
Judge Cançado Trindade asked the following question to Greece:
Within the Greek legal system, what are the legal effects of the Greek Special Supreme Court decision in the Margelos case upon the Areios Pagos decision in the Distomo Massacre case? Is the Areios Pagos decision in the Distomo Massacre case still pending of execution within and beyond the Greek legal system?
Judge ad hoc Gaja asked:
Does a waiver made by State A, also on behalf of its nations, 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?
I have not yet had a chance to read the written submissions of the parties to the case and that of Greece. That might be the next step leading to an article I’d like to write on this very interesting case. It seems to me that the question before the Court is quite simple: can Italy order that reparations be made to individuals for serious violations of international law committed against its citizens by Nazi forces during WWII, or is that barred by Germany’s jurisdictional immunity. My feeling is that the intertemporal aspect of international law plays an important role in these proceedings. To simplify the question before the Court, the crux of the matter in my view is whether individuals did have a right to request and receive reparations for violations of international law from Germany in 1947 when the Peace Treaty between Germany and Italy was concluded – or whether that right was included in the 1961 Settlement Agreements. The short answer is no.
It took the UN General Assembly 60 years to address this issue, through the adoption of resolution 60/147 of 16 December 2005 on ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’. Even if we agree today that the right of individuals to request and receive compensation for serious violations of international law has become a new peremptory norm of general international law, this does not entail any retrospective assumption of responsibility on the part of States, in this case of Germany. While there are a number of peace treaties between Germany and other States, including Italy, dealing among others with the issue of reparations for damage caused as a result of wrongful conduct of the Third Reich’s armed forces during WWII, to the best of my knowledge these treaties do not confer a right to individuals to claim reparations against Germany. That has a lot to do with the dominant view in international law with regard to the position of individuals in international law, at least in the 1940s and 1950s, which saw individuals as objects of international law. It was the former President of the ICJ, Madame Higgins, that in her 1994 book ‘ Problems and Process: International Law and How we Use It’ expressed the idea of individuals as participants in the international legal system (pp. 48-55). My guess is that, despite its unfairness to the victims, the issue of individual compensation for persons having suffered in the hands of Nazi forces during WWII is a closed chapter, whereas of course there is no statute of limitations to try persons responsible for having committed war crimes during that period. That said, Germany, Italy, and Greece should allocate more funds to conducting research and to bringing to light these abhorrent events, so that commemorations and tributes be paid to the victims. Other forms of satisfaction are applicable in this case and the Court might want to use this opportunity to make use of them.
The fact that the Ferrini precedent might encourage similar claims coming not only from citizens of Greece and Italy, but from citizens of other States where crimes were committed by Nazi forces during WWII, could very well mean that Germany might have to bring other cases on the same issue before the ICJ. I am wondering whether the adjudication of this issue before the ICJ, namely that of reparations for individuals for serious crimes committed during WWII v. state immunity, is going to be similar to the trilogy of the consular relations cases, is going to turn into a serial, or it will stop here?
In my next post I’ll try to provide an answer to the questions posed by the Judges at the end of the oral hearings.