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Home EJIL Analysis Germany v. Italy: Germany Wins

Germany v. Italy: Germany Wins

Published on February 3, 2012        Author: 

The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

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12 Responses

  1. Moritz

    I completely agree and concur both with your analysis as well as the judgment of the Court. From a human rights perspective, however, the essential questions remains an effective implementation of the right of access to justice. Taking into account the admission of the Court as well as of all parties that Germany had breached its obligations under international humanitarian law and that it may be obliged to pay compensations, the question remains which forum could be competent to adjudicate any such claim (it appears as the only form could be further bilateral negotiations on an inter-state level)

  2. Thomaz Santos

    Marko,

    Having just downloaded the decision and the separate and dissenting opinions, I only read a few paragraphs concerning the jus cogens issue, and this one struck as interesting:

    “Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character 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.”

    In this sense, I wonder if a jus cogens rule of a procedural nature (e.g., the right to consular assistance, art. 36 of the Vienna Convention on Consular Relations) could override a customary rule of the same nature, such as the one on State immunity. I know this issue is beyond the ICJ decision, but it just made me think. Anyway, after I read the decision and all the opinions I may have an answer to my own question.

    Best regards,

    Thomaz Santos

    PS: I think the now desperate Jessupers may still find some solace in the 3 dissenting opinions, don’t you?

  3. Arkato

    As a fellow Jessuper, I did see this coming. I’ve just read the judgment (and I’m about to get to the Separate Opinion of Judge Trindade). It’s too bad the judgment was so extensive as to cover most of the possible legal issues and rejecting extensively arguments. Oh well.

    As a side note, referring in particular to this statement:
    104. In coming to this conclusion, the Court is not unaware that the immunity from jurisdiction of Germany in accordance with international law may preclude judicial redress for the Italian nationals concerned.

    While possibly consistent with international current at its current state of development, this did evoke to me at the time of the reading a “this is not a world I’d wanna live in” kind of sentiment.

  4. AGD

    Cancado Trindade’s Opinion reminded me of “The Rise and Fall of Eunomia” :P

  5. Stephen

    Spare a thought for the Australian competitors — this judgment came down on Friday night, 9pm local time. That would have been fine, but the top 8 teams were announced Friday at 8pm, to compete in the Quarter finals the following morning!

    Fortunately the Applicant in our moot was gracious and didn’t take us to town on it!!

  6. Rodrigo Bastos Raposo

    Greetings,

    I’m about to read Trindade’s opinion.
    Does he convince in his dissent”?

    Rodrigo Bastos Raposo.

  7. Ivo

    …no, the dissent is not really convincing. I think the only convincing argument by Italy would have been that of admitting its conduct was unlawful, but arguing that this conduct should be seen as countermeasure against Germany’s unlawful conduct, a disregard for international law continuing to date. The unlawful conduct of Germany is of course that of breaching its obligation to pay compensation and to restore the victims into their full rights.

  8. Thomaz Santos

    Last one on this topic, I swear!

    I’m reading a comment on the ICJ’s decision by Paul Stephan from Cornell, in the “Lawfare” blog, which might interest some people, especially for his brief but incisive comments on Judge Cançado Trindade’s dissent: http://www.lawfareblog.com/2012/02/paul-stephan-on-icj-decision-in-jurisdictional-immunities-of-the-state-germany-v-italy-2/#more-5901

    Thomaz Santos

  9. With respect to lawful authority of a state and sovereignty, consider also:
    – The ultra vires rationale of the IMT at Nuremberg (1946): “the doctrine of sovereignty of the State … cannot be applied to acts which are condemned as criminal by international law…. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.” (emphasis added).
    – United States v. Von Leeb (The High Command Case) (1948), XI Trials of War Criminals (1950): “International Law operates as a restriction and limitation on the sovereignty of nations.”
    – Prefecture of Voiotia v. Federal Republic of Germany (Greece 1997) (“The acts of a state that violate jus cogens norms do not have the character of sovereign acts. In such cases it is considered that the accused state did not act within the ambit of its capacity as a sovereign. Acts contrary to jus cogens norms are null and void, and cannot constitute a source of legal rights or privileges, such as the claim to immunity”), extract addressed in 92 Am. J. Int’l L. 765 (1999), aff’d by the Hellenic Supreme Court (2000) (also noting that crimes against humanity are an abuse of sovereign power that are not protectable under customary international law, nor are acts “in breach of rules of peremptory international law (Article 46 of the [1907 Hague Convention No. IV, Annex] Regulations, and they were not acts jure imperii.” See 95 Am. J. Int’l L. 198 (2001))
    – Bartle and the Commissioner of Police, Regina v. (Ex parte Pinochet), House of Lords (24 Mar. 1999) (Browne-Wilkinson, L.J., sep. op.), (Hutton, L.J., sep. op.)
    – Princz v. Federal Republic of Germany, 26 F.3d 1166, 1182, 1184 (D.C. Cir. 1994) (Wald, J., dissenting) (“a state is never entitled to immunity for any act that contravenes a jus cogens norm, regardless of where or against whom that act was perpetrated … the state cannot be performing a sovereign act entitled to immunity” and “Germany could not have helped but realize that it might one day be held accountable for its heinous actions by any other state, including the United States”)
    – Filartiga v. Pena-Irala, 577 F. Supp. 860, 862-63 (E.D.N.Y. 1984) (“there is no … justifiable offense to” a foreign state when jurisdiction is exercised over torture and domestic “immunities for government personnel or other such exemptions or limitations” cannot be used to obviate suits for violations of international law under the Alien Tort Claims Act)
    – Emerich de Vattel, The Law of Nations bk. I, chpt. IV, sec. 54 (1758) (“The Prince … who would in his transports of fury take away the life of an innocent person, divests himself of his character, and is not longer to be considered in any other light than that of an unjust and outrageous enemy”); Jordan J. Paust, Federal Jurisdiction Over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law Under the FSIA and the Act of State Doctrine, 23 Va. J. Int’l L. 191, 236-37 (1983).

  10. Arkato

    IVO: but there is another problem about the waiver of claims. You see, Italy had also waived claims of Italian nationals and the Court did not consider the question whether the waiver was valid because it found it sufficient that Germany’s immunity was a bar to jurisdiction. Since immunity is not “beaten” by “ius cogens”, presumably the waiver of claims isn’t either.

    As a consequence, in order to claim countermeasures, Italy would have to assert that it is applying countermeasures to obligations which it itself has legally waived. That is problematic.

    What do you think?

  11. [...] of international humanitarian law to proceed in Italian courts. While Germany’s victory was widely predicted, the court’s prizing of Germany’s sovereign immunity over the ability of Italian victims of [...]

  12. Misa Zgonec-Rozej

    See my blog at ilawyerblog “No reparation for the victims of Nazi war crimes – The judgement by the International Court of Justice in Germany v. Italy, Greece intervening”.The blog is available at http://ilawyerblog.com/no-reparation-for-the-victims-of-nazi-war-crimes-the-judgement-by-the-international-court-of-justice-icj-in-germany-v-italy-greece-intervening/

    It might not be well know that Amnesty International (AI) published a position paper concerning the issues in this case. The position paper “Germany v. Italy: the right to deny state immunity when victims have no other recourse” is available at http://www.amnesty.org/fr/library/asset/IOR53/006/2011/en/ce60b84b-e3a7-4266-a1c3-1fb0277f039f/ior530062011.en.pdf
    AI has published a position paper rather than submitted a brief to the ICJ because, in contrast to other international courts, such as the ICC, the ICTY, the ICTR, the SCSL, the IACtHR, the ECtHR, there is no formal procedure for NGOs to submit amicus curiae briefs in contentious cases in the ICJ.