Germany v. Italy: Germany Wins

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.