The Distomo Case: Greece to Intervene in the Sovereign Immunity Dispute between Germany and Italy before the ICJ

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

On 12 January 2011, the Greek Government announced its decision to apply to the International Court of Justice for permission to intervene in the sovereign immunity dispute brought by Germany against Italy (see here for Dapo’s comment when the case was first brought). The Greek decision to intervene has received some coverage in the Greek and German media, but has gone relatively unnoticed in the English-speaking world. Even though the Government had been under some pressure, both by opposition parties and by public opinion (see eg here [in Greek]), to intervene in the dispute, its decision does come as a relative surprise. Greece is already engaged in one case before the ICJ, where fYR Macedonia has complained of the alleged breach of the 1995 Interim Accord between the two States with reference to Greece’s conduct in response to fYR Macedonia’s bid to join NATO (see here for brief comment), and is also in dire economic straits. Still, the Greek Government elected to open a new front, primarily, it seems, for ‘symbolic’ reasons (see the Greek PM’s statement reported here [in Greek]). Needless to say, Germany was less than impressed by the Greek decision (see the comments by Foreign Minister Westerwelle here; the standard AP report as relayed by the Jerusalem Post here; and the German press here and here [in German]; but see also here for a German position in favour of Athens’s intervention, which however confuses individual criminal responsibility with state responsibility [in German]).

The Greek Prime Minister noted the ‘symbolism’ of Greece’s decision to apply for intervention in the sovereign immunity dispute. This is arguably because the dispute between Germany and Italy originated in Italian court decisions, which—inter alia—permitted the enforcement in Italy of Greek court decisions that had allowed civil claims in damages against Germany for grave violations of international humanitarian law perpetrated by its troops in Greece (in particular in Distomo village) during World War II (cf paras 10 and 14(3) of Germany’s Application Instituting Proceedings [pdf]). These decisions were denied enforcement in Greece: execution of a judgment against a sovereign State is subject to the prior consent of the Minister of Justice, and this was not given in the instance (Art 923 of the Greek Code of Civil Procedure). The creditors of the Greek judgments did not manage to get relief at the European Court of Human Rights, where their claim that Art 923 CCP was in violation of Art 6(1) ECHR was rejected (see Kalogeropoulou v Greece and Germany, App No 59021/00). Around the same time, the Greek Special Supreme Court (No 6/2002) found that, under general international law, there is no accepted exception from sovereign immunity for acts that amount to war crimes or other violations of jus cogens (see 56 RHDI 199 (2003) and ILDC 87 (GR 2002)  for the decision and comment). The creditors then took advantage of the liberal approach of Italian courts after Ferrini (see ILDC 19 (IT 2004) and 99 AJIL 242 (2005) for further comment), and had the relevant Greek decisions recognized and declared enforceable in Italy.

The Greek decision to intervene is notable for two reasons. First of all, Greece’s timing of the intervention is not deprived of a certain feeling of suspense and drama: arguably the time-limit for applying for permission to intervene would run out on 14 January 2011, the time-limit the ICJ had fixed for the submission of the Italian rejoinder (see Art 81 ICJ ROP; Order of 6 July 2010 [pdf]; the ICJ has not yet issued a press release as to the Greek application for intervention). During the preceding weeks, calls to the Government to intervene had augmented, and the intervention was finally announced by the Greek Prime Minister himself just two days before the deadline. This seems to have given the Greek Government a bump in its domestic political capital at a crucial time when its popularity is not its strongest point: the economy is quite obviously in pretty bad shape and Germany is widely perceived by Greeks as not having helped during the crisis as much as they would have wanted or expected.

In terms of substance, Greece may be seeking—understandably—to support the judicially recognized rights of the victims of the Distomo massacre and their successors (see the Greek MFA Press Release at para 2). If so, it has chosen a particularly roundabout way of showing this support: it is intervening not only against the decision of its own Special Supreme Court of 2002 (cited above), but also against the Government’s own decision to refuse its consent to the execution of the domestic judgments against Germany ten years ago. In view also of the drama surrounding the eventual intervention, speculation is easily invited as to whether Greece really believes it has any chance of putting forward a strong case for the exception from sovereign immunity of acta jure imperii in violation of jus cogens, or whether it has merely launched into a publicity stunt in an effort to appease the Greek public and, at the same time, put an end to a case that has been going on for more than 15 years (the first Distomo civil action was lodged in 1995; if the ICJ decides on the side of Germany, the Greek Government will be able to point to the International Court for having put the case to rest, while arguing that it did ‘all it could’ by intervening). It remains to be seen whether the ICJ will allow Greece’s intervention, what arguments Greece will put before the Court, and what the political cost of this intervention will be.