ICJ Permits Greece to Intervene in Germany v. Italy Immunity case

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On the 4th of July, the International Court of Justice (ICJ) decided that Greece can intervene in the Jurisdictional Immunities of the State case (Germany v. Italy). The case concerns a claim by Germany that Italian courts have failed to respect the sovereign immunity of Germany in cases brought in Italian courts dealing with human rights violations by Germany during World War II. In addition to cases originating in Italy, Germany alleges that Italian courts have acted in breach of international law by enforcing, in Italy, the judgment of the Greek courts in the Distomo massacre case. Greece’s request for intervention relates to the aspect of the case that deals with enforcement of the Greek judgments (which relate to claims by Greek nationals). The ICJ’s decision permits intervention only in relation to that aspect of the case. For more details on Greece’s request to intervene, see the post by Antonios Tzanakopoulos and for more on the original case, see my own post from when the case was first filed in 2009.

I believe that this is only the third time in the history of the present Court in which intervention under Article 62 of the ICJ Statute has been permitted. Article 62 permits a State which has an interest of a legal nature in the subject matter of the case to apply to the Court for permission to intervene. In most cases, where Article 62 intervention has been requested, the ICJ has denied the request. Most recently (in May of this year), the Court denied requests for intervention by Honduras and Costa Rica in the Territorial and Maritime Dispute (Nicaragua v Colombia) (see decisions here and here). The ICJ’s decision to permit Greece’s intervention in the Immunities case was reached without the Court holding a hearing on the issue. This is because neither of the two original parties to the case (Germany and Italy) objected to the intervention. Greece will be intervening as a non-party to the case, meaning that it will not be bound by the decision of the Court but it cannot put it’s own claims at issue.

In the intervention decision in the Immunities case, the Court held that

Whereas the Court, in the judgment that it will render in the main proceedings, might find it necessary to consider the decisions of Greek courts in the Distomo case, in light of the principle of State immunity, for the purposes of making findings with regard to the third request in Germany’s submissions, concerning the question whether Italy committed a further breach of Germany’s jurisdictional immunity by declaring Greek judgments based on occurrences similar to those defined in the first request as enforceable in Italy; and whereas this is sufficient to indicate that Greece has an interest of a legal nature which may be affected by the judgment in the main proceedings; (para 25)

It is not quite clear why the ICJ would have to comment on whether the Greek courts got their immunity decisions right when the ICJ is considering whether the Italian courts violated German immunity in enforcing those judgments. Afterall, immunity from execution is different from immunity from jurisdiction. The Italian cases refer to the former and the Greek cases the  former latter [correction]. If the Greek courts got their immunity decision wrong that may be a basis for saying that foreign courts ought not to enforce decisions reached in excess of jurisdiction by the forum court. However, that is a different matter from whether the foreign court has itself breached immunity (which is what Germany has claimed). But the fact that this potential issue exists (though not yet articulated this way) might suffice to justify intervention. Also, the fact that the Greek judgments represent claims by Greek nationals may suggest that Greece has an interest inwhether it is lawful to enforce those judgments.

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Tobias Thienel says

July 28, 2011


Thank you very much for your comments. I would be most grateful if you could elaborate slightly on a point you make in your last paragraph. You write:

"It is not quite clear why the ICJ would have to comment on whether the Greek courts got their immunity decisions right when the ICJ is considering whether the Italian courts violated German immunity in enforcing those judgments. Afterall, immunity from execution is different from immunity from jurisdiction. The Italian cases refer to the former and the Greek cases the former."

(I assume that the last word should have been 'latter', and apologise if it shouldn't.)

Now, I do not claim much expertise in the field of sovereign immunity, but it was my impression that the German case against Italy was partly about immunity from execution, but also partly about immunity from jurisdiction. The first request in the German application is based on Italy's 'allowing civil claims [...] to be brought', which should be an instance of the latter form of immunity. The second request, you are undoubtedly right in saying, is about the former kind, inasmuch as it refers to 'measures of constraint against [...] German State property'.

But I suspect you were referring more to the question whether the Italian decisions declaring the Greek judgments enforceable in Italy were a matter of immunity from jurisdiction or from enforcement. If I understand you correctly, you think it's the latter. I should be grateful if you could clarify that bit.

For my part, I prefer to think that even exequatur proceedings are not bound by immunity from enforcement, but only by immunity from jurisdiction. The decision of exequatur is not as such a measure of enforcement (although measures of constraint could conceivably be imposed at the same time; if so, these would be matters of immunity from enforcement). What such a decision does - and I say this without the slightest inkling of Italian law - is to make the Greek judgment equivalent to an Italian judgment. It converts the Greek title of enforcement into an Italian one. But while that is a prerequisite to enforcement in Italy, it is not itself an act of enforcement.

In other words, I would understand the international law of immunity as applying to exequatur proceedings in State A (relating to a judgment issued in State B) in exactly the same way that it applied to the original proceedings in State B. Why, after all, would it matter in which state and on what basis a title of enforcement is sought? The result - the title of enforcement - works in precisely the same way irrespective of whether the basis of the proceedings was a substantive claim or a foreign judgment.

(That, incidentally, is also how I understand certain observations in the recent case of NML Capital Ltd v Argentina [2011] UKSC 31.)

Even if I am right in this, I still agree with you that it is difficult to see why the Court might have to pronounce on the Greek judgments as such. The only question for the Court is whether the Italian courts got Germany's immunity wrong. The answer to this question is in no way dependent on any prior wrong by Greece, even though the questions in substantive international law are the same in both respects, and any judgment against Italy will carry strong implications for Greece.

This case is on all fours, one might say, with Certain Phosphate Lands in Nauru, in which the Court would have had to rule on Australia's responsibility for the actions of a joint mission with the UK and New Zealand, but did not therefore have to rule on the responsibility of the UK and New Zealand as such. (But the involvement of the third states in the Nauru case was considerably closer than that of Greece in the recent case.)

The Jurisdictional Immunities case thus appears to decide that the UK and NZ could have sought intervention in the Nauru case (which they hadn't done). I can see the logic in that. Neither the rights of the UK or NZ in that earlier case nor the rights of Greece in Jurisdictional Immunities would necessarily have been or will necessarily be the subject of express comments by the Court, but the 'legal interests' of those States are still somewhat 'affected' (Article 62 of the Statute).

As I said, any comments would be much appreciated.

Dapo Akande says

July 29, 2011


Thank you for these comments. First of all, thanks for pointing out the error in my post. In the paragraph you quote, I did mean to say that "the Greek cases refer to the latter". In other words, I intended to say that the Italian cases refer to immunity from execution and the Greek cases refer to immunity from jurisdiction. [I also apologise to readers as this is the second time this week that commentators have pointed out typing errors in my posts.] To be clear the Italian cases I was referring to in that sentence are the cases involved in Germany's third request in the case, i.e the request that the ICJ find that the Italian courts have violated Germany's immunity by declaring certain Greek judgments to be enforceable in Italy. As you rightly say, the first German request (relating to cases brought in Italy against Germany) deals with immunity from jurisdiction. Also, the second German request (dealing with measures of constraint against German State property in Italy) deals with an alleged violation of immunity from execution.

You raise a good point that I was perhaps too quick to characterise the question raised by Italian cases which are the subject of Germany's third request as a matter of immunity from jurisdiction rather than a matter of jurisdiction from enforcement. In many ways it will depend on (i) what Italian law says, i.e on the precise nature of the process by which enforcement of the Greek judgments are sought and (ii) how those proceedings developed in Italy. I also don't know what the Italian law is so my statement was perhaps speculative. If the proceedings relate to measures which constrain particular property then that would clearly be a matter of lack of immunity from enforcement. You refer to the recent UK Supreme Court case of NML Security v Argentina. which raises questions as to the appropriate rules in the UK relating to immunity of a foreign State in relation to enforcement of a judgment issued by a court outside the UK. I haven't yet studied that case in detail so I'm not sure how the analysis in the case affects the question you raise.

However, I agree with you that even if the question raised by Germany's third request relates to a question of immunity from jurisdiction, the question is whether Italian courts got that issue right and not whether Greek courts did. But as I said in the post, I do agree that Greece's legal interests are affected. The Court has stated that the requirement that "legal interests" be affected does not mean that the State's rights must be affected. So even though Greece's rights and obligations of the Greek Republic are not at stake intervention may nevertheless be justified.

Tobias Thienel says

July 30, 2011


Thank you for your reply. There's nothing there with which I disagree.

As for the NML v Argentina case, this of course very largely turned on the construction of domestic statutes. There are, however, some comments on international law in (I think) all the speeches. Those were to the effect that international law did not render a state immune from exequatur proceedings in state B relating to a judgment from state A, where that that state was not immune in state A. The court also appeared to say that the question in state B was the same as it had been in state A. Hence my reference to the case.

G.Boggero says

July 31, 2011

Dapo, thanks a lot for posting. I agree with your conclusions, but I do not fully understand your premises. I think Germany is claiming both its immunity from jurisdiction and execution had been affected. After the exequatur has been approved by the Italian Court of Cassazione in 2008 (though limited to the legal expenses for the judicial proceedings in Greece), a judicial mortgage has been recorded against Germany's property in Italy. Also on this ground Germany decided to appeal at the ICJ.

Tobias Thienel says

July 31, 2011

If I may chirp in again: the approval of exequatur as such would seem to be a matter of immunity from jurisdiction, whereas the judicial mortgage consequent upon that is a matter of jurisdiction from enforcement.

Germany's third request is in these terms:

'by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity.'

I would read this as referring to the approval of exequatur, not the later measures of execution (unless these concerned the 'Villa Vigoni' mentioned in Germany's second request). However, the difference is largely technical, because Germany's fifth request reads as follows:

'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.'

Therefore, even if the third request does not concern the judicial mortgage mentioned by G. Boggero as such, the fifth request means that it cannot stand if Germany wins on the third. The exequatur decision then must become unenforceable, which should imply that any measures of execution already taken must be lifted.