Yet More on Immunity: Germany brings case against Italy before the ICJ

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For those of you who are not particularly interested in the law relating to immunity, I apologise for three consecutive posts on the topic. However, this is a week in which there just happen to have been many developments on this topic. This week Germany has insituted proceedings in the International Court of Justice against Italy (see here) alleging that through its judicial practice Italy has in recently years repeatedly disregarded the jurisdictional immunity due to Germany as a Sovereign State. The Press Release from the ICJ states that, according to the German Application:

“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 [that court] declared that Italy held jurisdiction with regard to a claim . . . 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.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it”.

The Applicant recalls that enforcement measures have already been taken against German assets in Italy: a “judicial mortgage” on Villa Vigoni, the German-Italian centre of cultural exchange, has been recorded in the land register. In addition to the claims brought against it by Italian nationals, Germany also cites “attempts by Greek nationals to enforce in Italy a judgment obtained in Greece on account of a . . . massacre committed by German military units during their withdrawal in 1944”.

The case clearly raises the question whether foreign States are immune in civil proceedings concerning violations of human rights and international humanitarian law. The case law on this question has, in recent years, been divided but most national courts have held that States are immune from the jurisdiction of foreign courts even when violations of human rights are concerned (see cases in England (here), Canada here) and the US. A narrow majority of the European Court of Human Rights took a similar view in the Al-Adsani v.UK case. Some national courts have taken a different view holding that States do not have immunity from the jurisdiction of foreign courts in cases where serious violations of human rights are alleged. The Ferrini decision referred to the Germany Application is one such case. The only other case taking this view is the decision of the Greek Supreme Court in Prefecture of Voiotia v. Federal Republic of Germany, (noted in[2001] 95 AJIL 198). However, that decision was itself reversed by the Greek Special Suprme Court, although in contoversial circumstances. The US has amended the Foreign Sovereign Immunities Act to allow suits against designated State sponsors of terrorism in relation to extrajudical killing. However, that legislation only applies to a few designated States and there is no suggestion that it is based on, or in conformity with international law. So Ferrini is the only case which upholds the view the customary international law permits suits against foreign States in these circumstances.

Three arguments may be (and have been) advanced for the argument that foreign States are not immune from civil suits in domestic courts relating to human rights violations. (i) It is argued that there is no immunity for violations of jus cogens norms (ii) violations of human rights are not to be regarded as sovereign acts, and (iii) it is argued that where the violations occur in the territory of the forum state the exception to immunity which relates to torts committed within the forum applies. The first argument is weak as it is based on a false conflict between immunity and norms of jus cogens. The ECHR rejected it and the ICJ implicitly rejected that argument in the Arrest Warrant case. The second argument wrongly assumes that violations of international law cannot be sovereign acts. If this were so, immunity would be confined to lawful acts and would be unnecessary. The third argument assumes that the tort exception to be found in modern legislation on immunity and in the UN Convention on Jurisdictional immunity represents customary law and applies to sovereign acts.

It appears that Italy is not opposed to the German suit and it takes the view that an ICJ decision would help to clarify the law in this area. However, one problem of ICJ decisions in areas where practice may be changing or developing is that they may ossify the law. The Court can only decide cases on the basis of the law as is. However, customary law can only change, arguably, through breaches and disrespect for existing law. Having an ICJ decision may make it more difficult for States to seek to develop law since it becomes clear that such States are acting in breach of existing law.

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Bjoern Elberling says

December 27, 2008

"The first argument is weak as it is based on a false conflict between immunity and norms of jus cogens."

I agree entirely that there is no conflict between the material jus cogens rule and state immunity, but I am not sure whether I agree that there is no conflict at all. One might also argue that jus cogens rules contain separate "procedural" provisions with which state immunity might clash.
I've made this argument a few years ago in a comment to the Greek case you mentioned (see, paras. 17 et seq., particularly 20-22), and I still think that it is valid, at least conceptually. Of course, whether the ICJ will (or should) go for that kind of argument is a different question entirely...

Congratulations on the new blog, which looks very interesting so far!

Dapo Akande says

December 29, 2008


Thank you for your complimentary words on the blog and for your comment. The argument you make that there is a conflict between norms of jus cogens and immunity seems to be based on two points:
(i) that there is a (procedural) rule that stipulates that third States are permitted to provide a forum in their national courts for cases against other States dealing with violations of jus cogens rules and
(ii) this procedural rule is derived from the substantive jus cogens rule (the prohibition of torture, genocide etc) and is therefore itself a rule of jus cogens. My Oxford colleague, Alexander Orakhelashvili has made similar arguments in his book on “Peremptory Norms in International Law” and his other writings.

I don’t agree that either of these arguments is correct. Sangeeta Shah (of the University of Nottingham) and I are just completing an article in which we tackle these issues (and others) in the context of immunity of officials from criminal prosecutions abroad. Although international law does provide for universal jurisdiction in the context of prosecutions of individuals who commit international crimes, there is little practice or acceptance that States are allowed to enforce norms of jus cogens against other States in national courts. Sure, international law allows for multilateral enforcement of jus cogens norms but the question is whether that enforcement is take place in national courts. We know that the fact that a violation of jus cogens may have taken place does not mean that the consent requirement to the jurisdiction of international courts is overriden (Armed Activities - Uganda v. Rwanda). Your argument suggests that national courts are in a better position that international courts in this regard. The ILC when dealing with Draft Code of Crimes Against the Peace and Security of Mankind was willing to accept universal jurisdiction for most international crimes but not for the crime of aggression. This was because it took the view that national courts prosecuting the crime of aggression would have to determine the responsibilty of the State that committed the aggression and was of the view that this was not permissible under international law.

Even if there are procedural rules derived from substantive jus cogens rule, it is doubtful that these procedural rules are necessarily rules of jus cogens in themselves. For example, there is an obligation on States to prevent genocide. But to say this is itself a jus cogens obligation (because it is derived from the prohibition of Genocide) is to say that it overrides all other obligations that States may have and which may hinder such cooperation. I doubt if the ICJ’s decision in the Genocide Convention case is consistent with that reading.
no general requirement that States provide a forum for crimes or human rights violations which occur abroad. Some treaties do provide for obligatory universal jurisdiction (eg the Geneva Conventions) but in other cases, universal jurisdiction is only permissive. If it is permissive, States will not be violating any rules by not exercising such jurisdctionthere is a rule which separate procedural rules