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

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.