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Insights Archive>>
DOCUMENTS OF NOTE
Jurisdictional Immunities of the State (Ger. v.
Italy)
Germany's Application Against Italy
Jurisdictional Immunities of the State (Ger. v.
February 14, 2012 Volume 16, Issue 5
Germany v. Italy: The International Court of Justice Affirms Principles
of State Immunity
By Chimène I. Keitner
Introduction
In December 2008, Germany initiated
proceedings in the International Court of
Justice (“ICJ”) against Italy for failing to
respect Germany’s jurisdictional immunity
in three ways: first, by allowing civil
claims to be brought against Germany in
Italian courts for war crimes committed by
German forces against Italian nationals in
Italy and elsewhere during World War II; second, by taking “measures of constraint” against
Villa Vigoni, a building in Italy owned by the German government and used for noncommercial
purposes; and third, by declaring that judgments against Germany obtained in
Greece for a massacre of Greek civilians by German forces during the German occupation
of Greece in 1944 were enforceable in Italian courts.[1] On February 3, 2012, the ICJ issued
a judgment in favor of Germany.[2]
The Parties’ Positions
Germany conceded that the conduct of its forces was unlawful. However, Germany argued
that “[t]he liability of a national community for the tortious actions orchestrated by its leaders
cannot be unlimited,”[3] and that “authorizing individual claims the background of which is
an armed conflict with thousands or perhaps even millions of victims [would have]
incalculable financial dimensions.”[4] Italy, by contrast, argued that Germany had an
obligation to provide reparations to Italian victims, and that it would be “inconsistent” to hold
that individual perpetrators do not have immunity from prosecution by international criminal
tribunals, but that “the victims have no rights when they attempt to have satisfaction directly
from the State which ordered the commission of those acts.”[5] The ICJ held that, under the
current state of development of customary international law, a state enjoys jurisdictional
immunity from legal proceedings in the domestic courts of another state with respect to its
public (i.e., non-commercial) acts, even if those acts amount to international crimes.[6]
The Court’s Task: Applying Customary International Law
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Italy)
ASIL EISIL>>
ORGANIZATIONS OF NOTE
International Court of Justice
Copyright 2012 by The American Society
of International Law ASIL
The purpose of ASIL Insights is to
provide concise and informed
background for developments of interest
to the international community. The
American Society of International Law
does not take positions on substantive
issues, including the ones discussed in
this Insight. Educational and news media
copying is permitted with due
acknowledgement.
The Insights Editorial Board includes:
Cymie Payne, UC Berkeley School of
Law; Amelia Porges; and David Kaye,
UCLA School of Law. Djurdja Lazic
serves as the managing editor.
Article 1 of the European Convention for the Peaceful Settlement of Disputes confers
jurisdiction on the ICJ to resolve disputes between contracting parties relating to questions
of international law and alleged breaches of international obligations.[7] The parties agreed
that the jurisdictional immunity of states “is governed by international law and is not a mere
matter of comity.”[8] Although Germany cited Chief Justice John Marshall’s 1812 opinion in
The Schooner Exchange for the principle that state immunity derives from the idea of
sovereign equality,[9] Germany took pains to reject the U.S. Supreme Court’s view that
such immunity is a matter of “grace and comity.”[10]
1. The State’s Immunity for Acta Jure Imperii Encompasses Acts Committed by Its
Armed Forces in the Conduct of Armed Conflict
The ICJ held that, because Germany’s conduct constituted acta jure imperii (sovereign
acts) rather than acta jure gestionis (commercial acts), Germany was entitled to state
immunity as a matter of customary international law.[11] This was true even though many of
the challenged acts took place on Italian soil, because such acts were performed by
Germany’s armed forces in the course of conducting an armed conflict.[12] The Court noted
the potential tension between the principle of territorial sovereignty, on the one hand, and
sovereign equality, on the other hand:
The Court considers that the rule of State immunity occupies an
important place in international law and international relations. It
derives from the principle of sovereign equality of States, which,
as Article 2, paragraph 1, of the Charter of the United Nations
makes clear, is one of the fundamental principles of the
international legal order. This principle has to be viewed
together with the principle that each State possesses
sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons
within that territory. Exceptions to the immunity of the State
represent a departure from the principle of sovereign equality.
Immunity may represent a departure from the principle of
territorial sovereignty and the jurisdiction which flows from it.[13]
The ICJ left open whether denying a foreign state immunity for “territorial torts” that did not
involve the conduct of armed forces during armed conduct would be consistent with
customary international law, because that question was not before it.[14]
2. The State’s Immunity for Acta Jure Imperii Encompasses Alleged Violations of
Peremptory Norms
The ICJ was not persuaded by the argument that state immunity excludes jus cogens
violations as a matter of state practice and opinio juris, in part because national courts have
by and large upheld state immunity for such violations.[15] The Court also expressed
concern that if “the mere allegation that the State had committed such wrongful acts were to
be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be
negated simply by skilful construction of the claim.”[16] The Court found this possibility
troubling, even though the same might be said of claimants’ efforts to characterize acts jure
imperii as acts jure gestionis for the purpose of negating immunity. The Court also
emphasized that its holding relates only to “the immunity of the State itself,” and not “the
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question of whether, and if so to what extent, immunity might apply in criminal proceedings
against an official of the State.”[17] In so doing, the Court recognized that state agents do
not always benefit from the immunity of the state itself.
3. The State’s Immunity from Measures of Enforcement, Distinct from Its Immunity
from Jurisdiction
With respect to Villa Vigoni (the seat of an Italian-German cultural center), the ICJ specified
that, before any measure of constraint may be taken with respect to property belonging to a
foreign state, (1) the property must be in use for an activity “not pursuing government noncommercial
purposes,” (2) the foreign state must have expressly consented to the measure,
or (3) the foreign state must have allocated the property for the satisfaction of a judicial
claim.[18] None of these conditions were satisfied here. Consequently, by allowing Greek
claimants to enter a charge against Villa Vigoni in the Land Registry of the Province of
Como, Italy violated Germany’s entitlement to immunity from enforcement.
Italy further violated Germany’s immunity from jurisdiction when the Florence Court of
Appeal accorded exequatur to the judgment of a Greek court, upon which the measures of
constraint against Villa Vigoni were based.[19] This is because Italian courts would have
been required to grant jurisdictional immunity to Germany if they had been in the position of
the Greek court that issued the underlying judgment.[20] The ICJ indicated that the grant of
exequatur should be analyzed as a question of immunity from the jurisdiction of Italian
courts (rather than immunity from enforcement) because, although such was not the case
here, Germany might have waived its immunity from the jurisdiction of Greece, but not its
immunity from the jurisdiction of Italy.[21] The granting of exequatur was an exercise of
Italian jurisdiction that could be evaluated separately from the question of whether Greece,
a non-party to the proceedings, also violated Germany’s jurisdictional immunity.[22]
Separate and Dissenting Opinions
Judges Koroma, Keith, and Bennouna each wrote a brief separate opinion, and three
judges wrote dissenting opinions. Judge Yusuf took issue with the majority’s approach for
failing to consider whether the particular victims in question had other effective means of
obtaining redress.[23] Judge ad hoc Gaja, who was appointed by Italy, disagreed with the
majority’s conclusion that the “tort exception” does not encompass activities of a hostile
state’s armed forces on the forum state’s territory.[24] Judge Cançado Trindade, former
President of the Inter-American Court of Human Rights, disagreed with the majority’s
conclusions in their entirety, and set forth his reasons in a detailed opinion.[25]
Conclusions
The ICJ offered Italy the consolation that the claims of Italian victims “could be the subject
of further negotiation involving the two States concerned, with a view to resolving the
issue.”[26] The Court observed that an entire category of Italian victims had been denied
redress by being denied prisoner of war status by the Nazi authorities, and then being
denied access to a German compensation scheme for forced labor that excluded prisoners
of war.
The Court considers that it is a matter of surprise—and regret—
that Germany decided to deny compensation to a group of
victims on the ground that they had been entitled to a status
which, at the relevant time, Germany had refused to recognize,
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particularly since those victims had thereby been denied the
legal protection to which that status entitled them.[27]
It is unclear whether the Court’s “surprise and regret” will motivate Germany to revisit the
terms of its compensation scheme or to conclude another negotiated settlement.
As for the effect of the judgment on Italy, the ICJ held that Italy has an obligation to
“reverse” the effects of past and continued infringements of Germany’s jurisdictional
immunities “by enacting appropriate legislation or by resorting to other methods of its
choosing”[28] to restore the situation that existed prior to the infringements. It is also likely
that Greek courts will take the ICJ’s decision as an authoritative statement of the customary
international law of state immunity in the context of reparations claims for the conduct of
armed forces during armed conflict, even though Greece was not a party to the
proceedings. Other courts and decision-makers are likely to do the same.
No doubt, some will seek to draw lessons from the Court’s judgment beyond the context of
wartime reparations claims. From a U.S. perspective, the Court’s reasoning might lend
some support to the view that the “state sponsors of terrorism” exception in the Foreign
Sovereign Immunities Act, which allows suits to proceed against designated states for
certain acta jure imperii, is inconsistent with the current state of customary international law.
The ICJ’s decision reinforces the observation that, just as successful revolutions vindicate
themselves with hindsight, international law-breakers only become international law-makers
when their legal “transgressions” attract a sufficient following to establish a new rule of
customary international law.
About the Author:
Chimène I. Keitner, an ASIL member, is an Associate Professor of Law at the University of
California Hastings College of the Law, and a Co-Chair of the ASIL International Law in
Domestic Courts Interest Group.
Endnotes:
[1] Jurisdictional Immunities of the State (Ger. v. Italy), Application Instituting Proceedings (Dec. 23,
2008), http://www.icj-cij.org/docket/files/143/14923.pdf. The ICJ had previously determined that it
lacked jurisdiction over a counter-claim by Italy seeking reparations from Germany. See Order of
July 6, 2010, Jurisdictional Immunities of the State (Ger. v. Italy), http://www.icj-
cij.org/docket/files/143/16027.pdf.
[2] Jurisdictional Immunities of the State (Ger. v. Italy), Judgment (Feb. 3, 2012), http://www.icjcij.org/docket/files/143/16883.pdf
[hereinafter Judgment]. The ICJ found in favor of Germany on the
first claim (allowing civil claims in Italian courts) by a vote of 12-3; on the second claim (taking
measures of constraint against Villa Vigoni) by a vote of 14-1; and on the third claim (declaring
Greek judgments enforceable in Italy) by a vote of 14-1.
[3] Jurisdictional Immunities of the State (Ger. v. Italy), Memorial of the Federal Republic of
Germany, ¶ 59 (June 12, 2009), http://www.icj-cij.org/docket/files/143/16644.pdf [hereinafter
Memorial of the Federal Republic of Germany].
[4] Id. ¶ 75.
[5] Jurisdictional Immunities of the State (Ger. v. Italy), Counter-Memorial of Italy, ¶ 4.85 (Dec. 22,
2009), http://www.icj-cij.org/docket/files/143/16648.pdf.
[6] The ICJ previously held that a sitting foreign minister is entitled to immunity ratione personae
from the criminal jurisdiction of another state’s domestic courts. Arrest Warrant of 11 April 2000
(Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶¶ 53-54 (Feb. 14) (holding that a Minister for Foreign
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Affairs “when abroad enjoys full immunity from criminal jurisdiction and inviolability” because the
minister is “responsible for the conduct of his or her State's relations with all other States”).
[7] Judgment, supra note 2, ¶ 41.
[8] Id. ¶ 53.
[9] Memorial of the Federal Republic of Germany, supra note 3, ¶ 48.
[10] Id. ¶ 98 (quoting Republic of Austria v. Altmann, 541 U.S. 677, 689 (2004)).
[11] Id. ¶ 60.
[12] Id. ¶¶ 77-78.
[13] Id. ¶ 57.
[14] Id. ¶ 65.
[15] Id. ¶¶ 83-85.
[16] Id. ¶ 82.
[17] Id. ¶ 91.
[18] Id. ¶ 118-19.
[19] Id. ¶ 124.
[20] Id. ¶ 131.
[21] Id. ¶ 132.
[22] Id. ¶ 127. Greece intervened in the case as a non-party. See Jurisdictional Immunities of the
State (Ger. v. Italy), Order (July 4, 2011), http://www.icj-cij.org/docket/files/143/16556.pdf.
[23] Dissenting Opinion of Judge Yusuf, ¶ 9, http://www.icj-cij.org/docket/files/143/16893.pdf.
[24] Dissenting Opinion of Judge ad hoc Gaja, ¶ 9, http://www.icj-cij.org/docket/files/143/16895.pdf.
[25] Dissenting Opinion of Judge Cançado Trindade, http://www.icj-
cij.org/docket/files/143/16891.pdf.
[26] Judgment, supra note 2, ¶ 104.
[27] Id. ¶ 99.
[28] Id. ¶ 137.