(Germany v Italy: Greece Intervening)
| Jurisdiction | Derecho Internacional |
| Judge | Xue,Greenwood,Tomka,Yusuf,Buergenthal,Skotnikov,Abraham,Simma,Sepúlveda-Amor,Owada,Al-Khasawneh,Donoghue,Gaja,Cançado Trindade,Bennouna,Keith,Koroma |
| Date | 03 February 2012 |
| Court | International Court of Justice |
International Court of Justice2
Order on Counter-Claim.
Order on Application by Hellenic Republic for Permission to Intervene.
Judgment.
(Owada, President; Tomka, Vice-President; Koroma, Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade and Greenwood, Judges;Gaja, Judge ad hoc)
(Owada, President; Tomka, Vice-President; Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue and Donoghue, Judges; Gaja, Judge ad hoc)
(Owada, President; Tomka, Vice-President; Koroma, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue and Donoghue, Judges; Gaja, Judge ad hoc)
Jurisdictional Immunities of the State
State immunity — Jurisdictional immunity — Customary law obligation to accord immunity — Acta jure imperii and acta jure gestionis — Civil action against State in respect of war crimes and crimes against humanity — Acts having status of acta jure imperii — Territorial tort exception to immunity — Whether applicable to acts of armed forces in conduct of armed conflict — Whether immunity set aside in case of grave illegalities — Jus cogens — Whether immunity available where State accused of violation of jus cogens — Relationship between rule of law violated and rule of law according immunity — Entitlement to immunity determined by law in force at the time action brought — Whether absence of alternative remedy relevant to immunity — United Nations Convention on the Jurisdictional Immunities of States and Their Property, 2004 — Relevance to customary international law
State immunity — Immunity from execution — Property of State in use for non-commercial purposes — Immunity from execution more extensive than immunity from jurisdiction — Proceedings for exequatur to render foreign judgment enforceable in the forum State — Duty of courts of the forum State to determine whether State immunity barred grant of exequatur
States — Sovereign equality of States — State immunity a reflection of principle of sovereign equality of States
Sources of international law — Customary international law — State practice — Customary international law on State immunity — Relevant practice — Judgments of national courts — National legislation — United Nations Convention on the Jurisdictional Immunities of States and Their Property, 2004 — Relevance to customary international law of Convention provisions — Relevance of State comments during negotiation of Convention — State practice in asserting or acknowledging immunity
War and armed conflict — War crimes — Crimes against humanity — Prisoners of war — Occupied territory — Civilian population — Italian armed forces taken prisoner by Germany in 1943 — Denial of status of prisoners of war — Murder and deportation
Summary: The facts:—Following the surrender of Italy to the Allies in 1943 and its subsequent declaration of war against Germany, large parts of Italian territory came under occupation by German armed forces. In addition, numerous members of the Italian armed forces were made prisoner, some in Italy and some in other parts of Europe, by the German armed forces. The position of the German Government at the time was that these prisoners were not prisoners of war and were not entitled to the protection of the Geneva Prisoners of War Convention, 1929. Many of the prisoners were murdered by the German armed forces, while many others were deported to work as forced labourers in Germany and German-occupied territories. Within Italy, large numbers of civilians were deported to forced labour and others were killed by German armed forces. Germany acknowledged that these events had taken place and that they constituted war crimes and other grave violations of humanitarian law.
On 10 February 1947, the Allied Powers concluded a Peace Treaty with Italy (“the 1947 Peace Treaty”). By Article 77(4), Italy waived “on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945” subject to certain exceptions.3 In Germany, a Federal Compensation Law was enacted in 1953 and amended in 1965 but most Italian claimants fell outside its terms. In 1961, two Agreements were concluded between Italy and the Federal Republic of Germany by which Germany paid a sum of compensation to Italy in respect of wartime claims. Both Agreements contained provisions by which Italy declared all outstanding claims dating from the wartime period to have been finally settled.4 In 2000, a federal law was enacted in Germany to make funds available to individuals who had been subjected to forced labour and certain other injustices. However, most of those who had held the status of prisoner of war were excluded from its provisions. The German authorities took the view that Italian military internees were prisoners of war under international law, even though they had been denied that status at the time, and thus were outside the scope of the compensation scheme under the 2000 legislation. Attempts to challenge that decision in the German courts were unsuccessful.
Beginning in 1998, a number of Italian nationals, some of whom had been military prisoners, some civilian internees and some relatives of prisoners killed in the war or who had subsequently died, brought civil proceedings against Germany in the Italian courts. In 2004, the Court of Cassation in Italy held that, because of the nature and location of the acts in respect of which the claims were brought, Germany was not entitled to immunity under international law.5 That decision was followed in a number of later civil cases and criminal proceedings in which a claim for compensation was also brought.6
In 1995, the Hellenic Supreme Court had given a judgment in favour of the victims of a massacre at the Greek village of Distomo in proceedings against Germany.7 The claimants had been unable to enforce that judgment either in Greece or in Germany. Following the 2004 judgment of the Court of Cassation in Ferrini,8 the claimants in the Distomo case obtained an order from an Italian court for the enforcement in Italy of the judgment of the Hellenic Supreme Court.9 Pursuant to that judgment, the Distomo claimants registered a legal charge over Villa Vigoni, a property in Italy owned by the German Government and used for non-commercial purposes.10
In 2008, Germany commenced proceedings against Italy in the International Court of Justice. Germany maintained that, by allowing civil claims to be brought against Germany in contravention of the international law on the jurisdictional immunity of States, Italy had violated its international law obligations towards Germany. In addition, Germany maintained that the measures of constraint taken against Villa Vigoni violated Germany's entitlement under international law to immunity from execution. Lastly, Germany claimed that the declaration that the Greek judgment was enforceable in Italy constituted a further violation of Germany's jurisdictional immunity. Germany maintained that the Court had jurisdiction under Article 1 of the European Convention for the Peaceful Settlement of Disputes, 1957 (“the 1957 Convention”),11 which entered into force between Germany and Italy on 18 April 1961.
In 2009, Italy submitted a counter-claim in which it sought reparation for war crimes and crimes against humanity committed by Germany against Italian nationals between 1943 and 1945, some of which were the subject matter of the cases in the Italian courts the judgments in which were the subject of Germany's claim.
In 2011, the Hellenic Republic (“Greece”) applied to intervene in the proceedings.
Held (by thirteen votes to one, Judge Cançado Trindade dissenting):—The counter-claim was inadmissible.
(1) Under Article 80(1) of the Rules of Court,12 the Court was entitled to entertain a counter-claim only if it came within the jurisdiction of the Court and was directly connected with the claim of the other Party (paras. 12–16).
(2) The counter-claim fell outside the jurisdiction of the Court ratione temporis. The only basis on which the Court might have jurisdiction was Article 1 of the 1957 Convention. However, Article 27(a) of that Convention provided that its provisions should not apply to “disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”.13 In applying a provision of this kind, what mattered were the facts and situations which were the real cause of the dispute. While the counter-claim referred to the existence and scope of the duty to make reparation for the violations of humanitarian law committed in 1943–5, rather than the violations themselves, the question whether there was any such duty was bound up with the provisions of Article 77(4) of the 1947 Peace Treaty. The dispute which Italy wished to bring before the Court by way of a counterclaim was therefore one whose real cause existed before the entry into force of the 1957 Convention on 18 April 1961 (paras. 17–31).
Joint Declaration of Judges Keith and Greenwood: The Counter-Memorial of Italy failed to identify a dispute the real cause of which came into being after 18 April 1961 (paras. 1–15).
Dissenting Opinion of Judge Cançado Trindade: The Court had adhered too rigidly to an inter-State conception of jurisdiction which ignored the sufferings of the victims of atrocities which everyone recognized entailed violations of humanitarian law. It was a juridical absurdity to take jurisdiction over the claim to sovereign immunity while denying it with respect to the crimes which were the heart of the case (paras. 1–179).
Declaration of Judge ad hoc Gaja: The Court was applying for the first time the amended Article 80 of the Rules of Court which required the Court to take a decision “after hearing the parties”, which...
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