Jurisdictional Immunities of the state (Germany v Italy; Greece intervening) (judgment) International Court of justice, general list no 143, 3 February 2012).

• Author: Walker, Lee

Introduction

On 3 February 2012, the International Court of justice ('ICJ') adjudged a dispute between the Federal Republic of Germany and the Italian Republic--the Hellenic Republic intervening. The dispute concerned Germany's purported immunity in Italian courts for atrocities committed by German troops during World War II. (1) Ultimately, Germany's immunity was upheld, marking a pivotal moment in foreign sovereign immunity and bringing to a head years of conjecture about what may be loosely termed a human rights exception to state immunity. The ruling should prove fundamental to further development in the field. This note first briefly summarises the current state of foreign sovereign immunity. A history of the case follows, outlining the material facts, and setting out pertinent legal issues, arguments made by the parties and an analysis of the ruling.

Prior Law

Foreign sovereign immunity prevents a nation from being impleaded in a foreign domestic court. It stemmed from the doctrine of state official immunity (2) and is most often cited as originating in the United States Supreme Court decision of The Schooner Exchange v McFaddon. (3) Gradually The Schooner Exchange became the chief authority for the notion of absolute immunity, (4) which prevents a nation being impleaded in a foreign court for any reason without its consent. Beginning in the late 19th century, however, and increasingly in the 20th, Mediterranean states including Italy, Egypt, and Greece (but also other states including Belgium), began favouring a restrictive immunity (5) that divides conduct into private and sovereign behaviour, according immunity only to the latter. Western nations--including the United States ('US'), (6) United Kingdom ('UK), (7) Australia (8) and Canada (9)-- followed suit by adopting the views of the Mediterranean states later in the 20th century, creating a clear trend in favour of restrictive immunity) (10) However, that trend is by no means universal, with some nations still adhering to absolute immunity. (11)

The most significant recent issue in the field is whether a state should be granted immunity in cases where human rights have been violated by a breach of cogens. (12) This is what was referred to above as the human rights exception to state immunity. In the past two decades, a number of cases have been filed in the US, (13) the UK (14) and Canada, (15) and before the European Court of Human Rights, (16) attempting to assert through various arguments that a state, even when acting in a sovereign capacity, should not be immune for grave human rights abuses. Unlike the conceptually similar argument in the state official immunity case of R v Bow Street Stipendiary Magistrate; Ex parte Pinochet Ugarte (17)--the relevant logic there being that, even if committed in an official capacity, some acts should not be accorded that classification if they violate basic human rights--these suits were generally unsuccessful. (18) Nonetheless, the last decade has seen growing support in the West for a possible human rights exception to state immunity.

Case History and Facts

Germany v Italy grew out of multiple claims in Italian and Greek courts (19) seeking compensation for atrocities committed by German forces against the people of several occupied nations (including Italy and Greece) during World War IT. In 1998 in Italy, Luigi Ferrini filed suit in the Court of Florence, alleging he was deported and subjected to slave labour. At first instance and in the Florence Court of Appeals the case was dismissed due to Germany's sovereign immunity. On further appeal, however, the Italian Court of Cassation (20) allowed the case to proceed, finding that there can be no sovereign immunity--even for acts performed in a sovereign capacity--where human rights have been trampled by a violation of a jus cogens norm. Two more cases followed, before the Court of Turin and the Court of Sciacca, each also concerning allegations of deportation and slave labour. Germany's interlocutory appeals pleading immunity were dismissed by the Court of Cassation. (21) Finally, the Military Court of La Spezia convicted German soldier Max Josef Milde of committing massacres and, among other things, ordered the German Government to pay reparation to the victims' families. Germany's appeal to the Rome Military Court of Appeals alleging immunity was unsuccessful. So too was a further appeal to the Court of Cassation. (22)

Similar cases were proceeding against Germany in Greek courts. One of the massacres had occurred in a Greek village called Distomo. In 1995, families of the victims filed suit against Germany in the Livadia Court of First Instance and were awarded a default judgment. Germany appealed on the grounds of...