AMITY UNIVERSITY RAJASTHAN

PUBLIC INTERNATIONAL LAW

ASSIGNMENT

GERMANY V ITALY
(JURISDICTIONAL IMMUNITY)

SUBMITTED BY- AADIL HUSSAIN SUBMITTED TO- DR. VINOD KUMAR

B COM LLB (H)
9TH SEMESTER
 FACTS OF THE CASE
The original claims were based on a number of war crimes committed by German troops during World War
II. The substance of the facts were not disputed by Germany. A number of international agreements and
measures had been passed which purported to waive the claims of the victims involved, or make
reparations. For instance, a 1947 peace treaty between Italy and the Allies purported to waive claims by
Italian nationals; a 1963 agreement between Germany and Italy again purported to waive claims of Italian
nationals for 40m Deutsche marks in compensation. Germany had also passed various laws to effect
individual compensation to victims of Nazi era atrocities. However, it is undisputed that the international
agreements and the sometime restrictive language of the compensation laws collectively failed
to compensate many victims individually.
Luigi Ferrini

Luigi Ferrini was an Italian who was deported from occupied Italy and forced to work in a munitions plant
in Germany. During 1998 he instituted proceedings against Germany in lower court at Arezzo. The lower
court and then the appeals court denied his claim, on the basis that Germany was entitled to state immunity.
However, during 2004 the Italian Court of Cassation reversed this judgment on the grounds that state
immunity is lost when international crimes are alleged. On remand, the lower courts entered judgment in
favor of Ferrini.

Max Josef Milde

Max Josef Milde was a German soldier, member of the Hermann Goering Division, who during 2004 was
convicted in absentia for war crimes involving a massacre of civilians in the Italian towns of Civitella in Val
di Chiana and San Pancazio. In connection with this conviction, Germany was held jointly and severally
liable for damages resulting from this act. The Court of Cassation reaffirmed its reasoning in the Ferrini case
by affirming this judgment during 2008.

Distomo Massacre

On June 10, 1944, hundreds of people in the Greek village of Distomo were massacred by German troops in
retaliation for Resistance activities nearby. Survivors and relatives of victims of this Distomo massacre sued
Germany in Greek courts during 1995. Germany did not appear and the trial court entered a default
judgment, upheld on appeal by the Greek Court of Cassation. However, the Greek Justice Minister refused
to grant the required permission to enforce the judgment in Greece. In response, the plaintiffs attempted to
enforce the judgment at the European Court of Human Rights and in the German courts, but were denied on
grounds of state immunity. Finally, after the Ferrini decision, the plaintiffs petitioned for enforcement in
Italy; the Italian courts agreed to enforce the judgment and during 2007 the plaintiffs placed a legal charge
on Villa Vigoni, a property in Italy owned by the German state.

SUMMARY
Between 2004 and 2008, Italian courts had issued a number of judgments in which plaintiffs, victims of war
crimes and crimes against humanity committed by the German Reich during WWII, were awarded damages
against Germany.

Ultimately, in 2008, Germany filed an application instituting proceedings against Italy before the
International Court of Justice (ICJ), arguing that "[i]n recent years, Italian judicial bodies have repeatedly
disregarded the jurisdictional immunity of Germany as a sovereign State", thus violating international law.
Italy disagreed, stating that the underlying acts were violations of jus cogens and therefore gave it the right
to strip Germany from its immunity. Greece joined the proceedings as one of the Italian judgments
concerned a declaration of enforcability by an Italian court of a Greek judgment that ordered Germany to
pay compensation to victims of the Distomo massacre (in Greece). This declaration led to measures of
constraint on German property in Italy.
The Court rejected Italy's claims and fully agreed with Germany's points. State immunity is part of
customary international law, and the fact that the underlying acts (the WWII crimes) were violations of jus
cogens did not deprive Germany from its jurisdictional immunity.

Importantly, though, the Court notes that while the current judgment confirms jurisdictional immunity of
states, this does not in any way alter the possibility to hold individuals criminally responsible for certain
acts.

Procedural history
On 23 December 2008, Germany filed an application instituting proceedings against Italy before the
International Court of Justice, arguing that "[i]n recent years, Italian judicial bodies have repeatedly
disregarded the jurisdictional immunity of Germany as a sovereign State", thus violating international law.
By an Order of 4 July 2011, the Court authorised Greece to intervene in the case as a non-party, in so far as
this intervention was limited to the decisions of Greek courts which were declared as enforceable in Italy.

Legally relevant facts

In multiple civil suits between 2004 and 2008, Italian courts have found Germany responsible for crimes
against humanity and/or war crimes committed by the German Reich during WWII, thereby ordering
Germany to pay compensation to Italian plaintiffs, who had fallen victim to such crimes. Reference is made
to, among others, Ferrini v. Germany (Supreme Court, Italy, 11 March 2004); Mantelli v. Germany (Court
of Cassation, Italy, 29 May 2008); and The Prosecutor v. Max Josef Milde (Supreme Court, Italy, 21
October 2008). Additionally, concerning the Distomo massacre that was committed in Greece, the Florence
Court of Appeal had declared enforceable a judgment rendered by the First Instance Court of Livadia,
Greece that ordered Germany to pay compensation; hence, it allowed the Greek claimants to enter a legal
charge against Villa Vigoni, property of the German State in the province of Como, Italy.

Germany did not dispute the substance of the facts. However, it did consider that Italy had violated
international law. By exercising jurisdiction over Germany, Italy had violated the principle that one state
cannot and should not exercise jurisdiction over (the acts of) another state. This principle is based on the
notion of sovereignty and, thus, the (legal) equality of all states.

Italy, on the other hand, emphasised that the underlying crimes - crimes against humanity and war crimes -
are violations of jus cogens, law that is binding upon states regardless of any treaty. And since jus cogens
rules always prevail over any inconsistent international law rule, and considering the principle of
jurisdictional immunity of states does not have jus cogens status, the latter rule of immunity must give way.
Additionally, Italy was of the standpoint that state agents, including state armies, do not join immunity for
torts or delicts occasioning death, injury or damage committed on the territory of another state.

legal questions

Do states enjoy full jurisdictional immunity before foreign domestic courts for acts committed by their
armed forces in the course of conducting an armed conflict?

JUDGEMENT
By a vote of 12 to 3, the court rejected both alleged exceptions to the doctrine of state immunity proposed by
Italy.
Firstly, the court rejected a theory of "territorial tort", in which Italy would be entitled to ignore immunity
because torts were committed on Italian territory. The court analysed this exception within the narrow
confines of the facts of the case: the torts were committed by an armed force during armed hostilities. The
court noted that while the general territorial tort certainly has support for jure gestionis, or commercial
activities of state, it is clear that such a tort is not meant to apply to armed forces engaged in an armed
conflict. The court cited the European Convention on State Immunity, the United Nations Convention on
Jurisdictional Immunities of States and Their Property, and the state practice of a number of countries to
establish that there was little support for extending the territorial tort as much as Italy proposed.
Secondly, the court rejected a more expansive exception to state immunity, by which immunity would be
lost if serious human rights violations were alleged and no reparations were forthcoming. Italy advanced
three "strands" to this argument: Italy argued that the gravity of the violations required elimination of state
immunity, that not to eliminate state immunity would effectively derogate from a peremptory, or jus
cogens norm; and immunity was lost because the claimants had no other means of redress. Italy also argued
that these three strands, if not each independently sufficient to warrant a loss of immunity, were sufficient
when they were combined.
Addressing the first strand, the court noted that allowing a judicial enquiry into the gravity of the crime
would defeat the purpose of immunity, which is to avoid the trial process. Additionally, that there is little
support in international conventions and state practice for the idea that severity of a crime could eliminate
state immunity. The court distinguished the Pinochet case, in which Augusto Pinochet was arrested despite
immunity as a head of state, by stating that Pinochet was a criminal case against an individual, not a civil
case against a state itself.
Addressing the second strand, the court distinguished between procedural and substantive rules and found
that there was no conflict between substantive jus cogens prohibitions on enslavement, for instance, and
procedural state immunity. The court noted that this was consistent with the ICJ's rulings in Armed
Activities in the Congo and Arrest Warrant of 11 April 2000, in which jus cogens rules did not confer
jurisdiction or abrogate immunities of officials. The court further noted that no state practice supported the
argument that jus cogens rules displace immunity. Addressing the third strand, the Court distinguished
between immunity and the substantive rules of international law by which Germany might still owe
reparations. A finding of immunity does not equal a finding that Germany did not owe reparations. The
Court indicated that under that theory, the existence of immunity would depend on the final failure of a
diplomatic solution, but the failure would be exceptionally difficult to identify.
Finally, having rejected the strands of Italy's argument individually, the Court rejected their aggregate as
well, specifying that immunity could not be based on a substantive balancing test applied by national courts.
After finding that Italy was obliged to grant Germany immunity before Italian courts, the Court found that
the petition for enforcement of a Greek judgment (application for exequatur) was subject to the same rules
and should likewise have been denied due to immunity.
By a vote of 14 to 1, the court found that Italy was obliged, by a means of its own choosing, to render void
the decisions of its courts infringing the state immunity due to Germany.
Dissenting Judge Bennouna said there was a difference between state immunity and state responsibility.
Granting immunity does not exonerate one from responsibility. In this case the court should of recognised
that Germany admitted to their crimes, and therefore are responsible. If Germany wishes to have immunity,
they need to assume responsibility in their own national courts, otherwise, they cannot rest on their state
immunity.

Specific legal rules and provisions

 Art. 38 of the ICJ Statute.

 Art. 11 of the European Convention for the Peaceful Settlement of Disputes.
 Art. 12 of the UN Convention on Jurisdictional Immunities of States and Their Property.

Court's holding and analysis

The Court commenced with Italy's argument that there is a "territorial tort exception" in international
customary law that excludes state acts from jurisdictional immunity if they take place on the territory of
another state. This claim is rejected, as the Court could not find any support for it in both (the history of)
treaty law and international customs.
Then the Court turned to the other argument, holding that the underlying acts were violations of jus cogens
and that they, thus, allowed for denial of immunity. This claim was rejected as well:

 Firstly, though the Court acknowledged that the facts were indeed grave violations of international
law, there it found no support for denying state immunity. It emphasised that this says nothing about
individual criminal responsibility and the possibility to deny individual immunity (paras. 81-91).
 Furthermore, while the underlying facts are of jus cogens character, this does not conflict with the
(international customary law) principle of state immunity: the former addresses the (un)lawfulness of
certain conduct, the latter concerns procedural, jurisdictional issues (paras. 92-97)
 And finally, the Court considered that "it cannot accept Italy's contention that the alleged
shortcomings in Germany's provisions for reparation to Italian victims entitled the Italian courts to
deprive Germany of jurisdictional immunity".
Hence, the Court rejected Italy's claims and held that the judgments ordering Germany to pay compensation
violated the principle of jurisdictional immunity.
Regarding the constraining measure on Villa Vigoni that was filed by the Greek claimants, the Court stated
that it was unlawfully awarded as well.

Instruments cited

 United Nations Convention on Jurisdictional Immunities of States and Their Property, UN General
Assembly, 13 February 1946.
 Statute of the International Court of Justice, 18 April 1946.
 European Convention for the Peaceful Settlement of Disputes, Strasbourg, 29 April 1957.