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Facts of the Case:

In 1940, Italy entered the Second World War as an ally of the


German Reich. In 1943, Italy surrendered to the Allies and declared war
against Germany. At the time, German forces occupied significant
Italian territory. It committed many crimes against civilians and
soldiers, including massacres, deportations and forced labour. After
the end of the war, Germany enacted several laws to facilitate the
payment of compensation to these victims. However, thousands of
former Italian military internees did not fall within these laws and they
could not get compensation in Germany (paras 20 – 27). These
internees brought civil cases against Germany in Italian Courts to claim
compensation. Germany objected to the proceedings on the basis of
jurisdictional immunity before foreign courts. Italian Courts held
that “…jurisdictional immunity is not absolute…” and that “…in cases
of crimes under international law, the jurisdictional immunity of States
should be set aside.” (paras 27 – 29).
Greek courts also set aside the immunity of
Germany, in a similar situation, and ordered
Germany to pay damages. Germany refused to pay
on the basis that these “Greek judicial decisions
could not be recognized within the German legal
order because they have been given in breach of
German’s entitlement of State Immunity”. The
judgement could not be given effect to in Greece
due to a decision of the executive. The Greek
claimants then asked Italian courts to enforce the
Greek judgement. Italian courts ordered a legal
charge over a property of Germany in Italy as a
measure of enforcement (paras 30 – 36).
Questions before the Court:

Is jurisdictional immunity available to a State for acts


committed by its armed forces in the conduct of an armed
conflict?

If so, did Italy violate this immunity by allowing civil claims


against Germany to be brought before its courts and by
enforcing the Greek judgement in Italy?

Did Italy violate its international law obligations relating to


Germany’s jurisdictional immunities when it took measures of
constraint against German property in Italy?
The Court’s Decision:

Italy violated its obligation to respect Germany’s


immunity under international law by allowing civil
claims to be brought against Germany based on
violations of international humanitarian law
committed by the German Reich between 1943
and 1945, by declaring enforceable in Italy
decisions of Greek courts and by taking measures
of constraint against German property in Italy.
The Court requested Italy to
enact legislation, or resort to other
methods of its choosing, to ensure that the
decisions of its courts and those of other
judicial authorities infringing the immunity
which Germany enjoys under international
law cease to have effect.
Did the ICJ have jurisdiction to hear this case?

ICJ’s jurisdiction was on the basis of the European Convention for the
Peaceful Settlement of Disputes. Article 27(a) of the Convention states
that the Convention did 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”. The relevant year of entry into force was
1961. The Court held that the subject matter of the dispute – the crimes
for which reparations are sought – occurred during between 1943 and
1945. However, the “…”facts or situations” which have given rise to the
(present) dispute before the Court are constituted by Italian judicial
decisions that denied Germany the jurisdictional immunity… and by
measures of constraint applied to property belonging to Germany” This
occurred between 2004 and 2011. The ICJ had jurisdiction to hear the
case.
Is jurisdictional immunity available to a State for
acts committed by its armed forces during an armed
conflict?

The ICJ affirmed that jurisdictional immunities are


available to a State before foreign courts, for acts of
its armed forces, which were committed during the
conduct of an armed conflict. In coming to this
conclusion, the ICJ analyzed
(1)the customary nature of State immunity

State immunity derives from the principle of sovereign equality


found in Article 2(1) of the UN Charter. It is “one of the
fundamental pillars of the international legal order.” As between
Italy and Germany this right is derived from customary
international law, in the absence of a treaty to that effect. Based
on its analysis of State practice and opinio juris, the ICJ
said, “…practice shows that, whether in claiming immunity for
themselves or according it to others, States generally proceed on
the basis that there is a right to immunity under international
law, together with a corresponding obligation on the part of
other States to respect and give effect to that immunity.”(paras
55 – 56).
(2) the relationship between jurisdictional immunity
and the territorial sovereignty of the forum State

“This principle [of State immunity] 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 [also]
represent a departure from the principle of territorial
sovereignty and the jurisdiction which flows from it”
(para 57).
(3) the classification of acts as falling under jus
imperii or jus gestionis.

The ICJ discussed jus imperii (law governing the


exercise of sovereign power) and jus gestionis (law
relating to non-sovereign activities of a State,
especially private and commercial activities). A
domestic court has to assert the nature of the act
(whether imperii or gestionis) before it hears the case;
because, this will determine if the State is entitled to
immunity before the domestic court (para 59 -60).
The acts of the German armed forces and other State
organs which were the subject of the proceedings in the
Italian courts clearly constituted acta jure
imperii…notwithstanding that they were unlawful…. To
the extent that this distinction (between jus imperii and
jus gestionis) is significant for determining whether or
not a State is entitled to immunity from the jurisdiction
of another State’s courts in respect of a particular act, it
has to be applied before that jurisdiction can
be exercised, whereas the legality or illegality of the act
is something which can be determined only in the
exercise of that jurisdiction…” (para 60. Emphasis
added).
The Court concluded that German
enjoyed jurisdictional immunity
before foreign courts for acts
committed by its armed forces.
Did Italy violate the jurisdictional immunity of
Germany by allowing civil claims against Germany
before its courts?

Italy argued that Germany was not entitled to


immunity or that its immunity before Italian courts
was restricted because of the: (1) “territorial tort
principle” (see below) and (2) fact that the rules
that were violated were of jus cogens nature and,
if Germany was to succeed in its claim of
immunity, no alternative means of redress was
available (para 61).