Immunities of the State: Germany vs Italy (Greece Intervening
In 2012, the International Court of Justice heard the case ‘Jurisdictional Immunities of the State’ between Germany and Italy. The case arose because Germany was found guilty in Italian courts as it did not pay compensation to Italian victims of World War 2. Hence, the case considered whether Italy had violated state immunity entitled to Germany by finding Germany guilty in its national courts. The International Court of Justice found that despite the nature of the crimes Germany was still entitled to state immunity. Given that the link between the seriousness of the crime and state immunity is a relatively new topic in international law, this paper aimed to analyse the International Court of Justice’s judgement. By examining the reasoning of the International Court of Justice and investigating the development of state immunity in international law, this paper found that the International Court of Justice may have taken a premature stance on the link between state immunity and the seriousness of the crime. This implies that there is a need for international law to further clarify the relationship between state immunity and the seriousness of crimes.
From October 1943 until the end of World War 2 (hereinafter referred to as WW2) Germany occupied a substantial part of Italian territory and committed various crimes against humanity, such as forced deportations and massacres of Italian civilians.1 These crimes can be considered jus cogens violations, where jus cogens are generally accepted by the international community as norms from which no derogation is allowed.2 Post WW2, Germany passed various laws to provide reparation to the victims of the Nazi Regime. For example, in 2000 Germany passed a federal law to establish the 2000 Remembrance, Responsibility and Future Foundation, to make reparations to victims of the Nazi Regime. However, if the victims were prisoners of war who were not detained in concentration camps, they would not be able to receive compensation from the foundation. This was to account for the fact that prisoners of war could have received work from Germany. The German authorities considered many Italian victims to be prisoners of war, hence these victims could not receive compensation under German law.3 Thus, these Italian victims of WW2 filed civil claims against Germany in Italian courts.
During the period of 2004 to 2011, the Italian Supreme Court ruled in favor of civil claims of reparation against Germany for crimes committed during WW2.4 In response to this, Germany asked the International Court of Justice (hereinafter referred to as the ICJ) to adjudicate whether these civil rulings violated the jurisdictional ￼state immunity enjoyed by Germany, and hence could not be upheld. ￼On the other hand, according to Italy, if a state fails to fulfil its obligation to pay compensation conferred to its victims, and if there are no other means available for victims to obtain said compensation, then the concept of jurisdictional immunity is no longer applicable.5
Jurisdictional immunities handle the question of whether a state can be challenged in the civil court of another state. In the past, prior to the collapse of the Soviet bloc, international law mainly considered that state immunity should be absolute in all cases, meaning that a civil court in one state has no jurisdiction over matters dealing with another state.6 This directly relates to the principle of sovereign equality of all states, which is one of the central pillars of international law,7 enshrined in Article 1(2) of the United Nations Charter.8
However, with the collapse of the Soviet bloc, some restrictions to state immunity were formulated.9 For example, restrictions to state immunity were developed in areas of tort, intellectual property and employment.10 This restrictive approach to state immunity was undertaken to safeguard the rights of individuals against illegal actions conducted by states.11 Therefore, in the case ‘Jurisdictional Immunities of the State (Germany v. Italy)’, the ICJ determined whether Germany was entitled to state immunity and whether Italian courts had thus violated this immunity by hearing claims against Germany.12
In judging the case, the ICJ considered two questions. First, whether the failure of a state to fulfil its obligation to pay compensation should result in the lack of jurisdictional immunity for said state. Secondly, if it was found that a lack of jurisdictional immunity was called for, then the ICJ subsequently next had to consider whether this this held in Germany’s specific case.13
In order to judge the primary question, the Court first established that jurisdictional immunity was derived from customary international law and not treaty law as agreed by both ￼states.14 This was because neither state was party to the ￼United Nations Convention on Jurisdictional Immunities of States and Their Property (hereinafter referred to as the UN Convention) and Italy was not party to the European Convention on State Immunity of 16 May 1972 (hereinafter referred to as the European Convention on State Immunity). Therefore, the ICJ could not directly apply either of these Conventions to reach a judgement.15
Thus, following the ICJ’s judgement in the North Sea Continental Shelf Cases, in order to establish precedent under customary international law, both state practice and ￼opinio juris needed to be demonstrated. State practice refers to actual practice by states while opinio juris refers to what states believe they are obligated to do under international law.16 Here, state practice could be found in the judgement of national courts, legislation of states and statements made by states in the adoption of relevant conventions. Opinio juris could be found in the affirmation by states that state immunity arises from international law in this particular context.17 Furthermore, a distinction between acta jure imperii and acta jure gestionis was agreed upon by the court. The former relates to actions exercised by states as a sovereign nation, while the latter deals with private and commercial actions of states.18
It was agreed by both states that acta jure imperii fall under state immunity.19 This can also be found in the UN Convention, the European Convention on State Immunity and the national legislation and previous jurisprudence of states which have adopted the concept of acta jure imperii in their national legislation.20 Moreover, both states and the court submitted that the actions conducted by Germany during WW2 fell under acta jure imperii.21
However, Italy argued that given the nature of the actions conducted by Germany during WW2, state immunity cannot be upheld due to the following reasons:
a. State immunity under acta jure imperii does not apply to actions concerning torts which leads to the death, loss of property or personal injury in another states’ territory. This follows from Article 12 of the UN Convention22 and Article 11 of the European Convention on State Immunity.23
b. The actions committed by Germany during WW2 cannot be protected under state immunity because they involved the violation of jus cogens, or international law, of a peremptory nature. Moreover, in this case, no other means of redress were available to the victims.24As described in the latter sections, using national jurisprudence, national legislation and various conventions, the ICJ concluded that neither arguments held and that the judgements upheld by the Italian court were in fact in violation of international law.25 Yet, as the relationship between jus cogens and state immunity is not clearly defined in international law, it is important to further analyse the ICJ’s stance on this topic and discuss the relevance of its judgement. Thus, given the facts of the case, Italy’s claims about restriction to state immunity in the context of jus cogens violations will be further evaluated.
2. Nature of crimes committed by Germany and their link to State Immunity
In their second argument, Italy focused on the seriousness of the crimes perpetrated by Germany, the fact that the crimes violated jus cogens, and the lack of other forms of redress against Germany.
2.1 Seriousness of Crimes
According to Italy, because of the seriousness of the crimes in question, which constituted crimes against humanity, Germany could not apply the concept of state immunity.26 However, the ICJ found that the concept of state immunity is preliminary in nature, which implies that state immunity should be applied before the trial of a case. If, in fact, state immunity was tied to the criminal act itself, then its applicability would have to be determined during a trial before a court. Only then would the court be able to decide if it had the necessary jurisdiction to judge said case. However, state immunity implies immunity from the trial process in its entirety. Hence, linking state immunity to the type of crime committed would be problematic to enforce in reality.27
Moreover, taking into account state practice, it is evident that most states do not believe that state immunity should be tied to the seriousness of the crime.28 This can be demonstrated by court cases in Canada, France, Slovenia, Poland, New Zealand and the United Kingdom which applied state immunity even in cases concerning jus cogens violations.29 For example, in Natoniewski v. Federal Republic of Germany, which concerns the illegal actions committed by Germany in WW2, the Polish Supreme Court declared that it did not have jurisdiction to judge the case due to the application of state immunity.30
However, it is important to note here that in United States legislation, there is an amendment to the Foreign Sovereign Immunities Act which provides restrictions from state immunity for specific actions such as torture. In these cases, state immunity is withdrawn fromto those states which have been declared to be a “sponsor of terrorism.”31 However, the ICJ dismissed the importance of this addition as it is not mentioned in any other national legislation or convention.32
2.2 Violation of Jus Cogens
Secondly, Italy focused on the fact that the crimes committed by Germany were in violation of jus cogens. While the ICJ recognised the primacy of jus cogens over customary international law,33 it believed that there was no dispute between the rule of jus cogens and state immunity obtained from customary law. The rule of jus cogens is applied when the actions committed are against the law, which implies that jus cogens deals with the substantive nature of the act. State immunity, in contrast, is applied when considering the procedural elements of an act, i.e whether a state has jurisdiction over the crimes committed by a foreign state. Since both rules govern different elements of an act, they are not in conflict with each other.34 Therefore, in the present case, when Germany violated its duty to pay compensation to its victims it was a violation that dealt with the substantive nature of the act. Hence, state immunity cannot be applied in this case.35
Furthermore, the ICJ also used jurisprudence of the national courts of the United Kingdom, Canada, Poland and Slovenia to reject Italy’s arguments regarding the jus cogens violation exception to state immunity.36 For example, in Bouzari v. Islamic Republic of Iran, which was brought before the Ontario Court of Appeals, it was argued that since the crime in question was torture, which is considered to be a jus cogensviolation, state immunity could not be given to Iran.37 However, the Ontario Court of Appeals did not find that there should be a restriction to state immunity and instead upheld the principle of sovereign equality of states.38
2.3 No other Forum available to Seek Remedy
Finally, Italy argued that state immunity could not be upheld in this argument, given that the victims had no other forum through which they could get compensation. However, using the applicable conventions, the national legislation of states and jurisprudence of national courts, the ICJ found that there was no precedence for withdrawing state immunity for the reason mentioned above. Hence, it rejected Italy’s claim.39 Furthermore, it also found that considering Italy’s second argument as a whole did not result in rejection of state immunity.40
3. Jus Cogens and State Immunity
In order to further analyse ICJ’s decision, the relationship between jus cogens and state immunity needs to be discussed.
3.1 Relationship between Jus Cogens and Jurisdictional Immunity in International Law
State immunity is a relatively new topic, with the United Nations General Assembly only asking for the International Law Commission’s (hereinafter referred to as ILC) opinion on this topic in 1977.41 The ILC considered that determination of the relationship between jurisdictional immunity and jus cogens had not developed enough in international law for the ILC to comment on it.42 Furthermore, the UN Convention, drafted in 1999, also concluded that there was insufficient case law on this specific matter and hence, did not comment on it.43This essentially led to a grey area in law with opposing stances taken by different states. Post 1999, four national case decisions demonstrate this conflicting view.
Decisions of the Italian and Greek Supreme Courts, such as the one explained in this paper, follow the view that state immunity can be restricted in specific instances of grave human rights violations. Here, both state immunity and jus cogens are understood as specifications of international law and are integrated within the national legislation. However, cases in English and Canadian courts took views that opposed Italian and Greek courts. They viewed the interaction of state immunity and jus cogens as one between national and international law. Hence, they concluded that state immunity could not be barred even in the light of human rights violations.44 For example, in Al-Adsani v. Kuwait heard in the UK, despite allegations of torture by Kuwaiti authorities, the UK courts held that it could not hear the case as it would be an infringement of the state immunity enjoyed by Kuwait.45 Hence, it was concluded that state immunity could not be restricted even in the light of human rights violations.46
This led to Al-Adsani taking the case to the European Court of Human Rights (hereinafter referred to as ECHR).47 The ECHR Chamber found that the fact that the crime in question was torture did not warrant the removal of state immunity. Moreover, it also deemed torture as a jus cogens violation.48 Hence, in its decision the ICJ used this judgement to show precedent.49 However, it must be noted that the ECHR decision was determined by nine to eight votes.50 The dissenting judges noted that norms of jus cogens as established by international law had primacy over other rules.51 This lack of consensus can be viewed as a direct result of the inability of the ILC and UN Convention to define the link between state immunity and jus cogens. This can be further demonstrated by the fact that only 28 States have signed the UN Convention thus far.52 Additionally, legal scholars have disapproved of the UN Convention for its failure to take into account the importance of human rights.53From the above, it is clear that there is still confusion with regards to how to treat state immunity in the international law field. Therefore, it is important for international law to consider whether it is just that an individual can be tried for committing crimes which gravely violate human rights, while the state behind these actions does not have to pay compensation because of the protection offered by state immunity.54
3.2 State Practice and Opinio Juris
It is evident that the ICJ relied heavily on the practice of national courts and on national legislation to come to a decision.55 However, when state practice is used to determine international customary law, the state practice must be uniform and built over a long period of time. In this case, the ICJ used a meager number of national court decisions to come to a decision against restricting state immunity.56 Moreover, it focused on certain aspects of specific national legislation to determine state practice and opinio juris while ignoring others, such as the US amendment to the Foreign Immunities Service Act.
Furthermore, there is no precedent in previous ICJ case law that shows that Italy has violated international law with its judgement.57 In its explanation, the ICJ used previous ICJ decisions such as the Arrest Warrant case of 2000 as precedent.58 The Arrest Warrant case involved jus cogens violations committed by the Minister of Foreign Affairs of the Democratic Republic of the Congo. In this case, the ICJ ruled that the Democratic Republic of the Congo was entitled to state immunity for its officials.59 However, it can be argued that the decision reached in the Arrest Warrant case does not imply that an entire state is entitled to state immunity when it conducts crimes that are jus cogensviolations.60 Moreover, in the Arrest Warrant case, the link between jus cogens and state immunity was not explicitly stated.61
What cannot be ignored here is the importance of the influence national courts and legislations have had on the development of state immunity in the realm of international law. For example, Italy was one of the first countries to apply a restrictive concept of state immunity by differentiating between acta jure imperii and acta jure gestionis.62 The Supreme Court of Austria was one of the first to recognise the restriction to state immunity in the cases of torts. This judgement was in fact approved by the ICJ in the judgement of the current case.63 This implies that these concepts, when first applied by a few national courts, found approval in the rest of the world and then became a part of the doctrine of state immunity.
Additionally, as section 3.1 demonstrated, there is a lack of clarity regarding the applicability of state immunity in the particular context of the case. Even the differentiation between acta jure imperii and acta jure gestionisis not always consistently applied by states.64 This clearly shows that when it comes to the topic of human right violations, state immunity has not been sufficiently developed.65 Then perhaps instead of ruling in favour of Germany, the decisions of the Italian courts could have been considered by the ICJ to be a part of the development of state immunity in international law.66
3.3 Having aJus Cogens Restriction on State Immunity
The ICJ claimed that a jus cogens restriction on state immunity would not apply as the rules of jus cogensdeals with substantive issues while state immunity considers procedural issues.67 However, when considering the rule of jus cogens, one also has to take into account its legal ramifications, or the result of a jus cogens violation.68 As mentioned previously, jus cogens are norms from which no derogation is permitted.69 Hence, if a dispute does arise between the rules of jus cogens and state immunity, the rule of jus cogens should be given primacy.70
Furthermore, the ICJ believed that if a jus cogens exception were given to state immunity, in order to determine whether the exception applies, the court would have to delve further into the case which goes against the preliminary nature of state immunity.71 However, it can be argued that if a national court inquired into whether a particular case was subjected to the jus cogens rule, it would merely be judging the nature of the crime and not the illegality or ramifications of said crime. Hence, this would not go against the preliminary nature of state immunity. Here it must be noted that if jus cogens were considered an exception to state immunity, it would have to be well defined, as leaving the definition of violations of jus cogens vague could have far-reaching consequences for the fundamental principle of equal sovereignty of all states.72
3.4 Duty of State to Pay Its Dues and the Lack of Other Forums for Justice
An important feature of Italy’s second argument against Germany was that Germany had failed to pay proper compensation to victims and the victims had no other forum to seek justice. However, in response to this, the ICJ only stated that it was disappointed and shocked that Germany has not paid its relevant dues.73 The ICJ did not take into account the ramifications of the failure of Germany to provide reparations considering there was no other means of redressal. This goes against one of the fundamental principles of the UN which is that a victim of a grave human rights violation has a right to justice under international law.74
Furthermore, in a Report of the United Nations Commission on Darfur it was found that whenever human rights violations are involved, customary international law dictated that both the responsible individual and state had an obligation to pay compensation.75 Moreover, the duty to pay compensation can be found in Article 3 of the 1907 Hague Convention IV76 and in Article 91 of the Additional Protocol to the 1949 Geneva Conventions.77 While these articles only use the term ‘party’ and do not state if this implies an individual or a state, it can be inferred that there is an important obligation for compensation to be paid.78 If a state is granted immunity, especially in a case where there is no other form for remedial measures, this implies that the applicable rules of jus cogens no longer holds value in the international law field.79 However, it must be noted that if civil suits could be pursued against states to fulfil their obligations to pay compensation this would in reality threaten the sovereignty of states.80 Hence, once again it is necessary that this particular characteristic of state immunity be codified in international law.
From the above, it is clear that the concept of state immunity still had to develop at the time of the case. Nowhere in international law had the relationship between jus cogens and state immunity been codified. Even though the ICJ used state practice and opinio juristo develop its judgement, the material referred to by the ICJ was insufficient.
By deeming Italy’s defense implausible, one could argue that the ICJ took a premature stance on this aspect of state immunity. As mentioned before, it was previous national judgements and legislation which helped develop certain restrictions to state immunity. Here, the importance of domestic jurisprudence is paramount. Perhaps Italy’s stance on this situation could have further helped the doctrine of state immunity. The gravity of Italy’s stance emphasises the severity of human rights violations committed.
Offering state immunity for all crimes, including those which constitute a jus cogens violation could set a dangerous precedent. Furthermore, the fact that the ICJ did not take into consideration the lack of other means of redressal indicates an oversight on the part of the ICJ. While the ICJ has identified issues with applying more restrictions to state immunity, this only emphasises the need for international law to clarify the role of jus cogens within state immunity.
 Jurisdictional Immunities of the State Case (Germany vs Italy) (Judgement)  ICJ at para 21
 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 33, at art 53
 Ibid (n 1) para 23-26
 Ibid (n 1) para 27-29
 Ibid (n 1) para 38
 Burkhand Hess, ‘The International Law Commission's Draft Convention on the Jurisdictional Immunities of States and Their Property’, (1993), 269(4), Eur. J. Int'l L.
 Ibid (n 1) para 57
 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, at art 1
 Ibid (n 6)
 Jurisdictional Immunities of the State Case (Germany vs Italy) (Dissenting Opinion of Judge Yusuf)  ICJ at para 44
 Ibid para 22
 Ibid (n 1) para 51
 Ibid (n 1) para 50
 Ibid (n 1) para 53
 Ibid (n 1) para 54
 North Sea Continental Shelf Case (Germany vs Netherlands) (Judgement)  ICJ at para 77
 Ibid (n 1) para 55
 Ibid (n 1) para 61
 Judgement 61
 Ibid (n 1) para 61
 Judgement para 60
 UN General Assembly, United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, A/RES/59/38, at art 12
 Council of Europe, European Convention on State Immunity, 11 June 1976, ETS No. 074, at art 11
 Ibid (n 1) para 61
 Ibid (n 1) para 139
 Ibid (n 1) para 80
 Ibid (n 1) para 82
 Ibid (n 1) para 84
 Ibid (n 1) para 85
 Roman Nowosielski, ‘State Immunity and the Right of Access to Court: The Natoniewski Case before the Polish Courts’, (2010), 30, Polish Yearbook of International Law, pp. 263-276.
 28 U.S. Code § 1605A.’Terrorism exception to the jurisdictional immunity of a foreign state’.
 Ibid (n 1) para 89
 Ibid (n 1) para 92
 Ibid (n 1) para 93
 Ibid (n 1) para 94
 Ibid (n 1) para 96
 Noah Benjamin Novogrodsky, ‘Immunity for Torture: Lessons from Bouzari v. Iran’, (2008), 18(5), pp. 939-953, European Journal of International Law.
 Ibid (n 1) para 101
 Ibid (n 1) para 106
 Lorna McGregor, ‘State Immunity and Jus Cogens’, (2006), 55(2), International and Law Comparative Quarterly.
 Ibid (n 41)
 Ibid (n 41)
 Ed Bates, ‘The Al-Adsani Case, State Immunity and the International Legal Prohibition on Torture’, (2003), 3(2), pp. 193-224, Human Rights Law Review
 Ibid (n 41)
 Ibid (n 45)
 Al‑Adsani v. United Kingdom (2001) App No. 35763/97 (ECHR 21 November 2001) Judgement at para 59-61.
 Ibid (n 1) para 90
 Ibid (n 48) at para 67
 Al‑Adsani v. United Kingdom (2001) App No. 35763/97 (ECHR 21 November 2001) Joint Dissenting Opinion of Judges Rozakis and Calflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic.
 Lori Fisler Damrosch, ‘Changing the International Law of Sovereign Immunity through National Decisions’, (2011), 44, Vand. J. Transnat'l L.
 Ibid (n 41); Christopher Keith Hall, ‘UN Convention on State Immunity : The Need for a Human Rights Protocol’, (2006), 55(2), pp. 411-426, The International and Comparative Law Quarterly
 Ibid (n 10) para 44
 Ingrid Wuerth, ‘International Law in Domestic Courts and the Jurisdictional Immunities of the State Case’, (2011), 13(2), Melbourne Journal of International Law
 Alexander Orakhelashvili, ‘Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening)’, (2012), 106(3), The American Journal of International Law
 Ibid (n 52)
 Ibid (n 1) para 58
 Arrest Warrant Case (Democratic Republic of Congo v. Belgium) Judgement  ICJ at para 75
 Ibid (n 52)
 Ibid (n 56)
 Manuel R. Garcia-Mora, ‘The Doctrine of Sovereign Immunity of Foreign States and Its Recent Modifications’, (1956), 42(3), Virginia Law Review
 Ibid (n 10) para 45
 Ibid (n 10) para 25
 Ibid (n 10) para 26
 Ibid (n 10) para 45
 Ibid (n 1) para 94
 Ibid (n 56)
 Ibid (n 2) art 53
 Jurisdictional Immunities of the State Case (Germany vs Italy) (Dissenting Opinion of Judge Cançado Trindade)  ICJ at para 315
 Ibid (n 1) para 82
 Andreas Zimmer, ‘Sovereign Immunity and Violations of International Jus Cogens - Some Critcal Remarks’, (1995), 16(2), Michigan Journal of International Law
 Ibid (n 1) para 99
 Ibid (n 10) para 12
 United Nations, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’, (2005) at para 598-599
 International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, at art 3
 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 at art 91
 Ibid (n 10) para 14
 Ibid (n 56)
 Ibid (n 73)