On 3rd February 2012, the International Court of Justice (ICJ) gave final judgment in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening). (There are also some separate opinions). Essentially, the case was concerned with the principle of State Immunity in international law and in this post I seek to bring together a number of resources available via the internet which will, hopefully, explain the decision and its implications.
The ICJ held that:
Italy had violated its obligation to respect the immunity which Germany enjoys under international law by:
1. allowing civil claims to be brought against it based on violations of international humanitarian law committed by the German Reich between 1943 and 1945 - (12 votes to 3);
2. taking measures of constraint against Villa Vigoni (German State property in Italy) - (14 votes to 1);
3. declaring enforceable in Italy decisions of Greek courts based on violations of international humanitarian law committed in Greece by the German Reich - (14 votes to 1);
It was further held that Italy must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of Italian courts (and other judicial authorities) which infringe the immunity of Germany shall cease to have effect - (14 votes to 1).
Finally, all other submissions made by Germany were unanimously rejected.
In a separate but concurring judgment, Judge Keith pointed out that Germany accepted that dreadful violations of international law occurred in the 1940s but that was not the issue before the court which was only concerned with Germany’s claim to immunity from the jurisdiction of Italian courts over the proceedings based on those events.
The separate opinions include dissents by Judges Cancado Trindade, Yusuf and Judge ad hoc Gaja. Judge Yusuf said that the court had a unique opportunity to clarify international law by establishing a "a limited and workable exception to jurisdictional immunity in those circumstances where the victims have no other means of redress." He ended his judgment by saying:
"The assertion of jurisdiction by domestic courts in those exceptional circumstances where there is a failure to make reparations, and where the responsible State has admitted to the commission of serious violations of humanitarian law, without providing a contextual remedy for the victims, does not, in my view, upset the harmonious relations between States, but contributes to a better observance of international human rights and humanitarian law."
Judge Cancado Trindade's dissent was unequivocal - "... my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment."
Background - Events in Greece in World War 2:
During World War 2, there were