20 February, 2012

International Court of Justice: Germany v Italy (Greece Intervening)

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
terrible atrocities committed by Axis Forces during the occupation of many countries but events in Greece lay at the heart of this case - (Wikipedia).  Greece was occupied by Axis Forces (Germany, Italy and Bulgaria) from April 1941 to October 1944 and the Greek people suffered appalling deprivations.  Over 300,000 civilians died of starvation in Athens and thousands more were killed in reprisals at places such as Kommeno (16/8/1943), Viannos (14-16/9/1943), Kalavryta (13/12/1943), Distomo (10/6/1944) and Kedros (22.8.1944).

Memorial at Distomo
The events at Distomo are particularly relevant to the case.  Distomo was  the venue for a collective punishment policy by the Germans intended as "retribution" for the previous death of three Germans at the hands of local guerrillas, even though the villagers had no relation to the guerrillas.   Decades later, a Greek court awarded restitution to Greek victims, but the German government pressed Greece politically to nullify that decision.  To enforce the decision by the Greek court, this case was brought before an Italian court.  The judges awarded the plaintiffs the Villa Vigoni in Menaggio, Italy, a German government-sponsored nonprofit foundation. The German government appealed a decision by the Italian supreme civil court for restitutions at the International Court of Justice, claiming for State immunity.

Background - Principle of State Immunity:

State Immunity is a doctrine of international law and it has a number of facets.  The rule is basically one of absolute immunity for a State (A) from being sued in the courts of another State (B).  There are exceptions to the rule (e.g. in relation to ordinary commercial transactions).  A full analysis requires consideration of State Immunity before both national and international courts in relation to both civil and criminal matters.  A very useful 15 minute introduction is that by Dr Douglas Guilfoyle and it be viewed here.

State Immunity is the subject of various international conventions.  There is the United Nations Convention on Jurisdictional Immunity for States and their property (2004) though this is not yet in force.  There is also the European Convention on State Immunity, signed at Basle in May 1972 and given effect in the U.K. by the State Immunities Act 1978.

In Germany v Italy, the ICJ has upheld the principle of State Immunity in relation to civil claims and has rejected the idea that such immunity might not exist in connection with  matters arising from serious breaches of human rights (jus cogens).  Paragraph 91 of the ICJ judgment is important - 

"The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case."

Articles relating to the case:

Chatham House - author Joanne Foakes, Associate Fellow, International Law - ICJ upholds German State Immunity
    "The judgment has been described by Paul Stephan of the University of Virginia as 'a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system."
              American Society of International Law - author Christine Keitner - Germany v Italy: The ICJ affirms principle of State immunity

                Other relevant material:

                German Law Journal - "Jus Cogens v State Immunity - the decision of the European Court of Human Rights in Kalogeropoulou v Greece and Germany" - authors Kerstin Bartsch and Bjorn Elberling.  This article describes the events at Dostomo - "On 10 June 1944, SS occupation forces surrounded the Greek village of Distomo inthe Voiotia region. Moving from house to house, they cruelly and brutally killed 218 villagers, including infants. They raped women and girls, destroyed civilian property, plundered and burned down houses. These atrocities were claimed to have been an act of atonement for a raid of Greek resistance fighters on German SS soldiers that had taken place nearby Distomo the same day.  Eighteen SS soldiers had died in that gun-fight.  Such acts of retaliation were quite common, other villages where massacres were committed include, inter alia, Oradour, Kalivrita,Kommeno, Kephalonia, Lyngiades and Skines."

                European Journal of International Law - author Lorna McGregor - Torture and State Immunity - Deflecting Impunity: Distorting Sovereignty

                Legal Textbooks:

                State Immunity in International Law - author Xiadong Yang


                Douglas Guilfoyle - Videos for law students


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