Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)

On 23 December 2008, the Federal Republic of Germany instituted proceedings against the Italian Republic, requesting the Court to declare that Italy had failed to respect the jurisdictional immunity which Germany enjoys under international law by allowing civil claims to be brought against it in the Italian courts seeking reparation for injuries caused by violations of international humanitarian law committed by the Third Reich during the Second World War. In addition, Germany asked the Court to find that Italy had also violated Germany’s immunity by taking measures of constraint against Villa Vigoni, German State property situated in Italian territory. Finally, Germany requested the Court to declare that Italy had breached Germany’s jurisdictional immunity by declaring enforceable in Italy decisions of Greek civil courts rendered against Germany on the basis of acts similar to those which had given rise to the claims brought before Italian courts. Germany referred in particular to the judgment rendered against it in respect of the massacre committed by German armed forces during their withdrawal in 1944, in the Greek village of Distomo in the Distomo case.

As basis for the Court’s jurisdiction, Germany invoked Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, ratified by Italy on 29 January 1960 and by Germany on 18 April 1961.

The Memorial of Germany and the Counter-Memorial of Italy were filed within the time-limits fixed by the Order of the Court of 29 April 2009. In its Counter-Memorial, Italy, referring to Article 80 of the Rules of Court, made a counter-claim “with respect to the question of the reparation owed to Italian victims of grave violations of international humanitarian law committed by forces of the German Reich”. The Court found that the counter-claim presented by Italy was inadmissible, because the dispute that Italy intended to bring before the Court by way of its counter-claim related to facts and situations existing prior to the entry into force as between the parties of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which formed the basis of the Court’s jurisdiction in the case (Order of 6 July 2010).

On 13 January 2011, Greece filed an Application requesting permission to intervene in the case. In its Application, Greece stated that it wished to intervene in the aspect of the procedure relating to judgments rendered by its own courts on the Distomo massacre and enforced (exequatur) by the Italian courts. The Court, in an Order of 4 July 2011, considered that it might find it necessary to consider the decisions of Greek courts in the Distomo case, in light of the principle of State immunity, for the purposes of making findings with regard to Germany’s submission that Italy had breached its jurisdictional immunity by declaring enforceable in Italy decisions of Greek courts founded on violations of international humanitarian law committed by the German Reich during the Second World War. This permitted the conclusion that Greece had an interest of a legal nature which might have been affected by the judgment in the case and, consequently, that Greece could be permitted to intervene as a non-party “in so far as this intervention is limited to the decisions of Greek courts [in the Distomo case]”.

In its Judgment rendered on 3 February 2012, the Court first examined the question whether Italy had violated Germany’s jurisdictional immunity by allowing civil claims to be brought against that State in the Italian courts. The Court noted in this respect that the question which it was called upon to decide was not whether the acts committed by the Third Reich during the Second World War were illegal, but whether, in civil proceedings against Germany relating to those acts, the Italian courts were obliged to accord Germany immunity. The Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations. It stated in this connection that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict. The Court further observed that, assuming that the rules of the law of armed conflict which prohibited murder, deportation and slave labour were rules of jus cogens, there was no conflict between those rules and the rules on State immunity. The two sets of rules addressed different matters. The rules of State immunity were confined to determining whether or not the courts of one State could exercise jurisdiction in respect of another State. They did not bear upon the question whether or not the conduct in respect of which the proceedings were brought was lawful or unlawful. Finally, the Court examined Italy’s argument that the Italian courts were justified in denying Germany immunity, because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed. The Court found no basis in the relevant domestic or international practice that international law made the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.

The Court then addressed the question whether a measure of constraint taken against property belonging to Germany located on Italian territory constituted a breach by Italy of Germany’s immunity. It noted that Villa Vigoni was being used for governmental purposes that were entirely non-commercial; that Germany had in no way consented to the registration of the legal charge in question, nor allocated Villa Vigoni for the satisfaction of the judicial claims against it. Since the conditions permitting a measure of constraint to be taken against property belonging to a foreign State had not been met in this case, the Court concluded that Italy had violated its obligation to respect Germany’s immunity from enforcement.

Finally, the Court examined the question whether Italy had violated Germany’s immunity by declaring enforceable in Italy civil judgments rendered by Greek courts against Germany in proceedings arising out of the massacre committed in the Greek village of Distomo by the armed forces of the Third Reich in 1944. It found that the relevant decisions of the Italian courts constituted a violation by Italy of its obligation to respect the jurisdictional immunity of Germany.

Accordingly, the Court declared that Italy must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which Germany enjoyed under international law cease to have effect.