CommentaryJURIST Guest Columnist and German human rights lawyer Stefan Kirchner, a member of the American Society of International Law and the Faculty of Law at Georg-August-University in Gottingen, says that new litigation between Germany and Italy in the International Court of Justice over Italian courts' awarding of compensation to relatives of civilians killed by German Nazi soldiers in the Italian town of Civitella during World War II gives the ICJ the opportunity to elaborate on the relationship between the modern position of the individual under international law and the concept of jurisdictional immunity derived from the fundamental principle of state sovereignty …
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That such claims are possible appears clear from international treaty law: Art. 91 of the First Additional Protocol to the Geneva Conventions (AP I) states that violations of provisions of the Geneva Conventions or the Additional Protocols lead to the liability of the "party to the conflict which violates the provisions of the Conventions or of this Protocol" – liable to pay compensation and that it "shall be responsible for all acts committed by persons forming part of its armed forces."
Art. 3 of the Fourth Hague Convention (Laws and Customs of War on Land) (Hague IV) also requires that "[a] belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation It shall be responsible for all acts committed by persons forming part of its armed forces."
Art. 3 Hague IV has become part of the law of the land of the Federal Republic of Germany by virtue of Art. 25 of Germany's Federal Constitution (the Grundgesetz) and both Hague IV and the AP I have been ratified by Germany. While Hague IV dates from 1907, the AP I only dates from 1977. Of course only Hague IV applies to World War II.
Only states as parties can bring such claims under AP I and Hague IV because these conventions do not provide for compensation claims by individual victims. The wording of Art. 3 Hague IV and Art. 91 AP I emphasizes the obligation of a party to provide compensation in case of a breach of an obligation under the treaty in question. Back then such obligations were meant to be between the states which are parties to an international treaty. Although a lot has changed between 1907 and 1977 with regard to the position of the individual under international law, the choice of the virtually identical wording in Hague IV and AP I indicates that the drafters of AP I did not want to create rights for the individual, despite the fact that by 1977 there existed already rights of individuals outside human rights treaties, for example in Art. 36 of the Vienna Convention on Consular Relations which dates back to 1963. Individuals therefore cannot sue directly under Art. 91 AP I or Art. 3 Hague IV — and states in general don't do so. The fact that these rules are rarely resorted to by states does not mean that there is customary international law to the contrary and that these rules have become the object of desuetudo. As a matter of fact, states which want to defend themselves against such claims have resorted to a kind of act of state doctrine, as Japan has done until recently, or relied on the principle of jurisdictional immunity. The latter is at stake here.
Jurisdictional immunity
Is a fundamental consequence of the principle of state sovereignty, which in turn is the very cornerstone of the Westphalian international legal order, that one state cannot adjudicate over another state in matters related to the second state's activities as a state (as opposed to, say, as a commercial actor). Therefore plaintiffs will find it hard to obtain reparations for violations of the laws of war before national courts of a state other than the perpetrators' state. This is the problem at the core of the case currently pending between Germany and Italy.
The Distomo case from several year ago provides a good explanation of the principle of jurisdictional immunity.
The plaintiffs in Distomo were relatives and descendants of the victims of a 1944 massacre by German SS-Forces, which at that point had been integrated into the regular German Army, in the Greek village of Distomo in the Provice of Böotia. The plaintiffs sued the Federal Republic of Germany both based on rights inherited from their deceased family members and on their own rights: claims have been brought forward related to the destruction of family homes and family businesses as well as in relation to damage caused to the plaintiffs' health and other damages. In earlier proceedings, the plaintiffs requested compensation for damages under Tort Law or, in the alternative, compensation for loss of property. After lower courts had rejected their claims, the plaintiffs brought the case before the Bundesgerichtshof, which also rejected their claims on the basis of jurisdictional immunity.
Already in 1997 the District Court in Livadeia, Greece, had awarded the plaintiffs approx. 240,000,000 Greek Drachmas, almost the equivalent of 29,000,000 EUR. The German government, claiming state immunity under international law, appealed the ruling and requested a cassation of this judgment by the Areopag, Greece's Supreme Court. In April 1999 the Areopag rejected Germany's appeal. The Areopag's judgment made headline news in Germany as well when the plaintiffs attempted to enforce the judgment against Germany and asked the Greek authorities to seize property of the Federal Republic, in particular the buildings housing the renowned Goethe-Institute in Athens, for that purpose. (Essentially the same is happening now in Italy with a German-Italian cultural center, the Villa Vigoni, which has been placed under a ipoteca giudiziale, a judicial mortgage.)
Under Greek Law, a judgment can only be enforced against foreign property located in Greece if the Greek government agrees to this enforcement (unlike the legal situation in a number of other countries, in which it is required that there is a connection between the state property to be seized and the subject matter of the proceedings). Yet especially in cases of tort it is unlikely that any prior commitment of the resources of the respondent state located in the state (in this case the Goethe Institute's assets) in which the proceedings take place have been used for tortious activities before, see also Letelier v. Republic of Chile, 748 F.2d (2nd Cir 1984) at p. 793; 63 ILR 378. The Greek government however refused to give this permission, causing the Greek plaintiffs to bring the case before the European Court of Human Rights in Strasbourg. Some Distomo plaintiffs also found their way to Italian courts which declared some Greek judgments
enforceable in favor of the Greek applicants.
In Strasbourg the plaintiffs asserted, based on the ECtHR's earlier decision in David and Ada Hornsby v. Greece, that the Greek rule requiring consent of the government to the enforcement of the Areopag's judgment was incompatible with Art. 6 (1) ECHR and with Art. 1 of the 1st Additional Protocol to the ECHR. The ECtHR held that the application was inadmissible (European Court of Human Rights, Decision on admissibility of individual complaint no. 59021 / 00, Aikaterini Kalogeropoulou et al. v. Greece and Germany, 12 December 2002. The decision is only available in French. An unofficial German translation is provided by the German Federal Ministry of Justice on the Court's website at http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/Volltext/Entscheidungen/20021212_Kalogeropoulou%20u.a."20_E.asp) since at that time, it was, not generally accepted that states lose their state immunity guaranteed by international law in relation to cases involving compensation claims made abroad concerning crimes against humanity (cf. also European Court of Human Rights, Judgment, Al-adsani v. United Kingdom of Great Britain and Northern Ireland, Case no. 35763 / 97 EGMR 2001 — XI). Consequently, so the Strasbourg-based Court said, the plaintiffs de lege lata cannot force the Greek government to violate the rule of international law providing for state immunity. Nevertheless wanted the ECtHR to leave open a door for future developments, e.g. through a change in customary international law (European Court of Human Rights as quoted by the Bundesgerichtshof in its judgment of 26 June 2003, Case no. III ZR 245 / 98, pp. 11 et seq.). The BGH in its decision in the Distomo case agreed with this view.
Finally Greece's Special Supreme Court (which is comprised of all Senates of Greece's High Courts and usually only becomes involved in proceedings if two Greek High Courts disagree on a legal question) ruled in favor of the principle of jurisdictional immunity. The Special Supreme Court was called together by Judge Stephanos Matthias, the presiding judge in the Areopag's decision, who had voted against the majority opinion in the ruling which rejected the appeal of the German Government against the already mentioned judgment by the Livadeia District Court, despite the fact that the most important requirement to do so Рa dispute between two Greek High Courts Рwas not met. Accordingly, Ioannis Stamoulis, a former prefect of the province of B̦otia and former member of the European Parliament who happened to be the attorney for the plaintiffs, accused Judge Matthias of breaking the Greek Constitution. Nevertheless did the Special Supreme Court remain seized of the matter and decided in September 2002 that, albeit the plaintiffs had valid claims against Germany, the judgment issued in their favor could not be enforced due to the principle of jurisdictional immunity.
Conclusions
Unfortunately, Italy has chosen to follow the line of reasoning of the Livadeia court rather than that shared by the Areopag, the Greek Special Supreme Court, the Bundesgerichtshof and the European Court of Human Rights. The International Court of Justice will in all likelihood rule in Germany's favor.
As the European Court of Justice left an opening in Kalogeropoulou by concluding that there was no customary law contrary to the concept of jurisdictional immunity, the International Court of Justice now has the opportunity to elaborate on the relationship between the modern position of the individual under international law and the concept of jurisdictional immunity which is a direct consequence of the fundamental principle of state sovereignty.
This case teaches us that international law is not yet as post-Westphalian as many (including many lawyers) want it to be and the law applicable in this case is fundamentally Westphalian. That means that states can only be sued if the state in question in principle agreed to possibly being sued.
Fortunately, the international legal order also contains post-Westphalian elements, allowing individuals to sue states directly. Violations of International Humanitarian Law will often also constitute violations of regional human rights documents, such as the European Convention on Human Rights (ECHR), which provides for compensation for victims of human rights violations. Accordingly the European Court of Human Rights in Strasbourg has received a substantial number of cases related to the situation in Turkish Kurdistan and Chechnya and already has elaborated on the applicability of the ECHR to (military) activities outside the territory of the parties to the convention in Bankovic and Loizidou. Under the Statute of the permanent International Criminal Court in The Hague, individual perpetrators can now also be held liable for the damages caused by their actions. The law is developing, but slowly. Most of the world still lacks the compensation possibility afforded to Europeans by the ECHR and the number of cases before the ICC is still too small to make any predictions as to its effectivity, but the ICC of course was never intended to be an international court of tort law.
State sovereignty will remain the cornerstone of Public International Law for some time. But states should become aware of the fact that this will have a price, or in other words "with great power comes great responsibility". States cannot be sued against their will, i.e. unless they have agreed to the possibility of being sued. Given that states are reluctant to sue each other over violations of International Humanitarian Law, they should provide effective avenues for victims of their violations of international law to be compensated. Nothing less is their obligation under Art. 91 AP I and Art. 3 Hague IV.
Because most armed conflicts today involve at least one non-state actor and non-state actors such as Hamas, Hezbollah or Al Qaida deliberately terrorize civilians by targeting them or at least violating the distinction principle, states should have an interest in creating a rule of customary international law to the effect that victims of violations of the laws of war can sue the perpetrator in person as well as the organization behind the perpetrator, regardless of the nature or identity of this organization, be it a state, an international organization or a terror group (on damages owed by state sponsors of terrorism cf. also 7 German Law Journal (2006) 777). So far, their own reluctance to pay their victims or to sue other states, including state sponsors of terrorism (the Lockerbie case being a notable exemption), has prevented the emergence of such a rule. It is up to the states as the fundamental unit of international legal relations to act upon the responsibility which comes with this position.
A member of the American Society of International Law (ASIL), the Lieber Society and the German Red Cross Expert Pool on International Humanitarian Law, Stefan Kirchner is admitted to the bar in Germany (Rechtsanwalt) and mainly handles cases concerning human and civil rights, in particular before the European Court of Human Rights and the German Federal Constitutional Court. He teaches at the Faculty of Law at Georg-August-University in Göttingen while finishing his doctoral thesis at Justus-Liebig-University in Giessen. Email: kirchnerlaw@yahoo.com.
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