CommentaryAlexandros-Ioannis Kargopoulos [Attorney (Thessaloniki-Greece), Faculty member – Hellenic National School of Judges]: "Germany's action against Italy has, once more, fueled the debate around a quite controversial legal subject: the issue of state immunity and WWII civil actions brought in national courts. This subject has been in the epicenter of many judgments delivered during the last decade. However, it was the Italian Supreme Court, which by issuing a landmark judgment on the Ferrini case, held that Germany was not entitled to immunity for the serious violations committed by its armed forces of occupation during WWII. It is the rationale adopted in these judgments that Germany's action is directed against and it does so by invoking the application of state immunity that the Italian courts have rejected.
The proponents of state immunity, like Germany in this instance, widely envisage state immunity as a fundamental right of the state flowing from customary international law and uphold its value by resorting to the principle par in parem non habet imperium, according to which a state cannot be submitted to the judicial organs of another state because they are equal. Moreover, in a subsidiary basis, state immunity is invoked in order to avoid discord in international relations and cooperation. However, this conception of state immunity is defective as state immunity is not a "right," but only an exemption to the fundamental principle of the exclusive adjudicatory jurisdiction of national courts. As the President of the ICJ, Judge Rosalyn Higgins has stated in the past: "It is very easy to elevate sovereign immunity into a superior principle of international law and to lose sight of the essential reality that it is an exception to the normal doctrine of jurisdiction."
In particular, according to the fundamental principles of international law, state sovereignty, territorial integrity and adjudicatory jurisdiction, a state enjoys absolute and exclusive adjudicatory jurisdiction inside its borders due to its sovereignty. Therefore, the capacity of a foreign state as a subject of rights diminishes, when it "conflicts" with another state's exclusive jurisdiction, especially when this conflict takes place inside the territory of the forum state where the perpetrator state and its organs have no authority at all. In result, any persons and property found inside the forum state should be under its sole control and authority. For none of the fundamental principles of international law, neither the theory par in parem non habet imperium, can persuasively lead to the conclusion that a state is barred from applying its adjudicatory jurisdiction over another state and especially when the dispute concerns acts conducted by the foreign state inside the territory of the forum state. Hence, "there is not a rule of international law obliging states to grant jurisdictional immunity to other states" and thus, the forum state has absolute competence, by implementing its internal legal rules, to adjust the privileges of jurisdictional immunities of foreign states. State jurisdictional immunity can not be considered a right, but only a privilege granted by national law and courts acting on their discretion. Furthermore, pleas of state immunity can be rejected, even in the light of opposite case law or legislation, directly by the supreme nature of jus cogens rules. Those rules create, according to the ICJ, obligations erga omnes and thus, widen the right, but also dictate the duty of states to act against these violations. Consequently, jus cogens rules should be afforded supreme means of enforcement and should quash pleas of state jurisdictional immunity.
This is clearly reflected in Article 12 of the 2004 UN Convention on the Jurisdictional Immunities of States and their Property [PDF file], which specifically provides that states cannot plea immunity in order to evade their civil liability arising out of death or injury of natural persons and out of damage or loss of property. It is also noteworthy that the implementation of that treaty does not depend on the characterisation of the disputed acts as iure imperii or iure gestionis and that it applies even in the event of civil claims arising out of acts or omissions of armed forces, whether those acts were conducted during peacetime or during the course of war. The same position more or less has been adopted by common law countries, which in contrast to most European countries that resolve this issue as a matter of international law, deal with state immunity as an internal legal issue and regulate it through the use of national legal rules and legislation, which provide for similar instances where a foreign state is to be held liable in national courts, even if it acts iure imperii.
For all those reasons, it has been suggested that state jurisdictional immunity grants states with disproportionate protection than that which is provided for by international law precepts, especially when the respective claims arise due to gross violations of human rights and humanitarian law. In reality, a foreign state is granted immunity due to commands originating from the political authorities and not due to international law imperatives. Therefore, whenever the principle of sovereign immunity is applied to cover acts that bear the seal of sovereign power, the judiciary is actually pre-empted from hearing the dispute. Accordingly, courts resort to the distinction of iure imperii and iure gestionis acts with the purpose of avoiding the adjudication of politically sensitive cases.
Nevertheless, the Italian courts have, quite courageously, shown in practice that the necessity to affirm values of extreme significance, is leading to fundamental changes when dealing with the issue of state liability, since what has led them to refuse jurisdictional immunity to the German state was not "…merely the formal supremacy of the jus cogens category,…but the substantial importance which can be attributed to the values protected by these norms, in contrast to the traditional principle of state sovereignty." National courts have exclusive adjudicatory jurisdiction and thus are able, but more importantly, are obliged to adjudicate these matters due to the importance of jus cogens norms and erga omnes obligations to the international legal order. Although, on the one hand, it may true be that enforcement of these judgments is a distinct issue to which legal limitations apply, on the other, there is nothing obliging the courts to refrain from issuing decisions on the merits of cases involving gross violations of jus cogens norms of international humanitarian and human rights law. Quite the opposite, by acknowledging that private persons have a limited capacity to respond against crimes committed by foreign states and that a state has the right, but also the obligation, to protect its own citizens and respond to such violations by recognizing them as a violations against itself, it follows that, national courts are the appropriate forum to deal with the respective claims.
Concerning the specific action, it seems to be ironic that Germany is a big supporter of the ICC and of the fight against impunity of international crimes and one of the few supporters of the attribution to the ICC of a true and unlimited universal jurisdiction, while, at the same time, it persistently refuses to withhold the same commitments in regards to the so many heinous crimes that its armed forces committed during WWII. Truly, in the eyes of an objective observer, it is obvious that Germany, by resorting to an outdated conception of state immunity and claiming to herself an immune status, is egoistically applying a different set of criteria to herself than to others. More importantly, in that way Germany practically renounces her undeniable responsibility for the commission of those dreadful crimes vis-à-vis those who were mostly affected: the victims and their descendants. Every crime must bring consequences for the perpetrators and if this means that Germany is to be found liable in national courts then it should be held so. Quite significantly also, it should be borne in mind that the ultimate function of state immunity should be to protect a state from its arbitrary subjection to a foreign sovereign, which pursues its own political ends.
In this instance, this is far from the truth, as the Italian courts are not pursuing political ends, but they rather aim at the attribution of justice through the implementation of supranational legal norms in protecting what is the undisputed and grossly violated rights of victims of unimaginable atrocities. In this manner, the Italian courts not only have reinforced some of the most fundamental principles of international law, but more importantly, they have upheld the function of the rule of law and the independence of the judiciary against executive power at international level. As such, Germany's complaint is aimed not only against the highest values of international law and the precepts of human rights and humanitarian law, but against the independent functioning of national courts which deliver substantial justice. And as such, the ICJ, should acknowledge, by reference to Art 38 par 1 (b) and (d) of its statute, the validity of the Italian judgments and uphold the same values that the Italian courts have promoted and thus enhance both the implementation of international law at the national level and the independence of the judiciary by not submitting to the will of the executive -in this case that of Germany."
