Sentenza

Corte Internazionale di Giustizia, sentenza 03.02.2012. No al risarcimento dei danni alle vittime delle stragi naziste.

3 FÉVRIER 2012
ARRÊT
IMMUNITÉS JURIDICTIONNELLES DE L'ÉTAT (ALLEMAGNE c. ITALIE ; GRÈCE (INTERVENANT))
JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v. ITALY: GREECE INTERVENING)
3 FEBRUARY 2012
JUDGMENT
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-19
I. HISTORICAL AND FACTUAL BACKGROUND 20-36
1. The Peace Treaty of 1947 22
2. The Federal Compensation Law of 1953 23
3. The 1961 Agreements 24-25
4. Law establishing the “Remembrance, Responsibility and Future” Foundation 26
5. Proceedings before Italian courts 27-36
A. Cases involving Italian nationals 27-29
B. Cases involving Greek nationals 30-36
II. THE SUBJECT-MATTER OF THE DISPUTE AND THE JURISDICTION OF THE COURT 37-51
III. ALLEGED VIOLATION OF GERMANY'S JURISDICTIONAL IMMUNITY IN THE PROCEEDINGS BROUGHT BY THE ITALIAN CLAIMANTS 52-108
1. The issues before the Court 52-61
2. Italy's first argument: the territorial tort principle 62-79
3. Italy's second argument: the subject-matter and circumstances of the claims in the Italian courts 80-106
A. The gravity of the violations 81-91
B. The relationship between jus cogens and the rule of State immunity 92-97
C. The “last resort” argument 98-104
D. The combined effect of the circumstances relied upon by Italy 105-106
4. Conclusions 107-108
IV. THE MEASURES OF CONSTRAINT TAKEN AGAINST PROPERTY BELONGING TO GERMANY LOCATED ON ITALIAN TERRITORY 109-120
V. THE DECISIONS OF THE ITALIAN COURTS DECLARING ENFORCEABLE IN ITALY DECISIONS OF GREEK COURTS UPHOLDING CIVIL CLAIMS AGAINST GERMANY 121-133
VI. GERMANY'S FINAL SUBMISSIONS AND THE REMEDIES SOUGHT 134-138
OPERATIVE CLAUSE 139
___________
INTERNATIONAL COURT OF JUSTICE
YEAR 2012
2012
3 February
General List
No. 143
3 February 2012
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY v. ITALY: GREECE INTERVENING)
Historical and factual background.
Peace Treaty of 1947 ⎯ Federal Compensation Law of 1953 ⎯ 1961 Agreements ⎯ 2000 Federal Law establishing the “Remembrance, Responsibility and Future” Foundation ⎯ Proceedings before Italian courts ⎯ Cases involving Italian nationals ⎯ Cases involving Greek nationals.
*
Subject-matter of dispute and jurisdiction of the Court.
Subject-matter of dispute delimited by claims of Germany and Italy ⎯ No objection to jurisdiction of the Court or admissibility of Application raised by Italy ⎯ Article 1 of the European Convention for the Peaceful Settlement of Disputes as basis of jurisdiction ⎯ Limitation ratione temporis not applicable ⎯ The Court has jurisdiction ⎯ The Court is not called upon to rule on questions of reparation ⎯ Relationship between duty of reparation and State immunity ⎯ No other question with regard to the Court's jurisdiction.
*
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Alleged violation of Germany's jurisdictional immunity in proceedings brought by Italian claimants.
Issues before the Court ⎯ Origins of proceedings in Italian courts ⎯ Existence of customary rule of international law conferring immunity on States ⎯ Sources of State practice and opinio juris ⎯ State practice and opinio juris generally recognize State immunity ⎯ Rule of State immunity derives from principle of sovereign equality of States ⎯ Need to distinguish between relevant acts of Germany and those of Italy ⎯ Procedural nature of law of immunity ⎯ The Court must examine and apply the law on State immunity as it existed at time of Italian proceedings ⎯ Acta jure gestionis and acta jure imperii ⎯ Acts of armed forces of German Reich were acta jure imperii ⎯ State immunity in respect of acta jure imperii ⎯ Contention by Italy that Germany not entitled to immunity in respect of cases before Italian courts.
Italy's first argument: territorial tort principle ⎯ Acts committed on territory of forum State by armed forces of a foreign State in conduct of armed conflict ⎯ Article 11 of European Convention on State Immunity ⎯ Article 12 of United Nations Convention on the Jurisdictional Immunities of States and their Property ⎯ State practice: national legislation and judgments of national courts ⎯ State immunity for acta jure imperii extends to civil proceedings for acts occasioning death, personal injury or damage to property, committed by armed forces in conduct of armed conflict ⎯ Opinio juris ⎯ Absence of contrary jurisprudence or contrary statements by States ⎯ Decisions of Italian courts cannot be justified on basis of territorial tort principle.
Italy's second argument: subject-matter and circumstances of claims in Italian courts ⎯ Gravity of violations ⎯ Contention that international law does not accord immunity to a State for serious violations of law of armed conflict ⎯ National court is required to determine entitlement to immunity before it can hear merits of case ⎯ No State practice to support proposition that a State is deprived of immunity in cases of serious violations of international humanitarian law ⎯ Neither has proposition been accepted by European Court of Human Rights ⎯ State not deprived of immunity because it is accused of serious violations of international humanitarian law.
Relationship between jus cogens and rule of State immunity ⎯ Alleged conflict between jus cogens rules and immunity of Germany ⎯ No conflict exists between jus cogens and immunity of a State ⎯ Argument about jus cogens displacing State immunity has been rejected by national courts ⎯ State immunity not affected by violation of jus cogens.
The “last resort” argument ⎯ Contention that Italian courts were justified in denying Germany immunity because of failure of all other attempts to secure compensation ⎯ State immunity not dependent upon existence of effective alternative means of redress ⎯ Italy's argument rejected ⎯ Further negotiation between Germany and Italy.
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Combined effect of circumstances relied upon by Italy ⎯ None of three strands justify action of Italian courts ⎯ No effect if taken together ⎯ State practice ⎯ Balancing different factors would disregard nature of State immunity ⎯ Immunity cannot be dependent upon outcome of balancing exercise by national court.
Action of Italian courts in denying Germany immunity constitutes a breach of obligations owed by Italy to Germany ⎯ No need to consider other questions raised by the Parties.
*
Measures of constraint taken against property belonging to Germany located on Italian territory.
Legal charge against Villa Vigoni ⎯ Charge in question suspended by Italy to take account of proceedings before the Court ⎯ Distinction between rules of customary international law governing immunity from enforcement and those governing jurisdictional immunity ⎯ No need to determine whether decisions of Greek courts awarding pecuniary damages against Germany were in breach of that State's jurisdictional immunity ⎯ Article 19 of United Nations Convention on the Jurisdictional Immunities of States and their Property ⎯ Property which was subject of measure of constraint being used for non-commercial governmental purposes ⎯ Germany not having expressly consented to taking of legal charge in question or allocated Villa Vigoni for satisfaction of judicial claims against it ⎯ Registration of legal charge on Villa Vigoni constitutes a violation by Italy of its obligation to respect immunity owed to Germany.
*
Decisions of Italian courts declaring enforceable in Italy decisions of Greek courts upholding civil claims against Germany.
Germany's contention that its jurisdictional immunity was violated by these decisions ⎯ Request for exequatur ⎯ Whether Italian courts respected Germany's immunity from jurisdiction in upholding request for exequatur ⎯ Purpose of exequatur proceedings ⎯ Exequatur proceedings must be regarded as being directed against State which was subject of foreign judgment ⎯ Question of immunity precedes consideration of request for exequatur ⎯ No need to rule on question whether Greek courts violated Germany's immunity ⎯ Decisions of Florence Court of Appeal constitute violation by Italy of its obligation to respect jurisdictional immunity of Germany.
*
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Germany's final submissions and the remedies sought.
Germany's six requests presented to the Court ⎯ First three submissions upheld ⎯ Violation by Italy of Germany's jurisdictional immunity ⎯ Fourth submission ⎯ Request for declaration that Italy's international responsibility is engaged ⎯ No need for express declaration ⎯ Responsibility automatically inferred from finding that certain obligations have been violated ⎯ Fourth submission not upheld ⎯ Fifth submission ⎯ Request that Italy be ordered to take, by means of its own choosing, any and all steps to ensure that all decisions of its courts and other judicial authorities infringing Germany's sovereign immunity cease to have effect ⎯ Fifth submission upheld ⎯ Result to be achieved by enacting appropriate legislation or by other methods having the same effect ⎯ Sixth submission ⎯ Request that Italy be ordered to provide assurances of non-repetition ⎯ No reason to suppose that a State whose conduct has been declared wrongful by the Court will repeat that conduct in future ⎯ No circumstances justifying assurances of non-repetition ⎯ Sixth submission not upheld.
JUDGMENT
Present: President OWADA; Vice-President TOMKA; Judges KOROMA, SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREENWOOD, XUE, DONOGHUE; Judge ad hoc GAJA; Registrar COUVREUR.
In the case concerning jurisdictional immunities of the State,
between
the Federal Republic of Germany,
represented by
H.E. Ms Susanne Wasum-Rainer, Ambassador, Director-General for Legal Affairs and Legal Adviser, Federal Foreign Office,
H.E. Mr. Heinz-Peter Behr, Ambassador of the Federal Republic of Germany to the Kingdom of the Netherlands,
Mr. Christian Tomuschat, former Member and Chairman of the International Law Commission, Professor emeritus of Public International Law at the Humboldt University of Berlin,
as Agents;
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Mr. Andrea Gattini, Professor of Public International Law at the University of Padua,
Mr. Robert Kolb, Professor of Public International Law at the University of Geneva,
as Counsel and Advocates;
Mr. Guido Hildner, Head of the Public International Law Division, Federal Foreign Office,
Mr. Götz Schmidt-Bremme, Head of the International Civil, Trade and Tax Law Division, Federal Foreign Office,
Mr. Felix Neumann, Embassy of the Federal Republic of Germany in the Kingdom of the Netherlands,
Mr. Gregor Schotten, Federal Foreign Office,
Mr. Klaus Keller, Embassy of the Federal Republic of Germany in the Kingdom of the Netherlands,
Ms Susanne Achilles, Embassy of the Federal Republic of Germany in the Kingdom of the Netherlands,
Ms Donate Arz von Straussenburg, Embassy of the Federal Republic of Germany in the Kingdom of the Netherlands,
as Advisers;
Ms Fiona Kaltenborn,
as Assistant,
and
the Italian Republic,
represented by
H.E. Mr. Paolo Pucci di Benisichi, Ambassador and State Counsellor,
as Agent;
Mr. Giacomo Aiello, State Advocate,
H.E. Mr. Franco Giordano, Ambassador of the Italian Republic to the Kingdom of the Netherlands,
as Co-Agents;
Mr. Luigi Condorelli, Professor of International Law, University of Florence,
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Mr. Pierre-Marie Dupuy, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, and University of Paris II (Panthéon-Assas),
Mr. Paolo Palchetti, Associate Professor of International Law, University of Macerata,
Mr. Salvatore Zappalà, Professor of International Law, University of Catania, Legal Adviser, Permanent Mission of Italy to the United Nations,
as Counsel and Advocates;
Mr. Giorgio Marrapodi, Minister Plenipotentiary, Head of the Service for Legal Affairs, Ministry of Foreign Affairs,
Mr. Guido Cerboni, Minister Plenipotentiary, Co-ordinator for the countries of Central and Western Europe, Directorate-General for the European Union, Ministry of Foreign Affairs,
Mr. Roberto Bellelli, Legal Adviser, Embassy of Italy in the Kingdom of the Netherlands,
Ms Sarah Negro, First Secretary, Embassy of Italy in the Kingdom of the Netherlands,
Mr. Mel Marquis, Professor of Law, European University Institute, Florence,
Ms Francesca De Vittor, International Law Researcher, University of Macerata,
as Advisers,
with, as State permitted to intervene in the case,
the Hellenic Republic,
represented by
Mr. Stelios Perrakis, Professor of International and European Institutions, Panteion University of Athens,
as Agent;
H.E. Mr. Ioannis Economides, Ambassador of the Hellenic Republic to the Kingdom of the Netherlands,
as Deputy-Agent;
Mr. Antonis Bredimas, Professor of International Law, National and Kapodistrian University of Athens,
as Counsel and Advocate;
Ms Maria-Daniella Marouda, Lecturer in International Law, Panteion University of Athens,
as Counsel,
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THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 23 December 2008, the Federal Republic of Germany (hereinafter “Germany”) filed in the Registry of the Court an Application instituting proceedings against the Italian Republic (hereinafter “Italy”) in respect of a dispute originating in “violations of obligations under international law” allegedly committed by Italy through its judicial practice “in that it has failed to respect the jurisdictional immunity which . . . Germany enjoys under international law”.
As a basis for the jurisdiction of the Court, Germany, in its Application, invoked Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957.
2. Under Article 40, paragraph 2, of the Statute, the Registrar immediately communicated the Application to the Government of Italy; and, pursuant to paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.
3. Since the Court included upon the Bench no judge of Italian nationality, Italy exercised its right under Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case: it chose Mr. Giorgio Gaja.
4. By an Order of 29 April 2009, the Court fixed 23 June 2009 as the time-limit for the filing of the Memorial of Germany and 23 December 2009 as the time-limit for the filing of the Counter-Memorial of Italy; those pleadings were duly filed within the time-limits so prescribed. The Counter-Memorial of Italy included 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”.
5. By an Order of 6 July 2010, the Court decided that the counter-claim presented by Italy was inadmissible as such under Article 80, paragraph 1, of the Rules of Court. By the same Order, the Court authorized Germany to submit a Reply and Italy to submit a Rejoinder, and fixed 14 October 2010 and 14 January 2011 respectively as the time-limits for the filing of those pleadings; those pleadings were duly filed within the time-limits so prescribed.
6. On 13 January 2011, the Hellenic Republic (hereinafter “Greece”) filed in the Registry an Application for permission to intervene in the case pursuant to Article 62 of the Statute. In its Application, Greece indicated that it “[did] not seek to become a party to the case”.
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7. In accordance with Article 83, paragraph 1, of the Rules of Court, the Registrar, by letters dated 13 January 2011, transmitted certified copies of the Application for permission to intervene to the Government of Germany and the Government of Italy, which were informed that the Court had fixed 1 April 2011 as the time-limit for the submission of their written observations on that Application. The Registrar also transmitted, under paragraph 2 of the same Article, a copy of the Application to the Secretary-General of the United Nations.
8. Germany and Italy each submitted written observations on Greece's Application for permission to intervene within the time-limit thus fixed. The Registry transmitted to each Party a copy of the other's observations, and copies of the observations of both Parties to Greece.
9. In light of Article 84, paragraph 2, of the Rules of Court, and taking into account the fact that neither Party filed an objection, the Court decided that it was not necessary to hold hearings on the question whether Greece's Application for permission to intervene should be granted. The Court nevertheless decided that Greece should be given an opportunity to comment on the observations of the Parties and that the latter should be allowed to submit additional written observations on the question. The Court fixed 6 May 2011 as the time-limit for the submission by Greece of its own written observations on those of the Parties, and 6 June 2011 as the time-limit for the submission by the Parties of additional observations on Greece's written observations. The observations of Greece and the additional observations of the Parties were submitted within the time-limits thus fixed. The Registry duly transmitted to the Parties a copy of the observations of Greece; it transmitted to each of the Parties a copy of the other's additional observations and to Greece copies of the additional observations of both Parties.
10. By an Order of 4 July 2011, the Court authorized Greece to intervene in the case as a non-party, in so far as this intervention was limited to the decisions of Greek courts which were declared by Italian courts as enforceable in Italy. The Court further fixed the following time-limits for the filing of the written statement and the written observations referred to in Article 85, paragraph 1, of the Rules of Court: 5 August 2011 for the written statement of Greece and 5 September 2011 for the written observations of Germany and Italy on that statement.
11. The written statement of Greece and the written observations of Germany were duly filed within the time-limits so fixed. By a letter dated 1 September 2011, the Agent of Italy indicated that the Italian Republic would not be presenting observations on the written statement of Greece at that stage of the proceedings, but reserved “its position and right to address certain points raised in the written statement, as necessary, in the course of the oral proceedings”. The Registry duly transmitted to the Parties a copy of the written statement of Greece; it transmitted to Italy and Greece a copy of the written observations of Germany.
12. Under Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made available to the public at the opening of the oral proceedings. After consulting the Parties and Greece, the Court decided that the same should apply to the written statement of the intervening State and the written observations of Germany on that statement.
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13. Public hearings were held from 12 to 16 September 2011, at which the Court heard the oral arguments and replies of:
For Germany: Ms Susanne Wasum-Rainer, Mr. Christian Tomuschat, Mr. Andrea Gattini, Mr. Robert Kolb.
For Italy: Mr. Giacomo Aiello, Mr. Luigi Condorelli, Mr. Salvatore Zappalà, Mr. Paolo Palchetti, Mr. Pierre-Marie Dupuy.
For Greece: Mr. Stelios Perrakis, Mr. Antonis Bredimas.
14. At the hearings questions were put by Members of the Court to the Parties and to Greece, as intervening State, to which replies were given in writing. The Parties submitted written comments on those written replies.
*
15. In its Application, Germany made the following requests:
“Germany prays the Court to adjudge and declare that the Italian Republic:
(1) by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
(2) by taking measures of constraint against ‘Villa Vigoni', German State property used for government non-commercial purposes, also committed violations of Germany's jurisdictional immunity;
(3) by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany's jurisdictional immunity.
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Accordingly, the Federal Republic of Germany prays the Court to adjudge and declare that
(4) the Italian Republic's international responsibility is engaged;
(5) the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany's sovereign immunity become unenforceable;
(6) the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above.”
16. In the course of the written proceedings the following submissions were presented by the Parties:
On behalf of the Government of Germany,
in the Memorial and in the Reply:
“Germany prays the Court to adjudge and declare that the Italian Republic:
(1) by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
(2) by taking measures of constraint against ‘Villa Vigoni', German State property used for government non-commercial purposes, also committed violations of Germany's jurisdictional immunity;
(3) by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany's jurisdictional immunity.
Accordingly, the Federal Republic of Germany prays the Court to adjudge and declare that
(4) the Italian Republic's international responsibility is engaged;
(5) the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany's sovereign immunity become unenforceable;
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(6) the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above”;
On behalf of the Government of Italy,
in the Counter-Memorial and in the Rejoinder:
“On the basis of the facts and arguments set out [in Italy's Counter-Memorial and Rejoinder], and reserving its right to supplement or amend these Submissions, Italy respectfully requests that the Court adjudge and declare that all the claims of Germany are rejected.”
17. At the oral proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Germany,
“Germany respectfully requests the Court to adjudge and declare that the Italian Republic:
(1) by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II between September 1943 and May 1945 to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
(2) by taking measures of constraint against ‘Villa Vigoni', German State property used for government non-commercial purposes, also committed violations of Germany's jurisdictional immunity;
(3) by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany's jurisdictional immunity.
Accordingly, the Federal Republic of Germany respectfully requests the Court to adjudge and declare that:
(4) the Italian Republic's international responsibility is engaged;
(5) the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany's sovereign immunity become unenforceable; and
(6) the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above.”
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On behalf of the Government of Italy,
“[F]or the reasons given in [its] written and oral pleadings, [Italy requests] that the Court adjudge and hold the claims of the Applicant to be unfounded. This request is subject to the qualification that . . . Italy has no objection to any decision by the Court obliging Italy to ensure that the mortgage on Villa Vigoni inscribed at the land registry is cancelled.”
*
18. At the end of the written statement submitted by it in accordance with Article 85, paragraph 1, of the Rules of Court, Greece stated inter alia:
“that the effect of the judgment that the ICJ will hand down in this case concerning the jurisdictional immunity of the State will be of major importance to the Italian legal order and certainly to the Greek legal order.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Further, an ICJ decision on the effects of the principle of jurisdictional immunity of States when faced with a jus cogens rule of international law ⎯ such as the prohibition on violation of fundamental rules of humanitarian law ⎯ will guide the Greek courts in this regard. It will thus have a significant effect on pending and potential lawsuits brought by individuals before those courts.”
19. At the end of the oral observations submitted by it with respect to the subject-matter of the intervention in accordance with Article 85, paragraph 3, of the Rules of Court, Greece stated inter alia:
“A decision of the International Court of Justice on the effects of the principle of jurisdictional immunity of States when faced with a jus cogens rule of international law ⎯ such as the prohibition on violation of fundamental rules of humanitarian law ⎯ will guide the Greek courts . . . It will thus have a significant effect on pending and potential lawsuits brought by individuals before those courts.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Greek Government considers that the effect of the judgment that [the] Court will hand down in this case concerning jurisdictional immunity will be of major importance, primarily to the Italian legal order and certainly to the Greek legal order.”
*
* *
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I. HISTORICAL AND FACTUAL BACKGROUND
20. The Court finds it useful at the outset to describe briefly the historical and factual background of the case which is largely uncontested between the Parties.
21. In June 1940, Italy entered the Second World War as an ally of the German Reich. In September 1943, following the removal of Mussolini from power, Italy surrendered to the Allies and, the following month, declared war on Germany. German forces, however, occupied much of Italian territory and, between October 1943 and the end of the War, perpetrated many atrocities against the population of that territory, including massacres of civilians and the deportation of large numbers of civilians for use as forced labour. In addition, German forces took prisoner, both inside Italy and elsewhere in Europe, several hundred thousand members of the Italian armed forces. Most of these prisoners (hereinafter the “Italian military internees”) were denied the status of prisoner of war and deported to Germany and German-occupied territories for use as forced labour.
1. The Peace Treaty of 1947
22. On 10 February 1947, in the aftermath of the Second World War, the Allied Powers concluded a Peace Treaty with Italy, regulating, in particular, the legal and economic consequences of the war with Italy. Article 77 of the Peace Treaty reads as follows:
“1. From the coming into force of the present Treaty property in Germany of Italy and of Italian nationals shall no longer be treated as enemy property and all restrictions based on such treatment shall be removed.
2. Identifiable property of Italy and of Italian nationals removed by force or duress from Italian territory to Germany by German forces or authorities after September 3, 1943, shall be eligible for restitution.
3. The restoration and restitution of Italian property in Germany shall be effected in accordance with measures which will be determined by the Powers in occupation of Germany.
4. Without prejudice to these and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war.”
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2. The Federal Compensation Law of 1953
23. In 1953, the Federal Republic of Germany adopted the Federal Compensation Law Concerning Victims of National Socialist Persecution (Bundesentschädigungsgesetz (BEG)) in order to compensate certain categories of victims of Nazi persecution. Many claims by Italian nationals under the Federal Compensation Law were unsuccessful, either because the claimants were not considered victims of national Socialist persecution within the definition of the Federal Compensation Law, or because they had no domicile or permanent residence in Germany, as required by that Law. The Federal Compensation Law was amended in 1965 to cover claims by persons persecuted because of their nationality or their membership in a non-German ethnic group, while requiring that the persons in question had refugee status on 1 October 1953. Even after the Law was amended in 1965, many Italian claimants still did not qualify for compensation because they did not have refugee status on 1 October 1953. Because of the specific terms of the Federal Compensation Law as originally adopted and as amended in 1965, claims brought by victims having foreign nationality were generally dismissed by the German courts.
3. The 1961 Agreements
24. On 2 June 1961, two Agreements were concluded between the Federal Republic of Germany and Italy. The first Agreement, which entered into force on 16 September 1963, concerned the “Settlement of certain property-related, economic and financial questions”. Under Article 1 of that Agreement, Germany paid compensation to Italy for “outstanding questions of an economic nature”. Article 2 of the Agreement provided as follows:
“(1) The Italian Government declares all outstanding claims on the part of the Italian Republic or Italian natural or legal persons against the Federal Republic of Germany or German natural or legal persons to be settled to the extent that they are based on rights and circumstances which arose during the period from 1 September 1939 to 8 May 1945.
(2) The Italian Government shall indemnify the Federal Republic of Germany and German natural or legal persons for any possible judicial proceedings or other legal action by Italian natural or legal persons in relation to the abovementioned claims.”
25. The second Agreement, which entered into force on 31 July 1963, concerned “Compensation for Italian nationals subjected to National-Socialist measures of persecution”. By virtue of this Agreement, the Federal Republic of Germany undertook to pay compensation to Italian nationals affected by those measures. Under Article 1 of that Agreement, Germany agreed to pay Italy forty million Deutsche marks
“for the benefit of Italian nationals who, on grounds of their race, faith or ideology were subjected to National-Socialist measures of persecution and who, as a result of those persecution measures, suffered loss of liberty or damage to their health, and for the benefit of the dependents of those who died in consequence of such measures”.
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Article 3 of that Agreement provided as follows:
“Without prejudice to any rights of Italian nationals based on German compensation legislation, the payment provided for in Article 1 shall constitute final settlement between the Federal Republic of Germany and the Italian Republic of all questions governed by the present Treaty.”
4. Law establishing the “Remembrance, Responsibility and Future” Foundation
26. On 2 August 2000, a Federal Law was adopted in Germany, establishing a “Remembrance, Responsibility and Future” Foundation (hereinafter the “2000 Federal Law”) to make funds available to individuals who had been subjected to forced labour and “other injustices from the National Socialist period” (Sec. 2, para. 1). The Foundation did not provide money directly to eligible individuals under the 2000 Federal Law but instead to “partner organizations”, including the International Organization for Migration in Geneva. Article 11 of the 2000 Federal Law placed certain limits on entitlement to compensation. One effect of this provision was to exclude from the right to compensation those who had had the status of prisoner of war, unless they had been detained in concentration camps or came within other specified categories. The reason given in the official commentary to this provision, which accompanied the draft Law, was that prisoners of war “may, according to the rules of international law, be put to work by the detaining power” [translation by the Registry] (Bundestagsdrucksache 14/3206, 13 April 2000).
Thousands of former Italian military internees, who, as noted above, had been denied the status of prisoner of war by the German Reich (see paragraph 21), applied for compensation under the 2000 Federal Law. In 2001, the German authorities took the view that, under the rules of international law, the German Reich had not been able unilaterally to change the status of the Italian military internees from prisoners of war to that of civilian workers. Therefore, according to the German authorities, the Italian military internees had never lost their prisoner-of-war status, with the result that they were excluded from the benefits provided under the 2000 Federal Law. On this basis, an overwhelming majority of requests for compensation lodged by Italian military internees was rejected. Attempts by former Italian military internees to challenge that decision and seek redress in the German courts were unsuccessful. In a number of decisions, German courts ruled that the individuals in question were not entitled to compensation under the 2000 Federal Law because they had been prisoners of war. On 28 June 2004, a Chamber of the German Constitutional Court (Bundesverfassungsgericht) held that Article 11, paragraph 3, of the 2000 Federal Law, which excluded reparation for prisoners of war, did not violate the right to equality before the law guaranteed by the German Constitution, and that public international law did not establish an individual right to compensation for forced labour.
A group of former Italian military internees filed an application against Germany before the European Court of Human Rights on 20 December 2004. On 4 September 2007, a Chamber of that Court declared that the application was “incompatible ratione materiae” with the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms and its protocols and therefore was declared inadmissible (Associazione Nazionale Reduci and 275 others v. Germany, decision of 4 September 2007, Application No. 45563/04).
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5. Proceedings before Italian courts
A. Cases involving Italian nationals
27. On 23 September 1998, Mr. Luigi Ferrini, an Italian national who had been arrested in August 1944 and deported to Germany, where he was detained and forced to work in a munitions factory until the end of the war, instituted proceedings against the Federal Republic of Germany in the Court of Arezzo (Tribunale di Arezzo) in Italy. On 3 November 2000, the Court of Arezzo decided that Mr. Luigi Ferrini's claim was inadmissible because Germany, as a sovereign State, was protected by jurisdictional immunity. By a judgment of 16 November 2001, registered on 14 January 2002, the Court of Appeal of Florence (Corte di Appello di Firenze) dismissed the appeal of the claimant on the same grounds. On 11 March 2004, the Italian Court of Cassation (Corte di Cassazione) held that Italian courts had jurisdiction over the claims for compensation brought against Germany by Mr. Luigi Ferrini on the ground that immunity does not apply in circumstances in which the act complained of constitutes an international crime (Ferrini v. Federal Republic of Germany, Decision No. 5044/2004 (Rivista di diritto internazionale, Vol. 87, 2004, p. 539; International Law Reports (ILR), Vol. 128, p. 658)). The case was then referred back to the Court of Arezzo, which held in a judgment dated 12 April 2007 that, although it had jurisdiction to entertain the case, the claim to reparation was time-barred. The judgment of the Court of Arezzo was reversed on appeal by the Court of Appeal of Florence, which held in a judgment dated 17 February 2011 that Germany should pay damages to Mr. Luigi Ferrini as well as his case-related legal costs incurred in the course of the judicial proceedings in Italy. In particular, the Court of Appeal of Florence held that jurisdictional immunity is not absolute and cannot be invoked by a State in the face of acts by that State which constitute crimes under international law.
28. Following the Ferrini Judgment of the Italian Court of Cassation dated 11 March 2004, twelve claimants brought proceedings against Germany in the Court of Turin (Tribunale di Torino) on 13 April 2004 in the case concerning Giovanni Mantelli and others. On 28 April 2004, Liberato Maietta filed a case against Germany before the Court of Sciacca (Tribunale di Sciacca). In both cases, which relate to acts of deportation to, and forced labour in, Germany which took place between 1943 and 1945, an interlocutory appeal requesting a declaration of lack of jurisdiction (“regolamento preventivo di giurisdizione”) was filed by Germany before the Italian Court of Cassation. By two Orders of 29 May 2008 issued in the Giovanni Mantelli and others and the Liberato Maietta cases (Italian Court of Cassation, Order No. 14201 (Mantelli) Foro italiano, Vol. 134, 2009, I, p. 1568); Order No. 14209 (Maietta) Rivista di diritto internazionale, Vol. 91, 2008, p. 896), the Italian Court of Cassation confirmed that the Italian courts had jurisdiction over the claims against Germany. A number of similar claims against Germany are currently pending before Italian courts.
29. The Italian Court of Cassation also confirmed the reasoning of the Ferrini Judgment in a different context in proceedings brought against Mr. Max Josef Milde, a member of the “Hermann Göring” division of the German armed forces, who was charged with participation in massacres committed on 29 June 1944 in Civitella in Val di Chiana, Cornia and San Pancrazio in Italy. The Military Court of La Spezia (Tribunale Militare di La Spezia) sentenced Mr. Milde in absentia to life imprisonment and ordered Mr. Milde and Germany, jointly and severally, to pay reparation to the successors in title of the victims of the massacre who appeared as civil parties in the proceedings (judgment of 10 October 2006 (registered on 2 February 2007)). Germany appealed to
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the Military Court of Appeals in Rome (Corte Militare di Appello di Roma) against that part of the decision, which condemned it. On 18 December 2007 the Military Court of Appeals dismissed the appeal. In a judgment of 21 October 2008 (registered on 13 January 2009), the Italian Court of Cassation rejected Germany's argument of lack of jurisdiction and confirmed its reasoning in the Ferrini Judgment that in cases of crimes under international law, the jurisdictional immunity of States should be set aside (Rivista di diritto internazionale, Vol. 92, 2009, p. 618).
B. Cases involving Greek nationals
30. On 10 June 1944, during the German occupation of Greece, German armed forces committed a massacre in the Greek village of Distomo, involving many civilians. In 1995, relatives of the victims of the massacre who claimed compensation for loss of life and property commenced proceedings against Germany. The Greek Court of First Instance (Protodikeio) of Livadia rendered a judgment in default on 25 September 1997 (and read out in court on 30 October 1997) against Germany and awarded damages to the successors in title of the victims of the massacre. Germany's appeal of that judgment was dismissed by the Hellenic Supreme Court (Areios Pagos) on 4 May 2000 (Prefecture of Voiotia v. Federal Republic of Germany, case No. 11/2000 (ILR, Vol. 129, p. 513) (the Distomo case)). Article 923 of the Greek Code of Civil Procedure requires authorization from the Minister for Justice to enforce a judgment against a foreign State in Greece. That authorization was requested by the claimants in the Distomo case but was not granted. As a result, the judgments against Germany have remained unexecuted in Greece.
31. The claimants in the Distomo case brought proceedings against Greece and Germany before the European Court of Human Rights alleging that Germany and Greece had violated Article 6, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to that Convention by refusing to comply with the decision of the Court of First Instance of Livadia dated 25 September 1997 (as to Germany) and failing to permit execution of that decision (as to Greece). In its decision of 12 December 2002, the European Court of Human Rights, referring to the rule of State immunity, held that the claimants' application was inadmissible (Kalogeropoulou and others v. Greece and Germany, Application No. 59021/00, Decision of 12 December 2002, ECHR Reports 2002-X, p. 417; ILR, Vol. 129, p. 537).
32. The Greek claimants brought proceedings before the German courts in order to enforce in Germany the judgment rendered on 25 September 1997 by the Greek Court of First Instance of Livadia, as confirmed on 4 May 2000 by the Hellenic Supreme Court. In its judgment of 26 June 2003, the German Federal Supreme Court (Bundesgerichtshof) held that those Greek judicial decisions could not be recognized within the German legal order because they had been given in breach of Germany's entitlement to State immunity (Greek citizens v. Federal Republic of Germany, case No. III ZR 245/98, Neue Juristische Wochenschrift (NJW), 2003, p. 3488; ILR, Vol. 129, p. 556).
33. The Greek claimants then sought to enforce the judgments of the Greek courts in the Distomo case in Italy. The Court of Appeal of Florence held in a decision dated 2 May 2005 (registered on 5 May 2005) that the order contained in the judgment of the Hellenic Supreme
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Court, imposing an obligation on Germany to reimburse the legal expenses for the judicial proceedings before that Court, was enforceable in Italy. In a decision dated 6 February 2007 (registered on 22 March 2007), the Court of Appeal of Florence rejected the objection raised by Germany against the decision of 2 May 2005 (Foro italiano, Vol. 133, 2008, I, p. 1308). The Italian Court of Cassation, in a judgment dated 6 May 2008 (registered on 29 May 2008), confirmed the ruling of the Court of Appeal of Florence (Rivista di diritto internazionale, Vol. 92, 2009, p. 594).
34. Concerning the question of reparations to be paid to Greek claimants by Germany, the Court of Appeal of Florence declared, by a decision dated 13 June 2006 (registered on 16 June 2006), that the judgment of the Court of First Instance of Livadia dated 25 September 1997 was enforceable in Italy. In a judgment dated 21 October 2008 (registered on 25 November 2008), the Court of Appeal of Florence rejected the objection by the German Government against the decision of 13 June 2006. The Italian Court of Cassation, in a judgment dated 12 January 2011 (registered on 20 May 2011), confirmed the ruling of the Court of Appeal of Florence.
35. On 7 June 2007, the Greek claimants, pursuant to the decision by the Court of Appeal of Florence of 13 June 2006, registered with the Como provincial office of the Italian Land Registry (Agenzia del Territorio) a legal charge (ipoteca giudiziale) over Villa Vigoni, a property of the German State near Lake Como. The State Legal Service for the District of Milan (Avvocatura Distrettuale dello Stato di Milano), in a submission dated 6 June 2008 and made before the Court of Como (Tribunale di Como), maintained that the charge should be cancelled. Under Decree-Law No. 63 of 28 April 2010, Law No. 98 of 23 June 2010 and Decree-Law No. 216 of 29 December 2011, the legal charge was suspended pending the decision of the International Court of Justice in the present case.
36. Following the institution of proceedings in the Distomo case in 1995, another case was brought against Germany by Greek nationals before Greek courts ⎯ referred to as the Margellos case ⎯ involving claims for compensation for acts committed by German forces in the Greek village of Lidoriki in 1944. In 2001, the Hellenic Supreme Court referred that case to the Special Supreme Court (Anotato Eidiko Dikastirio), which, in accordance with Article 100 of the Constitution of Greece, has jurisdiction in relation to “the settlement of controversies regarding the determination of generally recognized rules of international law” [translation by the Registry], requesting it to decide whether the rules on State immunity covered acts referred to in the Margellos case. By a decision of 17 September 2002, the Special Supreme Court found that, in the present state of development of international law, Germany was entitled to State immunity (Margellos v. Federal Republic of Germany, case No. 6/2002, ILR, Vol. 129, p. 525).
II. THE SUBJECT-MATTER OF THE DISPUTE AND THE JURISDICTION OF THE COURT
37. The submissions presented to the Court by Germany have remained unchanged throughout the proceedings (see paragraphs 15, 16 and 17 above).
Germany requests the Court, in substance, to find that Italy has 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 German Reich during the Second World War;
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that Italy has also violated Germany's immunity by taking measures of constraint against Villa Vigoni, German State property situated in Italian territory; and that it has further 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 gave rise to the claims brought before Italian courts. Consequently, the Applicant requests the Court to declare that Italy's international responsibility is engaged and to order the Respondent to take various steps by way of reparation.
38. Italy, for its part, requests the Court to adjudge Germany's claims to be unfounded and therefore to reject them, apart from the submission regarding the measures of constraint taken against Villa Vigoni, on which point the Respondent indicates to the Court that it would have no objection to the latter ordering it to bring the said measures to an end.
In its Counter-Memorial, Italy submitted 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”; this claim was dismissed by the Court's Order of 6 July 2010, on the grounds that it did not fall within the jurisdiction of the Court and was consequently inadmissible under Article 80, paragraph 1, of the Rules of Court (see paragraph 5 above).
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39. The subject-matter of a dispute brought before the Court is delimited by the claims submitted to it by the parties. In the present case, since there is no longer any counter-claim before the Court and Italy has requested the Court to “adjudge Germany's claims to be unfounded”, it is those claims that delimit the subject-matter of the dispute which the Court is called upon to settle. It is in respect of those claims that the Court must determine whether it has jurisdiction to entertain the case.
40. Italy has raised no objection of any kind regarding the jurisdiction of the Court or the admissibility of the Application.
Nevertheless, according to well-established jurisprudence, the Court “must . . . always be satisfied that it has jurisdiction, and must if necessary go into the matter proprio motu” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13).
41. Germany's Application was filed on the basis of the jurisdiction conferred on the Court by Article 1 of the European Convention for the Peaceful Settlement of Disputes, under the terms of which:
“The High Contracting Parties shall submit to the judgement of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:
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(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.”
42. Article 27, subparagraph (a), of the same Convention limits the scope of that instrument ratione temporis by stating that it shall not apply to “disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”. The Convention entered into force as between Germany and Italy on 18 April 1961.
43. The claims submitted to the Court by Germany certainly relate to “international legal disputes” within the meaning of Article 1 as cited above, between two States which, as has just been said, were both parties to the Convention on the date when the Application was filed, and indeed continue to be so.
44. The clause in the above-mentioned Article 27 imposing a limitation ratione temporis is not applicable to Germany's claims: the dispute which those claims concern does not “relat[e] to facts or situations prior to the entry into force of th[e] Convention as between the parties to the dispute”, i.e., prior to 18 April 1961. The “facts or situations” which have given rise to the dispute before the Court are constituted by Italian judicial decisions that denied Germany the jurisdictional immunity which it claimed, and by measures of constraint applied to property belonging to Germany. Those decisions and measures were adopted between 2004 and 2011, thus well after the European Convention for the Peaceful Settlement of Disputes entered into force as between the Parties. It is true that the subject-matter of the disputes to which the judicial proceedings in question relate is reparation for the injury caused by actions of the German armed forces in 1943-1945. Germany's complaint before the Court, however, is not about the treatment of that subject-matter in the judgments of the Italian courts; its complaint is solely that its immunities from jurisdiction and enforcement have been violated. Defined in such terms, the dispute undoubtedly relates to “facts or situations” occurring entirely after the entry into force of the Convention as between the Parties. Italy has thus rightly not sought to argue that the dispute brought before the Court by Germany falls wholly or partly within the limitation ratione temporis under the above-mentioned Article 27. The Court has jurisdiction to deal with the dispute.
45. The Parties, who have not disagreed on the analysis set out above, have on the other hand debated the extent of the Court's jurisdiction in a quite different context, that of some of the arguments put forward by Italy in its defence and relating to the alleged non-performance by Germany of its obligation to make reparation to the Italian and Greek victims of the crimes committed by the German Reich in 1943-1945.
According to Italy, a link exists between the question of Germany's performance of its obligation to make reparation to the victims and that of the jurisdictional immunity which Germany might rely on before the foreign courts to which those victims apply, in the sense that a State which fails to perform its obligation to make reparation to the victims of grave violations of international humanitarian law, and which offers those victims no effective means of claiming the reparation to which they may be entitled, would be deprived of the right to invoke its jurisdictional immunity before the courts of the State of the victims' nationality.
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46. Germany has contended that the Court could not rule on such an argument, on the basis that it concerned the question of reparation claims, which relate to facts prior to 18 April 1961. According to Germany, “facts occurring before the date of the entry into force of the European Convention for the Peaceful Settlement of Disputes as between Italy and Germany clearly lie outside the jurisdiction of the Court”, and “reparation claims do not fall within the subject-matter of the present dispute and do not form part of the present proceedings”. Germany relies in this respect on the Order whereby the Court dismissed Italy's counter-claim, which precisely asked the Court to find that Germany had violated its obligation of reparation owed to Italian victims of war crimes and crimes against humanity committed by the German Reich (see paragraph 38). Germany points out that this dismissal was based on the fact that the said counter-claim fell outside the jurisdiction of the Court, because of the clause imposing a limitation ratione temporis in the above-mentioned Article 27 of the European Convention for the Peaceful Settlement of Disputes, the question of reparation claims resulting directly from the acts committed in 1943-1945.
47. Italy has responded to this objection that, while the Order of 6 July 2010 certainly prevents it from pursuing its counter-claim in the present case, it does not on the other hand prevent it from using the arguments on which it based that counter-claim in its defence against Germany's claims; that the question of the lack of appropriate reparation is, in its view, crucial for resolving the dispute over immunity; and that the Court's jurisdiction to take cognizance of it incidentally is thus indisputable.
48. The Court notes that, since the dismissal of Italy's counter-claim, it no longer has before it any submissions asking it to rule on the question of whether Germany has a duty of reparation towards the Italian victims of the crimes committed by the German Reich and whether it has complied with that obligation in respect of all those victims, or only some of them. The Court is therefore not called upon to rule on those questions.
49. However, in support of its submission that it has not violated Germany's jurisdictional immunity, Italy contends that Germany stands deprived of the right to invoke that immunity in Italian courts before which civil actions have been brought by some of the victims, because of the fact that it has not fully complied with its duty of reparation.
50. The Court must determine whether, as Italy maintains, the failure of a State to perform completely a duty of reparation which it allegedly bears is capable of having an effect, in law, on the existence and scope of that State's jurisdictional immunity before foreign courts. This question is one of law on which the Court must rule in order to determine the customary international law applicable in respect of State immunity for the purposes of the present case.
Should the preceding question be answered in the affirmative, the second question would be whether, in the specific circumstances of the case, taking account in particular of Germany's conduct on the issue of reparation, the Italian courts had sufficient grounds for setting aside Germany's immunity. It is not necessary for the Court to satisfy itself that it has jurisdiction to respond to this second question until it has responded to the first.
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The Court considers that, at this stage, no other question arises with regard to the existence or scope of its jurisdiction.
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51. The Court will first address the issues raised by Germany's first submission, namely whether, by exercising jurisdiction over Germany with regard to the claims brought before them by the various Italian claimants, the Italian courts acted in breach of Italy's obligation to accord jurisdictional immunity to Germany. It will then turn, in Section IV, to the measures of constraint adopted in respect of Villa Vigoni and, in Section V, to the decisions of the Italian courts declaring enforceable in Italy the judgments of the Greek courts.
III. ALLEGED VIOLATION OF GERMANY'S JURISDICTIONAL IMMUNITY IN THE PROCEEDINGS BROUGHT BY THE ITALIAN CLAIMANTS
1. The issues before the Court
52. The Court begins by observing that the proceedings in the Italian courts have their origins in acts perpetrated by German armed forces and other organs of the German Reich. Germany has fully acknowledged the “untold suffering inflicted on Italian men and women in particular during massacres, and on former Italian military internees” (Joint Declaration of Germany and Italy, Trieste, 18 November 2008), accepts that these acts were unlawful and stated before this Court that it “is fully aware of [its] responsibility in this regard”. The Court considers that the acts in question can only be described as displaying a complete disregard for the “elementary considerations of humanity” (Corfu Channel (United Kingdom v. Albania), I.C.J. Reports 1949, p. 22; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 112). One category of cases involved the large-scale killing of civilians in occupied territory as part of a policy of reprisals, exemplified by the massacres committed on 29 June 1944 in Civitella in Val di Chiana, Cornia and San Pancrazio by members of the “Hermann Göring” division of the German armed forces involving the killing of 203 civilians taken as hostages after resistance fighters had killed four German soldiers a few days earlier (Max Josef Milde case, Military Court of La Spezia, judgment of 10 October 2006 (registered on 2 February 2007)). Another category involved members of the civilian population who, like Mr. Luigi Ferrini, were deported from Italy to what was in substance slave labour in Germany. The third concerned members of the Italian armed forces who were denied the status of prisoner of war, together with the protections which that status entailed, to which they were entitled and who were similarly used as forced labourers. The Court considers that there can be no doubt that this conduct was a serious violation of the international law of armed conflict applicable in 1943-1945. Article 6 (b) of the Charter of the International Military Tribunal, 8 August 1945 (United Nations, Treaty Series (UNTS), Vol. 82, p. 279), convened at Nuremberg included as war crimes “murder, ill-treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory”, as well as “murder or ill-treatment of prisoners of war”. The list of crimes against humanity in Article 6 (c) of the Charter included
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“murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war”. The murder of civilian hostages in Italy was one of the counts on which a number of war crimes defendants were condemned in trials immediately after the Second World War (e.g., Von Mackensen and Maelzer (1946) Annual Digest, Vol. 13, p. 258; Kesselring (1947) Annual Digest, Vol. 13, p. 260; and Kappler (1948) Annual Digest, Vol. 15, p. 471). The principles of the Nuremberg Charter were confirmed by the General Assembly of the United Nations in resolution 95 (I) of 11 December 1946.
53. However, the Court is not called upon to decide whether these acts were illegal, a point which is not contested. The question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian courts were obliged to accord Germany immunity. In that context, the Court notes that there is a considerable measure of agreement between the Parties regarding the applicable law. In particular, both Parties agree that immunity is governed by international law and is not a mere matter of comity.
54. As between Germany and Italy, any entitlement to immunity can be derived only from customary international law, rather than treaty. Although Germany is one of the eight States parties to the European Convention on State Immunity of 16 May 1972 (European Treaty Series (ETS), No. 74; UNTS, Vol. 1495, p. 182) (hereinafter the “European Convention”), Italy is not a party and the Convention is accordingly not binding upon it. Neither State is party to the United Nations Convention on the Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 (hereinafter the “United Nations Convention”), which is not yet in force in any event. As of 1 February 2012, the United Nations Convention had been signed by 28 States and obtained thirteen instruments of ratification, acceptance, approval or accession. Article 30 of the Convention provides that it will enter into force on the thirtieth day after deposit of the thirtieth such instrument. Neither Germany nor Italy has signed the Convention.
55. It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the existence of “international custom, as evidence of a general practice accepted as law” conferring immunity on States and, if so, what is the scope and extent of that immunity. To do so, it must apply the criteria which it has repeatedly laid down for identifying a rule of customary international law. In particular, as the Court made clear in the North Sea Continental Shelf cases, the existence of a rule of customary international law requires that there be “a settled practice” together with opinio juris (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports, 1969, p. 44, para. 77). Moreover, as the Court has also observed,
“It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them.” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 29-30, para. 27.)
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In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from th