17.02.2021

Category: Jurisdictional immunities case

Jurisdictional immunities case

Jurisdictional Immunities of the State Germany v. Italy: Greece intervening. On 23 Decemberthe 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.

On 13 JanuaryGreece filed an Application requesting permission to intervene in the case.

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

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 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.

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 cogensthere 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.

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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. 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.

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.

Statements by the President. Current Judges ad hoc. All Judges ad hoc. Contentious cases organized by State.

jurisdictional immunities case

Contentious cases organized by incidental proceedings. States entitled to appear before the Court. States not members of the United Nations parties to the Statute. States not parties to the Statute to which the Court may be open.

Declarations recognizing the jurisdiction of the Court as compulsory. Organs and agencies authorized to request advisory opinions. Presentations on the work of the Court. Overview of the case On 23 Decemberthe 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.

This overview is provided for information only and in no way involves the responsibility of the Court. Annexes - volume II English French. Written observations of the Federal Republic of Germany on the Application for permission to intervene filed by Greece 23 March Procedure s : Intervention.

Written observations of Italy on the Application for permission to intervene filed by Greece 28 March Procedure s : Intervention. Additional observations of Italy on whether to grant the Application for permission to intervene filed by Greece 27 May Procedure s : Intervention. Annexes English.

Italy - Fixing of time-limits for the filing of the initial pleadings Available in: English French. Italy - The Court finds Italy's counter-claim inadmissible as such and fixes time-limits for the filing of additional written pleadings Available in: English French.

Italy - Greece requests permission to intervene in the proceedings Available in: English French. Italy - Application for permission to intervene submitted by Greece - The Court grants Greece permission to intervene in the proceedings as a non-party Available in: English French. Italy: Greece intervening - Live webcast of the public hearings which will be held from Monday 12 to Friday 16 September Available in: English French.

Italy: Greece intervening - Conclusion of the public hearings - Court to begin its deliberation Available in: English French. Italy: Greece intervening - The Court finds that Italy has violated its obligation to respect the immunity enjoyed by Germany under international law Available in: English French.Jurisdictional Immunities of the State Germany v.

Italy: Greece Intervening was a case concerning the extent of state immunity before the International Court of Justice. The case was brought by Germany after various decisions by Italian courts to ignore the state immunity of Germany when confronted with claims against Germany by victims of Nazi-era war crimes.

The court found that Italy was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its courts against Germany without effect. The original claims were based on a number of war crimes committed by German troops during World War II. The substance of the facts were not disputed by Germany. A number of international agreements and measures had been passed which purported to waive the claims of the victims involved, or make reparations.

Germany had also passed various laws to effect individual compensation to victims of Nazi era atrocities. However, it is undisputed that the international agreements and the sometimes restrictive language of the compensation laws collectively failed to [ citation needed ] compensate many victims individually. Luigi Ferrini was an Italian who was deported from occupied Italy and forced to work in a munitions plant in Germany.

During he instituted proceedings against Germany in lower court at Arezzo. The lower court and then the appeals court denied his claim, on the basis that Germany was entitled to state immunity.

However, during the Italian Court of Cassation reversed this judgment on the grounds that state immunity is lost when international crimes are alleged. On remand, the lower courts entered judgment in favor of Ferrini.

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Max Josef Milde was a German soldier, member of the Hermann Goering Divisionwho during was convicted in absentia for war crimes involving a massacre of civilians in the Italian towns of Civitella in Val di Chiana and San Pancazio. In connection with this conviction, Germany was held jointly and severally liable for damages resulting from this act. The Court of Cassation reaffirmed its reasoning in the Ferrini case by affirming this judgment during On June 10,hundreds of people in the Greek village of Distomo were massacred by German troops in retaliation for Resistance activities nearby.

jurisdictional immunities case

Survivors and relatives of victims of this Distomo massacre sued Germany in Greek courts during Germany did not appear and the trial court entered a default judgment, upheld on appeal by the Greek Court of Cassation.

However, the Greek Justice Minister refused to grant the required permission to enforce the judgment in Greece. In response, the plaintiffs attempted to enforce the judgment at the European Court of Human Rights and in the German courts, but were denied on grounds of state immunity. Finally, after the Ferrini decision, the plaintiffs petitioned for enforcement in Italy; the Italian courts agreed to enforce the judgment and during the plaintiffs placed a legal charge on Villa Vigonia property in Italy owned by the German state.

Germany filed its application to institute proceedings on December 23, Italy responded with a counterclaim that Germany should pay reparations for the original events. By a vote of 12 to 3, the court rejected both alleged exceptions to the doctrine of state immunity proposed by Italy.

Firstly, the court rejected a theory of "territorial tort", in which Italy would be entitled to ignore immunity because torts were committed on Italian territory. The court noted that while the general territorial tort certainly has support for jure gestionisor commercial activities of state, it is clear that such a tort is not meant to apply to armed forces engaged in an armed conflict.

The court cited the European Convention on State Immunitythe United Nations Convention on Jurisdictional Immunities of States and Their Propertyand the state practice of a number of countries to establish that there was little support for extending the territorial tort as much as Italy proposed.

Secondly, the court rejected a more expansive exception to state immunity, by which immunity would be lost if serious human rights violations were alleged and no reparations were forthcoming. Italy advanced three "strands" to this argument: Italy argued that the gravity of the violations required elimination of state immunity, that not to eliminate state immunity would effectively derogate from a peremptory, or jus cogens norm; and immunity was lost because the claimants had no other means of redress.

Addressing the first strand, the court noted that allowing a judicial enquiry into the gravity of the crime would defeat the purpose of immunity, which is to avoid the trial process. Addressing the second strand, the court distinguished between procedural and substantive rules and found that there was no conflict between substantive jus cogens prohibitions on enslavement, for instance, and procedural state immunity.

Addressing the third strand, the Court distinguished between immunity and the substantive rules of international law by which Germany might still owe reparations. Finally, having rejected the strands of Italy's argument individually, the Court rejected their aggregate as well, specifying that immunity could not be based on a substantive balancing test applied by national courts.

By a vote of 14 to 1, the court found that Italy was obliged, by a means of its own choosing, to render void the decisions of its courts infringing the state immunity due to Germany. Dissenting Judge Bennouna said there was a difference between state immunity and state responsibility.

Granting immunity does not exonerate one from responsibility. In this case the court should of recognised that Germany admitted to their crimes, and therefore are responsible.Germany has violated this obligation with regard to Italian victims of such crimes by denying them effective reparation. Germany must cease its wrongful conduct and offer appropriate and effective reparation to these victims, by means of its own choosing, as well as through the conclusion of agreements with Italy".

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. 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, shall be eligible for restitution.

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. 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,except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 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".

The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counterclaim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.

Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties". Reportspp. Finds that the counter-claim presented by Italy in its CounterMemorial is inadmissible as such and does not form part of the current proceedings. Authorizes Germany to submit a Reply and Italy to submit a Rejoinder and fixes the following dates as time-limits for the filing of these pleadings :.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this sixth day of July, two thousand and ten, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Germany and the Government of the Italian Republic, respectively.

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jurisdictional immunities case

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Become a Contributor, submit your candidacy to author this Wiki Note. NOT The following term must not appear in document. AND Both terms must be in document. OR Either term must be in document. Exact search Exclude grammatical variations of your search terms. Search results International case. Jurisdictional Immunities of the State Germany v. Italy: Greece intervening. Type of case: Inter-State. Date of introduction: 23 Dec States Parties: ItalyGermany. Applicable Treaties: European Convention for t Source s of the information: Reproduced with the permission of the International Court of Justice : Link1 Official source.

Documents of the case. Whereas, on 23 Decemberthe Government of the Federal Republic of Germany hereinafter "Germany" filed in the Registry of the Court an Application instituting proceedings against the Government of the italian Republic hereinafter "italy" alleging that "[t]hrough its judicial practiceIf faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office.

But responsible they are not to private parties in civil actions for the judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly. In Stump v. Sparkmanthe Court upheld the immunity of a judge who approved a petition from the mother of a year-old girl to have the girl sterilized without her knowledge she was told that she was to have her appendix removed.

Judge Stump performed the type of act normally performed only by judges and. Although judges are generally immune from suits for damages, the Court has held that a judge may be enjoined from enforcing a court rule, such as a restriction on lawyer advertising that violates the First Amendment. Please help us improve our site!

No thank you. LII U.Source picture: Wikipedia. This case summary is being revised and will be updated soon. Between andItalian courts had issued a number of judgments in which plaintiffs, victims of war crimes and crimes against humanity committed by the German Reich during WWII, were awarded damages against Germany.

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This declaration led to measures of constraint on German property in Italy. The Court rejected Italy's claims and fully agreed with Germany's points. State immunity is part of customary international law, and the fact that the underlying acts the WWII crimes were violations of jus cogens did not deprive Germany from its jurisdictional immunity. Importantly, though, the Court notes that while the current judgment confirms jurisdictional immunity of statesthis does not in any way alter the possibility to hold individuals criminally responsible for certain acts.

By an Order of 4 Julythe Court authorised 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 as enforceable in Italy. Reference is made to, among others, Ferrini v. Additionally, concerning the Distomo massacre that was committed in Greece, the Florence Court of Appeal had declared enforceable a judgment rendered by the First Instance Court of Livadia, Greece that ordered Germany to pay compensation; hence, it allowed the Greek claimants to enter a legal charge against Villa Vigoni, property of the German State in the province of Como, Italy.

Germany did not dispute the substance of the facts. However, it did consider that Italy had violated international law. By exercising jurisdiction over Germany, Italy had violated the principle that one state cannot and should not exercise jurisdiction over the acts of another state. This principle is based on the notion of sovereignty and, thus, the legal equality of all states.

Italy, on the other hand, emphasised that the underlying crimes - crimes against humanity and war crimes - are violations of jus cogenslaw that is binding upon states regardless of any treaty.

Additionally, Italy was of the standpoint that state agents, including state armies, do not join immunity for torts or delicts occasioning death, injury or damage committed on the terrirory of another state. Do states enjoy full jurisdictional immunity before foreign domestic courts for acts committed by their armed forces in the course of conducting an armed conflict?

The Court commenced with Italy's argument that there is a "territorial tort exception" in international customary law that excludes state acts from jurisdictional immunity if they take place on the territory of another state. This claim is rejected, as the Court could not find any support for it in both the history of treaty law and international customs.

Then the Court turned to the other argument, holding that the underlying acts were violations of jus cogens and that they, thus, allowed for denial of immunity.

This claim was rejected as well:.

2.2 The ICJs Contentious Jurisdiction

Hence, the Court rejected Italy's claims and held that the judgments ordering Germany to pay compensation violated the principle of jurisdictional immunity. Regarding the constraining measure on Villa Vigoni that was filed by the Greek claimants, the Court stated that it was unlawfully awarded as well.

Talmon, ' Jus Cogens after Germany v. Orakhelashvili, ' Jurisdictional Immunities of the State Germany v.

Jahn

Statute of the International Court of Justice18 April Italy ', Lawfareblog5 February Italy: A Chilling Effect? Index of page Summary Procedural history Legally relevant facts Core legal questions Specific legal rules and provisions Court's holding and analysis Further analysis Instruments cited Additional materials Social media links.

Jurisdictional Immunities of the State Germany v. It emphasised that this says nothing about individual criminal responsibility and the possibility to deny individual immunity paras.Accordingly, the Federal Republic of Germany respectfully requests the Court to adjudge and declare that :.

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. 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. 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.

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.

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,shall be eligible for restitution. 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.

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,except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, This waiver shall be deemed to include debts, all intergovernmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war.

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 21applied for compensation under the Federal Law. Inthe 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 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.

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In a number of decisions, German courts ruled that the individuals in question were not entitled to compensation under the Federal Law because they had been prisoners of war. On 28 Junea Chamber of the German Constitutional Court Bundesverfassungsgericht held that Article 11, paragraph 3, of the 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 On 4 Septembera 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 Others v.

Germanydecision of 4 Septemberapplication No. 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 ; 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. 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 Julyon 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.

Nevertheless, according to well-established jurisprudence, the Court "must PakistanJudgment, I. Reportsp. 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.

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. The Court considers that, at this stage, no other question arises with regard to the existence or scope of its jurisdiction.

Reportspp. 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.To make the preview version available in your Start menu, right-click studio64.

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