Earlier this month, the International Court of Justice (ICJ) delivered its decision for Germany v. Italy.
Brief history: The Federal Republic of Germany initiated proceedings against the Italian Republic in 2008, citing that Italy violated Germany’s sovereign immunity when it allowed Italian nationals to file civil cases against Germany for violating international humanitarian law in World War II and post-WWII in Italian courts; see here and here. The question presented before the court was, therefore, whether or not Italy violated Germany’s immunity from being sued in (non-German) national courts.
Impunity Watch provides us with a brief insight of the case brought by Italian nationals in Italian courts against Germany:
The case at hand focuses on the June 29, 1944 murder of 250 Italian civilians in and near the Tuscan town of Civitella by German troops. More than forty years later, family members of the victims sued Germany in an Italian court seeking reparations. In 2008, Italy’s Supreme Court found that one of the plaintiffs, an Italian civilian, Luigi Ferrini, was in fact entitled to reparations for his deportation to Germany in 1944 to work as a slave laborer in the armaments industry.
Furthermore, Germany argued that Italy violated the 1947 Peace Treaty; under the treaty, Germany “promised restitution for seized property” given that the government of Italy and subsequently, its citizens, waive their right to file civil claims against Germany. Since 1950, Germany has paid “tens of billion of dollars in reparations … including a ‘lump sum’ to Italy in the amount of 40 million marks in 1961.”
What was the Court’s holding? On February 3, 2012 the ICJ decided against Italy, citing Germany’s jurisdictional state immunity. According to Impunity Watch, Hisashi Owada, President of the ICJ wrote, “The action of Italian Courts in denying German immunity … constitutes a breach of the obligation owed by the Italian state to Germany.”
Consistent with International Law or Impunity? The author of my international law textbook, Professor William R. Slomanson of the Thomas Jefferson School of Law, would agree with the ICJ’s decision. He defines sovereign immunity as “one of the fundamental building blocks of International Law; all States are entitled to equality. State B, being a coequal sovereign entity in the community of nations, should not be subjected to a lawsuit in the courts of State A without B’s consent.” The underlying assumption is that the plaintiff — in this case, Mr. Ferrini, among other Italian nationals harmed by German Nazi policies — would be able to file a civil case against Germany. However, as Amnesty International pointed out in its press release:
The victims… were unable to obtain reparation in administrative and judicial proceedings in Germany, in the European Court of Human Rights, in any claims commission or through diplomatic protection by either Italy or Greece. Having exhausted all possibilities and, therefore, with no alternative, they sought reparation in foreign courts.
In fact, Amnesty International goes so far as to argue in its position paper that Italy’s conduct is consistent with the doctrine of sovereign immunity under international law, which is constantly involving. After the decision was publicized, Amnesty International’s Senior Director of International Law and Policy, Widney Brown, expressed her disappointment at the ICJ’s ruling: “the judgment flies in the face of the Hague Convention, under which victims of war crimes are entitled to sue the state responsible to obtain reparation.”
I am currently taking International Law with Professor Falk and so far, my understanding of International Law has been that it is fluid. As such, I feel that the judges of ICJ have tremendous potential in shaping International Law, or at the very least, setting a new international norm by redefining, in more restricted terms, what constitute sovereign immunity. In this day and age, States should no longer be allowed to hide behind the doctrine of sovereign immunity.
I would also like to address the concern that if the ICJ ruled in favor of Italy, it would “open the floodgates to compensation claims by individuals around the world.” I believe that this fear is unwarranted, especially because most individuals are well-aware of the tremendous amount of work and time necessary to file a lawsuit, civil or otherwise.
The elegant words of Dissenting Judge Antonio Cançado Trindade summarizes my thoughts best. He writes,
The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labour.
About the ICJ — The ICJ is the principal judicial organ of the United Nations. The ICJ serves two functions: first, the Court settles legal disputes between member-states and secondly, the Court gives “advisory opinions on legal questions referred to it by authorized United Nations organs and its specialized agencies.” The United States withdrew from ICJ’s general compulsory jurisdiction in 2005.