International Court of Justice gives Judgment on State Immunity

On February 3, 2012, the International Court of Justice delivered its judgment in proceedings instituted by Germany against Italy for alleged violations of the jurisdictional immunities enjoyed by States under public international law. The Court held that Italy committed several breaches of Germany's State immunity.

The proceedings instituted by Germany arose mainly from a number of decisions of the Italian courts ruling that they could entertain civil claims for compensation brought by individuals against the German State for alleged breaches of international humanitarian law as well as international human rights law during the Second World War. The Court held that, by hearing those cases, the Italian courts committed a breach of the immunity from jurisdiction to which Germany was entitled. The judgment underlines that the acts at stake, whilst being unlawful according to Germany itself, constituted acta jure imperii, i.e. sovereign acts covered by State immunity from jurisdiction. Furthermore, the judgment confirms that in the light of existing customary international law there is no exception to State immunity in case of serious violations of international law or even jus cogens.

Interestingly enough, the Court went on to hold that, by declaring enforceable in Italy decisions of Greek courts upholding similar civil claims against Germany related to the Second World War, the Italian courts committed a (distinct) breach of the immunity from jurisdiction to which Germany was entitled. Indeed, the Italian courts would have been obliged to grant immunity to Germany if they had been seised of the merits of identical cases.

The Court also gave judgment on the scope of State immunity from enforcement, designed to protect property belonging to a foreign State from any measure of constraint. The Court held that, by allowing certain victims of the Second World War to enter a legal charge against a villa in Italy belonging to the German State in order to enforce a judgment ordering Germany to pay them compensation, the Italian authorities committed a breach of Germany's immunity from execution, since the above villa was used as a cultural centre intended to promote cultural exchanges between the two countries, hence for governmental non-commercial purposes.

Finally, the Court decided 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 enjoys under international law cease to have effect.