The international law of state immunity and its development by national institutions.

AuthorTomuschat, Christian
PositionSymposium: Foreign State Immunity at Home and Abroad

ABSTRACT

The proceedings between Germany and Italy currently pending before the International Court of Justice have revived interest in the legal regime of jurisdictional immunity of states. Germany charges Italy with violating the basic rule of state immunity by entertaining reparation claims brought before its civil courts by victims of serious breaches of international humanitarian law committed by Nazi Germany during World War II. Jurisdictional immunity is not absolute, but it remains preserved for truly governmental acts like military operations. None of the generally recognized exceptions apply in the German-Italian dispute. Damages resulting from international armed conflict are not covered by the local tort clause included in most of the relevant instruments. Nor does the infringement of a jus cogens rule automatically confer jurisdiction to the domestic courts of an affected country. After World War II, a reparation scheme was established by the victorious Allied Powers that provided for reparations at the inter-state level. Granting additional reparation claims to every individual victim of unlawful conduct during armed hostilities would amount to double jeopardy, rendering any definitive peace settlement illusory.

TABLE OF CONTENTS I. INTRODUCTORY OBSERVATIONS II. THE HISTORICAL BACKGROUND OF THE DISPUTE BETWEEN GERMANY AND ITALY BEFORE THE ICJ III. THE MEANING AND SCOPE OF JURISDICTIONAL IMMUNITY OF STATES: THE PRINCIPLE IV. JURISDICTIONAL IMMUNITY IN CASES OF GRAVE VIOLATIONS OF HUMAN RIGHTS: EXCEPTIONS A. General Considerations B. Serious Violations of IHL and HRL as Acts Outside the Authority of the State C. Implicit Waiver of Immunity D. The Territorial Clause E. Impact of the U.S. Legislative Practice F. Jus Cogens V. A NEW RULE OF INTERNATIONAL CUSTOMARY LAW? VI. CONCLUDING OBSERVATIONS I. INTRODUCTORY OBSERVATIONS

The dispute between Germany and Italy, which is currently pending before the International Court of Justice (ICJ), (1) has once again brought to the forefront interest in the issue of state immunity. Inevitably, the judgment of the Court will serve as a precedent for similar configurations in the future. However, the Court may wish to limit the gist of its forthcoming pronouncement (2) ratione temporis. In fact, the root causes of the proceedings from which the dispute arose date back more than 66 years to World War II. Since international law is in a steady state of flux, one might assume that under present-day conditions more differentiated answers should be given. In any event, the judges may wish to reserve their position as far as disputes originating in the world of today are concerned. However, the present author firmly believes that state immunity has fully kept its raison d'etre and should not be abandoned on account of narrow considerations which do not take into account the comprehensive structure of the rules and mechanisms of international law. The following observations are intended to demonstrate the legitimacy of a basic proposition that serves useful purposes in ensuring peaceful co-existence and cooperation among states.

  1. THE HISTORICAL BACKGROUND OF THE DISPUTE BETWEEN GERMANY AND ITALY BEFORE THE ICJ

    The facts underlying the dispute between Germany and Italy are fairly simple. During World War II, the German Reich committed many serious breaches of international humanitarian law (IHL) under its Nazi leadership, to the detriment of persons of Italian nationality. Italy was a close ally of Germany since 1936/1937. (3) On June 10, 1940, it entered World War II on the side of Nazi Germany. (4) A few months later, on September 27, 1940, Germany, Italy, and Japan signed the Tripartite Pact to form the so-called Axis. (5) After suffering several military defeats during the following years, and realizing that Nazi Germany was about to lose an armed conflict with the great majority of the nations of the world, Italy left the Axis in September 1943 and joined the Anti-Hitler Coalition of the Allied Powers. (6)

    The rupture of the alliance between Germany and Italy had many serious consequences. Predictably, Italy and the Italian people were henceforth considered to be enemies by German authorities, and even worse, as traitors who deserved harsh treatment. (7) Accordingly, the Nazi government felt that IHL need not be fully respected as required by the new circumstances. As a consequence, many grave breaches of applicable IHL were perpetrated. These breaches may be divided into three major groups of cases.

    First, many Italian civilians were sent to Germany to perform forced labor. Since almost the entire male population of Germany was drafted to serve in the German Wehrmacht (the German armed forces), there was an urgent need for an alternative work force that could keep the economy afloat. Hence, Nazi authorities decided to fill the vacuum by deporting persons from all of the territories occupied by the Wehrmacht to Germany. (8) Many of these forced laborers were assigned to the armaments industry, but others worked in civilian enterprises and in the farm industry. The majority of them were badly treated; others simply had to endure the same hardships as the civilian German population during war time.

    The second group of cases involves Italian prisoners of war. After Italy's abandonment of the Axis, Italian soldiers under the control of German armed forces became prisoners of war, designated Italian Military Internees (IMIs), provided they did not join the forces of the northern part of Italy that temporarily remained under Mussolini's fascist rule (Republic of Salo). (9) Unfortunately, Nazi Germany did not abide by the Geneva Convention of 1929, (10) to which both Germany and Italy were parties. The prisoners were treated ignominiously, and the poor conditions of their detention caused many deaths among them. Additionally, by an arbitrary unilateral act, Nazi Germany purported to deprive the prisoners of their status under international law, classifying them as ordinary civilian workers (11) and compelling most of them to perform hard labor in Germany, contrary to the stipulations of the 1929 Convention. (12)

    After its rebirth as a sovereign state in 1955, the Federal Republic of Germany abstained from providing on its own initiative reparation for victims of war injuries, although it did allocate large amounts to Israel and to individual victims of specific racist measures of persecution. (13) The Republic took the view that it had been compelled to provide huge amounts of reparation to the victorious Allied Powers pursuant to the Potsdam Agreement of 1945. (14) These monies were then distributed among the western group of states in accordance with the Paris Reparation Agreement of January 14, 1946, (15) from which Germany and Italy were both excluded. (16) However, in 2000 Germany enacted a law for the compensation of former forced laborers, (17) which did not include the IMIs pursuant to the general line of reasoning that reparation for general war damages should be postponed until the day of the conclusion of a peace treaty. Although the IMIs had been misused as forced laborers they had kept their prisoner of war status. Indeed, international law provides that no state can unilaterally bring about a change in the legal status of a person when that status is protected by international law. (18) This hard line provoked a high degree of resentment in Italy.

    Lastly, German military units committed a considerable number of massacres against the Italian civilian population/9 When it became clear that Germany would eventually be defeated, resistance groups sprang up in those parts of Italy which were still under German occupation. In many instances, German military forces were attacked while withdrawing from the territory of its former ally. When such attacks by partisans caused serious casualties, German commanders often ordered retaliatory actions. In some villages, hostages were taken and killed mercilessly: generally women, children, and elderly men. Fosse Ardeatine (March 1944), (20) Civitella (June 1944), (21) and Marzabotto (September and October 1944) (22) witnessed the worst crimes, each producing hundreds of victims (23) These massacres cast a deep shadow over German-Italian relations even today.

    Germany has never denied that the actions of the Nazi authorities constituted grave violations of IHL. Germany has also acknowledged that it incurred responsibility for those actions. (24) However, the German government has consistently expressed the view that it made amends for the damage caused, to the greatest conceivable degree. In fact, the Potsdam Agreement imposed harsh sanctions on Germany. Reparations were made in manifold forms (Part IV of the Agreement). A great deal of German industrial investment capital was transferred to the victorious Powers. All German foreign assets were confiscated. Lastly, the Allied Powers determined that Germany should be stripped of roughly one fourth of its territory. The Oder-Neisse border was not permanently fixed as the eastern border of Germany. (25) However, at the time of reunification in 1990, Germany had to accept the Potsdam Agreement as the definitive territorial regime with regard to its eastern neighbors. (26)

    As far as Germany's relationship with Italy is concerned, a number of specific instruments impacted the legal issues. First, in its Peace Treaty with the Allied Powers signed on February 10, 1947, (27) Italy had to accept a number of unfavorable stipulations because it previously was a staunch ally of Nazi Germany. In particular, the Allied Powers did not consider it necessary to provide Italy with rights of reparation against Germany, a country that lay in ruins and could not possibly compensate for all the harm it had inflicted upon other peoples. (28) For this reason, a waiver clause was inserted into the Peace Treaty (Article 77(4)):

    Without prejudice to these and to any other dispositions in...

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