Goethe, homeless in rome? State immunity and human rights in Germany v. Italy (II)

• Pages: 329-357
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Ianis Tamoud
• Subject Matter: Derecho Internacional

NOTES

GOETHE, HOMELESS IN ROME? STATE IMMUNITY

AND HUMAN RIGHTS IN GERMANY V. ITALY (II)

IANIS TAMOUD*

ABSTRACT

In 2012, in Jurisdictional Immunities of the State (Germany v. Italy:

Greece intervening), the International Court of Justice (ICJ) ruled that Italy

had violated Germany’s jurisdictional immunity by awarding damages to

World War II victims of forced labor in its domestic courts. The ICJ’s 2012

judgment found that customary international law did not recognize an exception

to the principle of jurisdictional immunity for serious violations of fundamental

human rights. To support its analysis, the Court adopted an inaccurate and

incomplete reading of relevant case law and legislative practice, opting to

maintain a stricter approach to immunity. Because it failed to account for

the lack of a clear and def‌inite answer to the issue posed by the case, domestic

courts and states have somewhat disregarded the ICJ’s judgment. In fact,

courts in Italy persevered in their approach, leading Germany to f‌ile a new case

before the ICJ, Questions of Jurisdictional Immunities of the State and

Measures of Constraint against State-Owned Property (Germany v. Italy),

in 2022.

This Note looks back to the 2012 judgment and highlights the f‌laws of its

reasoning. Taking stock of the various developments that have occurred since

2012, it then offers a renewed reading of the law of jurisdictional immunity as

it presently stands. Should the ICJ reach the merits of Germany’s second case,

this Note argues that customary international law no longer clearly bars courts

from exercising jurisdiction over foreign sovereigns who have committed serious

violations of fundamental human rights.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330

II. DENYING A HUMAN RIGHTS EXCEPTION . . . . . . . . . . . . . . . . . . . 332

A. Italy’s Claim and the Law of Jurisdictional Immunity . . . . . 333

* Georgetown University Law Center, LL.M. 2024; Sciences Po (Paris, France), M.A. 2023, B.A.

2020. The author would like to thank Professors David P. Stewart and Stephen Mathias for their

advice and guidance in drafting this Note. The author is also grateful to the GJIL editorial team

for their careful and thoughtful edits. All views, as well as any mistakes, remain the author’s own.

V

C 2025, Ianis Tamoud.

329

B. Jurisdictional Immunity and Procedure . . . . . . . . . . . . . . . 334

C. Jurisdictional Immunity in French and European Case Law . 335

D. Jurisdictional Immunity and State-Sponsored Terrorism . . . . 337

III. AN INSUFFICIENT AND CONTENTIOUS JUDICIAL DIALOGUE . . . . . . . 340

IV. PERSPECTIVES FOR GERMANY V. ITALY (II). . . . . . . . . . . . . . . . . . . 346

A. Res Judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346

B. Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348

C. Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

I. INTRODUCTION

During his tour of Italy, between 1786 and 1788, Goethe visited

Rome on a trip memorialized by Tischbein with a painting entitled

Goethe in the Roman Campagna, which portrays the German author in the

Roman countryside.

1

Later, the poet returned posthumously to the

Italian capital with the creation of an eponymous Institute, which “pro-

motes German language and German culture in Italy.”

2

See Questions of Jurisdictional Immunities of State and Measures of Constraint Against

State-Owned Property (Ger. v. It.), Application Instituting Proceedings, ¶ 58(b) (Apr. 29, 2022),

https://www.icj-cij.org/sites/default/f‌iles/case-related/183/183-20220429-APP-01-00-EN.pdf.

[hereinafter Application Instituting Proceedings].

This thus far

peaceful stay was, in 2022, disrupted by the prospect of a measure of

attachment against various properties of Germany across Italy.

3

By May

25, 2022, the Institute’s premises were to be sold at auction to execute

an Italian court’s judgment ordering Germany to pay reparations for

acts committed during World War II; thus, Goethe was to be returned

to his Roman Campagna, as in Tischbein’s painting.

Besides the oddity of this case’s presentation—in addition to the

Goethe Institute, the measure of attachment also concerned the German

School in Rome’s facilities

4

—it piques interest as it sounds troublingly fa-

miliar to the international jurist. Indeed, it seems to be an encore to the

International Court of Justice’s (ICJ) 2012 judgment in Jurisdictional

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

5

In this decision,

the Court held that Italy had violated Germany’s jurisdictional immunity—

1. Johann Heinrich Wilhelm Tischbein, Goethe in the Roman Campagna (1787), 164 �206 cm,

Sta

¨del Museum, Frankfurt (Ger.).

2.

3. Id. ¶ 27.

4. Id. ¶ 58(d).

5. Jurisdictional Immunities of State (Ger. v. It.: Greece intervening), Judgment, 2012 I.C.J. 99

(Feb. 3).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

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