Constitutional paths not taken: Germany vs. Italy before the ICJ

by CHRISTIAN DJEFFAL

On 3 February 2012 the International Court of Justice (ICJ) gave the eagerly awaited judgment in the case Jurisdictional Immunities of the State. It held that Italy violated its international obligations towards Germany in three instances. Firstly, civil claims based on violations of humanitarian law during the Second World War were allowed before Italian courts. Secondly, measures of constraint were taken against German state property, namely the ‘Villa Vigoni’. Thirdly, judgments based on violations of humanitarian law in Greece during the Second World War were declared enforceable in Italy. The issue before the court concerned several hundred thousand Italian soldiers that were detained by the German army after Italy declared war on Germany, deported to Germany and German occupied territories and forced to work without remuneration. These internees did not qualify for German schemes that aimed to compensate victims for different reasons. Although the Italian state received compensation for outstanding claims of natural and legal persons it did not compensate the former internees.

At the heart of the case lied the question whether Germany could invoke state immunity or whether there existed an exception to the immunity so that Italian courts could establish their jurisdiction. Using Joe Weiler’s metaphor of the geology of international law, one could say that the law of state immunity is rooted deep in the lower layers of public international law where maxims like par in parem non habet imperium of Bartolus de Sassoferato played an important role in justifying that one state has no jurisdiction over the other.

Have new strata changed the nature of the law on state immunity? To answer this question, the court had to apply customary international law as all attempts of codification on the regional or international level failed to attain universal consent of the states.

The ICJ employed a positivistic and source oriented approach. Whereas the court has in several instances been criticised for not providing enough evidence of state practice or opinio juris or being unclear how the two categories interrelate, the case at hand will find its way into all relevant textbooks and articles on the matter as the court approached the questions systematically and thoroughly.

The big question was whether there were any exceptions to state immunity that could be invoked by Italy. Of the several reasons brought forward by Italy the ‘ius cogens exception’ was most controversially debated in the last twenty years. This discussion was triggered by an innovative essay of three American law students arguing that states should not be allowed to claim immunity if they violated ius cogens norms. This fresh take on the matter found some support in American and European academia. Before the judgments of Italian courts, there were no precedents h…