scholarly journals State Immunity Before the International Court of Justice: Jurisdictional Immunities of the State (Germany v Italy)

2013 ◽  
Vol 44 (1) ◽  
Author(s):  
Matthew McMenamin
Keyword(s):  
World War Ii ◽  
Armed Forces ◽  
The State ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Jus Cogens

The International Court of Justice recently gave judgment in Jurisdictional Immunities of the State. The case concerned German state immunity from civil claims brought in Italian courts by victims of serious violations of international humanitarian law committed by German armed forces during World War II. The Court offered a valuable clarification of the relationship between state immunity and jus cogens norms at customary international law. The conservative reasoning was thorough and extensive and the decision is likely to ossify the evolution of state immunity.

I. INTERNATIONAL COURT OF JUSTICE: JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v ITALY) JUDGMENT OF 3 FEBRUARY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 741-752
Author(s):  
J Craig Barker
Keyword(s):  
Armed Forces ◽  
The State ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
Vexed Question ◽  
German Reich

The vexed question of State immunity and the extent and application thereof has once again found its way to the International Court of Justice (the Court) in the form of the Case Concerning Jurisdictional Immunities of the State (Germany v Italy).1 On this occasion, the precise question concerned the so-called ‘territorial tort exception’ to State immunity and involved an assessment of the immunity to be granted to Germany, by Italy, in relation to compensation claims brought in Italy by Italian claimants against German armed forces and the organs of the German Reich during the Second World War.2

State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State

2012 ◽  
Vol 13 (6) ◽  
pp. 773-782 ◽  
Author(s):  
Paul Christoph Bornkamm
Keyword(s):  
Human Rights ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Legal Proceedings ◽  
State Immunity ◽  
Court Of Justice ◽  
European Court ◽  
International Court

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

Germany v Italy: The Triumph of Sovereign Immunity over Human Rights Law

2012 ◽  
Vol 1 (1) ◽  
pp. 93-109
Author(s):  
Onder Bakircioglu
Keyword(s):  
The State ◽  
Human Rights Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
International Crimes ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Judicial Proceedings ◽  
Jus Cogens

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

Identifying Conflicts of Norms: The ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 25 (4) ◽  
pp. 1003-1012 ◽  
Author(s):  
FRANÇOIS BOUDREAULT
Keyword(s):  
International Law ◽  
The State ◽  
Humanitarian Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
German Reich

AbstractThe potential for conflicts of norms is particularly great in modern international law. Yet until now, the International Court of Justice has said very little as to what it considers a conflict of norms. The opportunity to do so arose in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). There, it was argued that granting Germany sovereign immunity in proceedings before Italian courts involving civil claims for violations of international humanitarian law (IHL) committed by the German Reich between 1943 and 1945 would come in conflict with prevailing peremptory (jus cogens) norms of international law. In its 3 February 2012 Judgment, the ICJ rejected this argument. In the present article, the author argues that the conceptions of conflict of norms underlying the Court's judgment and the dissent of Judge Cançado Trindade both have weaknesses. The author suggests an alternative framework to ascertain conflicts of norms. He then applies this framework to the rules of state immunity and the IHL rules breached by Germany, agreeing in the end with the conclusion reached by the majority of the ICJ that these rules did not conflict.

Judgment No. 238 – 2014 (IT. Const. Ct.)

2015 ◽  
Vol 54 (3) ◽  
pp. 471-506
Author(s):  
Alessandro Chechi
Keyword(s):  
The State ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Constitutional Legitimacy

On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

The International Court of justice: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 51 (3) ◽  
pp. 563-605
Author(s):  
Ben Love
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
German State ◽  
Commercial Property ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
German Reich

On February 3, 2012, the International Court of Justice (‘‘ICJ’’ or ‘‘Court’’) issued a widely-anticipated judgment in a dispute over state immunity between Italy and Germany. The Court found that Italy violated its international law obligation to respect the jurisdictional immunity of the German state by: (i) allowing individuals to bring civil claims against Germany in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945; (ii) declaring Greek judgments finding similar international law violations by Germany enforceable in Italy; and (iii) taking measures of constraint against public and non-commercial property owned by Germany in Italy. The Court accordingly found that Italy must ensure that the decisions of its courts infringing upon Germany’s immunity cease to have effect.

Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice (ICJ) of 3 February 2012 inJurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2013 ◽  
Vol 14 (9) ◽  
pp. 1817-1850 ◽  
Author(s):  
Hermann-Josef Blanke ◽  
Lara Falkenberg
Keyword(s):  
Human Rights ◽  
War Crimes ◽  
The State ◽  
Federal Republic Of Germany ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Compensation Claims

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.

Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)

2014 ◽  
Vol 16 (1) ◽  
pp. 123-137
Author(s):  
Stefania Negri
Keyword(s):  
War Crimes ◽  
The State ◽  
Customary Law ◽  
International Human Rights Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Peremptory Norms

Abstract In the judgment delivered in the case concerning Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice held that under the present state of international customary law State immunity encompasses all acta jure imperii, regardless of whether they are unlawful. Following the ruling that States are entitled to jurisdictional immunities before foreign courts even if their sovereign acts amount to violations of peremptory norms, the Court found that Italy had violated Germany’s immunity from jurisdiction and enforcement. In rendering such a conservative judgment, the Court missed a double opportunity: to contribute to the development of international law by interpreting the rule on sovereign immunity in harmony with international human rights law and its dynamics, and to finally serve justice for the victims of war crimes.

scholarly journals Jurisdictional Immunities of the State in International Law

2019 ◽  
pp. 227-250
Author(s):  
Paul Gragl
Keyword(s):  
International Law ◽  
The State ◽  
Humanitarian Law ◽  
Foreign National ◽  
International Court Of Justice ◽  
National Courts ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Substantive Law

This chapter discusses the main and most pressing legal issues concerning jurisdictional immunities of the state in international law, specifically looking at the most recent international decision on the scope of state immunity—the Jurisdictional Immunities case of the International Court of Justice (ICJ). The 2012 judgment by the ICJ in the Jurisdictional Immunities case has reinvigorated the debate surrounding the question whether states enjoy immunity before the courts of other states in questions of grave human rights violations and violations of international humanitarian law. Jurisdictional immunity is not absolute anymore, and it is now accepted that private law acts of states can be subjected to adjudication before foreign national courts, whereas public law acts cannot. This raises the question of whether the plea for immunity still is a purely procedural principle or whether it is now also shaped by questions of substantive law.

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