On February 3, 2012, the International Court of Justice (“ICJ”) handed down its decision in the Jurisdictional Immunities of States Case (Germany v. Italy, w/Greece Intervening). Germany won the case.
At issue before the ICJ was the immunity of Germany from the judicial process of Italy (and Greece) for forced labor, deportations, and massacres committed by German armed forces during the Second World War. The Court held that the long standing principle of immunity of states from the judicial process of foreign domestic courts could not be abrogated even when the substantive claim before the foreign domestic court involved gross violations of human rights on the territory of the forum state by organs of the foreign state acting in their official capacity.
This decision comes at a time when a significant obstacle for the successful conclusion of on-going stalled armed conflicts is the immunity of armed forces for violations of human rights committed during the course of the armed conflict. By declining to abrogate foreign sovereign immunity, the Court likely had an eye toward allowing states the freedom of action to successfully negotiate peaceful resolutions to armed conflicts, rather than prolong peace in hopes of achieving an all victory in order to forego responsibility for the acts of armed forces during the course of the armed conflict.
The Second World War was a global conflict. Almost no territory was left untouched by its effects. The atrocities committed during the war spawned the current international legal order and was the genesis of the human rights movement.
In Italy, German armed forces forced Italian civilians into slavery and deported them to Germany to work in factors. In Greece, German armed forces committed a massacre against Greek civilians thought to have an affiliation with Greek partisans.
During negotiations to formally end the war after Germany’s unconditional surrender, Germany agreed to undertake various reparations schemes to compensate victims of the Third Reich’s odious policies while Italy and Greece agreed to waive all claims of it civilians arising from the war. However, the claims of numerous victims were invalidated by Germany’s compensation commission for a variety of procedural and substantive reasons. In particular was one Mr. Ferrini, who was forcibly deported from Italy to Germany and forced into manual labor. Germany claimed Mr. Ferrini was detained as a prisoner of war and was excluded from the competency of their reparations scheme.
Mr. Ferrini brought suit in Italian domestic courts against the state of Germany for the injuries, mental and physical, suffered by him during his forced deportation and subsequent labor in Germany during the course of the war. Germany declined to participate in the adjudication because Germany insisted that the state of Germany maintained immunity from the judicial process of Italy. Generally, a state is immune from the judicial process of foreign domestic courts when it commits sovereign acts. However, when a state acts in a commercial capacity or on the territory of the foreign forum’s territory, the state can be subjected to the judicial process of a foreign domestic court.
In its holding, the Italian court declined to honor Germany’s immunity from judgment of its courts and proceeded to hold Germany responsible for the damages suffered by Mr. Ferrini. To satisfy the judgment, Italian courts executed on several German owned properties within Italy that were used by Germany for cross-cultural purposes. Germany brought an application to the ICJ to resolve the dispute between Germany and Italy regarding Germany’s immunity from the judicial process of foreign domestic courts.
The ICJ held that the exercise of jurisdiction by Italian courts and the execution of those judgments was a violation of international law. The ICJ reasoned that states retain their immunity for the acts of their armed forces committed on the territory of a foreign state during the course of an armed conflict. This judgment severely restricts the rights of states to adjudicate gross violations of human rights that occur on their territory.
Please see video: Nazi massacre village fights for compensation
The ICJ’s opinion in the Jurisdictional Immunities of the State should first be placed in its proper historical context. No country was left untouched by the Second World War and conduct comparable to those committed by Germany at issue in the Ferrini case were committed by virtually every country. For instance, the United States used uncompensated forced labor of German POWs and civilians after their occupation of Germany. This does not suggest some form of moral equivalency between the regimes, but rather suggests that if the ICJ were to allow claims from over 60 years ago to be resurrected against states who committed gross violations of human rights virtually every state would be subjected to trial proceedings in every far-reaching jurisdiction across the globe. This would severely strain international diplomacy and the comity enjoyed between states.
Secondly, the ICJ opinion should be placed in its contemporary context. Current armed conflicts in Israel, Iraq, and Afghanistan have resulted in gross violations of human rights by both opposing forces. If the ICJ were to permit the abrogation of sovereign immunity, regardless of treaty provisions waiving all claims, for gross violations of human rights committed by armed forces the effect would likely be to prolong the conflict until one side could claim a victory sufficient to suppress any claim against the state. In fact, issues of immunity were central to the United States decision to withdraw from Iraq. Read more about the Haditha massacre and immunity of armed forces here.
If states were permitted to abrogate their obligations under treaty and custom for legal claims arising from an armed conflict, then international peace and security between states would be tenuous. However, the result permits states to sail the rights of their civilians down the river to negotiate what is the best resolution for states, and not the civilians to whom the state is purportedly responsible.
On another matter, the Jurisdictional Immunities of the State opinion appears to leave the ICJ’s most ambitious human rights doctrine – convergence – in limbo. The convergence doctrine holds that a state’s obligations under international human rights law are not suspended when the state enters into an armed conflict. In the Armed Activities Case (Democratic Republic of Congo v. Uganda), the ICJ held that an occupying power had obligations not only as the occupying power under the Fourth Geneva Convention but also had obligations under any treaty in force before the occupying power took effective control of the territory. Under the principle articulated by the ICJ in the Jurisdictional Immunities of the State, civilians in formerly occupied territory can have no recourse through domestic courts for human rights violations committed by foreign armed forces during an armed occupation. These disputes can only be resolved through bilateral negotiations between states.
In the Jurisdictional Immunities of the State Case, the ICJ handed down a decision that weighed heavily in favor of state interests over individual human rights claims. While the effects of the decision conform to traditional principles of international law that emphasize a ‘community of nations’ over the rights of individuals, the decision sends a strong signal to human rights activists that the ‘humanization’ of international law is far from assured and that state interests continue to seriously impede the full aspiration of the human rights movement especially to those most vulnerable to violations, persons living in areas of conflict and occupation.
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