International Law and the International Court of Justice's Decision in Jurisdictional Immunities of the State
Bastin, Lucas, Melbourne Journal of International Law
CONTENTS I Introduction II The Background A The Factual Background B The Contested Doctrinal Background III The Proceedings before the Court A Incidental Proceedings B The Pleadings of the Parties in the Main Proceedings C The Decision of the Court IV International Law and the Decision of the Court V Conclusion
On 3 February 2012, the International Court of Justice ('ICJ' or 'Court') handed down its judgment in Jurisdictional Immunities of the State, (1) effectively ending a clear and persistent schism that had arisen between domestic courts on the question of state immunity for civil tort claims arising out of wartime atrocities.
On the one hand, some of the basic assumptions of international law had been challenged when courts in Greece and Italy held that the law of state immunity could not preclude a state from being sued before the civil courts of another state where the allegations concerned a serious breach of international human rights or humanitarian law or a breach of jus cogens norms. The rush of scholarly commentary following these decisions was voluminous and, in some instances, suggested that an exception to a state's immunity from civil suit in foreign courts was emerging in cases concerning breaches of jus cogens norms.
On the other hand, other jurisdictions had already rejected the argument that such an exception existed, at least in so far as their domestic legal systems would allow, although some courts also held that international law was similarly bereft of a jus cogens exception. In decisions criticised by some for their strict adherence to doctrine, these courts held that, unless an exception to the immunity of states had been prescribed in the governing legislation, it did not matter that the civil suit brought against the state concerned a peremptory norm of international law. This view of the issue also had scholarly support.
With the line in the sand having been drawn, the ICJ delivered its decision. This case note explains in detail the background, substance and ramifications of this decision. It first explains the background to the decision, summarising the facts leading to the case and the contested doctrinal issues before the Court. The case note then reviews the proceedings before the Court and the Court's decision itself, before lastly commenting on the decision's key points of significance for international law.
II THE BACKGROUND
A The Factual Background
The origins of the dispute are of historical notoriety. In September 1943, during the Second World War, Italy surrendered to the Allied Forces and declared war on Germany. Having previously been allied with Germany, much of Italy was occupied by German forces. From October 1943, German forces committed atrocities against Italian nationals in Italy. These atrocities included the mass killing of civilians and the deportation of both civilians and members of the Italian armed forces for use as forced labour in German-occupied territories. (2)
Shortly after the end of the Second World War the Treaty of Peace with Italy (3) was concluded between Italy and the Allied Forces. A number of issues were covered in the Treaty of Peace with Italy, including war reparations, minorities' rights and territorial adjustments. (4) Importantly, art 77(4) provided that Italy waived 'on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945', (5) with the exception of a limited category of claims and without prejudice to certain other rights acquired by Italy as part of the settlement (such as restitution of identifiable property). (6)
Following the Treaty of Peace with Italy, Germany took several other steps to compensate those who suffered during the National Socialist period, two of which were specific to Italy and its nationals. …