“Jurisdictional Immunities of the State (Federal Republic of Germany case)”;
The International Court of Justice (ICJ) has issued its judgement in Jurisdictional Immunities of the State in the case of the Federal Republic of Germany, hereinafter “Germany” and the Italian Republic, hereinafter ” Italy”.
The case arise before the Court, after that Mr. Luigi Ferrini, an Italian civil who has been arrest-ed in August 1944 and deported to Germany, where he was apprehended and forced to work in a munitions factory until the end of the war, instituted proceeding against the Federal Republic of Germany in the Court of Arezzo (Tribunale di Arezzo) in Italy . After many proceedings be-fore the Italian national courts, on 17 February 2011, the Court of Appeal of Florence decided that Mr. Luigi Ferrini has the right to receive compensation from Germany on the base that juris-dictional immunity of Germany is not unlimited and cannot be invoked in the context of com-mitted crimes under international law. Follow the Ferrini-case, other Italian nationals brought claims against Germany. As a decision made by the Court of Appeal of Florence to indemnify the claimants, took legal charge over Villa Vigoni, property of the German State near Lake Co-mo, Italy`s territory.
On 23 December 2008, Germany filed in the Registry of the Court an Application instituting proceedings against Italy in respect of a dispute originating in “violations of obliga-tions under international law”. Germany requests the Court, to ascertain if Italy failed to respect the judicial immunity conferred by international law, in respect to allowing civil claims to be brought against it in domestic courts. In addition to this, to review the measures of constraint taken against property that belongs to Germany which is located on Italian territory.
Regarding the sources of law used in judgement by the Court, prevails the Article 38, parah.1 (b), of the ICJ Statute defining “international custom, as evidence of a general prac-tice accepted as law” which confers immunity on States. To the extent of the definition, it must provide two main requirements which are general practice, accepted as a practice, being con-sistent and general, pleasing the Court by proving its legally binding on other states; and opinion juris, the belief that such practice is required. Article 11 of the European Convention for the Peaceful Settlement of Disputes, which in relation with customary international law, referring to the states immunity which provides “A Contracting State cannot claim immunity from the juris-diction of a court of another State in proceedings which relate review for harm to the individual or harm to tangible property, if the facts happened in the territory of the State, and if the pro-ducer of the harm or damage was present in that territory at the time when those facts oc-curred”. However, the Court based its judgement on other sources of law. Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Property relates that “a State cannot invoke immunity from jurisdiction before a national court of another State in a proceeding which relates to financial compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State in discussion , if the act or oversight happened in the entire or in part of the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”
Paragraph 73 of the judgement relates that state practice can be found in those na-tional judicial decisions which concerning whether “a State was entitled to immunity in proceed-ings concerning acts allegedly committed by its armed forces in the course of an armed con-flict”. In the settlement of the International Law Commission dated on [2007] 1 AC 270; ILR, Vol. 129, p. 629 House of Lords, between Jones v. Saudi Arabia, the argument about the effect of jus cogens supersede the law of State immunity has been rejected by the national courts of the United Kingdom. Furthermore, in cases of violations of jus cogens the national legislation has State limited immunity. The definition of jus cogens as a peremptory norm of the general international law is describe in Article 53 of Vienna Convention on Law of Treaties as ” a per-emptory norm of general international law is a norm accepted and recognized by the internation-al community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same char-acter.” The court clearly explain that the norm of jus cogens always prevail over any other trustworthy rule of international law whether enclosed in a treaty or in customary international law. In respect of whether or not the rules of jus cogens has been violated, the existence of a conflict between a rule of jus cogens and a rule of customary law which requires one State to accord immunity to another can be denied in the actual case. The two sets of rules, jus cogens regarding “the armed conflicts which prohibits the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour” and the rules of state immunity which ” determine whether or not the courts of one State may exercise jurisdiction in respect of another State ” address different matters. The Court consider that the use of guidelines of State immunity to figure out if or not the Italian courts have ward to hear cases emerging out of those infringements cannot include any dispute with the principles which were abused.
As a conclusion the Court has found that the Italian Republic has branched its ob-ligation to respect the immunity which the Germany enjoys under international law by allowing civil claims to be brought against it on the base of violations of international humanitarian law committed by the German Reich between 1943 and 1945.”