Rodney Atkinson
www.rodneyatkinson.freeuk.com
“the actions of the German armed forces amounted to crimes under international law“……
BUT…
In the Court’s opinion, State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State.(ie the State where the events occurred)
A Judgement of The International Court of Justice of 3/2/2012 in a case brought by Germany against Italy, the latter supported by Greece, shows that States can commit hideous crimes but still be immune from prosecution, although this is not true of individuals whom those same immune states can and do hand over for prosecution!
Both countries had claimed reparations or compensation from Germany for war crimes committed during the second world war. (In addition Greece claims that Germany owes billions because the Nazi Government forced occupied Greece to make a loan to Germany to fund the costs of occupying the country! That forced loan, Greece claims should be paid back – the amount being some 54 billion Euros.) The latter case was not considered by this judgment which considered only the following:
1. Greece used Italian court to claim compensation for a German massacre of Greeks at Distomo during the Second World War
2. The Italians put a charge on a German property in Italy as a means of claiming compensation for war crimes against Italians
On both counts the ICJ found for Germany by upholding its State immunity. However it did declare that Germany’s decision not to compensate Italian prisoners of war was unreasonable. The Court also found that:
“the actions of the German armed forces and other organs of the German Reich giving rise to the proceedings before the Italian courts were serious violations of the law of armed conflict which amounted to crimes under international law”.
BUT THAT IN NO WAY ALTERED THE FACT OF THE IMMUNITY OF THE GERMAN STATE. The Court also declared that the judgment did not mean that individuals could not be prosecuted for war crimes, of which there have of course been many examples – Klaus Barby, Adolf Eichmann etc.
THIS JUDGMENT IS GROTESQUE – BUT CONSISTENT WITH INTERNATIONAL LAW WHICH APPARENTLY ACCEPTS STATES ARE IMMUNE FROM PROSECUTION EVEN IF THEIR CRIMES ARE HIDEOUS AND EVEN IF THEY ARE COMMITTED IN OTHER STATES AND IN THEIR PURSUIT OF THE CONQUEST OF OTHER STATES. THE IMMUNITY EXTENDS TO TORTURE BY STATES.
These are the relevant extracts from the judgement:
77. In the Court’s opinion, State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. That practice is accompanied by opinio juris, as demonstrated by the positions taken by States and the jurisprudence of a number of national courts which have made clear that they considered that customary international law required immunity. The almost complete absence of contrary jurisprudence is also significant, as is the absence of any statements by States in connection with the work of the International Law Commission regarding State immunity and the adoption of the United Nations Convention or, so far as the Court has been able to discover, in any other context asserting that customary international law does not require immunity in such cases.
78. In light of the foregoing, the Court considers that customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict. That conclusion is confirmed by the judgments of the European Court of Human Rights to which the Court has referred (see paragraphs 72, 73 and 76).
In the present case, the Court has already made clear (see paragraph 52 above) that the actions of the German armed forces and other organs of the German Reich giving rise to the proceedings before the Italian courts were serious violations of the law of armed conflict which amounted to crimes under international law. The question is whether that fact operates to deprive Germany of an entitlement to immunity.
90. The European Court of Human Rights has not accepted the proposition that States are no longer entitled to immunity in cases regarding serious violations of international humanitarian law or human rights law. In 2001, the Grand Chamber of that Court, by the admittedly narrow majority of nine to eight, concluded that,
“Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.” (Al-Adsani v. United Kingdom [GC], Application No. 35763/97, Judgment of 21 November 2001, ECHR Reports 2001-XI, p. 101, para. 61; ILR, Vol. 123, p. 24.)
The following year, in Kalogeropoulou and others v. Greece and Germany, the European Court of Human Rights rejected an application relating to the refusal of the Greek Government to permit enforcement of the Distomo judgment and said that,
“The Court does not find it established, however, that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity.” (Application No. 59021/00, Decision of 12 December 2002, ECHR Reports 2002-X, p. 417; ILR, Vol. 129, p. 537.)
91. The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.
The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful……..
Moreover, against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.
COURT ATTACKS GERMANY ON COMPENSATION FOR ITALIAN PRISONERS:
99. The Court notes that Germany has taken significant steps to ensure that a measure of reparation was made to Italian victims of war crimes and crimes against humanity. Nevertheless, Germany decided to exclude from the scope of its national compensation scheme most of the claims by Italian military internees on the ground that prisoners of war were not entitled to compensation for forced labour (see paragraph 26 above). The overwhelming majority of Italian military internees were, in fact, denied treatment as prisoners of war by the Nazi authorities. Notwithstanding that history, in 2001 the German Government determined that those internees were ineligible for compensation because they had had a legal entitlement to prisoner-of-war status. The Court considers that it is a matter of surprise and regret that Germany decided to deny compensation to a group of victims on the ground that they had been entitled to a status which, at the relevant time, Germany had refused to recognize, particularly since those victims had thereby been denied the legal protection to which that status entitled them.
ITALY TAKES CHARGE ON GERMAN PROPERTY IN ITALY TO PURSUE COMPENSATION:
113. Before considering whether the claims of the Applicant on this point are well-founded, the Court observes that the immunity from enforcement enjoyed by States in regard to their property situated on foreign territory goes further than the jurisdictional immunity enjoyed by those same States before foreign courts.
GREEK MASSACRE VICTIMS GET ITALIAN COURTS TO ENFORCE CLAIM FOR COMPENSATION AGAINST GERMANY
121. In its third submission, Germany complains that its jurisdictional immunity was also violated by decisions of the Italian courts declaring enforceable in Italy judgments rendered by Greek courts against Germany in proceedings arising out of the Distomo massacre. In 1995, successors in title of the victims of that massacre, committed by the German armed forces in a Greek village in June 1944, brought proceedings for compensation against Germany before the Greek courts.
By a judgment of 25 September 1997, the Court of First Instance of Livadia, which had territorial jurisdiction, ordered Germany to pay compensation to the claimants. The appeal by Germany against that judgment was dismissed by a decision of the Hellenic Supreme Court of 4 May 2000, which rendered final the judgment of the Court of First Instance, and at the same time ordered Germany to pay the costs of the appeal proceedings. The successful Greek claimants under the first-instance and Supreme Court judgments applied to the Italian courts for exequatur of those judgments, so as to be able to have them enforced in Italy, since it was impossible to enforce them in Greece or in Germany (see above, paragraphs 30 and 32). It was on those applications that the Florence Court of Appeal ruled, allowing them by a decision of 13 June 2006, which was confirmed, following an objection by Germany, on 21 October 2008 as regards the pecuniary damages awarded by the Court of First Instance of Livadia, and by a decision of 2 May 2005, confirmed, following an objection by Germany, on 6 February 2007 as regards the award of costs made by the Hellenic Supreme Court. This latter decision was confirmed by the Italian Court of Cassation on 6 May 2008. As regards the decision confirming the exequatur granted in respect of the judgment of the Court of First Instance of Livadia, it has also been appealed to the Italian Court of Cassation, which dismissed that appeal on 12 January 2011.
131. In light of this reasoning, it follows that the Italian courts which declared enforceable in Italy the decisions of Greek courts rendered against Germany have violated the latter’s immunity.
ATTEMPT TO ENFORCE CLAIM BY CHARGING GERMAN PROPERTY
109. On 7 June 2007, certain Greek claimants, in reliance on a decision of the Florence Court of Appeal of 13 June 2006, declaring enforceable in Italy the judgment rendered by the Court of First Instance of Livadia, in Greece, which had ordered Germany to pay them compensation, entered in the Land Registry of the Province of Como a legal charge against Villa Vigoni, a property of the German State located near Lake Como (see above, paragraph 35).
119. It is clear in the present case that the property which was the subject of the measure of constraint at issue is being used for governmental purposes that are entirely non-commercial, and hence for purposes falling within Germany’s sovereign functions. Villa Vigoni is in fact the seat of a cultural centre intended to promote cultural exchanges between Germany and Italy. This cultural centre is organized and administered on the basis of an agreement between the two Governments concluded in the form of an exchange of notes dated 21 April 1986. Before the Court, Italy described the activities in question as a “centre of excellence for the Italian-German co-operation in the fields of research, culture and education”, and recognized that Italy was directly involved in “its peculiar bi-national . . . managing structure”. Nor has Germany in any way expressly consented to the taking of a measure such as the legal charge in question, or allocated Villa Vigoni for the satisfaction of the judicial claims against it.
120. In these circumstances, the Court finds that the registration of a legal charge on Villa Vigoni constitutes a violation by Italy of its obligation to respect the immunity owed to Germany.
