07 Feb ICJ Issues Jurisdictional Immunities Judgment
[Ingrid Wuerth is Professor of Law at Vanderbilt Law School and Director of Vanderbilt’s International Legal Studies Program.]
The International Court of Justice has issued its judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Germany won, as most observers had predicted. The dispute arose out of a series of decisions by Italian national courts denying immunity to Germany for conduct that took place at the end of World War II. They include the well-known Ferrini case as well as cases brought in Italy to enforce judgments from Greek courts that similarly denied immunity to Germany for events related to the 1944 Distomo massacre. Italy argued for an exception to immunity on the grounds that some of the conduct took place on the territory of the forum state and because the conduct constituted serious violations international law including jus cogens norms. The Court rejected the first argument, concluding that State immunity protects acta jure imperii by organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. The Court also rejected the second argument, relying on conventions (¶ 89) and domestic legislation, judgments of national courts (including Greek cases after the initial Distomo decision) (¶¶ 83-85, 96) and the ECHR (¶ 91), distinguishing Pinochet as relating to criminal cases against individuals (¶ 87), and noting Italy’s own statements in domestic litigation that this area of law is unsettled and undergoing change (¶ 86). Over at Lawfare, Professor Paul Stephan provides an excellent summary of the judgment, including Judge Trindade’s dissent, and a discussion of the possible impact of this judgment on U.S. human rights litigation.
Germany was widely expected to win this case because state practice generally supports the immunity of states (even for violations of international humanitarian law and jus cogens norms), as the judgment details. Rather than further describing the Court’s reasoning, I want to consider the effect of judgment on two other issues. First, to what extent does the Court leave the door open to progressive development of immunity law by national courts? One might accept the Court’s conclusions about the law today, but still hope to see national courts developing new exceptions to the state law of immunity, as they did in the commercial activity context. The Court’s reasoning has made that somewhat more difficult by rejecting a case-by-case balancing approach to immunity that might encourage courts to deny immunity based on the underlying conduct or the failure of the state to make adequate reparations. (¶¶ 106, 56, 82). This aspect of the Court’s reasoning was criticized in the separate opinion of Judge Bennouna and the dissenting opinion of Judge Yusuf. On the other hand, the costs that this Judgment will ultimately impose on Italy are unclear. The Court does require Italy to reverse the effects produced by the opinions of its national courts (¶ 137), but it also indicates its surprise and “regret” that Germany has denied compensation to the Italian victims bringing these claims (¶ 99). Further negotiations on both fronts seem likely. If the costs of denying state immunity do not appear very high, perhaps in the future national courts will again deny state immunity under different factual circumstances, especially where their own executive branches do not clearly support the immunity of the state that has been sued.
A second question is what effect this judgment will have on the much more controversial question of the functional immunity (ratione materiae) of individual government officials who are not entitled to status-based immunity (ratione personae). Some commentators argue that some individuals accused of international crimes are not entitled to immunity ratione materiae before foreign national courts, as in the Pinochet case. This issue was the subject of controversial dicta in the Arrest Warrant case; the Italy v. Germany Judgment is very explicit that it does not address this question (¶ 91). A few aspects of the Court’s reasoning might bear on the question of individual immunity ratione materiae, however. First, the Court is clear that immunity is not a matter of mere comity but instead is a principle of international law that reflects the sovereign equality of states (¶¶ 53-57). If individual immunity is a function of state immunity, this makes it more difficult to argue that such immunity is a matter of comity, not law. Second, the court characterizes immunity as “essentially procedural in nature” and as “entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful (¶ ¶ 58, 93). Some have argued that individual immunity is an aspect of substantive law, a conclusion that is arguably in tension with the Court’s reasoning here. Third, the Court relies very heavily on the judgments of national courts, (¶¶ 73-76, 85, 96) concluding in effect that Italian national courts were virtually alone in denying immunity to German for the reasons that they did (¶¶ 77, 96). This may bode well for claims that individuals are not entitled to functional immunity for international crimes, as the practice is at least somewhat more mixed. On the other hand, the Court notes in one context that national courts gave the state immunity question “careful consideration;” some national court decisions that are referred to show the erosion of immunity for individuals do not explicitly consider immunity at all. As well, the Judgment leaves open entirely the question of how much state practice/how many national court decision it would take to show that international law recognizes an exception to immunity.