From Teachings as Repositories to Teachings as Gateways: Revisiting the Use of Teachings Under Article 38(1)(d) of the ICJ Statute in Germany v. Italy

[Aldo Zammit Borda is a Professor at The City Law School, City St George’s, University of London.

Stefan Mandelbaum is a Lecturer at Leicester Law School, University of Leicester.

Andrea Maria Pelliconi is a Lecturer in Human Rights Law at the University of Southampton.]

The ICJ’s 2012 judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) has been read from many angles. Commentators have considered its treatment of jus cogens (here and here); the contemporary law of state immunity (here, here, here and here); war reparations and access to justice for victims of grave breaches; and the relationship between national and international courts. Italy’s Constitutional Court 2023 decision produced a further round of debate, with significant exchanges. This post focuses on something that has received less attention: how the majority and two dissenting judges, Cançado Trindade and Yusuf, used (or did not use) teachings under Article 38(1)(d) of the ICJ Statute when undertaking legal determination, and how this may have influenced the differing conclusions they reached.

This post adopts this angle because the role of teachings under Article 38(1)(d) remains unsettled in sources of international law debates; yet, how that role is understood has consequences for legal determination. The contested status of teachings was brought to the fore in the ongoing work of the International Law Commission (ILC) on subsidiary means. The conventional view holds that teachings serve a strictly subsidiary function: they help to “uncover” the applicable law when other methods, such as a review of state practice or of general principles, fall short. On this account, “the role of doctrine [is] limited to ‘finding out’ what the rule [is]”, invoked only when more direct evidence is insufficient. 

This approach runs into at least two difficulties, however. First, if judges (and their judicial assistants) have already surveyed the direct evidence of the law and found it inconclusive, it is not obvious what additional insight scholars may have access to that judges themselves have been unable to extract from the same materials. Second, the framing presents legal determination as a neutral exercise of discovery, when in practice the choice of how to characterise an issue, and which bodies of law are brought within that framing, is itself a value-laden choice that influences how the applicable law is determined. 

We argue in a recent article in the American Journal of International Law that this is precisely where teachings can do different, and more demanding, work. Where the law is unclear and judges face the prospect of “the blind alley of a non liquet” (1920 Advisory Committee of Jurists), teachings should be approached pluralistically, as gateways to different modes of thinking about the law and finding justice. Rather than being used as unlikely repositories from which to uncover law, they could serve as springboards to alternative ways of imagining valid legal determination. They may challenge received orthodoxies, offer competing answers to what counts as the relevant legal context, which materials are taken to be pertinent, and ultimately what the applicable law is held to be. 

Germany v. Italy is one of the cases that makes this visible. The competing approaches discussed below, on whether and how to engage with teachings, have influenced, we argue, the differing conclusions each route reaches.

The Majority: Teachings as Unnecessary

While the facts of this case are well known (see here, here, and here ), briefly, Germany instituted proceedings against Italy on 23 December 2008, and Greece was subsequently permitted to intervene as a non-party, in so far as its intervention was limited to the decisions of Greek courts declared enforceable in Italy. The claims arose from violations of international humanitarian law committed by the German Reich between 1943 and 1945. These included massacres of civilians in occupied Italy, the deportation of Italian civilians to forced labour in Germany, and the denial of prisoner of war status to captured members of the Italian armed forces, who were likewise used as forced labourers. In Ferrini, decided on 11 March 2004, the Italian Court of Cassation held that Italian courts had jurisdiction over claims for compensation brought against Germany on the ground that immunity does not apply where the act complained of constitutes an international crime, and further claims followed. Italian courts also declared enforceable in Italy decisions of Greek courts concerning the Distomo massacre and, on the basis of one of those decisions, the Greek claimants registered a legal charge over Villa Vigoni, German State property near Lake Como. Germany argued that the Italian judgments breached its jurisdictional immunity and that the charge over Villa Vigoni breached its immunity from enforcement. The Court upheld each of these claims, finding by twelve votes to three that Italy had violated Germany’s immunity by allowing the civil claims to proceed, and by fourteen votes to one in respect of the charge over Villa Vigoni and the enforcement of the Greek judgments. 

In determining the applicable law, the majority decision does not engage with any teachings under Article 38(1)(d) of the ICJ Statute. The omission is the consequence of a sequence of methodological choices that, considered together, foreclose any role for teachings in the Court’s reasoning. The first such choice concerns the framing of the question itself. Although the Court had recognised, at para. 50, a broader question concerning the effect of unfulfilled reparation duties on immunity, when it turned to the merits it confined itself to whether “immunity is applicable to acts committed by the armed forces of a State … in the course of conducting an armed conflict” (para. 61).

This narrowing is reinforced by a second methodological choice, namely the procedural/substantive separation. At para. 58, the Court declares that “the law of immunity is essentially procedural in nature … It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful”. The same separation is also applied at para. 93, where the Court dismisses the jus cogens conflict argument on the basis that the rules of state immunity “do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful”. The body of substantive law on serious human rights violations, together with the scholarly literature that has developed around it, is thereby sealed off from the procedural law-focused, immunity inquiry.

With the question narrowed and the substantive law set to one side, the legal determination is then confined to procedural law emerging from state practice and opinio juris alone. The Court canvasses national legislation, decisions of national courts, statements made by states, and intergovernmental conventions, with no recourse to teachings at any point. From this perspective, the law is uniform and clear, and the judgment concludes that “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 of armed forces in armed conflict (para. 77), and that “under customary international law as it presently stands, a State is not deprived of immunity” even where serious violations of human rights or humanitarian law are at stake (para. 91).

The absence of teachings, on this account, is the natural corollary of the methodology adopted. Within the narrow and formalistic framing adopted by the majority, the Court was able to determine a uniform customary international law. Within this framing, the law was clear and there were no “grey zones” for teachings to fill. While the Court acknowledged the ‘unfortunate’ consequence of its conclusion (that “the immunity from jurisdiction of Germany … may preclude judicial redress for the Italian nationals concerned” (para. 104)), it located that consequence outside the proper scope of its legal framing, treating it as an extra-legal matter for inter-state negotiation.

The Dissenters: Reframing the Question

Both dissenting opinions depart from the majority in how they characterise the question. And once the framing changes, the clear uniformity that the majority discerns in state practice becomes more tenuous, and the procedural/substantive separation appears less foundational than the judgment treats it to be. According to Judge Yusuf, the majority’s formulation of the issue is “too abstract and formalistic as compared to the real life situation of the victims of Nazi atrocities who, for the lack of any alternative means of redress, had to submit their claims for reparation to Italian courts” (para. 7). Once the issue is reframed, the applicable law changes, with teachings gaining in importance, although the two dissenters use them in distinctive ways.

Cançado Trindade: Teachings as Gateways to Humanity’s Law

Judge Cançado Trindade’s reframing involves a widening of the legal context within which the question is to be posed. He considers the relevant legal framework to concern the interplay between immunity, grave breaches, and the right of access to justice within an international legal order whose centre of gravity has shifted, since 1945, towards the human person. As he puts it at para. 177: “We are here before the invocation of State immunity in respect of the perpetration of international crimes … and of the individual victims’ right of access to justice … What is the relevance of that distinction between acta jure imperii and acta jure gestionis for the consideration of the present case before the Court? None”.

This widening of the legal context requires recourse to teachings, and Cançado Trindade anchors their use directly in Article 38(1)(d) of the ICJ Statute. At para. 32, he insists that consideration of the issue “cannot thus prescind from, and be exhausted in, a review only of case law (both international and domestic) on the procedural issue of State immunity strictly. Attention is to be turned also to the most lucid international legal thinking, drawing on the underlying human values”. The selection of teachings on which he relies is purposive, drawing on authors who lived through the world wars and who therefore wrote from a vantage point in which the detachment of legal form from human consequence was not an abstract concern but a recent memory. He cites “the apparently forgotten thoughts of three distinguished jurists, who belonged to the same generation which witnessed and survived two World Wars” (para. 33): Albert de La Pradelle, Max Huber, and Alejandro Alvarez. The implication is that those people who have experienced Nazi terror “know the meaning of history better than us” (Wight), and should therefore be heeded. Their writings are offered as a corrective to a mode of legal reasoning that risks becoming too detached from the lives at stake. According to Judge Cançado Trindade, these jurists “did not at all pursue a State-centric approach to our discipline. On the contrary, they advanced an entirely distinct approach, centred on the human person” (para. 40). In his dissent, he also draws on the “collegial doctrinal work” (Section VI) of the Institut de droit international and the International Law Association.

Teachings, used in this way, do epistemological work. They unsettle the procedural/substantive separation, which Cançado Trindade describes as “not ontologically nor deontologically viable” (para. 295). They expose the “tautological assumption” through which the Court’s reasoning “leads … to its upholding of State immunity even in the grave circumstances of the present case” (para. 296). And they support a different determination of the applicable law: there is “no immunity for crimes against humanity. In cases of international crimes, of delicta imperii, what cannot be waived is the individual’s right of access to justice” (para. 308).

Yusuf: Teachings as Resources for a Workable Rule

Judge Yusuf’s reframing of the question, while sharing Cançado Trindade’s rejection of the majority’s narrow formulation, proceeds on more practical terms. He widens the question from the majority’s formulation to one concerning how immunity should operate where the victims of grave breaches admitted by the responsible state have no alternative remedy, reflecting the specific circumstances of this case. Within this framing, far from being clear, customary international law “remains fragmentary and unsettled” (para. 24). State immunity is “as a matter of fact, as full of holes as Swiss cheese” (para. 26). From within Yusuf’s reframing, the applicable law remains in a “grey zone” whose contours continue to evolve (para. 47). The “uncertainties cannot adequately be resolved, in my view, through a formalistic exercise of surveying conflicting judicial decisions of domestic courts” and counting them up (para. 27).

Once the law is treated as unsettled, teachings become indispensable resources for surfacing competing ways of thinking about the law and its application. For instance, in his dissent, Judge Yusuf cites Lady Fox, who articulated the asymmetry between criminal proceedings against state officials and civil immunity for the state itself: it is “illogical and possibly morally unjustifiable that an individual official might currently be subject to criminal persecution in national courts but that the State which ordered the acts might be sheltered by immunity from civil proceedings for reparation for the consequences of such crimes” (para. 40). He also cites Benedetto Conforti, who supports the proposition that domestic courts “are able to review whether a customary rule corresponds to the exigencies of equity and justice, and if it does not, to refuse to apply it” (para. 49). And Theo van Boven’s commentary on the UN Basic Principles on the Right to Remedy, which supports the view that the right to an effective remedy for gross human rights violations forms part of customary international law (para. 32).

The teachings on which Yusuf draws do not purport to ‘discover’ a settled rule of customary law. They offer, instead, competing principles and perspectives that enable him to bridge some of the grey zones and to determine a “limited and workable exception to jurisdictional immunity in those circumstances where the victims have no other means of redress” (para. 58).

Conclusion

On the same facts, the majority and the two dissenting opinions reached fundamentally different conclusions, not because they had different materials before them, but because they framed the issue differently and, as a result, engaged teachings differently. The majority treated the issue as procedural and the applicable law as clear. There were no grey zones that required teachings to be invoked. The dissenters considered the law to be far less clear and treated teachings as gateways: Cançado Trindade to humanity’s law, Yusuf to a workable rule for last-resort cases concerning serious human rights violations. In the context of the ILC’s ongoing work on subsidiary means, we develop in our AJIL article the case for this latter, more pluralistic approach to teachings, one that uses them as gateways to alternative ways of imagining valid legal determination. The dissents in Germany v. Italy show what such a pluralist reading makes possible.