Foreign armed forces (and their State) enjoy absolute immunity from civil proceedings for compensation in respect of personal injury caused in the territory of the forum State: the International Court of Justice (“ICJ”) may well have said as much in its judgment of 3 February 2012 in the case of Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening). In that case, the ICJ held that Italy had violated its obligation under international law to respect the immunity of Germany by allowing civil claims to be brought against Germany based on atrocities committed by the German armed forces during the Second World War, and by declaring enforceable in Italy decisions of Greek courts based on similar atrocities. This case marks the culmination of a legal drama that lasted some fifteen years.

In the late 1990s, a series of high-profile cases were brought by individual claimants against Germany in Italy and Greece, seeking compensation for atrocities committed by the German armed forces between 1943 and 1945. In Ferrini v Germany (2004) 128 I.L.R. 658 the Italian Court of Cassation held that Germany could not claim immunity since the act complained of, namely deportation to forced labour, constituted an international crime. Germany's immunity was likewise denied in Mantelli v Germany (2009) 103 A.J.I.L. 122, concerning deportation, and in Milde (Judgment of 21 October 2008), concerning massacres.

Meanwhile, claimants in Greece instituted proceedings against Germany for compensation for massacres committed by the German occupation forces in Greece. The Greek Court of Cassation held that immunity did not cover the criminal acts of an occupying force committed as an abuse of sovereign power (Distomo Massacre Case, (2000) 129 I.L.R. 513). Unable to enforce the judgments in Greece (for lack of executive authorisation) and in Germany (where the courts asserted immunity), and having their claim dismissed by the European Court of Human Rights (Kalogeropoulou v Greece and Germany (2002) 129 I.L.R. 537), the Greek claimants sought to enforce the judgments in the Italian courts, which held these judgments enforceable in Italy.

It was in these circumstances that Germany instituted proceedings before the ICJ against Italy for violation of the immunity enjoyed by Germany under international law.

There was no dispute regarding the illegality of the atrocities committed by the German armed forces; indeed Germany acknowledged its full responsibility for these unlawful acts, which the ICJ characterised as war crimes and crimes against humanity. The question was simply whether Germany could nonetheless claim immunity from legal proceedings before the Italian courts regarding compensation for the heinous international crimes perpetrated by its armed forces in Italy. The ICJ answered that question in the affirmative.

The Court started by observing that the law of State immunity is “essentially procedural in nature”. That is to say: “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” (at [58]). Having thus disentangled itself from the question of legality of the relevant acts which formed the subject matter of the legal proceedings, the Court proceeded on the basis of the well-known distinction between acta jure imperii, or sovereign or governmental acts, for which States enjoy immunity before foreign national courts, and acta jure gestionis, or non-sovereign or commercial acts, for which immunity is no longer available. The Court considered that the acts of the German armed forces, though patently illegal, clearly constituted acta jure imperii. It should then be a foregone conclusion that Germany enjoyed immunity in the Italian courts, except that the Court had to deal with two main arguments submitted by Italy.

Italy argued that, under current international law, a State no longer enjoys immunity from civil proceedings in respect of acts causing personal injury or death, or damage to or loss of property in the territory of the forum State, even if the act in question was performed jure imperii. The ICJ opined that such a notion originated in cases concerning road traffic accidents and other “insurable risks”. It noted, however, that none of the national statutes which provide for a “territorial tort exception” to immunity expressly distinguishes between acta jure imperii and acta jure gestionis. But the Court was careful not to engage in such a discussion: instead it focused on acts committed by foreign armed forces in an armed conflict. It found that State immunity remained intact in this respect – on the basis of an absence of judicial practice. According to the Court, neither the 1972 European Convention on State Immunity, nor the 2004 UN Convention, applies to military activities; and, in those States whose national legislation provides for a denial of immunity in personal injury cases, there is either an exclusion of proceedings relating to the acts of foreign armed forces (e.g. the UK State Immunity Act 1978, s. 16(2)), or, where there is no such exclusion, no case has yet been decided in which immunity was denied for acts of foreign armed forces committed in an armed conflict. The Court concluded 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… in the course of conducting an armed conflict.” (at [78])

Italy also argued that the acts of the German armed forces which gave rise to the claims amounted to international crimes and constituted serious violations of principles of international law which had attained the status of peremptory norms (jus cogens) and that, because of this, immunity ought to be denied. The ICJ remarked that the gravity of the offence or the peremptory nature of the rule violated (a matter of substance) has nothing to do with the availability of immunity (a matter of procedure). Immunity could be granted to a State even in cases of serious international crimes since “recognizing the immunity of a foreign State in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule.” (at [93]) In saying this, the Court did no more than follow its previous decisions in the cases of Arrest Warrant (2002 I.C.J. Rep. 3) and Armed Activities (New Application) (2006 I.C.J. Rep. 6). It must be admitted, however, that such a position is now subject to increasingly strong resistance, as can be seen from the passionate dissenting opinion of Judge Trindade.

As for the Italian judicial decisions holding the Greek judgments enforceable, the Court held that the Italian courts had failed to ask themselves whether Germany should have been entitled to immunity if identical proceedings had been instituted in Italy. Since that question must have been answered in the affirmative, Italy had violated its obligation to grant Germany immunity.

The ICJ's decision is but one instance in a now growing jurisprudence which grants immunity for a whole spectrum of acts performed by foreign armed forces in the territory of the forum State: Re Canada Labour Code (Canada, (1992) 94 I.L.R. 264, employment of civilian personnel), McElhinney v Williams (Ireland, (1995) 104 I.L.R. 691, assault by soldier), Littrell v United States (No. 2), (England, [1995] 1 W.L.R. 82, running of military hospital), Holland v Lampen-Wolfe, (England, [2000] 1 W.L.R. 1573, performance appraisal of civilian employee), and FILT-CGIL Trento v United States, (Italy, (2000) 128 I.L.R. 644, overflight by military aircraft), to name only the most prominent cases. There is thus nothing surprising or extraordinary in the conclusion of the Court. What is worth noting is the reasoning whereby the Court came to its conclusion; and this reasoning, one must say, is not entirely unassailable. First, the reference to “insurable risks” is puzzling, as none of the statutory “territorial tort exception” provisions contains such a qualifications. Secondly, the association of immunity with jus imperii in the context of tortious conduct finds no support in current treaties or national legislation. Thirdly, there is nothing in the text of the 2004 UN Convention directly to suggest that the Convention does not cover military activities. Fourthly, to say that immunity in respect of tortious acts of armed forces remains intact because no court has yet had occasion to apply the territorial tort exception is simply to confuse the validity of a legal rule with its effectiveness: that is, the Court was suggesting that a legal rule is not a legal rule unless and until it is enforced by a court of law. In any event, the absence of judicial practice may well suggest the contrary, namely that there is nothing to prevent a court from denying immunity to foreign armed forces in tort proceedings. Finally, by emphasising acts committed by foreign armed forces, the Court actually took the position that what is decisive for the purposes of immunity is not the nature of the act, but the actor. In other words, what was done is no longer important; what is important is who did it. This is the classical rationale for absolute immunity: immunity attaches to whatever done by a sovereign State. It is then not difficult to conclude that what the ICJ really meant is that foreign armed forces (and their State) enjoy absolute immunity for tortious military acts committed in a military context.