1. Introduction
Does the rule of customary international law providing for state immunity from civil jurisdiction for acts jure imperii still hold when the state has committed a grave violation of a peremptory norm of international law? This is the simple, and at the same time difficult and important, question that the ICJ has been asked to answer in the case of Jurisdictional Immunities of the State, brought by Germany against Italy on 23 December 2008.Footnote 1
At the heart of the dispute lies the fact that since 2004, the Italian Court of Cassation has being denying state immunity for civil actions brought by (until now) Italian citizens against Germany for war crimes committed during the Second World War.Footnote 2 Furthermore, on 29 May 2008, the Italian Court of Cassation rejected the appeal of Germany against the exequatur of the Greek decision in the Distomo case of 2000, which dealt with a war crime committed by the Wehrmacht in occupied Greece in 1944, thus permitting the decision's enforcement in Italy.Footnote 3
2. The foreseeable outcome of the dispute under customary international law
At first blush, the positive answer could be simple and straightforward. With the exception of the recent jurisprudence of the Italian Court of Cassation, and the one isolated decision by the Greek Supreme Court referred to, there is no judicial practice denying state immunity for acts jure imperii in case of a violation of international law, be it of a peremptory nature or not. On the contrary, there is plenty of evidence that domestic courts, although aware of the paramount importance of the material norms allegedly violated by the respondent state, still feel obliged to comply with the customary norm of immunity.Footnote 4 There is, of course, the notable exception of the US federal courts, which are enabled by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to adjudicate cases brought by US citizens against foreign states for alleged acts of torture and other egregious violations of human rights.Footnote 5 The US experience, however, cannot set any useful precedent as such, because of its blatant political bias: the only foreign states that can be sued are those that the Executive, in its absolute discretion, designates as sponsors of terrorism.Footnote 6
No government of any other state has ever expressed the opinion that the rule on state immunity either has changed or ought to be changed. This fact unequivocally results from the debates that preceded the adoption by the General Assembly of the UN Convention on Jurisdictional Immunities of States of 2 December 2004.Footnote 7 Back in 1998, the General Assembly had required the UN International Law Commission (ILC) to consider whether the Draft Articles on Jurisdictional Immunities of States approved in 1991 needed to be updated with regard to ‘outstanding substantial issues’, in light of the results of informal consultations held in the open-ended working group at the Sixth Committee.Footnote 8 In 1999, the ILC established a working group, which concentrated on the five main issues identified in the informal consultations previously mentioned, but decided also to explore the further question whether there should be an exception of state immunity for violations of jus cogens.Footnote 9 The observations of the ILC Working Group on this latter question, contained in an appendix to its report, noted that ‘in most cases the plea of sovereign immunity [had] succeeded’, but also drew attention to the AEDPA in the United States and to the Pinochet decision of the House of Lords of 24 March 1998 as ‘a recent development relating to immunity which should not be ignored’.Footnote 10 Significantly, the ILC did not adopt the suggestions of the working group contained in the appendix,Footnote 11 and in the Sixth Committee, no representative of any state ever picked up the question.
In the Sixth Committee, a debate arose with regard to the scope of the tort exception of Article 12 of the Draft UN Convention, which, although it addresses a different issue, could to some extent overlap with that of jus cogens violations. As will be recalled, Article 12 provides for an exception from state immunity in the case of an action for personal injuries, where the injury occurred in the territory of the forum state and the organ of the foreign state that authored the conduct was present in the territory of the forum state at the time of the occurrence. In the Sixth Committee, the question was debated whether or not acts of foreign armed forces were excluded from Article 12. The question was particularly relevant, because the Draft Convention lacked a norm such as that contained in Article 31 of the European Convention on State Immunity of 1972,Footnote 12 which expressly excludes the activities of armed forces from its scope of application (and therefore from the application of its Article 8 on tort exception). Neither in the reports of the two special rapporteurs, nor in the verbatim records of the ILC meetings, nor in the commentary of former Article 14 approved in first reading in 1984 is there any trace of a debate on the matter. The commentary of Article 12 in the second reading of 1991, however, states that the article ‘does not apply to situations involving armed conflicts’.Footnote 13 The result of the debate at the Sixth Committee was then summarized in the Statement of the Chairman of the Ad hoc Committee on jurisdictional immunities of states and their property, Professor Hafner, for whom ‘the general understanding had always prevailed’ that armed-forces activities were excluded from the scope of Article 12.Footnote 14
In the last preambular paragraph of Resolution 59/38 adopting the text of the Convention, the General Assembly limited itself to ‘tak[ing] into account’ this statement. Admittedly, the intricate normative complex dealing with the scope of application of the UN Convention – made up by its Article 2 on use of terms, by the annex on ‘Understandings with Respect to Certain Provisions of the Convention’, and by two different paragraphs in the preamble of Resolution 59/38, one endorsing and the other taking into account some statements of Ad hoc Committee – is hardly a model of clarity.Footnote 15 Nevertheless, it can be safely concluded that at least until December 2004, no state had ever thought to suggest a possible exception of state immunity, either for violations of international law in general or for violations of jus cogens in particular.
Furthermore, of great relevance to the ICJ's pending decision is the fact that the Italian government itself had in various circumstances unmistakably shared Germany's view on the non-existence of an exception of state immunity for egregious violations of international law. Most notably, that position was formally expressed as late as May 2008 by the Italian Attorney-General before the Court of Cassation in the proceedings related to the Milde case.Footnote 16
The second question presented to the ICJ – concerning the Italian Court of Cassation's decision of 29 May 2008 to allow the enforcement in Italy of the Greek Distomo judgment of 4 May 2000 – should be answered in the same simple and straightforward way. Because the Greek Areios Pagos dismissed Germany's plea of immunity, the judgment of the Leivadia Court became definitive. As is well known, however, the Greek minister of justice denied the enforcement of the judgment under Article 923 of the Greek Code of Civil Procedure, and that decision was upheld by the same Areios Pagos on 28 June 2002. Later on, the European Court of Human Rights found no violation of either Article 6 of the European Convention on Human Rights (ECHR) or Article 1 of the First Protocol.Footnote 17 Both the German Supreme Court and the Federal Constitutional Tribunal refused to enforce the judgment in Germany.Footnote 18
After the groundbreaking Ferrini judgment of the Italian Court of Cassation of March 2004, the Prefecture of Voiotia managed to obtain from the Court of Appeal of Florence the exequatur of the part of the Distomo judgment regarding judicial costs. On appeal by the Federal Republic of Germany, the Florence Court of Appeal dismissed the argument that the recognition of the Distomo judgment would be contrary to the procedural ordre public, by maintaining that under Article 35 of EC Regulation 44/2001 on Jurisdictional Competence, Recognition and Enforcement of Judgments in Civil and Commercial Matters, ordre public as a ground for the non-recognition of a foreign judgment cannot apply to the rules on jurisdictional competence.Footnote 19 In its Order 14199 of 29 May 2008,Footnote 20 the Italian Court of Cassation agreed with the appellant that the Distomo judgment could not be enforced under EC Regulation 44/2001,Footnote 21 but held that it could nevertheless find execution under the autonomous Italian procedural rules on recognition and enforcement of foreign political decisions.Footnote 22 In particular, the Court dismissed the argument that the recognition of a foreign judgment arrived at in violation of international customary norms on state immunities would violate the Italian ordre public, by cursorily stating that the denial of immunity is justified by the ‘absolute primacy of the fundamental values of liberty and dignity of the individual’ and therefore cannot be a violation of ordre public.
In the present context, it is unnecessary to discuss in greater depth the limits of the applicability of concepts of international law to the definition of procedural ordre public.Footnote 23 It is obvious that the Court of Cassation would have ended up with the recognition of a foreign judgment, which was based on the same jurisdictional ground as the Court had previously endorsed with regard to domestic judgments. As a consequence, the Court of Appeal of Florence reissued the decision of enforcement and permitted the inscription of a mortgage on the Villa Vigoni, a state-owned centre for cultural exchange located at Lake Como, as well as on the credits by the German federal railway company against the Italian one.
However, in April 2010, the Italian government issued a decree, retroactively suspending all enforcement measures against property of foreign states as long as a controversy on their immunities in domestic proceedings ‘objectively related to those enforcement measures’ is pending before the ICJ.Footnote 24
Leaving aside the question of the impermissibility of enforcement measures against state property serving governmental purposes such as a cultural centre,Footnote 25 one might well concede that the recognition of a foreign judgment, regardless of its wrongfulness per se, is a different matter from the violation of state immunity through the enforcement of that judgment.Footnote 26 Yet, it is difficult to see how a finding by the ICJ that the Italian judges had violated the international customary rule of jurisdictional immunity could not but affect also the act of exequatur of a foreign judgment violating the same rule, regardless of its subsequent enforcement or not. Therefore, it is logical and appropriate that Germany requested the Court to find that Italy (i.e. through its municipal judicial decisions) violated Germany's jurisdictional immunities both by taking measures of constraint against Villa Vigoni and by declaring that the Greek judgment was enforceable in Italy. Nevertheless, the issue could lead to some complications. If one can assume that the domestic courts will comply with an ICJ decision forbidding the execution of the Greek judgment,Footnote 27 it is far from certain that in a strict understanding of Article 59 of the ICJ Statute, the judges of other states would consider themselves equally bound.
At the same time, the central question raised by the present controversy is a daunting one. It seems that the Italian Court of Cassation, albeit with some uncertainties and contradictions, which will be addressed later, did not want to entangle itself in a demonstration of existent customary international law, but decidedly chose to posit itself on the higher ground of a discourse on the fundamental strictures of the system of international law. In the Ferrini decision of 11 March 2004, the core of the Court of Cassation's reasoning was an elementary juridical syllogism: the customary norm of international law, namely state immunity, must cede to the hierarchically higher norm, namely the jus cogens prohibition of the violations of certain fundamental human rights. Later on, in the 11 judgments of 29 May 2008, the Court became aware of the limits of such an argument and developed a more elaborate discourse on a theme that had remained somehow underexposed in the arguments of the Ferrini decision, namely the need for a systemic interpretation of the international legal order and the logic of ‘qualitative consistency’ when assessing its sources.
As I have already tried to demonstrate elsewhere,Footnote 28 the Court's assumptions are and remain fundamentally flawed. The alleged conflict of principles, which ought to be decided in favour of the higher one or to be recomposed by way of interpretation, is not a conflict at all.Footnote 29 As was rightly observed by many commentators, the rule of customary international law on state immunity is procedural, operating in limine litis, and therefore it is placed on a completely different plane from the substantive norms of international law, making a hierarchical ordering of the two nonsensical.Footnote 30
In order to posit a conflict of principles, the Italian Court of Cassation, and the doctrine supporting its jurisprudence,Footnote 31 should first have proved either that the right to access to justice and, to be more precise, to domestic justice is itself an international jus cogens norm, or that a violation of jus cogens necessarily implies such a right. Neither the first nor the second of these presuppositions is true. As for the first, neither Article 6 of the ECHR nor Article 14 of the UNCCPR can be read as affirming an absolute right and, with the possible exception of the jurisprudence of the Inter-American Court of Human Rights,Footnote 32 there is not a single international decision supporting such a reading.Footnote 33 As for the second presupposition, again, there is no binding international text that has ever affirmed that access to domestic justice must necessarily follow from a violation of a jus cogens norm. As is well known, until now, the few suggestions to the contrary are an ambiguous obiter dictum of the ICTY Trial Chamber in the Furundjia decision of 10 December 1998 (which, by the way, was undoubtedly ultra vires to the extent that it dealt with civil suits)Footnote 34 and the opinion of the UN Committee on Torture of 7 July 2005 (possibly ultra vires as well)Footnote 35 criticizing the Bouzari judgment of the Ontario Superior Court. As for the UN General Assembly Resolution 60/147 of 16 December 2005, on ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, it suffices to say, besides any other consideration, that on the relevant issue, it is expressly framed in terms of guidelines de lege ferenda.Footnote 36 Significantly, even the UN Committee of Human Rights’ General Comment No. 32 of 2007 on Article 14 IPCCR did not address the question. It limits itself to saying that the guarantees of fair trial of Article 14 may not be ‘subject to measures of derogation’ whenever one of the core rights enshrined in Article 4, paragraph 2, is at issue,Footnote 37 but, in the absence of any discussion whatsoever on the point, it would be a totally unwarranted conclusion to infer that by ‘derogation’, the Committee meant also the recognition of state immunity in accordance with applicable rules of customary international law.
Far from being a jus cogens norm, it is even doubtful whether international customary law, as distinguished from treaty regimes, provides for any individual right to reparation at all. It is well known that the ILC did not deal with this question until the very end of its codification work on state responsibility for internationally wrongful acts. It was just in the session of 2000 that the Draft Committee thought it advisable to insert in Article 33, paragraph 2, and without any adequate discussion, a saving clause to the effect that ‘this Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State’. One could speculate about the many reasons why the ILC had until then failed to discuss the topic altogether, but one cannot of course exclude the most probable one, namely that until then, the shared view among ILC members was that there was no rule of customary international law providing for an individual right of reparation.Footnote 38 Be that as it may, by the mere fact of its existence, the saving clause of Article 33, paragraph2, implies that such a right could indeed exist. So far, so good. The problem is, however, that Article 33 is placed in the Second Part of the Articles, dealing with the content of international responsibility, and not in the Third Part, dealing with the invocation of international responsibility. It seems therefore clear that the ILC, while leaving open the question whether a rule of customary international on the right to reparation of the individual exists at all, was perfectly aware that at any event, under customary international law, only states have the right to invoke each other's international responsibility.Footnote 39
The decisions of the Italian Court of Cassation consider none of these issues. The Court's reasoning, however, is not just apodictic. For the Court, it is all and only a question of systemic interpretation. In this regard, the Court, especially in the Ferrini decision of 2004, made a great deal of the concept of international crime of states. It is to some extent moving for international lawyers attached to their doctrinal creatures to watch how a domestic supreme court should try to resuscitate an infant whose own mother (the ILC) had aborted some years earlier.Footnote 40 The Court's reasoning is awing in its apparent ineluctability, as mysterious and implacable as the oracle of a Greek drama. It runs as follows. From the commission of an international crime derives the international criminal responsibility of the individual, whether or not it is a state organ, and the principle of universal criminal jurisdiction. Because organic functional immunity and state immunity are two sides of the same coin, the consequences must be the same: loss of immunity and universal civil jurisdiction. The Court's hieratic mood is even enhanced in its 11 orders of 29 May 2008,Footnote 41 in which the Court went so far as to invoke concepts such as ‘the meta-value of international legal order’ when referring to fundamental human rights, and qualifying their violations as ‘the breaking point of an acceptable exercise of sovereignty’.Footnote 42
Even when the Court endeavours to take account of some rules de lege lata, it misses the target or overshoots it. This is the case with the Court's reliance in the Ferrini decision on Article 41 of the ILC Articles on State Responsibility for International Wrongful Acts. As is well known, Article 41, paragraph 2, sets forth the obligation of all states not to recognize as lawful the situation created by a serious breach of an obligation arising under a peremptory norm of general international law.
The reference to this norm is misleading, for a number of reasons. First, the Court does not go so far as to view the exercise of jurisdiction as an obligation, but as a mere option, without realizing that by this reduction, it undermines the reasoning of the norm of Article 41 and makes a reliance on it pointless.Footnote 43 Second, from a systemic perspective, Article 41 is not concerned with the different ways and means of implementing the international responsibility of a state, being placed as it is in Part Two, which deals with the content of the international responsibility of the state, and not in Part Three, which deals with its implementation. Third, Article 41 speaks of ‘situations’, and while the term does not necessarily apply only to breaches having a continuing character, the attentive choice of the noun clearly refers to certain breaches, such as the occupation of a foreign territory by the illegal use of force and/or the attempted acquisition of sovereignty over a foreign territory through the denial of the right of self-determination of peoples, which were exactly the examples that the ILC had in view when drafting the norm.Footnote 44 Fourth, the respect of foreign-state immunity cannot be simplistically equated with acquiescence or even less with support for an international wrongful act. It only means that customary international law does not consider domestic judges to be the proper actors to deal with those issues.Footnote 45 I will return to this issue.
Furthermore, the reference to Article 41, paragraph 2, of the ILC Articles proves too much. By the same token, the obligation not to recognize a certain situation as lawful could justify, and even force, states to disregard any rule of international law that gets in the way of the full realization of the norm. The functional scope of the norm would then not be any different from that of countermeasures, but even in this regard, its applicability to the issue of state immunity would be misconceived. From the perspective of the ‘specially affected’ state, be it the forum delicti commissi or the forum of the victims, the denial of foreign-state immunity could indeed be equated to a countermeasure,Footnote 46 but then the question inevitably arises of whether it would be admissible that the judiciary power adopts countermeasures without the authorization of the executive and/or the legislative powers. The question should clearly be answered in the negative. That is also the reason why the US experience, pointlessly invoked at length by the Italian Court of Cassation in the Ferrini decision, can only be understood when read in the light of countermeasures, since it is the executive that decides which countries are ‘unworthy’ of immunity. As for the judges of states other than the injured one, namely judges applying a presumed principle of universal civil jurisdiction, their denial of state immunity cannot in any case be equated to a countermeasure, but at most, as Article 54 of the ILC Articles puts it, to ‘lawful measures . . . under international law’. In the absence of any practice, however, it would be very dubious, to say the least, whether the exercise of universal civil jurisdiction accompanied by the denial of state immunity could be considered a ‘lawful measure’ under present international law.
Again, it would be useless to draw the attention of the Italian Court of Cassation to its contradictions, or to remind it that the lack of functional immunity from criminal jurisdiction is a much more complex issue than it seems to believe,Footnote 47 and that the equivalence of functional immunity and state immunity is to a great extent unwarranted,Footnote 48 not to speak of the supposed equivalence between universal criminal and civil jurisdiction.Footnote 49
It would probably be just as useless as to remind the Court, as the House of Lords in the Jones case had done,Footnote 50 that the ICJ did already largely prejudge, if not dispose of, the entire matter in two recent cases. In the Arrest Warrant decision of 2002, the ICJ held that the customary rules on personal immunity prevail even in the case of an alleged violation of jus cogens,Footnote 51 and in the Democratic Republic of Congo against Ruanda (new application) case of 2006, the ICJ held that even a violation of jus cogens cannot confer jurisdiction on the Court when it had none.Footnote 52 Admittedly, as far as the ICJ's jurisprudence is concerned, one could still try to distinguish these two precedents. Regarding the first, it has been argued that the rules on personal immunities represent a special exception, which should be interpreted restrictively, and the Court has been accused of not having really succeeded in demonstrating their customary status.Footnote 53 Regarding the second, the objection could be raised that the limit of the jurisdiction of an international judicial body is an essentially different matter from that of a domestic one. But, to state the point once again, any discussion with the Italian Court of Cassation either on the matter of practice or on the matter of opinion, either on the admissibility of analogy or on the merits of international jurisprudence, would not have any chance of succeeding, because, as already happened to this unfortunate writer, all possible arguments would be rebuffed by the Court as ‘without worth’Footnote 54 when compared with the mantra of ‘qualitative consistency’ of the sources of international law.Footnote 55
3. The (same) foreseeable outcome of the dispute under different perspectives either de lege lata or de lege ferenda
At the supreme heights to which the Court of Cassation raises itself, in which the glowing light of jus cogens blurs the Sein and the Sollen of international law, we touch the most delicate aspect of the whole issue. If, by the actual standards of positive international law, there is no exception to state immunity for violations of jus cogens, should there nevertheless be one?
Before reaching the answer, I think it instructive to illustrate some recent doctrinal attempts, presented either de lege lata or de lege ferenda, commendably aimed at disentangling the apparent knot of conflicting principles, but which end by entangling themselves at some other juncture.
3.1. Forum non conveniens
To begin with, in order to avoid the predictable anarchy that a worldwide endorsement of the Ferrini arguments would cause, some authors have proposed a solution modelled on the forum non conveniens doctrine.Footnote 56 The suggestion would appeal to some practitioners accustomed to all the subtle nuances of common-law countries’ jurisprudence on jurisdiction. Far from being a reliable model for either the assumption or denial of jurisdiction in any single instance of international civil litigation even at its present state,Footnote 57 a generalized use of the forum (non) conveniens doctrine for the purpose of affirming/declining jurisdiction over foreign states would have the paradoxical consequence of substituting a clear, if negative, rule into an unpredictable, fundamentally arbitrary, and possibly inequitable option. To counter this objection, one could envisage common standards, such that a forum would be convenient to the extent that the jus cogens violation occurred on the territory of the forum state, or that the victims were citizens of that state or residents in its territory. But by doing so, the whole thrust of the jus cogens argument would be greatly reduced, and with it, the only (allegedly) logical ground for this new exception to state immunity. In the first example above, the assumption of jurisdiction would already be grounded on the tort exception; in the second example, the assumption of jurisdiction would come near to a generally abhorred and discriminatory forum actoris, in itself an aspect inconsistent with the ‘philosophy’ of jus cogens.
This is the trap into which the Italian Court of Cassation manoeuvred itself in the Ferrini decision when, having in so many words proclaimed the concept of universal tort jurisdiction as the inescapable corollary of jus cogens,Footnote 58 it found it opportune to stress that, at any rate, a part of the criminal conduct attributable to Germany (deportation for forced labour) had taken place in Italy. The incoherence of this reasoning has been mostly belittled by benevolent commentators,Footnote 59 but it is dangerously close to becoming self-defeating. By relying also on the forum loci delicti commissi, the Court of Cassation unwittingly made the jus cogens plinth of its arguments unsteady, because it could have altogether narrowed the question as to whether or not the conduct of foreign armed forces is included in the tort exception. It is as if an intended grand tour were to end up with a visit to a nearby orchard, for which, to use a celebrated metaphor, there would be no need to take the Rolls Royce out of the garage.
The position of the Italian Court of Cassation on the issue of the jurisdictional basis is particularly confused. In each of the 11 judgments given on 29 May 2008, the Italian Court of Cassation repeated verbatim the Ferrini formula on jurisdiction, coupling the universal civil jurisdiction with the forum loci delicti commissi, without noticing that in at least one case, Sciacqua, this latter basis of jurisdiction was literally out of place, because the claimant, a former military internee, had been deported to Germany from Greece. In the subsequent Milde judgment of 21 October 2008, the First Criminal Chamber of the Italian Court of Cassation had to deal, on appeal by Germany, with a criminal case against a German SS officer for a massacre in Tuscany in 1944, in which Germany had been sued by the heirs of a victim as the civilly responsible party, jointly and severally liable with the defendant officer. The Court did not spend a word on the issue of jurisdiction, probably holding it for obvious reasons, since all the relevant facts had happened on Italian territory. It is, however, interesting to note that the judgment by the Military Court of Appeal of one year earlier,Footnote 60 which the Court of Cassation upheld and variously referred to, had extensively dealt with the matter. Without being too critical of the theory of universal civil jurisdiction of the Court of Cassation, the Military Court had nevertheless squarely based its decision to deny Germany's immunity on the tort exception of Article 12 of the UN Convention, as an expression of customary international law. The apparently inexplicable silence of the First Criminal Chamber of the Court of Cassation on the point can be better explained if one recalls the judgment by the same Court just some months earlier in the Lozano case, in which, in order to affirm the functional immunity of a US soldier from the Italian criminal jurisdiction, the Court had plainly affirmed that the conduct of armed forces is excluded from the scope of Article 12.Footnote 61 Even if the UN Convention was possibly mentioned as obiter dictum in that case, it now seems that the Court will have to stick exclusively to its jus cogens argument in order to deny state immunity in future cases dealing with foreign armed forces. But even that consequence is far from certain, since it cannot be taken for granted that the Court of Cassation's right hand (i.e. its civil chambers) knows what the left one (i.e. its criminal chambers) does.
Under a different perspective, redolent of legal pluralism, another author has recently proposed that instead of clinging to a presumed shared rule on state immunity, every court, be it domestic or international, should optimize its institutional task and look for the solution better suited to enhance its own goals.Footnote 62 A new rule, if ever, would then arise from the inter-judicial dialogue and competition. In this light, the majority decision of the European Court of Human Rights in the Al-Adsani case in 2001Footnote 63 should be criticized for its endeavour to read Article 6 ECHR in accordance with general international law, instead of giving an a priori priority to its task of protection and promotion of human rights. Like other implications of the pluralistic theory, the appeal of such a solution would not be lost on practitioners accustomed to forum shopping and versed in lobbying strategies. However, far from guaranteeing a final outcome of internationally shared views and consistent solutions (admittedly, a goal that some pluralist theorists would consider hopelessly old-fashioned and simply irrelevant), this inward-looking approach would, at least for a long time to come, produce widely different, if not completely opposite, solutions for what is, at its core, a single problem – which would again produce an inequitable result.
3.2. Equivalent protection
A more balanced view is put forward by those who see the denial of state immunity as a last resort whenever the tort could not otherwise be redressed.Footnote 64 This view is based on the theory of equivalent protection, which has already been applied by the ECHR in the Waite and Kennedy case with regard to the immunity of international organizations,Footnote 65 and in a different context in the Bosphorus case with regard to EC law.Footnote 66 Presumably, such an approach would appeal to a wider audience. But, again, the difficulties start when trying to identify the court best suited to deal with the claim and to determine the concept of unavailability. Regarding the first issue, the stumbling block would be the same already encountered by the forum non conveniens theory previously touched upon. The second issue is even more problematic. Would the unavailability test apply whenever local remedies in the allegedly responsible state have been exhausted, or should the test be reserved only for cases in which there is a complete absence of remedies (judicial or otherwise) in the alleged responsible state? And, if the latter, who would decide whether there were such a denial of justice?Footnote 67
On this point, the Ferrini case is illustrative. Ferrini had sued the Federal Republic of Germany in his home court, the Tribunale di Arezzo, in 1998, long before the German Federal Supreme Court and the German Federal Constitutional Tribunal had rejected the claim of the Italian internees in 2003 and 2004, respectively. The fact is that Ferrini had from the beginning contested the benefits mechanism provided for by German foundation Erinnerung, Verantwortung, Zukunft, because he considered the sum available ‘symbolic and derisory’ and ‘insulting for the dignity of the victims’.Footnote 68
Furthermore, would the exercise of diplomatic protection be relevant in deciding whether the unavailability test is satisfied? If so, what would happen in the case that the state of citizenship should refuse to exercise diplomatic protection or waive the claim or dispose of it by transacting with the responsible state? By simply posing these questions, the apparently clear-cut issue of state immunity becomes intertwined with various irksome issues concerning the admissibility of the claim, if not outright with its merits. Again, we would end up substituting a clear rule with an opaque situation susceptible to all possible abuses and arbitrariness.
This danger is apparent from the decisions by the Italian Court of Cassation in 2004 and 2008. The Court denied Germany immunity with regard to conduct by German troops in Italy during the Second World War, knowing perfectly well that in Article 77, paragraph 4, of the 1947 Peace Treaty, Italy had renounced any claim for herself and for her citizens against Germany with regard to any fact related to the war.Footnote 69 Any possible interpretative doubt regarding the scope of the Italian waiver was set aside by a later bilateral compact between Italy and the Federal Republic of Germany, the Bonn Treaty of 2 June 1961, in which Germany agreed to pay ex gratia 40 million Deutsche Mark for the benefit of Italian citizens (others than those of Jewish descent) who had been victims of Nazi measures of persecution.Footnote 70 If the Court of Cassation's United Sections still succeeded in avoiding the waiver issue by referring it to a later stage of the proceedings,Footnote 71 that changed in the subsequent Milde decision of 21 October 2008. In one fell swoop, the First Criminal Chamber dismissed both the plea of immunity and the objection of inadmissibility, by holding that the Italian waiver did not dispose of the individual claims for moral damages, although it did not explicitly endorse the Military Court of Appeal's view that such an option would have been at any rate impermissible.Footnote 72 It was this decision, together with the previous decision of the Court of Cassation to permit the enforcement in Italy of the Distomo judgment, that eventually convinced Germany of the need to bring the dispute on jurisdictional immunity to the ICJ.
Quite surprisingly, the Italian government reacted with a counterclaim, arguing that by signing the Bonn Treaty, Germany acknowledged its previous debt, thus obligating it to pay compensation for all other Italian victims of German occupation between September 1943 and April 1945. On 12 July 2010, the ICJ, by 14 votes to one, declared the counterclaim inadmissible for lack of jurisdiction.Footnote 73 Nevertheless, the incidental proceedings show how creative counsels could try to link the issue of state immunity to opinionated arguments about the purported lack of alternative remedies.
From a more general perspective, the ILC notoriously was not able to find a way to contribute to the progressive development of international law with regard to diplomatic protection in the case of violation of jus cogens norms. Already, in 2000, the majority of the ILC squarely refused to endorse the rule originally proposed in Draft Article 4 by Special Rapporteur Dugard. Framed in prudent and balanced terms, the rule would have obligated the states to exercise diplomatic protection if the injury resulted from a grave breach of a jus cogens norm attributable to another state, but it provided for an exception in the case that the exercise of diplomatic protection would have ‘seriously endangered the overriding interests of the State and/or its people’.Footnote 74 Final Article 19 on ‘Recommended Practices’,Footnote 75 hastily inserted in the draft during the same session in 2006 in which the final text was adopted, exposes the lack of consensus on a more robust norm, rather than papering it over, as was perhaps the intention of its proponents. Therefore, in the absence of any discussion of the issue in the ILC, any attempt to now read an implicit support for a denial of state immunity for jus cogens violations in the saving clause of Article 16 and in its vague reference to ‘actions or procedures other than diplomatic protection to secure redress for injury suffered as a result of an internationally wrongful act’ would simply be preposterous.Footnote 76
3.3. Abuse of rights
The same pitfalls of the alternative-remedy theory would a fortiori apply to the related abuse-of-rights theory, namely the attempt to justify the denial of state immunity on the basis of the legal maxim that no one should derive an advantage from his/her own wrong (nullus commodum capere potest de injuria sua propria). The proposal to use this doctrine in order to deny state immunity in case of grave violations of peremptory international-law norms has not yet been squarely made, but some arguments to the effect that states hiding behind their immunity commit an ‘abuse of sovereignty’ seem to hint in this direction.Footnote 77 At a superficial level, an attempt to employ the abuse-of-rights theory seems alluring, at least for those cases, such as that pending before the ICJ, in which the state deprived of immunity does not deny the wrongfulness of the acts attributed to it. But a closer look shows that the theory fails.
Assuming, for the sake of argument, the theory's validity in international law, and leaving aside the aspect of the onus probandi,Footnote 78 the problem remains that the theory is tailored to matters falling within the exclusive purview of the state using/abusing its rights. This point is also made in the most famous plea for recognition of the doctrine of abuse of rights in international law, made by Hersch Lauterpacht in the 1930s: if the introductory formulation is broad enough to include all kinds of situations,Footnote 79 then all the examples point in the same direction of ‘so-called exclusive rights of domestic jurisdiction’.Footnote 80 There is a reason for this limitation of the doctrine's range of application, and it follows from the fact that it is in the domaine réservé that states were traditionally thought to be free from any international-law constraints, so that the doctrine of abuse of rights was an Ersatz for an international obligation. The case of jurisdictional immunity is obviously different: far from leaving the issue at the disposal of each state, international law provides for a coherent set of rules dealing with the international responsibility of states for wrongful acts, so that there is no need for a construct, such as the abuse-of-rights doctrine, which would help to overcome purported normative lacunae. Simply, the denial of state immunity does not belong de lege lata to that set of rules.
3.4. Intervention of civil parties in criminal proceedings
Lastly, the Milde decision has been greeted by an author as a valuable guideline, if not as a possible overall solution for the debate on the limits to state immunity.Footnote 81 The argument runs as follows: given that the criteria of domestic criminal jurisdiction, including universal jurisdiction, are internationally more widely shared than the civil ones (considering also the purported fundamental equivalence between functional immunity and state immunity), it is inevitable to deny state immunity in all those cases in which the victims, or their heirs, intervene in the criminal proceedings as ‘civil parties’.
This argument is unpersuasive. On the one hand, the concept of a civil action brought within a criminal trial is not known in all legal systems, and so this solution would favour only some claimants – or, more generally speaking, the judicial policy of some countries. On the other hand, the alleged equivalence between functional individual immunity and state immunity goes too far. While the UN Convention on Jurisdictional Immunities of States also covers proceedings against state organs,Footnote 82 the Preamble of Resolution 59/38 of the General Assembly makes it clear that the Convention ‘does not cover criminal proceedings’, and so the Convention does not permit any inference that the two kinds of immunity are conceptually interchangeable. It suffices to say that the criminal proceedings end with the death of the accused individual, whereas it is not even clear whether the responsibility of the state ends with its extinction.Footnote 83 Lastly, it would be inequitable to make the prospect of gaining civil damages from a foreign state dependent upon whether or not the individual defendant still happens to be alive.
The pitfalls of each of the doctrines that try to reconcile the loss of state immunity with a viable practical solution show that the customary-law rule on state immunity for acta jure imperii is not just an unjustified, abuse-prone privilege of the past, but an indispensable device in order to maintain a minimum procedural order for the sake of peaceful intercourse between sovereign states as well as to avoid possible inequitable and/or discriminatory solutions.
This is also due to the fact that there is almost no shared view among states with regard to the exercise of their domestic jurisdiction. One could deplore this fact, for example, in light of the impossible situation in which defendants find themselves in cases of contrasting disclosure injunctions, but the truth is that the exercise of domestic civil jurisdiction has never been a matter of concern for customary international law, as long as the sovereign rights of states were respected by virtue of immunity. Currently, the domestic civil systems differ enormously with regard to the procedures, evaluation of evidence, means of redress, assessment of damages, and enforcement of judgments. Furthermore, while some domestic systems apply the doctrines of act of state and political question to the conduct of foreign relations,Footnote 84 others do not. To remove the only international regulative principle on immunities of foreign states would be to unleash a competitive race between courts, each differently linked to the claim, each differently acquainted with the subject matter, each differently sensitive to lobbying strategies, each differently deferential to the executive power.Footnote 85 The ensuing judicial traffic jam would sooner or later lead to calls for a traffic warden, namely the ordering hand of international law, re-establishing at some point in the process an inevitable barrier, which, in order to be effective, could only be in limine litis.
4. The (same) foreseeable outcome of any dispute concerning grave violations of jus cogens
The doctrinal attempts to demonstrate that the rules on state immunity have already changed or are in need of reconsideration tend to overlook or summarily dispose of an important issue – that of the cause of action.
What makes the pending case before the ICJ so disturbing is that beyond the issue of state immunity, the cause of action of the Italian claims is totally lacking. As we have already seen, all of the pending Italian cases against the Federal Republic of Germany are moot, because of the Italian waivers of 1947 and 1961. But, even in more general terms, it is very doubtful whether international law at all permits civil actions against a former belligerent state for damages related to the conduct of the war. Both Article 3 of the IV Hague Convention of 1907 and Article 91 of the 1977 First Protocol to the four Geneva Conventions of 1949 affirm the liability of belligerent states to pay an indemnity for the violations committed by their armed forces, but the norm is formulated in terms that clearly exclude its direct applicability. The travaux préparatoires of both conventions make absolutely clear that the solution envisaged was that of post-war interstate agreements.Footnote 86 Until recently, the view that the norm lacked applicability was almost unanimous in legal literatureFootnote 87 as well as in domestic and international jurisprudence. It is too early to say whether matters have significantly changed in recent years. It is, however, not surprising that the Italian Court of Cassation failed to examine the issue, and perfunctorily affirmed that violations of internationally protected fundamental human rights ‘are apt to serve as a parameter of the injustice of the tort under domestic law’.Footnote 88 It is instructive to compare this easy way out not only with the opposite view held by both the German Federal Constitutional Tribunal and the German Federal Supreme Court,Footnote 89 but also with some recent decisions of the European Court of Human Rights. The decision of 4 September 2007 in the case Associazione Nazionale Reduci dalla Prigionia (ANRP) and 275 Others v. Germany is particularly relevant, since the case was closely related to the Ferrini case before the Italian Court of Cassation. Indeed, Mr Ferrini was one of the 275 applicants in the ANRP case. The ANRP had maintained that its members’ exclusion from the benefits provided by the German fund ‘Erinnerung, Verantwortung, Zukunft’Footnote 90 violated their property rights, or better their legitimate expectations thereof, based on Article 3 of the IV Hague Convention. The Fifth Chamber unanimously held that ‘whatever suffering the applicants’ forced labour brought about, none of the Conventions referred to by the applicants establishes any individual claims for compensation’.Footnote 91
Some months earlier, on 14 December 2006, the Grand Chamber of the European Court of Human Rights had rendered its decision in the Marković v. Italy case, dealing with an order by the Italian Court of Cassation of 5 June 2002. In that order, the Italian Court had declined to exercise its jurisdiction with regard to a civil claim against the Italian government submitted filed by the heirs of a victim of the NATO bombing on the Serbian Television station in Belgrade on 23 April 1999. The Court had found that the government's decisions to engage in military operations were non-justiciable as a ‘manifestation of a political function’.Footnote 92 The Grand Chamber, by a majority vote, found no violation of Article 6 ECHR, holding that
‘the Court of Cassation's ruling in the present case does not amount to recognition of an immunity but is merely indicative of the extent of the courts’ powers of review of acts of foreign policy such as acts of war. It comes to the conclusion that the applicants’ inability to sue the State was the result not of an immunity but of the principles governing the substantive right of action in domestic law’.Footnote 93
The Marković decision of the Italian Court of Cassation sheds an interesting light on the risk that a domestic court could apply a double standard: civil actions against a foreign state, on the one hand, and civil actions against her own government, on the other.Footnote 94 The Marković judgment of the European Court of Human Rights, in turn, might be rightly criticized for going too far, because its logic would make a mockery of the right to access to the courts of the responsible state in all cases of war crimes.Footnote 95 My point here, however, is that not only domestic courts, but international ones as well are still extremely cautious when dealing with individual claims for war damages, regardless of the criminal character of the conduct that caused the damage. The reason for this is the same as that which persuaded the International Committee of the Red Cross in 1977 not to propose a change in the formulation of Article 3 of the IV Hague Convention of 1907: namely the still prevailing view that war damages, because of their potential (or – unfortunately – real) mass proportions, are more equitably and eventually more efficiently dealt with through inter-state agreements than through random individual actions before domestic judges.Footnote 96
Does the same reasoning apply equally to other cases of crimes against humanity? My tentative answer is yes. It is a somewhat paradoxical, surely sobering, but still old truth that the more systemic a violation becomes – involving masses of potential similar claims – the less efficient and satisfying the option of an individual judicial redress will be.Footnote 97 The lesson of the European Convention on Human Rights is particularly illustrative. The negotiators were well aware of the problem of systemic violations, and for that reason, they envisaged the instrument of inter-state claims, alongside the individual ones, and assigned to the Committee of Ministers the task to address the structural problems that an individual case might bring to the fore. The fact that state parties have too seldom utilized the tools at their disposal and that the peer review mechanism has too often shown its weakness and has caused the European Court of Human Rights in the last decade to look for new avenues, from the indication of general measures to the pilot-case procedure, not least in order to address the worrisome phenomenon of the Court's ever-increasing caseload and backlog.Footnote 98 Currently, the Court is torn between the perspective of sticking to the individual right to access to the Court and being submerged by the unstoppable rise in the number of applications, or the perspective of introducing some form of class or collective actions.Footnote 99 Yet, one could make the argument that not all violations of jus cogens have or tend to assume mass proportions. Torture could be an appropriate example, and indeed it is no coincidence that the only convention in which the question of civil redress has been addressed (even if the question of state immunity has not been decided upon) is the 1984 UN Convention against Torture.Footnote 100 And, again, it is no coincidence that the most debated decisions upholding state immunity, such as Al-Adsani v. Kuwait, Jones v. Saudi Arabia, or Bouzari v. Iran, dealt with this crime. Albeit with some reluctance, however, I do not think that the time is ripe to create an exception to state immunity, not even for cases of torture. That exception would open the floodgates to every kind of claim, since the concept of torture in international law is broad enough to plausibly include almost all other crimes against humanityFootnote 101 so that any distinction based on the nomen criminis would be to a certain extent artificial. More importantly, given the fact that, as demonstrated above, there is as yet no general international-law norm providing for the right of access to justice as a consequence of a violation of a jus cogens norm, one could ask why, even de lege ferenda, access to domestic courts against a foreign state should be per se a better or more auspicious solution than, say, strengthening the existing international supervisory mechanisms of prevention and repression of torture.
So, again, we arrive at the core issue: the role of states and international organizations in dealing with violations of obligations erga omnes and/or violations of jus cogens. Notoriously, the ILC left more questions opened than it answered. I have already pointed out the ambiguous formulation of Article 54, which does not prejudice the right of any state ‘to take lawful measures’ against the state responsible for the violation of an erga omnes obligation. With regard to the serious breaches under peremptory norms of general international law, Article 41, paragraph 3, closes with a saving clause, through which the Commission does not exclude ‘such further consequences that a breach to which this chapter applies may entail under international law’. Admittedly, all that is not very helpful, and the ILC did not make matters any easier by refusing some years later to progressively develop international law to any significant extent with respect to the exercise of diplomatic protection, even in the case of a violation of jus cogens.
Yet, if one were to sense an effort of overall coherence in the ILC codification, it would be that while a state is not obligated to raise a claim for violations of jus cogens, it also cannot renounce its right to raise such a claim. This is what I have tried to demonstrate elsewhere with regard to Article 45 of the ILC Articles on State Responsibility for International Wrongful Acts by stressing the relevance of the ‘validity’ of the waiver as a condition for the loss of the right to invoke state responsibility.Footnote 102 Because this is possibly a new aspect of jus cogens, namely a case of jus cogens superveniens, the principle obviously does not apply retroactively,Footnote 103 but it could play a useful role in solving the apparent conflict between state immunity and the consequences of the violation of jus cogens rules. If it is true that under current international law, a state cannot waive a claim for violations of jus cogens, then international organizations and civil society are endowed with great leverage over governments in inducing them to take jus cogens violations seriously. It is ill-advised, however, for domestic judges, even if they consider themselves part of the global civil society, to abuse their judicial powers in order to maximize that leverage.
5. Should that necessarily be the outcome of the dispute?
Beyond the letter of Article 59 of the Statute, the ICJ's decisions can be, and often are, landmarks in the history of international law. Their tenor can be a powerful stimulus for, or a powerful restraint on, the development of international law. The ICJ's responsibility for striking the right balance will seldom be more apparent than in the present case. Should the Court in the present case speak unmistakably or should it instead exert as much judicial self-restraint as possible?
To put it in other terms, are there ways to stop the flawed jurisprudence of the Italian Court of Cassation, without impinging on the possible future development of international customary law on state immunities?Footnote 104
One could envisage at least two avenues, both of which use arguments of inter-temporal law. The first option would be to argue that the jus cogens concept did not exist in positive international law at the time the wrongful acts were committed, or at least that it was not sufficiently settled to imply all the consequences that the Italian Court of Cassation has found. Once again, the Court of Cassation's reasoning in the Ferrini case and its subsequent judgments is remarkably simplistic. It is one thing to demonstrate, as the Court did, that deportation and forced labour were already considered war crimes at the time of their commission, as the Nuremberg trial proves, but quite another thing to demonstrate that at that time, the international criminal responsibility of the individual for war crimes was equated to the international responsibility of the state for the same violation.Footnote 105 The inference that one follows from the other is all the less warranted if one considers that deportation and forced labour, regardless of the magnitude of the phenomenon, were considered at that time to be no different from other ‘war damages’, reparable only through an inter-state compact.Footnote 106 If one were to agree with the Italian Court of Cassation that the concept of jus cogens makes the state immunity lapse, it would be at best a case of jus cogens superveniens, hence non-retroactive.
The second option could stress the fact that even if the concept of jus cogens already existed in the 1940s, it did not limit the immunity of states, which, at that time, was still considered absolute. Regardless of the different views that domestic courts may have on the issue of state immunity, namely considering it as a mere procedural bar or a substantive matter, views that would inevitably influence the related issue of its rectroactivity vel non,Footnote 107 it is interesting to note that the two conventions on jurisdictional immunities of states – the 1972 Basel Convention of the Council of Europe and the 2004 UN Convention – albeit both expressly stating their non-retroactivity, offer two different solutions. Article 4 of the UN Convention is a typical ‘non-retroactive’ rule, in the sense that it excludes the application of the rules of the Convention for questions regarding immunity arising in a domestic process that started before the Convention entered into force, without prejudice to the application of the customary rules contained therein. On the contrary, Article 35, paragraph 3, of the Basel Convention says something more incisive. It states that ‘[N]othing in this Convention shall apply to proceedings arising out of, or judgments based on, acts, omissions or facts prior to the date on which the present Convention is opened for signature’. The explanatory report attached to the Basel Convention makes it clear that it was the intention of the parties to exclude from its scope of application ‘les litiges issus d’ événements trop anciens’.Footnote 108 This means that the authors of the Convention were aware of the fact that not all of the exceptions to immunity in the Convention codified customary international law, and that it would be inopportune, or even illegitimate, to retroactively apply a new exception to immunity in relation to facts or acts that had taken place at a time when the exception did not yet exist. The solution provided by Article 35, paragraph 3, of the Basel Convention is proof of the fact that the question of state immunity in international law is a much too complex issue to be solved along the simple line of a domestic civil process.
Each option could offer a viable solution for the pending case. Even if the Court were to miss a major opportunity to give states clear guidance on general principles, both solutions would still have the non-negligible merit of definitely disposing of a ‘revenant’ claim.
6. Will that be the end of the dispute?
I could have ended here. But, as in all good ‘revenant’ stories, you can never be sure whether, by the last page, you have really reached the end.
Imagine for the sake of argument that, after a judgment favourable to Germany, the Italian Court of Cassation was not ready to comply. Would it have an option? The Medellin v. Texas decision of the US Supreme Court of 26 March 2008,Footnote 109 stressing domestic constitutional limits to compliance with decisions of international tribunals, might have made school overseas. For instance, the Court of Cassation could ask the Italian Constitutional Court to decide whether Article 11, paragraph 2, of the Law 218/1995 is compatible with constitutional parameters, to the extent that it states the lack of domestic jurisdiction ‘for effect of an international law norm’. According to Article 10 of the Italian Constitution, ‘generally recognized international law norms’ are automatically incorporated into the Italian legal order and have constitutional rank. But should the norm of customary international law on immunity prevail also against fundamental constitutional norms, such as Article 24 of the Italian Constitution, which grants every citizen the right to judicial redress for the violation of his/her individual rights and legitimate interests?
Interestingly, the question is not at all novel for the Italian Constitutional Court, which already addressed it in its Judgment 48 of 18 June 1979 concerning diplomatic immunities.Footnote 110 In that judgment, the Court had designated the year 1948, in which the Italian Constitution went into force, as a watershed moment, protecting as lex specialis the customary international-law norms formed before that time, and subjecting the application of norms created later to the respect of fundamental constitutional principles. That judgment, which, in my view, albeit through a debatable argument, had reached the right conclusion of the prevalence of the international customary norm, was authoritatively criticized for having taken a formalist view of what is really a problem of substance.Footnote 111 Since then, the Constitutional Court has not again had occasion to squarely address the issue of the relation between international customary law and constitutional law, yet, in recent judgments, it has confirmed its view that fundamental constitutional norms prevail over international law, be it treaty law or customary law.Footnote 112
In the Milde judgment, the First Criminal Chamber of the Italian Court of Cassation seems to have already laid the groundwork for the next move. In one of the last paragraphs, the Court's focus unexpectedly shifts from the discourse of international jus cogens to the one of domestic constitutional law. Without any apparent reason,Footnote 113 the Court was keen to demonstrate the ‘reliability of the result arrived at also in the perspective of the values and principles by which the Italian constitutional order is permeated’. After recalling Article 10 of the Italian Constitution, the Court found it ‘extremely significant’ to specify that fundamental human rights are inviolable constitutional rights that cannot be derogated even by customary international law. To the delight of the old dualists/new pluralists,Footnote 114 the stage is being set.
