Jurisdictional Immunity of the State

Jurisdictional Immunity of the State (Germany v. Italy case)

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Jurisdictional Immunity of the State (Germany v. Italy)

Overview

The case is about Italian courts giving consent to civil claims to be enforced against Germany, in regards to infringement of intercontinental human rights committed by Germans in the Second World War on Italian citizens. The Italian courts went further to allow and enforce a judgment of a Greek court concerning similar claims. Enforcement was done by constraining a German property within Italy. The main issue or question is whether Italy violated German’s jurisdictional immunity stipulated in the international law (Shah, 2012).

Facts

During the Second World War, Italy had already entered as an ally with the Germany in 1940. At this time, substantial territory of Italy was occupied by the German troops. These troops committed many crimes against humanity on civilians and soldiers that included massacres, forced labor and deportations. After the war, Germany made efforts to compensate the victims of these atrocities (Shah, 2012). However, not all were compensated, especially the military interns. The laws set up for compensation did not recognize them as victims for compensation. Therefore, they were never paid any damages.

These military interns filed civil cases against the German to Italian courts, claiming compensation. The Italian courts granted judgment in their favor. However, the German objected to these proceedings based on jurisdictional immunity presented before the foreign courts (Gunaratne, 2013). However, the Italian court justified their judgment on counts that jurisdictional immunity is not supreme and further claimed that it is supposed to be set aside when cases involve crime. Additionally, the Greek courts also made such a ruling that Germany should pay damages to victims of the atrocities within their territory. However, Germany refused to pay that it was in violation of the international law jurisdictional immunity of state. The Greek executive enforce it within their borders, to the claimants asked the Italian courts to enforce it, which they did by constraining a German property within their territory.

Legal arguments

The main issue for discussion within this case is whether Italy in the rulings of its case has violated the international jurisdictional immunity of Germany. The court argued that, “customary international law continues to require that the state be accorded immunity in proceedings for torts allegedly committed on the territory of another by its armed forces … during an armed conflict,” (International Court Of Justice, 2012. p. 6). The ICJ further argues that under article 80, paragraph 1 of the rule of courts that the judgment or proceedings were inadmissible since the matter was not within the jurisdiction of the Italian courts.

During the case filed by Germany, the court first makes note of the issue at hand. It realizes the main issue at hand is not the illegality of the claim since it was not disputed. Rather, it is about whether the proceedings of the cases filed by the claimants violate the international jurisdictional immunity that Italy should have granted Germany. On this matter, the court argues that although much debate concerning the origin of jurisdictional immunity as well as its underlying principles exists, the international law commission in 1980 had concluded that, “State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States,” (International Court Of Justice, 2012. p. 3).

Court’s decision

The court concluded that Italy dishonored the international jurisdiction of immunity by allowing the military internees to make their civil claims against Germany over the crimes carried out by its army during the Second World War. This was after Italy made the ruling enforceable within its territory and going ahead to do the same for Greek cases. I believe that the court was right in ruling in favor of Germany since it is a violation of sovereignty of a state. Therefore, Italy should seek another method to address these claims without infringing the jurisdictional immunity of Germany (Gunaratne, 2013).

References

Gunaratne, R. (2013). Jurisdictional Immunities of the State (Germany vs. Italy) (Summary). Retrieved from http://ruwanthikagunaratne.wordpress.com/2013/01/03/jurisdictional-immunities-of-the-state-germany-vs-italy-summary/

International Court of Justice. (2012). Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Summary of the Judgment of 3 February 2012. Retrieved from http://www.icj-cij.org/docket/files/143/16899.pdf

Shah, S. (2012). Jurisdictional Immunities of the State: Germany v Italy. Human Rights Law Review, 12 (3): 555-573.