                     179

                          DISSENTING OPINION OF JUDGE CANÇADO TRINDADE

                                                   table of contents

                                                                                Paragraphs

                             I. Prolegomena1-6
                            II. Preliminary Issue : The Inter-Temporal Dimension in
                                the Consideration of State Immunity                             7-17
                           III. State Immunities and War Reparation Claims : An
                                Ineluctable Relationship in the Present Case                   18-23

                           IV. Germany’s Recognition of State Responsibility in the
                               Cas d’Espèce24-31

                            V. Fundamental Human Values : Rescuing some Forgot-
                               ten Doctrinal Developments                                      32-40
                           VI. The Collegial Doctrinal Work of Learned Institu-
                               tions of International Law                                      41-52
                          VII. The Threshold of the Gravity of the Breaches of
                               Human Rights and of International Humanitarian
                               Law53-62
                          VIII. The Question of Waiver of Claims in respect of the
                                Right of Access to Justice in the Pleadings before the
                                Court : Assessment                                             63-68
                           IX. The Inadmissibility of Inter‑State Waiver of the
                               Rights of the Individuals, Victims of Grave Violations
                               of International Law                                            69-72
                            X. Positions of the Contending Parties as to the Right of
                               Access to Justice                                               73-79
                           XI. Clarifications from the Contending Parties and from
                               Greece in Response to Questions from the Bench                  80-96
                                1. Questions put to the contending Parties and to Greece          80
                                2. First round of answers                                      81-91
                                 (a) Germany’s and Italy’s answers                             82-89
                                 (b) Greece’s answer                                           90-91

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                                3. Second round of answers                                       92-96
                                  (a) Germany’s comments                                            93
                                  (b) Italy’s comments                                           94-96
                          XII. The Prohibition of Forced Labour at the Time of the
                               Second World War                                                 97-120
                                1. Normative prohibition                            97-101
                                2. Judicial recognition of the prohibition         102-113
                                3. The prohibition in works of codification        114-116
                                4. International crimes and the prohibitions of jus
                                   cogens117-120
                          XIII. Oral Pleadings of the Parties, and the Intervening
                                State, on Jus Cogens and Removal of Immunity :
                                Assessment121-129
                          XIV. State Immunity v. the Right of Access to Justice                130-155

                                1. The prevailing tension in the case law of the European
                                   Court of Human Rights                                       130-142
                                  (a) The Al-Adsani case (2001)                                130-134
                                  (b) The McElhinney case (2001)                               135-138
                                  (c) The Fogarty case (2001)                                  139-140
                                  (d) The Kalogeropoulou and Others case (2002)                141-142
                                2. The prevailing tension in the case law of national courts   143-148

                                3. The aforementioned tension in the age of the rule of law
                                   at national and international levels                        149-155
                          XV. The Contentions of the Parties as to Acts Jure Impe-
                              rii and Acts Jure Gestionis156-160

                          XVI. The Human Person and State Immunities : The Short-
                               sightedness of the Strict Inter‑State Outlook                   161-171
                       XVII. The State‑Centric Distorted Outlook in Face of the
                             Imperative of Justice                                             172-176
                      XVIII. The Human Person and State Immunities : The Over-
                             coming of the Strict Inter‑State Outlook                          177-183
                          XIX. No State Immunities for Delicta Imperii184-198
                                1. Massacres of civilians in situations of defencelessness     185-191
                                  (a) The massacre of Distomo                                  185-188
                                  (b) The massacre of Civitella                                189-191
                                2. Deportation and subjection to forced labour in war
                                   industry                                                   192-198

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                          XX. The Prevalence of the Individual’s Right of Access to
                              Justice : The Contending Parties’ Invocation of the
                              Case Goiburú et Al. (IACtHR, 2006)                          199-213
                          XXI. The Individual’s Right of Access to Justice : The
                               Evolving Case Law towards Jus Cogens214-220
                      XXII. Out of Lawlessness : The Individual Victim’s Right to
                            the Law (Droit au Droit)221-226
                      XXIII. Towards the Primacy of the Never-Vanishing Recta
                             Ratio227-239

                      XXIV. The Individuals’ Right to Reparation as Victims of
                            Grave Violations of Human Rights and of Interna-
                            tional Humanitarian Law                                       240-281
                               1. The State’s duty to provide reparation to individual vic-
                                  tims240-257
                               2. The categories of victims in the cas d’espèce258-260
                               3. The legal framework of the “Remembrance, Responsi-
                                  bility and Future” Foundation (2000)                     261-267
                               4. Assessment of the submissions of the contending Parties 268-281
                       XXV. The Imperative of Providing Reparation to Individual
                            Victims of Grave Violations of Human Rights and of
                            International Humanitarian Law                                282-287
                               1. The realization of justice as a form of reparation      282-284

                               2. Reparation as the reaction of law to grave violations   285-287

                      XXVI. The Primacy of Jus Cogens : A Rebuttal of Its Decon-
                            struction288-299
                     XXVII. A Recapitulation : Concluding Observations                    300-316

                                                             *

                                                   I. Prolegomena

                        1. I regret not to be able to accompany the Court’s majority in the
                     decision which the Court has just adopted today, 3 February 2012, in the
                     case concerning the Jurisdictional Immunities of the State (Germany v.
                     Italy : Greece intervening). My dissenting position pertains to the decision
                     as a whole, encompassing the adopted methodology, the approach pur-
                     sued, the whole reasoning in its treatment of issues of substance, as well
                     as the conclusions of the Judgment. This being so, I care to leave on the
                     records the foundations of my dissenting position, given the considerable

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                     importance that I attach to the issues raised by Germany and Italy, as
                     well as by Greece, in the course of the proceedings in the cas d’espèce, and
                     bearing in mind the settlement of the dispute at issue ineluctably linked to
                     the imperative of the realization of justice, as I perceive it.
                        2. I thus present with the utmost care the foundations of my entirely
                     dissenting position on the whole matter dealt with by the Court in the
                     Judgment which it has just adopted, out of respect for, and zeal in, the
                     exercise of the international judicial function, guided above all by the ulti-
                     mate goal precisely of the realization of justice. To this effect, I shall dwell
                     upon all the aspects concerning the dispute brought before the Court
                     which forms the object of its present Judgment, in the hope of thus con-
                     tributing to the clarification of the issues raised and to the progressive
                     development of international law, in particular in the international adju-
                     dication by this Court of cases of the kind on the basis of fundamental
                     considerations of humanity, whenever grave breaches of human rights
                     and of international humanitarian law lie at their factual origins, as in the
                     cas d’espèce.
                        3. Preliminarily, I shall dwell upon the inter-temporal dimension in the
                     consideration of State immunity, moving then onto my initial line of con-
                     siderations, pertaining, first, to the ineluctable relationship (as I perceive
                     it), in the present case, between State immunities and war reparation
                     claims, and, secondly, to the recognition by Germany of State responsi-
                     bility in the present case. I shall then seek to rescue some doctrinal devel-
                     opments, forgotten in our days, acknowledging fundamental human
                     values, and to recall the pertinent collegial doctrinal work, on the subject-
                     matter at issue, of learned institutions in international law. I shall, next,
                     turn to the threshold of the gravity of the breaches of human rights and
                     of international humanitarian law.
                        4. This will lead me into the consideration of the question of waiver of
                     claims in respect of the right of access to justice in the pleadings before the
                     Court, and into the position upholding the inadmissibility of inter‑State
                     waiver of the rights of the individuals, victims of grave violations of inter-
                     national law. I shall then review the arguments of the contending Parties
                     as to the right of access to justice. Attention will then be drawn to the
                     clarifications from the contending Parties, Germany and Italy, and from
                     the intervening State, Greece, in response to a series of questions I put to
                     them in the oral hearings before the Court, on 16 September 2011.
                        5. I shall next consider the prohibition of forced labour at the time of
                     the Second World War, and the prohibitions of jus cogens and the removal
                     of immunity. This will lead me to review the tension, in international case
                     law, between State immunity and the right of access to justice, as well as
                     to assess the contentions of the Parties in the present case as to acts jure
                     imperii and acts jure gestionis. My next line of considerations will focus
                     on the human person and State immunities, singling out the shortsighted-
                     ness of the strict inter-State outlook, particularly when facing the impera-
                     tive of justice, and stressing the need to overcome that distorted inter‑State
                     outlook. This will lead me to sustain the position that there are no State

                     87

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                     immunities for delicta imperii, with the prevalence of the individual’s right
                     of access to justice, in the domain of jus cogens.

                        6. In sequence, I shall dwell upon the configuration of the individual
                     victim’s right to the law (droit au Droit), bearing witness of the primacy
                     of the never-vanishing recta ratio. My following line of reasoning will
                     concentrate on the individuals’ right to reparation as victims of grave vio-
                     lations of human rights and of international humanitarian law, and on
                     the imperative of the State’s duty to provide reparation to those victims.
                     This will lead me to uphold the primacy of jus cogens, with a rebuttal of
                     its deconstruction. The path will then be paved, last but not least, for the
                     presentation of my concluding observations.

                                II. Preliminary Issue : The Inter-Temporal Dimension
                                       in the Consideration of State Immunity

                        7. The consideration of the issue of the application of State immunity
                     calls for addressing an ineluctable preliminary question, namely, the
                     inter‑temporal dimension in that consideration. This raises the prelimi-
                     nary issue as to whether State immunity should be considered in the pres-
                     ent case opposing Germany to Italy as it was understood at the time of
                     the commission of acts for which immunity is claimed (in the 1940s), or
                     as it stands when the Court was lately seized of the present dispute.
                        8. Germany claims, in this respect, that, at the time when German
                     forces were present in Italy in 1943‑1945, “the doctrine of absolute immu-
                     nity was uncontested” 1, and that, even today, “[a]bsolute jurisdictional
                     immunity in respect of sovereign acts of government is still the generally
                     acknowledged customary rule” 2. Germany further contends that a depar-
                     ture from this doctrine, or the creation of new exceptions to State immu-
                     nity with retroactive effect, would be in contradiction with general
                     principles of international law 3.
                        9. Italy, for its part, argues that the acts sub judice in the present case,
                     the Italian judgments from 2004 onwards, that have asserted jurisdiction
                     vis‑à‑vis Germany, have applied correctly the modern‑day understanding
                     of the principle of State immunity 4. It further claims that immunity is a
                     procedural rule, and as such it must be assessed on the basis of the law in
                     force at the time that a Court is seized 5; it adds that courts have generally
                     applied the law in existence at the “moment of the judicial action and not
                     of the original injurious facts” 6.

                          1 Memorial of Germany, para. 91 ; and Reply of Germany, para. 37.
                          2 Compte rendu (CR) 2011/17, para. 29.
                          3 Memorial of Germany, para. 91 ; and Reply of Germany, para. 37.
                          4 Counter-Memorial of Italy, paras. 1.14‑1.16 ; CR 2011/18, pp. 23‑24.
                          5 Rejoinder of Italy, para. 4.2.
                          6 Counter-Memorial of Italy, para. 4.47.

                     88

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                        10. Inter‑temporal considerations for the application or otherwise of
                     State immunity call into question two issues, namely : first, whether State
                     immunity has changed, or evolved, in the past decades ; and secondly,
                     whether State immunity should be applied in the present case as it is
                     understood today, the time when the Court is seized of the dispute. As to
                     the first question, the law of State immunity has clearly developed and
                     evolved ; it has not remained static. Developments in the domains of
                     international human rights law, of contemporary international criminal
                     law, and of international humanitarian law, cannot be said to have had
                     no influence on the evolving law of State immunity.

                        11. As to the second question, there is a case for focusing on State
                     immunity as it stands when the Court is seized of the dispute. After all, it
                     would not make sense to consider the matter at issue as it was understood
                     at the time of the Second World War, in relation to Italian courts’ judg-
                     ments rendered from 2004 onwards, setting aside State immunity and
                     awarding reparations to the individual victims. The formation and devel-
                     opment of international law, as well as its interpretation and application,
                     can hardly be dissociated from the inter‑temporal dimension. The
                     “inter‑temporal law” issue came to the fore in the arbitral award of
                     4 April 1928, in the Island of Palmas case (Netherlands v. United States),
                     wherein arbitrator Max Huber pondered that :
                             “As regards the question which of different legal systems prevai-
                          ling at successive periods is to be applied in a particular case (the
                          so‑called intertemporal law), a distinction must be made between the
                          creation of rights and the existence of rights. The same principle
                          which subjects the act creative of a right to the law in force at the
                          time the right arises, demands that the existence of the right, in other
                          words its continued manifestation, shall follow the conditions required
                          by the evolution of law.” 7
                       12. In modern times it has been clearly reckoned that there are no
                     “immutable” rules of international law, as erroneously assumed in times
                     long past. The Institut de droit international covered the topic of
                     “inter‑temporal law”, in its Sessions of Rome (1973) and Wiesbaden
                     (1975). There was general acknowledgement as to the basic proposition
                     that any given situation is to be appreciated in the light of legal rules
                     contemporary to it 8, and evolving in time ; awareness of the underlying
                     tension was reflected in the cautious resolution adopted by the Institut in
                     Wiesbaden in 1975 9.

                         7 Reports of International Arbitral Awards (RIAA), Vol. II : Island of Palmas case

                     (Netherlands v. United States), 4 April 1928, p. 845 (emphasis added), and cf. pp. 829‑871.
                         8 Cf. 55 Annuaire de l’Institut de droit international (AIDI) (1973), pp. 33, 27, 37,

                     48, 50 and 86 ; 56 AIDI (1975), p. 536 (para. 1 of the resolution of the Institut). And
                     cf. M. Sorensen, “Le problème dit du droit intertemporel dans l’ordre international —
                     Rapport provisoire”, 55 AIDI (1973), pp. 35‑36.
                         9 Cf. 56 AIDI (1975), pp. 536‑541 (cf., particularly, the second considerandum of the

                     preambular part of the resolution).

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                        13. The impact or influence of the passage of time in the formation and
                     evolution of the rules of international law is not a phenomenon external
                     to law 10. The surpassed positivist‑voluntarist conception of international
                     law nourished the pretension of attempting (in vain) to establish the inde-
                     pendence of law in relation to time, while concomitantly privileging the
                     method of observation (e.g., of State practice) in its undue minimization
                     of the principles of international law, which touch on the foundations of
                     our discipline.
                        14. Within the conceptual universe of this latter, aspects of inter‑tem-
                     poral law came to be studied, e.g., keeping in mind the relationship
                     between the contents and the effectiveness of the norms of international
                     law and the social transformations which took place in the new times. A
                     locus classsicus in this respect lies in the well‑known obiter dictum of this
                     Court, in its Advisory Opinion on Namibia (1971), wherein affirmed that
                     the system of mandates (territories under mandate) 11 was “not static”,
                     but “by definition evolutionary” ; and it added that its interpretation of
                     the matter could not fail to take into account the transformation occurred
                     over the following fifty years, and the considerable evolution of the cor‑
                     pus juris gentium in time. In the words of the Court, “an international
                     instrument has to be interpreted and applied within the framework of the
                     entire legal system prevailing at the time of the interpretation” 12.
                        15. In respect of the present case opposing Germany to Italy, the fact
                     remains that, even after Court’s Order of 6 July 2010 13, dismissing as
                     “inadmissible” the Italian counter‑claim, and thus, much to my regret,
                         10 In the aforementioned work of the Institut, attention was in fact turned to the impact

                     of the passage of time on the development of international law ; cf. 55 AIDI (1953), pp. 108
                     and 114‑115 (interventions by M. Lachs, P. Reuter and S. Rosenne).
                         11 And in particular the concepts incorporated in Article 22 of the Covenant of the

                     League of Nations.
                         12 Legal Consequences for States of the Continued Presence of South Africa in Namibia

                     (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
                     Opinion, I.C.J. Reports 1971, pp. 31‑32, para. 53.
                         13 The effects of this Order of the Court were interpreted distinctly by the contending

                     Parties. Germany claimed that the cas d’espèce does not concern the Second World War
                     violations of international humanitarian law and the question of reparations, and that this
                     ensues from the Court’s Order of 6 July 2010 (CR 2011/17, p. 18, para. 11) ; in Germany’s
                     view, the Court does not have jurisdiction to adjudicate upon this issue (CR 2011/20, p. 11,
                     para. 4). Italy, in turn, argued that the aforementioned Order of the Court does not bar
                     it from raising the issue of reparations at this stage of the proceedings, in order to have
                     Germany’s immunity lifted (CR 2011/18, p. 13, para. 10). Turning to the inter-temporal
                     dimension of the present dispute, Germany, however, went back to the times of the Second
                     World War, to claim that the question whether it enjoys immunity before Italian courts
                     should be examined according to the standards in force from 1943-1945, since immunity
                     is the procedural counterpart of the substantive rule that provides for war reparations
                     at inter‑State level (CR 2011/17, pp. 35‑36, para. 32). Italy, for its part, argued that the
                     rules of State immunity, as procedural rules, must be applied by courts as they exist at the
                     time of the filing of the complaint and not as they existed at the time the alleged violation
                     of international law took place, and claims that such position is supported by Article 4
                     of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property
                     (CR 2011/18, pp. 23‑24, paras. 15‑18).

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                     trying to dissociate State immunities from war claims for reparations, the
                     contending Parties themselves, Germany and Italy, continued to relate
                     their (written and oral) submissions on the issue of State immunities to
                     the factual background of war reparations claims. This appears inelucta-
                     ble to me, as one cannot consider State immunities in the void, outside
                     the factual context (including the factual origin) wherein they are invoked.
                     The two go together, as the proceedings in the present case clearly dem-
                     onstrated. I shall come back to this point throughout the present dissent-
                     ing opinion.

                       16. It is not warranted, in my view, to invoke the factual origin of a
                     dispute simply to try to argue that forced labour in the war industry was
                     not prohibited in the past (the Second World War), or that jus cogens did
                     not exist then, or that rights inherent to the human person were not yet
                     recognized, and at the same time hide oneself behind the shield of State
                     immunity. That makes no sense to me at all, and leads to impunity and
                     manifest injustice. That goes against international law. That is inaccept-
                     able today, as was inacceptable in the past. It goes against the recta ratio,
                     which lies in the foundations of the law of nations, today as in the past.

                        17. One cannot take account of inter‑temporal law only in a way that
                     serves one’s interests in litigation, accepting the passing of time and the
                     evolution of law in relation to certain facts but not to others, of the same
                     continuing situation. There may be greater awareness of the interrelated-
                     ness between State immunities and war reparations claims today, and this
                     is reassuring. One cannot simply discard such interrelatedness without
                     providing any foundation for such dogmatic position. One cannot hide
                     behind static dogmas so as to escape the legal consequences of the perpe-
                     tration of atrocities in the past. The evolution of law is to be taken into
                     account, in the unending struggle to put an end to atrocities and to see to
                     it that they do not happen again, anywhere in the world.

                              III. State Immunities and War Reparation Claims :
                               An Ineluctable Relationship in the Present Case

                        18. It should not pass unnoticed that, after the Court’s Order of
                     6 July 2010 summarily dismissing the Italian counter‑claim, references to
                     the facts underlying the dispute between the Parties, and conforming its
                     historical background, continued to be made by the contending Parties
                     (Germany and Italy). It is in fact striking to note that, even after the
                     Court’s Order of 6 July 2010, both Parties — and, more significantly,
                     Germany — have kept on referring to the factual and historical back-
                     ground of the present case. More specifically as to the question of repara-
                     tions, Germany has dedicated part of its written and oral pleadings to this
                     topic.

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                        19. In fact, after the Court’s Order of 6 July 2010 concerning Italy’s
                     counter‑claim, Germany submitted its Reply (of 5 October 2010) where it
                     dedicates its Section III, paras. 12‑34, to “Reparation Issues concerning
                     Italy and Italian Citizens” 14. As to Germany’s arguments concerning the
                     question of reparation and the factual context of the present case, in
                     paragraph 13 of its Reply, for example, it claims that Italy was involved
                     in the post‑war reparations scheme and that it received appreciable
                     amounts of compensation from Germany. In paragraph 34 of its Reply,
                     Germany further contends that, through the various mechanisms of repa-
                     ration, in particular through collective reparations, it has fulfilled its duty
                     to provide reparation in a fully satisfactory manner.

                       20. The same is true concerning the arguments of the Parties during the
                     oral hearings 15. A statement by the counsel for Italy is illustrative of this :
                                  “Is it not surprising to hear the Agent of Germany assert again at
                               this stage that the question of reparation ‘do[es] not form part of the
                               present proceedings’, whereas most of the discussions and the remarks
                               your Court has heard throughout this week of pleadings have been and
                               continue to be focused on this topic, and each of the counsel for the
                               opposing Party has in particular made every effort to demonstrate that
                               no violation of the obligations in question was ever committed ?” 16

                        21. While Germany states that the case is not about “the [Second
                     World War], violations of international humanitarian law committed
                     during the war and the question of reparations” 17, during its second
                     pleadings in the oral proceedings, the agent of Germany stated that she
                     intended “to dispel any erroneous impression that might have been cre-
                     ated by our Italian and Greek friends that victims of German war crimes
                     were deliberately left without compensation” 18. She then went on to
                     describe the mechanism of reparation that was put in place after the Sec-
                     ond World War, stating that
                               “— At the beginning of the 1960s the Federal Republic of Germany
                                  paid DM115 million to Greece for victims of racial and reli-
                                  gious persecution. Germany likewise concluded the two treaties
                                  with Italy referred to in our Memorials, under which a lump sum
                                  of DM80 million was paid to Italy.

                                 — Roughly 3,400 Italian civilians were compensated for their
                                   forced labour by the Foundation ‘Remembrance, Responsibil-

                          14 Reply of Germany, paras. 12‑34.
                          15 Cf., e.g., CR 2011/20, p. 11 ; CR 2011/21, p. 14.
                          16 CR 2011/21, p. 14 (official translation).
                          17 CR 2011/17, p. 18.
                          18 CR 2011/20, pp. 11‑12.

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                         jurisdictional immunities of the state (diss. op. cançado trindade)

                                 ity, Future’. The total amount of funds awarded to Italian indi-
                                 viduals by this Foundation was close to €2 million.
                               — Furthermore, roughly 1,000 Italian military internees were
                                 awarded compensation for forced labour under the Founda-
                                 tion scheme.
                               — In addition, numerous Italian and Greek individuals received
                                 payments under the German post‑war compensation legisla-
                                 tion.” 19
                         22. The question is addressed again in the pleadings of counsel for Ger-
                     many, wherein it is claimed that Italy’s stance that Germany has failed to
                     provide reparation collectively “requires an explanation of the entire
                     system of reparations as it was conceived by the community of States” 20.
                       The argument goes on to explain the foundations of the system of repara-
                      tions “conceived by the community of States having declared war on
                      Germany . . . [which] were laid down at Potsdam, a few months after
                       Germany’s surrender” 21. Thus, counsel for Germany presented “the
                       political, historical and legal context of the waiver clause which must not
                       be seen as a kind of accident, a derailing provision which does not fit into
                       the system of international responsibility” 22.

                        23. In conclusion on the point at issue, one cannot make abstraction of
                     the factual context, of the historical background of the facts which gave
                     origin to the present case. State immunities cannot be considered in the
                     void, they constitute a matter which is ineluctably linked to the facts
                     which give origin to a contentious case. This is precisely what I upheld in
                     my dissenting opinion in the Court’s Order of 6 July 2010, whereby the
                     Court decided, however, to dismiss the Italian counter‑claim, much to my
                     regret. Shortly after that Order, the contending Parties themselves (Ger-
                     many and Italy) kept on relating their (written and oral) submissions on
                     the issue of State immunities to the factual background of war repara-
                     tions claims. It could not have been otherwise, as one and the other are
                     ineluctably interrelated.

                                 IV. Germany’s Recognition of State Responsibility
                                               in the Cas d’Espèce

                        24. Having established the ineluctable interrelatedness between the
                     claims of State immunities and of war reparations in the cas d’espèce
                     (supra), I now move on to the next point, namely, Germany’s recognition
                     of State responsibility for the wrongful acts which lie in the factual origin
                     of the present case. This comes to reveal the uniqueness of the present
                          19 CR 2011/20, pp. 11‑13.
                          20 Ibid., pp. 25‑26.
                          21 Ibid., pp. 25‑26.
                          22 Ibid., p. 27.

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                     189 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     case concerning the Jurisdictional Immunities of the State, a very rare one
                     in the inter‑State contentieux before the Hague Court, and an unprece-
                     dented one in that the Complainant State recognizes its own responsibil-
                     ity for the harmful acts lying in the origins, and forming the factual
                     background, of the present case.
                        25. Throughout the proceedings before this Court in the present case
                     concerning the Jurisdictional Immunities of the State, in the written and
                     oral phases, Germany took the commendable initiative of repeatedly rec-
                     ognizing State responsibility for the wrongful acts lying in the factual ori-
                     gins of the cas d’espèce, i.e., for the crimes committed by the Third Reich
                     during the Second World War 23. Thus, in the written proceedings, in its
                     Memorial Germany stated that
                           “the historical context of the dispute cannot be fully understood with
                           out at least a summary description of the unlawful conduct of the
                           forces of the German Reich, on the one hand, and the steps under-
                           taken by post‑war Germany, at the inter‑State level, to give effect to
                           the international responsibility of Germany deriving from that
                           conduct, on the other. (. . .)
                              The democratic Germany, which emerged after the end of the
                           Nazi dictatorship, has consistently expressed its deepest regrets over
                           the egregious violations of international humanitarian law perpe-
                           trated by German forces during the period from 8/9 September 1943
                           until the liberation of Italy.” 24
                       26. Germany then referred to its own previous “symbolic gestures”, on
                     many occasions, to remember the Italian citizens who became “victims of
                     barbarous strategies in an aggressive war”. It added that it was “prepared
                     to do so in the future” again. Germany recalled, in particular, the
                     2008 ceremony held in the memorial site “La Risiera di San Sabba” close
                     to Trieste (which had been used as a concentration camp during the Ger-
                     man occupation in the Second World War), where Germany fully
                     acknowledged the untold suffering inflicted on Italian men and women in
                     particular during massacres, and on former Italian military internees” 25.

                       27. One of the conclusions of the meeting of German and Italian
                     authorities during the ceremony in the memorial site near Trieste (on
                     18 November 2008) was the decision to create a joint commission of Ger-
                     man and Italian historians.
                           “with the mandate to look into the common history of both coun-
                           tries during the period when they were both governed by totalitarian
                           regimes, giving special attention to those who suffered from war

                        23 Cf., e.g., Memorial of Germany, paras. 7, 15, 59, 94 ; Reply of Germany, para. 2 ;

                     CR 2011/17, p. 15, para. 5 ; pp. 18‑19, para. 12 ; p. 31, para. 20 ; p. 48, para. 41 ; CR 2011/20,
                     para. 1.
                        24 Memorial of Germany, paras. 7 and 15.
                        25 Ibid., para. 15.

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                     190 	jurisdictional immunities of the state (diss. op. cançado trindade)

                               crimes, including those Italian soldiers whom the authorities of the
                               Third Reich abusively used as forced labourers (‘military internees’).
                               In fact, the first conference of that joint commission, which com-
                               prises five eminent scholars from each side, was held on 28 March 2009
                               in Villa Vigoni, the prominent centre for cultural encounters in Ger-
                               man‑Italian relations.” 26
                       28. Germany added that it “does not challenge the assertion that
                     indeed very serious violations, even crimes, were committed by its occu-
                     pation forces in Italy” 27. It added that “[t]he unlawful actions of the
                     armed forces of the Third Reich took place between 1943 and 1945. Since
                     that time, no injurious new element was added to the damage originally
                     caused.” 28 In its Reply, Germany again referred to “[t]he horrendous
                     events of World War II, when German occupation forces perpetrated
                     indeed serious violations of the laws of war” 29 (which it sought, however,
                     to separate from the issue of State immunity submitted to the jurisdiction
                     of the Court).
                       29. Likewise, in the course of the oral proceedings, in the public sitting
                     of 12 September 2011 before the Court, counsel for Germany stated that
                                  “The democratic Germany which emerged after the end of the Nazi
                               dictatorship has consistently expressed its deepest regret over the egre-
                               gious violations of international humanitarian law perpetrated by
                               German forces and fully acknowledges the suffering inflicted on the
                               Italian people during the period from September 1943 until the liber-
                               ation of Italy in May 1945. In this context, the German Government
                               has, in co‑operation with the Italian Government, made a number of
                               gestures to reach out to the victims and their families. (. . .).
                                  [M]ost horrendous crimes were committed by Germans during
                               World War II. Germany is fully aware of her responsibility in this
                               regard. Those crimes were unique, as were the instruments and
                               mechanisms for compensation and reparation — financially, politi-
                               cally and otherwise — set up and implemented by Germany since the
                               end of the war. We cannot undo history. If victims or descendants of
                               victims feel that these mechanisms were not sufficient, we do regret
                               this.” 30
                       30. Shortly afterwards, in the public sitting of 15 November 2011
                     before the Court, counsel for Germany reiterated that
                            “We are well aware that the complex legal nature of these procee-
                         dings on State immunity cannot do justice at all to the human dimen-

                          26
                           Memorial of Germany, para. 15.
                          27
                           Ibid., para. 59.
                        28 Ibid., para. 94.
                        29 Reply of Germany, para. 2.
                        30 CR 2011/17, pp. 15 and 18, paras. 5 and 12 ; and cf. p. 31, para. 20, for yet another

                     reference to the “grave breaches of the law perpetrated by the authorities of the German
                     Third Reich”.

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                     191 	jurisdictional immunities of the state (diss. op. cançado trindade)

                               sion of the terrible wartime events for which Germany has accepted
                               full responsibility. I would like to take this opportunity to emphasize
                               our deepest respect for the victims, not only here in the courtroom.” 31

                     Germany further recognized its responsibility specifically for the massacre
                     of Distomo in Greece, perpetrated on 10 June 1944 (cf. para. 188 infra).

                        31. The massacre of Distomo was by no means an isolated atrocity of
                     the kind ; there were other massacres in occupied Greece at that time, in
                     a pattern of systematic oppression and extreme violence 32. The above
                     statements before this Court, of acknowledgment of State responsibility
                     on the part of Germany, commendable as they are, show again the impos-
                     sibility of making abstraction of the factual background of the present
                     case, pertaining to the claim of State immunity as ineluctably related to
                     war reparation claims.

                                           V. Fundamental Human Values :
                                   Rescuing some Forgotten Doctrinal Developments

                        32. Since legal doctrine (i.e., “the teachings of the most highly qualified
                     publicists of the various nations”) is listed among the formal “sources” of
                     international law, together with “judicial decisions”, in Article 38 (1) (d)
                     of the ICJ Statute, consideration of the basic issue raised in the present
                     case concerning the Jurisdictional Immunities of the State (Germany v.
                     Italy : Greece intervening) 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. I thus turn my attention to some writings which I regard
                     as particularly relevant to the consideration of the cas d’espèce.

                        33. I do not purport to be exhaustive, but rather selective, in singling
                     out some ponderations which should not remain seemingly forgotten in
                     our days, particularly by the active (if not hectic) legal profession, which
                     appears today oblivious of the lessons of the past, in its persistent obses-
                     sion of privileging strategies of litigation over consideration of fundamen-
                     tal human values. I draw attention to the apparently forgotten thoughts
                     of three distinguished jurists, who belonged to the same generation which
                     witnessed and survived two World Wars, who were devoted to interna-
                          31
                           CR 2011/20, p. 10, para. 1.
                          32
                           For one of the few general historical accounts available, cf. M. Mazower, Inside
                     Hitler’s Greece : The Experience of Occupation, 1941‑44, New Haven/London, Yale Nota
                     Bene/Yale University Press, 2001, pp. 155‑261.

                     96

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                     192 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tional law in the epoch of the anguish of the inter‑war period and of the
                     horrors of the Second World War : Albert de La Pradelle (1871‑1955),
                     former member of the Advisory Committee of Jurists which in 1920
                     drafted the Statute of the old Permanent Court of International Justice
                     (PCIJ), subsequently to become, with minor changes, the Statute of the
                     ICJ ; Max Huber (1874‑1960), former judge of the PCIJ 33; and Alejan-
                     dro Alvarez (1868‑1960), former judge of the ICJ.
                        34. At the same time as the rise of Nazism in Germany, humanism was
                     being cultivated elsewhere, and not so far away, within the realm of inter-
                     national legal thinking. In an illuminating series of lectures, delivered in
                     Paris, from November 1932 to May 1933, Albert de La Pradelle pondered
                     that the droit des gens transcends inter‑State relations, it regulates them
                     so as to protect human beings : it is a true “law of the human commu-
                     nity”. The droit des gens seeks to ensure respect for the rights of the
                     human person, to ensure compliance by States of their duties vis‑à‑vis the
                     human beings under the respective jurisdictions. International law — he
                     added — was constructed as from human beings, it exists by and for
                     them 34.
                        35. Under the droit des gens, States ought to permit human beings who
                     compose them to become masters of their own destiny. One is here before
                     a true “droit de l’humanité”, in the framework of which general principles
                     of law — which are those of international law, emanating from natural
                     law 35 — play an important and guiding role. The purely inter‑State con-
                     ception is dangerous, he warned ; in his own words,
                                 “It is extremely grave and perilous that international law is for-
                               ming on the conception of reciprocal rights and duties of the diffe-
                               rent States. (. . .) [I]t is essential to move away from that process of
                               definition. (. . .) [I]t poses an immediate danger, leading States to
                               focus solely, in respect of the organization and development of inter-
                               national law, on their particular freedoms grouped together under a
                               new expression, that of sovereignty.” 36
                     Attention is, in his view, to be turned to those general principles, emanat-
                     ing from the juridical conscience, and to the “evolution of humankind”,
                     respectful of the rights of the human person 37.
                       36. On his turn, Max Huber, in a book written in his years of maturity
                     and published towards the end of his life, drew attention to the relevance
                     of “superior values”, above “State interests”, in the whole realm of the jus

                          33
                          And its former president in the period 1925‑1927.
                          34
                          A. de La Pradelle, Droit international public (cours sténographié), Paris, Institut des
                     hautes études internationales/Centre européen de la dotation Carnegie, November 1932/
                     May 1933, pp. 49, 80-81, 244, 251, 263, 265‑266 and 356.
                       35 Ibid., pp. 230, 257, 264 and 413.
                       36 Ibid., pp. 33‑34. [Translation by the Registry.]
                       37 Ibid., pp. 261 and 412.

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                     193 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     gentium as a law of mankind (droit de l’humanité) 38. Looking back in
                     time (writing in 1954), he pondered that
                             “If one compares the current era with that of 1914, it is clear to see
                          that there has been a weakening of the sense of the law, a reduction
                          in the instinctive respect for the limits it imposes ; this is surely a
                          consequence of the damage sustained within the legal structures of
                          States (. . .) Devaluation of the human person and life and wide
                          spread deterioration of the legal consciousness. All that explains why
                          a significant part of humanity accepted, without any apparent strong
                          reaction, a serious debasement of the laws of war.” 39
                        37. The jus gentium beheld and advocated by Huber, in the light
                     of natural law thinking, is meant to protect the human person. Contem-
                     porary international humanitarian law (as embodied, e.g., in the four
                     Geneva Conventions) — he added — purported ultimately to the protec-
                     tion of the human person as such, irrespective of nationality ; it was cen-
                     tred on human beings. He further recalled the ultimate ideal cultivated by
                     some international legal philosophers of the civitas maxima gentium 40.
                        38. For his part, Alejandro Alvarez, in a book published (originally in
                     Paris) one year before his death, titled Le droit international nouveau dans
                     ses rapports avec la vie actuelle des peuples (1959), also visualized the foun-
                     dations of international law — subsequent to the “social cataclysm” of the
                     Second World War — as from its general principles 41, emanated from the
                     “international juridical conscience” 42, wherefrom derive also — he
                     added — precepts such as those pertaining to the crime against humanity 43.
                     To him as well, those general principles of international law emanated from
                     the juridical conscience, and should be re-stated in the new times 44.

                        39. They were endowed with much importance, as historically exempli-
                     fied by the two Hague Peace Conferences (1899 and 1907) 45. A. Alvarez
                     further observed that, as a result of the “dynamism” of the evolving inter-
                     national law,
                          “it is rather often difficult to make in this law the traditional distinc-
                          tion between ‘lex lata’ and ‘lex ferenda’. Beside a formed international
                          law, there is always an international law in the process of formation.” 46
                         38 M. Huber, La pensée et l’action de la Croix-Rouge, Geneva, CICR, 1954, pp. 26, 247,

                     270 and 293.
                         39 Ibid., pp. 291‑292. [Translation by the Registry.]
                         40 Ibid., pp. 247, 270, 286 and 304.
                         41 A. Alvarez, El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual de

                     los Pueblos, Santiago, Editorial Jurídica de Chile, 1962 [reed.], pp. 156, 163 and 292.
                         42 Ibid., pp. 49, 57, 77, 155-156 and 292.
                         43 Ibid., pp. 156 and 304.
                         44 Ibid., pp. 163 and 304.
                         45 Cf. ibid., pp. 156 and 357.
                         46 “Es a menudo difícil hacer en este derecho la distinción tradicional entre la ‘lex lata’

                     y la ‘lex ferenda’. Al lado de un derecho internacional formado, hay siempre un derecho
                     internacional en formación.” (Ibid., p. 292.) [My translation.]

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                     194 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        40. This brief survey of doctrinal developments, centred on fundamen-
                     tal human values, discloses that, some of the most distinguished jurists of
                     a generation which witnessed the horrors of two World Wars in the twen-
                     tieth century did not at all pursue a State‑centric approach to our disci-
                     pline. On the contrary, they advanced an entirely distinct approach,
                     centred on the human person. They were, in my understanding, faithful
                     to the historical origins of the droit des gens, as one ought to be nowadays
                     as well. Even a domain so heavily marked by the State‑centric
                     approach — which did not help at all to avoid the horrors of the World
                     Wars — such as that of State immunities has nowadays to be reassessed
                     in the light of fundamental human values. State immunities are, after all, a
                     prerogative or a privilege, and they cannot keep on making abstraction of
                     the evolution of international law, taking place nowadays, at last, in the
                     light of fundamental human values.

                          VI. The Collegial Doctrinal Work of Learned Institutions
                                            of International Law

                        41. The work of learned institutions in the domain of international law
                     can be invoked in this connection. The subject of the jurisdictional immu-
                     nities of the State, central in the cas d’espèce, has attracted the attention
                     of succeeding generations of legal scholars, as well as of learned institu-
                     tions, such as the Institut de droit international (IDI) and the Interna-
                     tional Law Association (ILA). The Institut de droit international, since
                     its early days in the late nineteenth century up to the present time, has
                     occupied itself of the theme. As early as in its Hamburg Session of 1891,
                     its Projet de règlement international sur la compétence des tribunaux dans
                     les procès contre les Etats, souverains ou chefs d’Etat étrangers (Draft-
                     ing Committee and L. von Bar, J. Westlake and A. Hartmann) stated, in
                     Article 4 (6), that :
                              “The only admissible actions against a foreign State are :
                          .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
                             — actions for damages for delicts or quasi‑delicts committed on
                                    the territory.” [Translation by the Registry.]
                        42. Over half-a-century later, its conclusions on L’immunité de juridic‑
                     tion et d’exécution forcées des Etats étrangers (Session of Aix-en-Provence,
                     1954 — rapporteur, E. Lémonon) held, in Article 3, that :
                            “The courts of a State may entertain actions against a foreign
                          State and the legal persons referred to in Article 1 whenever the dis-
                          pute relates to an act which is not an act of public authority.
                            Whether or not an act is an act of public authority is determined
                          by the lex fori.” [Translation by the Registry.]

                     99

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                     195 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        43. In 1991, at its Basel Session, its conclusions on Contemporary
                     Problems concerning the Immunity of States in relation to Questions of
                     Jurisdiction and Enforcement (rapporteur, I. Brownlie) provided (as to the
                     criteria indicating the competence of courts of the forum State in relation
                     to jurisdictional immunity), in Article 2 (2) (e), that :
                                “In the absence of agreement to the contrary, the following
                           c riteria are indicative of the competence of the relevant organs of the
                            forum State to determine the substance of the claim, notwithstanding
                            a claim to jurisdictional immunity by a foreign State which is a
                            party :
                            .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
                               — The organs of the forum State are competent in respect of pro-
                                      ceedings concerning the death of, or personal injury to, a per-
                                      son, or loss of or damage to tangible property, which are
                                      attributable to activities of a foreign State and its agents within
                                      the national jurisdiction of the forum State.”
                         44. One decade later, in its Session of Vancouver of 2001, the
                     resolution of the IDI on Les immunités de juridiction et d’exécution
                      du chef d’Etat et de gouvernement en droit international (rapporteur,
                      J. Verhoeven) stated, in Article 3, that
                             “In civil and administrative matters, the Head of State does not
                           enjoy any immunity from jurisdiction before the courts of a foreign
                           State, unless that suit relates to acts performed in the exercise of his
                           or her official functions. Even in such a case, the Head of State shall
                           enjoy no immunity in respect of a counter-claim. Nonetheless, nothing
                           shall be done by way of court proceedings with regard to the Head
                           of State while he or she is in the territory of that State, in the exercise
                           of official functions.”
                       45. Four years later, in the Krakow Session of 2005, the Institut de
                     droit international, in its conclusions on Universal Criminal Jurisdiction
                     with Regard to the Crime of Genocide, Crimes against Humanity and War
                     Crimes (rapporteur, C. Tomuschat), was of the view (Article 3 (a)) that

                             “Unless otherwise lawfully agreed, the exercise of universal juris-
                           diction shall be subject to the following provisions :

                              — Universal jurisdiction may be exercised over international
                                crimes identified by international law as falling within that
                                jurisdiction in matters such as genocide, crimes against human-
                                ity, grave breaches of the 1949 Geneva Conventions for the
                                protection of war victims or other serious violations of inter-
                                national humanitarian law committed in international or
                                non-international armed conflict.”

                     100

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                     196 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        46. Last but not least, in its resolution on Immunity from Jurisdiction
                     of the State and of Persons Who Act on Behalf of the State in Case of
                     International Crimes (rapporteur, Lady Fox), adopted at it Naples Ses-
                     sion of 2008, the Institut was of the view (Arts. II (2) and (3)) that
                             — “Pursuant to treaties and customary international law, States
                               have an obligation to prevent and suppress international
                               crimes. Immunities should not constitute an obstacle to the
                               appropriate reparation to which victims of crimes addressed by
                               this Resolution are entitled.
                             — States should consider waiving immunity where international
                               crimes are allegedly committed by their agents.”

                        47. Furthermore, the same Naples resolution of 2009 of the IDI sig-
                     nificantly added (Article III (1) and (3) (a) and (b)) that
                             — “No immunity from jurisdiction other than personal immunity
                               in accordance with international law applies with regard to
                               international crimes. (. . .)
                             — The above provisions are without prejudice to :
                               — the responsibility under international law of a person
                                    referred to in the preceding paragraphs ;
                               — the attribution to a State of the act of any such person
                                    constituting an international crime.” 47
                     Article IV of the same resolution adds that the above provisions “are
                     without prejudice to the issue whether and when a State enjoys immunity
                     from jurisdiction before the national courts of another State in civil pro-
                     ceedings relating to an international crime committed by an agent of the
                     former State”.
                        48. It is clear from the above that, from the start, the IDI approached
                     State immunities as evolving in time, certainly not static nor immutable,
                     and having limitations or exceptions (Sessions of Hamburg of 1891, of
                     Aix-en-Provence of 1954, and of Basel of 1991). The same may be said of
                     immunities of Heads of State (Session of Vancouver of 2001). More
                     recently (Session of Krakow of 2005), the IDI upheld universal jurisdic-
                     tion over international crimes (grave violations of human rights and of
                     international humanitarian law). And, in its most recent work on the sub-
                     ject (Session of Naples of 2009), the IDI held precisely that no State
                     immunity applies with regard to international crimes (Art. III (1)) ; the
                     resolution was adopted by 43 votes to none, with 14 abstentions.

                        47 And Article V further stated that “The above provisions are without prejudice to

                     the issue whether and when a State enjoys immunity from jurisdiction before the national
                     courts of another State in civil proceedings relating to an international crime committed by
                     an agent of the former State.”

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                     197 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        49. In the debates of that confrèrie which preceded the adoption of the
                     aforementioned resolution of Naples of 2009, the following views were,
                     inter alia, expressed : (a) State-planned and State-perpetrated crimes,
                     engaging State responsibility, removed any bar to jurisdiction, at national
                     and international levels, so as to avoid impunity (interventions by
                     A. A. Cançado Trindade) ; (b) State immunity from jurisdiction cannot
                     be understood as immunity from criminalization (interventions by
                     G. Abi-Saab) ; (c) emphasis is to be laid on the need to avoid leaving the
                     victims without any remedy (intervention by G. Burdeau) ; (d) there is
                     need to take such progressive approach (intervention by R. Lee) 48.
                        50. The other learned institution aforementioned, the International
                     Law Association (ILA), dwelt upon the matter as well. In its final report
                     on The Exercise of Universal Jurisdiction in Respect of Gross Human
                     Rights Offences (Conference of London of 2000), the ILA Committee on
                     International Law and Practice employed the term “gross human rights
                     offences” as shorthand for “serious violations of international humanitar-
                     ian law and international human rights law that qualify as crimes under
                     international law and that are of such gravity as to set them out as deserv-
                     ing special attention, inter alia, through their being subjected to universal
                     jurisdiction” (p. 3). One of the “conclusions and recommendations”
                     (No. 4) reached by that ILA Committee was that :
                             “No immunities in respect of gross human rights offences subject
                           to universal jurisdiction shall apply on the grounds that crimes were
                           perpetrated in an official capacity.” (P. 21.)
                        51. One decade later, in its report on Reparation for Victims of Armed
                     Conflict (ILA Conference of The Hague of 2010), the ILA Committee on
                     Reparation for Victims of Armed Conflict (substantive issues) observed,
                     in the commentary on Article 6 of its draft Declaration of International
                     Law Principles on Reparation for Victims of Armed Conflict (Substantive
                     Issues), that the duty to make reparation has “its roots in general princi-
                     ples of State responsibility” (as expressed by the PCIJ in the Chorzów
                     Factory case, 1928), in Article 3 of the Hague Convention (IV) of 1907
                     and in Article 91 of the I Additional Protocol of 1977 to the four Geneva
                     Conventions of 1949 (p. 311). And the ILA Committee added that :

                              “Whilst claims of the individual were traditionally denied, the dom-
                           inant view in the literature has increasingly come to recognize an
                           individual right to reparation — not only under international human
                           rights law, but also under international humanitarian law. The same
                           shift is discernible in State practice.” 49 (P. 312.)

                        48 Cf. 73 Annuaire de l’Institut de droit international — Session de Naples (2009),

                     pp. 144, 148, 158, 167, 175, 187, 198, 222 and 225.
                        49 And cf. pp. 313‑320, on the changes that have occurred in recent years, pointing towards

                     the recognition of the individual’s right to reparation (cf. infra, on this particular point).

                     102

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                     198 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        52. In sum and conclusion, contemporary international legal doctrine,
                     including the work of learned institutions in international law, gradually
                     resolves the tension between State immunity and the right of access to
                     justice rightly in favour of the latter, particularly in cases of international
                     crimes. It expresses its concern with the need to abide by the imperatives
                     of justice and to avoid impunity in cases of perpetration of international
                     crimes, thus seeking to guarantee their non-repetition in the future. It is
                     nowadays generally acknowledged that criminal State policies and the
                     ensuing perpetration of State atrocities cannot at all be covered up by the
                     shield of State immunity.

                        VII. The Threshold of the Gravity of the Breaches of Human
                              Rights and of International Humanitarian Law

                        53. This brings me to the consideration of a related aspect, not suffi-
                     ciently developed in expert writing to date, namely, the threshold of the
                     gravity of the breaches of human rights and of international humanitar-
                     ian law, removing any bar to jurisdiction, in the quest for reparation to
                     the victimized individuals. In this respect, there have been endeavours, at
                     theoretical level, to demonstrate the feasibility of the determination of the
                     international criminal responsibility not only of individuals but also of
                     States ; it has been suggested that the acknowledgement of State responsi-
                     bility for international crimes is emerging in general international law 50.
                     It goes without saying that criminal practices of States entail conse-
                     quences for the determination of reparations to individual victims, each
                     and all of them, — even more cogently from the contemporary out-
                     look — which I advance — of an international law for the human person,
                     for humankind 51.
                        54. In this line of reasoning, it is important to dwell upon the needed
                     configuration of the threshold of the gravity of the breaches of human
                     rights, with ineluctable legal consequences for the removal of any bar to
                     jurisdiction and for the question of reparations to the victims. It is indeed
                     important to consider nowadays all mass atrocities in the light of the
                     threshold of gravity, irrespective of who committed them ; this may sound
                     evident, but there subsist in practice regrettable attempts to exempt States
                     from any kind of responsibility. From time to time there have been
                     attempts to construe the threshold of the gravity of breaches of human
                     rights ; this concern has been expressed at times, e.g., in the work of the

                        50 N. H. B. Jorgensen, The Responsibility of States for International Crimes, Oxford

                     University Press 2003, pp. 206‑207, 231, 279‑280 and 283.
                        51 Cf. A. A. Cançado Trindade, “International Law for Humankind : Towards a New

                     Jus Gentium — General Course on Public International Law — Part I”, 316 Recueil
                     des cours de l’Académie de droit international de La Haye (RCADI) (2005), pp. 31‑439 ;
                     A. A. Cançado Trindade, “International Law for Humankind : Towards a New Jus
                     Gentium — General Course on Public International Law — Part II”, 317 RCADI (2005),
                     pp. 19‑312.

                     103

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                     199 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     UN International Law Commission (ILC), albeit without concrete results
                     to date.

                        55. In 1976, in its consideration of the draft Articles on State Respon-
                     sibility (rapporteur, Roberto Ago), the ILC admitted that there were
                     some international wrongs that were “more serious than others”, that
                     amounted to “international crimes”, as they were in breach of fundamen-
                     tal principles (such as those of the UN Charter) “deeply rooted in the
                     conscience of mankind”, as well as of the foundations of “the legal order
                     of international society” 52. In acknowledging the need of recognizing
                     such “exceptionally serious wrongs”, the ILC, invoking “the terrible
                     memory of the unprecedented ravages of the [Second World War]”, pon-
                     dered, still in 1976 :
                              “The feeling of horror left by the systematic massacres of millions
                           of human beings perpetrated by the Nazi régime, and the outrage felt
                           at utterly brutal assaults on human life and dignity, have both pointed
                           to the need to ensure that not only the internal law of States but,
                           above all, the law of the international community itself should lay
                           down peremptory rules guaranteeing that the fundamental rights of
                           peoples and of the human person will be safeguarded and respected ;
                           all this has prompted the most vigorous affirmation of the prohibition
                           of crimes such as genocide, apartheid and other inhuman practices of
                           that kind.” 53
                        56. One decade later, in the same line of concern, the ILC rapporteur
                     on the draft Code of Offences against the Peace and Security of Mankind
                     (Doudou Thiam), in his Fifth Report (of 1987) made the point that the
                     offences at issue were “crimes which affect the very foundations of human
                     society” 54. Shortly later, in 1989, the same rapporteur drew attention to
                     the concept of “grave breaches” as incorporated into the four Geneva
                     Conventions on International Humanitarian Law (1949) and Additional
                     Protocol I (1977) thereto 55. One decade later, in its commentary on Arti-
                     cle 7 of the aforementioned draft Code (1996 Report), the ILC pondered
                     that

                              “It would be paradoxical to allow the individuals who are, in some
                           respects, the most responsible for the crimes covered by the Code, to
                           invoke the sovereignty of the State and to hide behind the immunity
                           that is conferred on them by virtue of their positions, particularly
                           since these heinous crimes shock the conscience of mankind, violate

                        52 UN, Yearbook of the International Law Commission (1976), Vol. II, Part II, pp. 109

                     and 113-114, and cf. p. 119.
                        53 Ibid., p. 101.
                        54 UN doc. A/CN.4/404/Corr.1, of 17 March 1987, p. 2, and cf. pp. 5‑6.
                        55 Cf. UN, Yearbook of the International Law Commission (1989), Vol. II, Part I,

                     pp. 83‑85.

                     104

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                     200 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           some of the most fundamental rules of international law and threaten
                           international peace and security.” 56
                        57. Grave breaches of international law were to make their appearance
                     again in the 2001 Articles on State Responsibility, then adopted by the ILC.
                     Article 40 defines as “serious breach” of an obligation under “a peremptory
                     norm of general international law” that which involves “a gross or system-
                     atic failure by the responsible State” to fulfil the obligation. Article 41 again
                     refers to “serious breach”. The commentary to those provisions underlines
                     the “systematic, gross or egregious nature” of the breaches at issue 57. Those
                     breaches engage State responsibility, which is not effaced by the interna-
                     tional individual criminal responsibility 58. State responsibility, in case of
                     grave breaches, subsists in general international law. State and individual
                     responsibility complement each other, as developments in international
                     human rights law and in international criminal law indicate nowadays.

                       58. Moreover, in cases of grave breaches of human rights, the States
                     concerned incur into responsibility for grave harm done ultimately to
                     individuals, to human beings, and not to other States. The ILC itself so
                     admitted, in its 2001 final Report, containing the commentaries on the
                     Articles it had just adopted. The ILC conceded that :

                           “a State’s responsibility for the breach of an obligation under a treaty
                           concerning the protection of human rights may exist towards all the
                           other parties to the treaty, but the individuals concerned should be
                           regarded as the ultimate beneficiaries and in that sense as the holders
                           of the relevant rights” 59.
                        59. In sum, the titulaires of the right to reparation are the individuals
                     concerned, the victimized human beings. In the perpetration of grave
                     breaches of human rights and of international humanitarian law, the
                     criminality of individual executioners acting in the name of States is
                     ineluctably linked to the criminality of the responsible States themselves.
                     After all, war crimes, crimes against peace, and crimes against humanity
                     are committed in a planified and organized way, disclosing a collective

                         56 ILC, Report of the International Law Commission on the Work of Its 48th Session

                     (6 May‑26 July 1996), p. 39, para. 1 (on Article 7).
                         57 J. Crawford, The International Law Commission’s Articles on State Responsibi‑

                     lity — Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 247.
                         58 A. A. Cançado Trindade, “Complementarity between State Responsibility and

                     Individual Responsibility for Grave Violations of Human Rights : The Crime of State
                     Revisited”, International Responsibility Today — Essays in Memory of O. Schachter (ed.
                     M. Ragazzi), Leiden, Nijhoff, 2005, pp. 253‑269 ; P. S. Rao, “International Crimes and
                     State Responsibility”, ibid., pp. 76‑77.
                         59 “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with

                     Commentaries”, UN doc. A/56/10, of 2001, Art. 33, para. 3, p. 95.

                     105

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                     201 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     criminality 60. They count on resources of the State, they are true crimes
                     of State. There is thus need to take into account, jointly, the international
                     responsibility of the State and the international criminal responsibility of
                     the individual, complementary to each other as they are 61.
                        60. At normative level, the threshold of gravity of breaches of the fun-
                     damental rights of the human person comes to the fore time and time
                     again, even though insufficiently developed to date. There are historical
                     moments when it has attracted particular attention, e.g., shortly after the
                     adoption of Additional Protocol I (of 1977, Art. 85) to the four Geneva
                     Conventions on International Humanitarian Law (of 1949) 62. The regime
                     of grave breaches set forth in the four Geneva Conventions of 1949
                     (I Convention, Arts. 49‑50 ; II Convention, Articles 50‑51 ; III Conven-
                     tion, Arts. 129-130 ; IV Convention, Arts. 146‑147) is nowadays regarded
                     as forming part of customary international law 63.

                        61. At jurisprudential level, the threshold of gravity of human rights
                     breaches is nowadays beginning to attract attention, and to be considered,
                     within the framework of the emerging case law in the domain of interna-
                     tional criminal law 64. It has much developed, above all, in the jurispruden-
                     tial construction in recent years in the domain of the international law of
                     human rights 65. An example is afforded by the handling of the case of
                     Democratic Republic of the Congo v. Burundi, Rwanda and Uganda (2003)
                     by the African Commission on Human and Peoples’ Rights 66. The most
                     notorious advances in this respect have been achieved by the jurispruden-

                        60 R. Maison, La responsabilité individuelle pour crime d’Etat en droit international

                     public, Brussels, Bruylant/Eds. de l’Université de Brussels, 2004, pp. 24, 85, 262-264 and
                     286‑287.
                        61 Ibid., pp. 294, 298, 409-410, 412, 459 and 511.
                        62 Cf. E. J. Roucounas, “Les infractions graves au droit humanitaire”, 31 Revue hellé‑

                     nique de droit international (1978), pp. 60‑139.
                        63 Cf. J.‑M. Henckaerts, “The Grave Breaches Regime as Customary International

                     Law”, 7 Journal of International Criminal Justice (2008), pp. 683‑701.
                        64 Cf., e.g., W. A. Schabas, “Gravity and the International Criminal Court”, Protecting

                     Humanity — Essays in International Law and Policy in Honour of N. Pillay (ed. C. Eboe-
                     Osuji), Leiden, Nijhoff, 2010, pp. 689‑706.
                        65 The gravity of certain breaches of fundamental rights (e.g., forced disappear-

                     ances of persons and summary or extra-legal executions) was, early in its history, acknowl-
                     edged by the IACtHR ; its pioneering case law in that regard was served of inspiration
                     to, and was followed by, the corresponding case law of the ECHR, in particular in the
                     cycle of Turkish cases, towards the end of the twentieth century. Cf., e.g., J. Benzimra-
                     Hazan, “En marge de l’arrêt Timurtas contre la Turquie : vers l’homogénéisation des
                     approches du phénomène des disparitions forcées de personnes”, 48 Revue trimestrielle
                     des droits de l’homme (2001), pp. 983‑997 ; Leo Zwaak, “The European Court of Human
                     Rights Has the Turkish Security Forces Held Responsible for Violations of Human
                     Rights : The Case of Akdivar and Others”, 10 Leiden Journal of International Law (1997),
                     pp. 99‑110.
                        66 As I recently pointed out, in my separate opinion in the case of Ahmadou Sadio

                     Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,
                     I.C.J. Reports 2010 (II), pp. 803-804, para. 218, note 158.

                     106

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                     202 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tial construction, throughout the last decade, of the IACtHR, in the adju-
                     dication of the aforementioned cycle of cases of massacres 67.
                        62. Reference can here be made, in this connection, to the Judgments of
                     the IACtHR in the cases, inter alia, of the Massacre of Plan de Sánchez v.
                     Guatemala (of 29 April 2004), of the Massacre of Mapiripán v. Colombia
                     (of 15 September 2005), of the Massacres of Ituango v. Colombia (of 1 July
                     2006), of Goiburú et al. v. Paraguay (of 22 September 2006 — cf. infra),
                     of Almonacid Arellano v. Chile (of 26 September 2006), of the Prison of
                     Castro-Castro v. Peru (of 25 November 2006), of La Cantuta v. Peru (of
                     29 November 2006). There is here space for fostering a jurisprudential
                     convergence between the international law of human rights and contem-
                     porary international criminal law. Another area of convergence lies in the
                     participation of the victims themselves — their locus standi in judicio — in
                     the respective procedures between international human rights tribunals
                     and international criminal tribunals.

                                 VIII. The Question of Waiver of Claims in respect
                                         of the Right of Access to Justice
                                  in the Pleadings before the Court : Assessment

                        63. The question of the waiver of claims in respect of the right of access
                     to justice (in order to seek reparation) was controverted in the arguments
                     of the contending Parties (Germany and Italy) as well as of the interven-
                     ing State (Greece) in the course of the oral pleadings before this Court.
                     Germany contended, challenging the Italian argument of an individual
                     right to reparation 68, that the respect for the immunity of a foreign State
                     is a lawful limitation to the right to access to justice 69. It further argued
                     that there is no rule that prohibits the waiver of pecuniary claims, as the
                     actual violation has already ceased 70. If the argument of Italy were to be
                     accepted — Germany went on — the whole structure of the scheme of
                     reparations built after the Second World War would be destroyed, as
                     massive claims could be raised both by and against Germany for viola-
                     tions of the laws of war by Germany and Allied Forces 71. Germany at
                     last claimed that the system of reparation created was comprehensive

                         67 For a recent assessment, cf. [Various Authors], Réparer les violations graves et

                     massives des droits de l’homme : La Cour interaméricaine, pionnière et modèle ? (eds.
                     E. Lambert Abdelgawad and K. Martin‑Chenut), Paris, Société de législation comparée,
                     2010, pp. 17‑334.
                         68 CR 2011/17, pp. 41‑42, paras. 14 and 16.
                         69 Ibid., pp. 43‑44, paras. 23‑24. In this respect, Germany added that even if a right to

                     reparation and a cause of action exist under international law, it has abided by it, since
                     it has given full and non‑discriminatory access to its Courts to all plaintiffs (Italian and
                     Greek) ; ibid., p. 46, para. 30.
                         70 CR 2011/20, pp. 15‑16, paras. 2‑3.
                         71 Ibid., pp. 17‑18, paras. 4‑6.

                     107

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                     203 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     and tried to balance the interests of the victim States and those of Ger-
                     many 72.
                        64. Italy retorted that the waiver clause of Article 77 (4) of the 1947
                     Peace Treaty does not cover violations of international humanitarian law.
                     Taking issue with the German argument, it reiterated the position that
                     claims of reparation for grave breaches of international humanitarian law
                     have not been waived by Italy, as they were beyond the scope of the pro-
                     vision of Article 77 (4) of the 1947 Peace Treaty. Italy thus claimed that
                     the only interpretation of that provision of the 1947 Treaty is that it does
                     not waive reparations for violations of international humanitarian law 73.
                     And even if the intention were to waive all such claims against Ger-
                     many — Italy added — that would be illegal, as it would absolve Ger-
                     many from all war crimes committed, which was not allowed under the
                     Geneva Conventions regime 74.

                        65. Addressing specifically the right to reparation of the Italian mili-
                     tary internees, Italy referred, in this respect, to the paradoxical treatment
                     dispensed to them, who were excluded from the reparations regime pro-
                     vided by the on “Remembrance, Responsibility and Future” Foundation,
                     because they were prisoners of war, whereas Nazi Germany had deprived
                     them of this status and had used them as forced labourers 75. Italy added
                     that the claims of the victims of massacres cannot be considered as
                     waived, because at the time of the alleged waiver (either in the 1947 Peace
                     Treaty or in the 1961 Agreements) the crimes had not yet been estab-
                     lished ; moreover, the recognition of such a waiver would lead to the
                     absurd situation of the perpetrators of these crimes being criminally
                     responsible but not civilly liable. Such a solution would also be contrary
                     to all modern developments of international criminal law, which recog-
                     nizes that criminal responsibility and civil liability are connected 76.

                         72 CR 2011/20, pp. 23‑26, paras. 17‑24. Moreover, it included a waiver by Italy of all

                     claims against Germany, as a sanction for its participation in the Axis ; ibid., pp. 26‑27,
                     paras. 23‑25. And the two bilateral 1961 Agreements were a gesture towards Italy in order
                     to further improve their relations, while the waiver clause remained in full force ; ibid.,
                     pp. 29‑30, para. 32.
                         73 CR 2011/21, p. 24, para. 29, and cf. CR 2011/18, pp. 26‑27, paras. 4‑8.
                         74 Cf. CR 2011/18, pp. 31‑32, paras. 18-23 ; and cf., pp. 20‑21, paras. 11-13, and

                     pp. 22‑23, para. 14. Italy claims that the cases of reparations that are at issue herein do not
                     concern victims of Nazi persecution, to which reparations have been made ; CR 2011/21,
                     p. 25, para. 33. The present concern is with victims such as the military internees, who have
                     not received any reparation.
                         75 CR 2011/18, p. 33, para. 28.
                         76 Ibid., p. 34, paras. 29‑30. Moreover, Italy notes that, as Germany conceded, even

                     those ex gratia reparations were only partial ; CR 2011/21, pp. 25‑26, paras. 34‑35. Italy
                     claims that there are a significant number of Italian citizens who are entitled to reparation
                     and who have not yet received any. Italy thus claimed that their only avenue for redress
                     is through the Italian courts, which would not have lifted Germany’s immunity had the
                     German Government agreed to take measures in order to offer them the reparations they
                     are entitled to ; CR 2011/18, pp. 13‑14, para. 11.

                     108

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                     204 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        66. Greece, for its part, contended that Greek courts have accepted the
                     existence of an individual right to reparation for grave violations of inter-
                     national humanitarian law, based on Article 3 of the 1907 Hague
                     Convention (IV) 77, Article 91 of the 1977 Additional Protocol I 78, Rule
                     150 of the ICRC International Humanitarian Law Codification 79 (of cus-
                      tomary international law, cf. supra), Article 33 (2) of the ILC Articles on
                      State Responsibility 80, and international practice. This is a point which
                      was particularly stressed by Greece (cf. para. 147, infra), and which is
                      deserving of close attention.

                        67. In effect, at an earlier stage of the proceedings in this case, I deemed
                     it fit to address this point, in my dissenting opinion in the Court’s Order
                     (which dismissed the Italian counter-claim) of 6 July 2010. Article 3 of the
                     1907 Hague Convention (IV) determines that a belligerent State party
                     that violates the provisions of the Regulations annexed thereto is respon-
                     sible for all acts committed by members of its armed forces, and “liable to
                     pay compensation”. The travaux préparatoires of this provision (origi-
                     nated in a proposal by the German delegate) supported the view that the
                     indemnization was due to the individual persons who were victims of the
                     aforementioned violations 81.
                        68. Seven decades later, this provision was updated by Article 91 of
                     Protocol I Additional to the 1949 Geneva Conventions on Interna-
                     tional Humanitarian Law. There was no controversy nor dissent (neither
                     in 1907 nor in 1977) as to the recognition of State responsibility for
                     breaches of the 1907 Regulations and the ensuing duty of the State con-
                     cerned to provide indemnization to the individual victims 82. To this effect,
                     in my aforementioned dissenting opinion in the Court’s Order of 6 July
                     2010, I pondered that :

                                “In the days of the historical Second Peace Conference, held here
                             in The Hague, the participating States decided to set forth a general
                             obligation, incumbent on all parties to an armed conflict, to make
                             reparations (not only on the part of the defeated States in favour of
                             the victorious powers, as was the case in previous State practice). This
                             was done on the basis of a German proposal, which resulted in Article 3
                             of the Fourth Hague Convention 83, and is the first provision dealing

                        77  CR 2011/19, p. 17, para. 28.
                        78  Ibid., p. 32, para. 77.
                         79 Ibid., p. 32, para. 78.
                         80 Ibid., p. 34, para. 85.
                         81 F. Kalshoven, “Article 3 of the Convention (IV) respecting the Laws and Customs

                     of War on Land, Signed at The Hague, 18 October 1907”, War and the Rights of Individ‑
                      uals — Renaissance of Individual Compensation (eds. H. Fujita, I. Suzuki and K. Nagano),
                     Tokyo, Nippon Hyoron-sha Co. Publishing, 1999, pp. 34‑36.
                         82 This — it has been argued — reflected “established customary law” ; ibid., pp. 36‑37.
                         83 Article 3 states : “A belligerent party which violates the provisions of the said

                     Regulations [Regulations respecting the laws and customs of war on land, annexed to

                     109

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                     205 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           specifically with a reparation regime for violations of international
                           humanitarian law 84. Thanks to the reassuring German proposal, Arti-
                           cle 3 of the Fourth Hague Convention of 1907 clarified that it was
                           intended to confer rights directly upon individuals 85, human beings,
                           rather than States.

                              This legacy of the Second Hague Peace Conference of 1907 projects
                           itself to our days 86. The time projection of the suffering of those sub-
                           jected to deportation and sent to forced labour in the Second World
                           War (period 1943‑1945) has been pointed out in expert writing, also in
                           relation to the prolonged endeavours of the victims to obtain repara-
                           tion. (. . .) Not only had those victims to endure inhuman and degrad-
                           ing treatment, but later crossed the final limit of their ungrateful lives
                           living with impunity, without reparation and amidst manifest injustice.
                           The time of human justice is definitively not the time of human beings.”
                           (Jurisdictional Immunities of the State (Germany v. Italy), Counter-
                           Claim, Order of 6 July 2010 (I), pp. 374‑375, paras. 116‑118).

                           IX. The Inadmissibility of Inter‑State Waiver of the Rights
                                of the Individuals, Victims of Grave Violations
                                              of International Law

                       69. The relevance of the individual right of access to justice is thus
                     beyond question. In case of those grave breaches, the individual victims
                     can thus invoke the responsibility of the State concerned on their own

                     the IV Hague Convention] shall, if the case demands, be liable to pay compensation. It
                     shall be responsible for all acts committed by persons forming part of its armed forces.”
                         84 This Article of the Fourth Hague Convention of 1907 came to be regarded as being

                     also customary international law, and it was reiterated in Article 91 of the I Additional
                     Protocol (of 1977) to the 1949 Geneva Conventions on International Humanitarian Law.
                     Article 91 (Responsibility) of the I Protocol states : “A Party to the conflict which violates
                     the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to
                     pay compensation. It shall be responsible for all acts committed by persons forming part
                     of its armed forces.”
                         85 Cf., to this effect, Eric David, “The Direct Effect of Article 3 of the Fourth Hague

                     Convention of 18 October 1907 respecting the Laws and Customs of War on Land”, War
                     and the Rights of Individuals — Renaissance of Individual Compensation, op. cit. supra
                     note 81, pp. 50‑53 ; and cf. also, e.g., F. Kalshoven, “State Responsibility for Warlike
                     Acts of the Armed Forces”, 40 International and Comparative Law Quarterly (1991),
                     pp. 831‑833 ; D. Shelton, Remedies in International Human Rights Law, 2nd ed., Oxford
                     University Press, 2006, p. 400.
                         86 For a general reassessment of that 1907 Conference on the occasion of its centennial

                     commemoration in 2007, cf. : [Various Authors], Actualité de la conférence de La Haye de
                     1907, deuxième conférence de la paix /Topicality of the 1907 Hague Conference, the Second
                     Peace Conference (ed. Yves Daudet), Leiden, Nijhoff/The Hague Academy of Interna-
                     tional Law, 2008, pp. 3‑302.

                     110

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                     206 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     initiative, and without the intermediation of any State ; they can do so as
                     subjects of the law of nations, and in conformity with the rule of law — as
                     nowadays reckoned by the United Nations — at national and interna-
                     tional levels. The traditional theory of the “act of State” cannot at all be
                     relied upon, in face of grave breaches of human rights and of interna-
                     tional humanitarian law by the State concerned.
                        70. In such circumstances, it is the individual victim’s right of access to
                     justice, to seek reparation, that prevails. In sum, Article 3 of the
                     Hague Convention (IV) of 1907 and Article 91 of Additional Protocol I
                     of 1977 confer the right to reparation at international level to victims of
                     those grave breaches. And the responsible States are bound to provide
                     them such reparation. A vast practice to this effect has developed in
                     recent years, in the domain of the corpus juris of the international law of
                     human rights, marking — being one of the multiple aspects of — the
                     emancipation of the individuals from their own State, in the vindication
                     of the rights inherent to them 87.
                        71. Also in my dissenting opinion in the Court’s Order of 6 July 2010
                     in the present case of the Jurisdictional Immunities of the State, I further-
                     more set forth the foundations of my position that a State can waive only
                     claims on its own behalf, but not claims on behalf of human beings per-
                     taining to their own rights, as victims of grave violations of international
                     law. The rights of victims of grave violations of human rights and of
                     international humanitarian law subsist, their vindication cannot be
                     waived by their States, or by States inter se, on their behalf (paras. 114-
                     115). Any purported waiver to that effect would be deprived of any jurid-
                     ical effects (paras. 151 and 153). And I added, in that same dissenting
                     opinion, that :
                              “In any case, any purported waiver by a State of the rights inherent
                           to the human person would, in my understanding, be against the
                           international ordre public, and would be deprived of any juridical
                           effects. To hold that this was not yet recognized at the time of the
                           Second World War and the 1947 Peace Treaty — a view remindful
                           of the old positivist posture, with its ineluctable subservience to the
                           established power — would be, in my view, without foundation. It
                           would amount to conceding that States could perpetrate crimes
                           against humanity with total impunity, that they could systematically
                           perpetrate manslaughter, humiliate and enslave people, deport them
                           and subject them to forced labour, and then hide themselves behind
                           the shield of a waiver clause negotiated with other State(s), and try
                        87 Cf. A. A. Cançado Trindade, “The Emancipation of the Individual from His

                     Own State — The Historical Recovery of the Human Person as Subject of the Law of
                     Nations”, in Human Rights, Democracy and the Rule of Law — Liber Amicorum L. Wild‑
                     haber (eds. S. Breitenmoser et alii), Zurich/Baden-Baden, Dike/Nomos, 2007, pp. 151‑171 ;
                     R. P. Mazzeschi, “Reparation Claims by Individuals for State Breaches of Humanitarian
                     Law and Human Rights : An Overview”, 1 Journal of International Criminal Justice (2003),
                     pp. 343 and 345‑347 ; M. Frulli, “When Are States Liable towards Individuals for Serious
                     Violations of Humanitarian Law ? The Marković Case”, ibid., pp. 424 and 427.

                     111

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                     207 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           to settle all claims by means of peace treaties with their counterpart
                           State(s).
                              Already in the times of the Third Reich, and before them, this
                           impossibility was deeply-engraved in human conscience, in the univer‑
                           sal juridical conscience, which is, in my understanding, the ultimate
                           material source of all law. To hold that enforced labour was not pro-
                           hibited at the time of the German Third Reich would not stand (. . .),
                           not even on the basis on the old positivist dogmas. It does not stand
                           at all, neither in times of armed conflict, nor in times of peace. The
                           gradual restrictions leading to its prohibition, so as to avoid and con-
                           demn abuses of the past against the human person, became manifest
                           not only in the domain of international humanitarian law, but also
                           in that of the regulation of labour relations (proper of the interna-
                           tional Conventions of the International Labour Organization — ILO).
                           In my own perception, even before all those instruments (. . .), enslave-
                           ment and forced labour were proscribed by human conscience, as the
                           gross abuses of the past weighed too heavily on this latter.”
                           (I.C.J. Reports 2010 (I), pp. 377‑378, paras. 124-125.)

                        72. Here, once again, one ought to go beyond the strict inter‑State
                     level. Still in my earlier dissenting opinion in the Court’s Order of 6 July
                     2010 (counter-claim) in the present case, I further pointed out that my
                     own conception of international law, quite distinct from that of the
                     Court’s majority,
                           “goes well beyond the strict inter‑State outlook, so as to reach the
                           ultimate bearers (titulaires) of rights, the human beings, confronted
                           with waiver of their claims of reparation of serious breaches of their
                           rights by States supposed to protect, rather than to oppress, them.

                              States may, if they so wish, waive claims as to their own rights. But
                           they cannot waive claims for reparation of serious breaches of rights
                           that are not theirs, rights that are inherent to the human person. Any
                           purported waiver to this effect runs against the international ordre
                           public, is in breach of jus cogens. This broader outlook, in a higher
                           scale of values, is in line with the vision of the so-called ‘founding
                           fathers’ of the law of nations (the droit des gens, the jus gentium), and
                           with what I regard as the most lucid trend of contemporary interna-
                           tional legal thinking.

                              One cannot build (and try to maintain) an international legal order
                           over the suffering of human beings, over the silence of the innocent
                           destined to oblivion. At the time of mass deportation of civilians, sent
                           to forced labour during the two World Wars (in 1916‑1918 and in
                           1943‑1945) of the twentieth century (and not only the Second World
                           War), everyone already knew that that was a wrongful act, an atrocity,
                           a serious violation of human rights and of international humanitarian

                     112

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                     208 	jurisdictional immunities of the state (diss. op. cançado trindade)

                            law, which came to be reckoned as amounting also to a war crime and
                            a crime against humanity. Above the will stands conscience, which is,
                            after all, what moves the law ahead, as its ultimate material source,
                            removing manifest injustice.” (I.C.J. Reports 2010 (I), pp. 396‑397,
                            paras. 177‑179.)

                             X. Positions of the Contending Parties as to the Right
                                               of Access to Justice
                        73. Germany and Italy understand the right to access to justice in fun-
                     damentally different ways. Both agree that access to justice is a funda-
                     mental right with two (complementary) components, namely, the right to
                     an effective remedy and the right to a fair trial 88, but they disagree as to
                     its scope and the consequences of its exercise in the case at issue. Ger-
                     many argues that the right of access to justice entails an obligation the
                     extent of which is limited to the guarantee of unimpeded and non-dis-
                     criminatory access to nationals and aliens alike to effective remedies and
                     to a fair trial 89, whereas Italy understands the right as entailing an obliga-
                     tion of satisfaction of the complaining party ; it expands the right of
                     access to justice to the outcome of the case and it argues that an aggrieved
                     party 90 that has no other avenue ought to be allowed to seek an effective
                     remedy before its national courts, even against a foreign State, and that
                     in such case immunity has to be lifted in order to avoid a denial of jus-
                     tice 91.

                        74. Germany construes the right of access to justice very narrowly and
                     argues that it is limited to the access to the judicial system of the forum
                     State without discrimination and with full procedural rights. In this sense,
                     Italian citizens have had full access to judicial remedies under German
                     law, up to the Federal Constitutional Court 92; while Greek citizens had
                     exactly the same opportunity 93. Furthermore, Germany distinguishes the
                     access to justice and the right to an effective remedy from the question
                     whether a “plaintiff has a genuine legal claim which he/she can assert” 94.

                       75. According to Germany, there is no individual right to reparation
                     arising out of war crimes and other violations of international humanitar-
                     ian law and consequently no (corollary) right of action. Similarly, the
                     Peace Treaty of 1947 and the Agreement of 1961 provide for an inter-
                     State reparation regime for injuries to Italian nationals due to the war

                       88 CR 2011/17, p. 43, para. 24 ; Counter-Memorial of Italy, para. 4.88.
                       89 Reply of Germany, p. 19, para. 34 ; CR 2011/17, p. 45, paras. 28-29.
                       90 CR 2011/18, p. 62, para. 27.
                       91 Counter-Memorial of Italy, p. 80, para. 4.103.
                       92 Reply of Germany, p. 19, para. 34.
                       93 CR 2011/17, p. 45, para. 30.
                       94 Reply of Germany, p. 20, para. 34.

                     113

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                     209 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     and that cannot be changed retroactively 95. In addition, Germany argues
                     that the common interpretation of Article 3 of the 1907 Hague Conven-
                     tion and the 1949 Geneva Conventions is in the sense that they do not
                     create an individual right to compensation 96. It also notes that more
                     recent developments, such as the UN General Assembly resolution 60/147
                     (2005) or the draft ILA Report (2010) on reparation of victims of armed
                     conflict that refer to such an individual right are not based on an existing
                     customary or conventional rule of international law but rather propose
                     the introduction of new rules 97. Thus, the decisions of German courts in
                     these cases are not a denial of justice but a recognition that the Italian
                     nationals do not have the substantive rights they claim.
                        76. Even if such a right of action and to reparation were to be recog-
                     nized, Germany argues that it has not violated it. Full access to all levels
                     of the German judicial system was granted to all claimants and there has
                     been no accusation of a violation of the procedural rights of Italian or
                     Greek citizens ; nor was there any discrimination against them due to
                     their nationality 98. Germany at last argues that if the right of access to
                     justice were to be interpreted as allowing an individual who has not been
                     successful in his/her claims before the Courts of the State (that allegedly
                     violated his/her rights) to sue such State before Courts of a foreign State
                     (and maybe before Courts of more than one State successively or simul-
                     taneously), then a serious case of “forum shopping” could emerge 99.

                        77. For its part, and quite distinctly, Italy argues that an individual
                     right to reparation and a parallel cause of action for war damages exist. In
                     its view, the origin of this right lies in the post-Second World War arrange-
                     ments of the Treaty of Versailles (Art. 304) and the creation of the
                     Mixed Arbitral Tribunals ; it recognizes, however, that this path was not
                     followed after the Second World War 100. Nevertheless, it argues that, with
                     the exception of the existence of an alternative international procedure,
                     access to domestic remedies cannot be barred 101. In fact, Italian courts
                     have allowed lawsuits against Italy, despite the Peace Treaty and the inter-
                     State mechanism for compensation it provides for 102. Italy goes further
                     and presents the right to access to justice as understood by the different
                     regional and global systems for the protection of human rights, and, based
                     on a decision of the IACtHR (case Goiburú et al., cf. Section XVII infra),
                     it argues that the right to access to justice is a peremptory right if the sub-
                     stantive right violated is of the same status 103.

                       95 Memorial of Germany, p. 12, para. 12.
                       96 Reply of Germany, p. 23, para. 39.
                       97 Ibid., pp. 24‑25, paras. 40‑42.
                       98 CR 2011/17, pp. 45‑46, paras. 29‑30.
                       99 Ibid., pp. 46‑48, paras. 33‑39.
                       100 Counter-Memorial of Italy, p. 74, paras. 4.90‑4.91.
                       101 Ibid., p. 75, para. 4.92.
                       102 Ibid., pp. 74‑75, para. 4.91.
                       103 Ibid., p. 76, paras. 4.93‑4.94.

                     114

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                     210 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        78. In addition, Italy argues that access to justice entails protection
                     against denial of justice, which can be understood as “refusal to grant
                     someone that which he is owed” 104. Thus, when Italian citizens, such
                     as Mr. Ferrini and others before and after him, were not successful before
                     German courts and administrative authorities 105 they filed lawsuits
                     against Germany before the Italian courts, as their only available legal
                     avenue 106. Furthermore, the lifting of the immunity of the German State
                     before the Italian courts in such cases, where the victims are deprived of
                     any other means of redress, is necessary for the effective exercise of their
                     right of access to justice 107.
                        79. These are the basic and opposing positions, sustained by Germany
                     and Italy, on the right of access to justice. Before embarking on an assess-
                     ment of them by dwelling further upon the matter (cf. Section XII infra),
                     I deem it appropriate, next, to review their further clarifications of their
                     arguments, in response to questions which I deemed it fit to pose to both
                     of them, as well as to Greece as intervenor, in the course of the oral hear-
                     ings before the Court. Once such clarifications are reviewed, I shall then
                     proceed to the examination of the remaining aspects of the present case,
                     in logical sequence.

                      XI. Clarifications from the Contending Parties and from Greece
                                  in Response to Questions from the Bench

                                1. Questions Put to the Contending Parties and to Greece
                       80. At the end of the oral hearings before the Court, on 16 September
                     2011, I deemed it fit to put a series of questions to the contending Parties,
                     Germany and Italy, as well as to the intervening State, Greece, in order to
                     seek clarification on the respective submissions they had presented to the
                     Court. The questions I asked, on that occasion, were the following :
                                “In order to maintain the linguistic balance of the Court, I will put
                             my questions in the other language of the Court. Three questions to
                             Germany and Italy and one to Greece.
                                My first question to Germany and Italy is the following : In relation
                             to your arguments in these public sittings before the Court and bear-
                             ing in mind the Settlement Agreements of 1961 between Germany and
                             Italy, what is the precise scope of the waiver clauses contained therein,
                             and of the waiver clause of Article 77 (4) of the Peace Treaty of 1947 ?
                             Can the issue of reparation be considered as entirely closed today ?
                             Or has any of its aspects remained open to date ?

                       104 CR 2011/18, p. 62, para. 27.
                       105 CR 2011/21, p. 48, para. 30 ; Counter-Memorial of Italy, pp. 19‑25, paras. 2.20‑2.34.
                       106 Counter-Memorial of Italy, p. 29, para. 2.44.
                       107 Ibid., p. 80, para. 4.103.

                     115

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                     211 	jurisdictional immunities of the state (diss. op. cançado trindade)

                                My second question to both Germany and Italy is the following :
                             Is the delicts exceptio (territorial torts) limited to acts jure gestionis ?
                             Can it be ? Are acts jure imperii understood to contain also a delicts
                             exceptio ? How can war crimes be considered as acts jure — I repeat,
                             jure — imperii ?

                                My third question to both Germany and Italy is the following :
                             Have the specific Italian victims to whom the Respondent refers effec-
                             tively received reparation ? If not, are they entitled to it and how can
                             they effectively receive it, if not through national proceedings ? Can
                             the regime of reparations for grave breaches of human rights and of
                             international humanitarian law still be regarded as exhausting itself
                             at inter-State level ? Is the right to reparation related to the right of
                             access to justice lato sensu ? And what is the relationship of such right
                             of access to justice with jus cogens ?

                             And, finally, my question to Greece is the following : Within the
                             Greek legal system, what are the legal effects of the Greek Special
                             Supreme Court decision in the Margellos case upon the Areios Pagos
                             decision in the Distomo Massacre case ? Is the Areios Pagos decision
                             in the Distomo Massacre case still pending of execution within and
                             beyond the Greek legal system ?” 108

                                                    2. First Round of Answers
                        81. For the sake of clarity, I proceed to revise and summarize the
                     answers provided by Germany, Italy and Greece, to the questions I put to
                     them at the close of the oral hearings before the Court, last 16 Septem-
                     ber 2011. I shall proceed first, to a review of the answers of Germany and
                     Italy as contending Parties, and then of Greece as the intervening State.
                     (a) Germany’s and Italy’s answers
                        82. In the relation to the first question I put to the contending Par-
                     ties 109, Germany submitted that the Court’s Order of 6 July 2010 (in par-
                     ticular paras. 27-28) determines the relevance of the 1947 Peace Treaty
                     and of the two 1961 Agreements for the current proceedings. Germany
                     reiterated its position that the question whether reparations related to the
                     Second World War are still due is not the subject of the present proceed-

                       108   CR 2011/21, public sitting of 16 September 2011, pp. 53‑54.
                       109   Namely :
                                “In relation to your arguments in these public sittings before the Court and
                             bearing in mind the Settlement Agreements of 1961 between Germany and Italy,
                             what is the precise scope of the waiver clauses contained therein, and of the waiver
                             clause of Article 77 (4) of the Peace Treaty of 1947 ? Can the issue of reparation
                             be considered as entirely closed today ? Or has any of its aspects remained open to
                             date ?”

                     116

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                     212 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ings. Italy retorted that the two 1961 Agreements were the result of a
                     process which demonstrated that there were differences of opinion
                     between the Parties as to the scope of the waiver clause of the 1947
                     Peace Treaty, and that Germany had to take some measures to address
                     them. Italy thus argued that the Agreements were, on the one hand, a
                     measure of reparation for some pending economic questions (the “Settle-
                     ment Agreement”) and, on the other, an indemnification for victims of
                     persecution (the “Indemnity Agreement”).
                        83. Italy contended that the Settlement Agreement represents conclu-
                     sive evidence that Italy never accepted Germany’s interpretation of the
                     waiver clause and the Indemnity Agreement focused on a specific cate-
                     gory of victims targeted on the basis of specific discriminatory grounds.
                     In this regard, Italy submits that the 1961 Agreements only cover pending
                     economic questions and reparations to victims of persecutions. While
                     these Agreements contain waiver clauses — it added — these “merely
                     referred to the subject-matter of the Agreement and were not (and
                     could not have been) so expansive as to cover, in addition, war crimes
                     reparation claims”. As to the waiver clause of Article 77 (4) of the
                     1947 Peace Treaty, Italy reiterated its position that this clause does not
                     cover claims of compensation arising out of grave breaches of interna-
                     tional humanitarian law.

                         84. With regard to the second question I posed to the contending Par-
                     ties 110, Germany submitted that the delicts exceptio does not apply to
                     military activities and that the cases subject to the proceedings before the
                     Court concern acts having occurred during an armed conflict. It further
                     contended that the qualification of an act of a State is based on the nature
                     of the act and is independent of the legality of such act. In this sense,
                     Germany argued that sovereign acts may also involve serious breaches of
                     international law and that international law counts on substantive rules
                     on State responsibility and international criminal responsibility that do
                     not repeal or derogate from State immunity.
                         85. For its part, Italy argued that the issue of reparations is not closed,
                     as there are several categories of victims that have never been taken into
                     account for the purpose of awarding reparations, including those catego-
                     ries referred to in the cases underlying the present dispute. Italy submitted
                     that the delicts exceptio applies to both acts jure gestionis and jure impe‑
                     rii 111, and added that there is no obligation to accord immunity for acts
                        110    Namely :
                                 “Is the delicts exceptio (territorial torts) limited to acts jure gestionis ? Can it be ?
                              Are acts jure imperii understood to contain also a delicts exceptio ? How can war
                              crimes be considered as acts jure — I repeat, jure — imperii ?”

                         111 And argues that its view is confirmed by the practice of States, the ILC’s commen-

                     tary on the draft Articles on Jurisdictional Immunities of States and Their Property,
                     Article 11 of the European Convention on Jurisdictional Immunity, and the relevant legal
                     literature.

                     117

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                     213 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     jure imperii in cases in which the delicts exceptio applies. Italy further
                     submitted that
                             “[t]here is nothing inherent in the notion of acts jure imperii which
                             dictates the conclusion that the tort exception does not cover this
                             category of acts. The justification of this exception to immunity is
                             based on the assertion of local control or jurisdiction over torts com-
                             mitted within the territory of the forum State”.
                     Italy thus contended that, on the basis of this justification, the exception
                     applies to all acts of a foreign State that took place on the territory of the
                     forum State, whether they were performed jure imperii or jure gestionis.
                        86. Italy added that, while it was aware of the view that crimes against
                     humanity and war crimes cannot be considered sovereign acts for which
                     a State is entitled to invoke the defence of sovereign immunity, it acknowl-
                     edged that this area of the law of State immunity is undergoing a process
                     of change. Thus, under the unique and specific circumstances of the cases
                     submitted to Italian courts, Italy contended that its case before this Court
                     is based on other arguments : the tort exception and the existence of an
                     irreconcilable conflict between immunity and the effective enforcement of
                     peremptory rules, which support its position that Italy had no obligation
                     to accord immunity to Germany.

                        87. In respect of the third question I asked the contending Parties 112,
                     Germany again referred to the Court’s Order of 6 July 2010, arguing that
                     the question whether reparations related to the Second World War are
                     still due is not, in its view, the subject of the present proceedings ; it con-
                     sidered the reparation scheme for the Second World War to be a classic
                     inter-State and comprehensive scheme. It further argued that those vic-
                     tims who consider to have a claim against Germany can institute proceed-
                     ings in German courts, which abide by Article 6 (1) of the European
                     Convention on Human Rights that guarantees the right of access to jus-
                     tice.

                       88. Italy retorted that none of the categories of victims referred to in
                     the cases underlying the present dispute has received reparation ; it added
                     that some categories of victims were never able to claim compensation
                     because no mechanism was put in place while others have been trying to
                       112    Namely :
                                 “Have the specific Italian victims to whom the Respondent refers effectively
                             received reparation ? If not, are they entitled to it and how can they effectively receive
                             it, if not through national proceedings ? Can the regime of reparations for grave
                             breaches of human rights and of international humanitarian law still be regarded as
                             exhausting itself at inter-State level ? Is the right to reparation related to the right of
                             access to justice lato sensu ? And what is the relationship of such right of access to
                             justice with jus cogens ?”

                     118

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                     214 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     obtain compensation for a decade without any success. Italy further
                     argued that there does not seem to be any willingness on Germany’s part
                     to conclude an agreement aimed at making reparation to these categories
                     of victims. It also submitted that, at the moment, there is no other alter-
                     native than national proceedings for these categories of victims to receive
                     reparation. Italy argues that had domestic judges not removed immunity,
                     no other avenue would have remained open for war crime victims to
                     obtain reparation, considering, for example, the strong reluctance of Ger-
                     man authorities to enter into an agreement providing for reparation for
                     the “Italian military internees”.

                         89. Italy claimed that the regime of reparations for grave breaches of
                     human rights and international humanitarian law does not exhaust itself
                     at the inter-State level and that individual victims can address their claims
                     in domestic courts. It also submitted that the removal of immunity is jus-
                     tified when resort to domestic courts represents the only and last means
                     available to obtain some form of redress. Italy further argues that
                     “[u]nder certain circumstances, the denial of access to justice because of
                     the immunity granted to a foreign State may imply a denial of effective
                     reparation”. It next submitted that the concept of jus cogens does not
                     confine itself to the realm of primary rules, but also relates to the reme-
                     dies available in cases of grave breaches of obligations prescribed by
                     norms having such character. In Italy’s submission, when there is a
                     conflict between rules that prevent individuals from having access to jus-
                      tice and the effective enforcement of jus cogens rules, if there is no other
                      avenue open to obtain effective enforcement of jus cogens, “priority must
                      be given to jus cogens by removing immunity, thereby allowing access to
                      justice to individual victims”.
                     (b) Greece’s answer
                        90. In answer to the question I put to the intervening State 113 — to the
                     best of my knowledge, the first question ever put to a non-party interve-
                     nor in the history of the Hague Court —, Greece first recalled that the
                     Special Supreme Court does not rank as a Supreme Court nor is it a con-
                     stitutional court within the Greek legal system ; rather, it has a sui generis
                     legal status in Greece. It added that the Special Supreme Court is an inde-
                     pendent and non-permanent organ which does not fit within the hierar-
                     chy of the Greek court system. Greece further argued that, as part of the
                     Special Supreme Court’s function, it identifies or defines a customary rule
                     of international law “in the present development of international law”. In
                       113   Namely :
                                 “Within the Greek legal system, what are the legal effects of the Greek Special
                             Supreme Court decision in the Margellos case upon the Areios Pagos decision in the
                             Distomo Massacre case ? Is the Areios Pagos decision in the Distomo Massacre case
                             still pending of execution within and beyond the Greek legal system ?”

                     119

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                     215 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     this area of its functions, the Special Supreme Court judgments — it con-
                     tinued — have limited effects, and, in practice, a judgment by the Spe-
                     cial Supreme Court is binding only on the courts which have posed to it
                     the specific question. Greece further submitted that judgments of the Spe-
                     cial Supreme Court do not have the force of res judicata erga omnes ; it is
                     for the ordinary courts or the Special Supreme Court to determine subse-
                     quently whether there has been any change in the assertion that a custom-
                     ary norm exists.

                        91. Greece added that a judgment of the Special Supreme Court
                     “always reflects the considerations of an opinio juris expressed ‘at the
                     same temporal stage of development of international law and its generally
                     accepted rules’”. It argued that the judgment in the Margellos and Others
                     case “has no effect whatever” or legal implications on the judgment of the
                     Areios Pagos in the Distomo Massacre case, which was rendered prior to
                     the Margellos judgment and concerned a different case. In this sense,
                     Greece claimed that the Areios Pagos judgment “is final and irrevocable.
                     It is in force and produces legal effects within the Greek legal order,
                     remaining pending of execution.” Greece at last contended that the fact
                     that the Minister of Justice has not authorized the enforcement of the
                     Areios Pagos judgment yet does not signify that it is “emptied of meaning
                     and unenforceable” ; the Distomo judgment “remains open”.

                                            3. Second Round of Answers
                        92. The contending Parties saw it fit to comment on the answers they
                     provided to the questions I put to them during the oral hearings before the
                     Court (supra). These additional comments form the second round of their
                     answers, which I proceed likewise to revise and summarize, for the sake of
                     clarity as to the distinct positions taken by the contending Parties in the
                     present case on the Jurisdictional Immunities of the State before the Court.

                     (a) Germany’s comments
                        93. Germany only made observations on Greece’s response to my
                     question addressed to it. Germany first referred to Article 100 (1) of the
                     Greek Constitution, Article 54 (1) of Greek Law No. 345/1976 regarding
                     the Greek Special Supreme Court, and to a ruling by the Spe-
                     cial Supreme Court on this latter provision. On this basis, Germany
                     argued that, since the judgment of 2002 in the Margellos and Others case,
                     “no Greek Court has issued a judgment disregarding Germany’s state
                     immunity for acts jure imperii during World War II and no measures of
                     execution in the Distomo case have been taken”. Germany then referred
                     to two judgments of the Areios Pagos (in 2007 and in 2009) that followed
                     the jurisprudence of the Special Supreme Court, “according to which
                     the rule of jurisdictional immunity stands unaffected even in cases the

                     120

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                     216 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     subject-matter of which are allegations of serious violations of interna-
                     tional humanitarian law”.
                     (b) Italy’s comments
                        94. In turn, Italy commented on some parts of Germany’s responses to
                     the questions I posed (supra). In relation to my first question, contrary to
                     what Germany contended, Italy argued that the conclusion by the Court
                     in the paragraphs of the Order of 6 July 2010 cited by Germany was
                     strictly limited to the issue of the admissibility of Italy’s counter-claim
                     and it did not affect the solution of the question raised by Germany’s
                     main claim. Italy contended that it remains for the Court to examine Ita-
                     ly’s arguments on the merits of Germany’s main claim, and in particular,
                     the argument whereby the obligation to make reparation for war crimes
                     has some specific implications for State immunity.

                         95. As to Germany’s response to my third question, Italy took issue
                     with Germany’s statement that the reparation regime set up for the
                     Second World War was “comprehensive”. Italy argued that Germany
                      itself, both in its written and oral submissions, admitted that reparations
                      made in relation to Italian victims of war crimes were only “partial”. Italy
                      further contended that the 1961 Agreement provided only for reparations
                      for victims of persecution. Thus, Italy added that the characterization
                      of the reparation scheme as “comprehensive” cannot be accurate, in
                      particular concerning Italian victims of war crimes. It further claimed
                       that Germany’s arguments make it clear that no reparation has been
                       made to numerous Italian victims of war crimes 114.

                       96. Italy at last contended that Germany’s argument that Italian vic-
                     tims of war crimes did not receive compensation because Italy had been
                     an ally of Germany until 8 September 1943
                           “is flawed because it confuses the regime of responsibility for viola-
                           tions of jus ad bellum with the consequences of violations of the pro-
                           visions of jus in bello, and in particular it ignores the special regime
                           of responsibility for serious breaches of international humanitarian
                           law”.
                     Also in relation to my third question, Italy claimed that “[t]he fact that
                     Italian victims had access to German courts does not mean that they were
                     given an effective legal avenue to obtain reparation”. It argued that Ger-

                        114 As Germany claims that it has been relieved of the obligation to make reparation

                     on the basis of the waiver clause of Article 77 of the 1947 Peace Treaty, an argument which
                     Italy challenges in the present proceedings.

                     121

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                     217 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     man laws imposed a number of “unduly restrictive requirements” for Ital-
                     ian victims to receive reparation 115.

                               XII. The Prohibition of Forced Labour at the Time
                                          of the Second World War

                                                  1. Normative Prohibition
                        97. The legal regulation of forced labour at the time of Second World
                     War was based on the 1930 ILO Convention (No. 29) on Forced Labour,
                     which came into force on 1 May 1932. The Convention provided for a
                     series of restrictions and prohibitions of forced labour, aiming ultimately
                     to its total suppression. The 1930 ILO Convention (No. 29) made clear
                     that prisoners of war may not be employed in any way that is connected
                     with the operations of war (manufacture, transport of arms and muni-
                     tions) or for unhealthy or dangerous work (Arts. 31‑32). In case of viola-
                     tions they have the right to complaint (Art. 31) ; moreover, more arduous
                     work cannot be used as a disciplinary measure (Art. 31).
                        98. Forced labour, in the sense of labour imposed under coercion or
                     the threat of penalty (Art. 2 (1)), has been condemned and expressly pro-
                     hibited ever since the 1930 ILO Convention (No. 29) 116, despite the dis-
                     tinct contexts wherein forced labour was imposed as time went on. The
                     1930 ILO Convention (No. 29) was followed by the 1957 Abolition of
                     Forced Labour Convention, to meet practically universal acceptance. As
                     I sustained in my earlier dissenting opinion (paras. 130‑132) in the Court’s
                     Order of 6 July 2010 in the case of the Jurisdictional Immunities of the
                     State (Germany v. Italy) (Counter‑Claim), their underlying principles,
                     informing and conforming the abolition of forced labour in general inter-
                     national law, belong nowadays to the domain of jus cogens 117.

                        99. Furthermore, in the domain of international humanitarian law, the
                     treatment of prisoners of war or civilian populations during armed con-

                        115 Italy argued, in this respect, that the reference made by Germany to the jurispru-

                     dence of the European Court of Human Rights is “inapposite”, as such jurisprudence relies
                     on the assumption that “the Convention imposes no specific obligation on the Contracting
                     States to provide redress for wrongs or damage caused prior to their ratification of the
                     Convention”. Italy added that the cases against Germany before the European Court were
                     based on the right to property under Article 1 of Protocol No. 1 to the European Conven-
                     tion, and the Court considered those cases inadmissible as the facts at issue did not fall
                     within the ambit of that norm.
                        116 ILO/OIT, Alto al Trabajo Forzoso — Informe Global con Arreglo al Seguimiento de

                     la Declaración de la OIT Relativa a los Principios y Derechos Fundamentales en el Trabajo,
                     ILO, Geneva, 2001, pp. 9‑10.
                        117 Cf., to this effect, e.g., M. Kern and C. Sottas, “The Abolition of Forced or

                     Compulsory Labour”, in Fundamental Rights at Work and International Labour Standards,
                     Geneva, ILO, 2003, p. 44, and cf. p. 33 ; and International Labour Office, Eradication of
                     Forced Labour, Geneva, ILO, 2007, p. 111.

                     122

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                     218 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     flict was governed, at the time of the Second World War, by the
                     1907 Hague Convention (IV) and by the 1929 Geneva Convention on
                     Prisoners of War ; the 1929 Geneva Convention added the prohibition of
                     forced labour that was unhealthy or dangerous for the prisoners of war
                     (Arts. 28‑34). Still in connection with the prohibition of forced labour, at
                     that same time, the 1926 Geneva Anti-Slavery Convention prohibited
                     slavery and slave trade ; it expressly set forth the obligation of States “to
                     take all measures to prevent compulsory or forced labour from develop-
                     ing into conditions analogous to slavery” (Art. 5).
                         100. The Regulations concerning the Laws and Customs of War on
                     Land, annexed to the aforementioned 1907 Hague Convention (IV),
                     prohibited, with regard to forced labour of inhabitants of occupied terri-
                      tories, to involve those inhabitants in the work of “military operations
                      against their own country” (Art. 52). Germany signed the 1907 Hague Con-
                      vention (IV) on 18 October 1907 and ratified it on 27 November 1909. In
                      addition, it should be noted that Germany ratified the 1930 ILO Conven-
                      tion (No. 29) on Forced Labour only on 13 June 1956. Be that as it may,
                      even if this later ratification removed jurisdiction on the basis of this Con-
                      vention before mid‑1956, the responsibility of Nazi Germany subsisted.
                      No one would dare to deny the wrongfulness of forced labour, already at
                      the time of the Second World War.
                         101. The forced labour regime, as organized by Nazi Germany,
                      could be equated to “enslavement”, given the presence of the elements
                      constitutive of this crime, namely, the subjection of a part of a popula-
                      tion of an occupied territory, in order to sever forced or compulsory
                      labour, meant to be permanent, and undertaken in conditions similar to
                      slavery under the heel of private persons 118. It was the policy of Nazi
                      German authorities to let exhausted forced labourers die ; sometimes
                      they actively killed forced labourers when they could no longer work.
                      Such circumstances could make their policy fall under the “enslavement”
                      definition 119.

                                        2. Judicial Recognition of the Prohibition
                        102. That State policy of Nazi Germany was to have repercussions in
                     the work and findings of the International Military Tribunal of Nurem-
                     berg, shortly after the Second World War. The 1945 Charter of the
                     Nuremberg Tribunal listed, among war crimes, the “deportation to slave
                     labour or for any other purpose of civilian population of or in occupied
                     territory” (Art. 6 (b)) ; and, among crimes against humanity, the “enslave-
                     ment, deportation, and other inhumane acts committed against any civil-

                        118 L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law : Histor‑

                     ical Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus/Finnish
                     Lawyers’ Publ. Co., 1988, pp. 455‑456.
                        119 Cf. ICRC, Customary International Humanitarian Law, Rule 95 : Forced Labour,

                     Deportation to Slave Labour, No. 19.

                     123

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                     219 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ian population, before or during the war” (Art. 6 (c)). The prohibition of
                     forced labour and enslavement was already established, as indicated
                     above, in the corpus juris gentium, in international instruments of the ILO
                     as well as of international humanitarian law.

                        103. It was then, with the work of the Nuremberg Tribunal, to gain
                     judicial recognition as well. In fact, the question of forced labour during
                     the Second World War was examined by the Nuremberg Tribunal, which,
                     in the case of the Major War Criminals (judgment of 1 October 1946),
                     recalled that Article 6 (b) its Charter 120 provides that the “ill‑treatment,
                     or deportation to slave labour or for any other purpose, of civilian popu-
                     lation of or in occupied territory shall be a war crime”. The Tribunal
                     further reminded that “[t]he laws relating to forced labour by the inhabit-
                     ants of occupied territories are found in Article 52 of the Hague Conven-
                     tion” of 1907 121.

                        104. In this regard, the Nuremberg Tribunal concluded that “[t]he pol-
                     icy of the German occupation authorities was in flagrant violation of the
                     terms of [the Hague Convention of 1907]” and that an “idea of this policy
                     may be gathered from the statement made by Hitler in a speech on
                     9 November 1941”, asserting that “the German occupation authorities
                     did succeed in forcing many of the inhabitants of the occupied territories
                     to work for the German war effort, and in deporting at least 5,000,000 per-
                     sons to Germany to serve German industry and agriculture”. It also
                     noted that “[i]nhabitants of the occupied countries were conscripted and
                     compelled to work in local occupations, to assist the German war econ-
                     omy” and that “[i]n many cases they were forced to work on German
                     fortifications and military installations” 122.
                        105. From the above statement by Hitler, singled out by the Nurem-
                     berg Tribunal itself, there can be no doubt whatsoever that widespread
                     forced labour of inhabitants of the occupied territories in the German
                     war industry during the Second World War, was a State policy of Nazi
                     Germany. Such State policy was in flagrant violation of international law,
                     both conventional and customary.

                       106. In fact, the Nuremberg Tribunal further observed that a vigorous
                     propaganda campaign was set up to induce workers to volunteer to work
                     in Germany, and, in some instances, labourers and their families were
                     threatened by the police in case they refused to go to Germany 123. The
                     evidence before the Tribunal showed that the workers were sent under

                        120Hereinafter referred to as the “Nuremberg Charter”.
                        121International Military Tribunal, judgment of 1 October 1946, in The Trial of
                     German Major War Criminals : Proceedings of the International Military Tribunal Sitting at
                     Nuremberg, Germany, Part 22 (22 August 1946-1 October 1946), p. 460.
                       122 Ibid., p. 460.
                       123 Ibid., p. 461.

                     124

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                     220 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     guard to Germany and were often crammed in trains without adequate
                     food, heat, clothing or sanitary facilities, and demonstrated that the treat-
                     ment of workers in Germany was, in many cases, brutal and degrading ;
                     the Tribunal also found that, many prisoners of war were allocated to
                     work directly in relation to military operations, in violation of Article 31
                     of the 1929 Geneva Convention 124.

                       107. As to the customary nature of the rules that it applied, the Nurem-
                     berg Tribunal further stated that
                              “Article 6 of the Charter provides :
                              (b) War Crimes : namely, violations of the laws or customs of war.
                                  Such violations shall include, but not be limited to, murder,
                                  ill-treatment or deportation to slave labour or for any other pur-
                                  pose of civilian population of or in occupied territory, murder or
                                  ill-treatment of prisoners of war or persons on the seas, killing of
                                  hostages, plunder of public or private property, wanton destruc-
                                  tion of cities, towns or villages or devastation not justified by
                                  military necessity ;

                              (c) Crimes against Humanity : namely, murder, extermination, enslave-
                                  ment, deportation, and other inhumane acts committed against any
                                  civilian population, before or during the war, or persecutions on
                                  political, racial or religious grounds in execution of or in connection
                                  with any crime within the jurisdiction of the Tribunal, whether or
                                  not in violation of the domestic law of the country where perpe-
                                  trated. (. . .)

                                 The Tribunal is of course bound by the [Nuremberg] Charter, in
                              the definition which it gives both of war crimes and crimes against
                              humanity. With respect to war crimes, however, as has already been
                              pointed out, the crimes defined by Article 6, Section (b), of the
                              [Nuremberg] Charter were already recognized as war crimes under
                              international law. They were covered by Articles 46, 50, 52, and 56
                              of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of
                              the Geneva Convention of 1929. That violations of these provisions
                              constituted crimes for which the guilty individuals were punishable is
                              too well settled to admit of argument.” 125
                        108. The Nuremberg Tribunal further found that, by 1939, the rules
                     laid down in the Hague Convention of 1907 were recognized by all “civi-
                     lized nations”, and were regarded as being declaratory of the laws and

                        124 Op. cit. supra note 121, p. 462.
                        125 Ibid., p. 467. The Judgment also stated, in relation to the crimes committed in
                     Czechoslovakia, that : “Although Czechoslovakia was not a party to the Hague Conven-
                     tion of 1907, the rules of land warfare expressed in this Convention are declaratory of existing
                     international law and hence are applicable”, p. 524 (emphasis added).

                     125

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                     221 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     customs of war referred to in Article 6 (b) of the Nuremberg Charter.
                     As to crimes against humanity, the Nuremberg Tribunal concluded that
                     “[t]he policy of terror was certainly carried out on a vast scale, and in
                     many cases was organized and systematic” and concerning “[t]he policy
                     of persecution, repression and murder of civilians in Germany before the
                     war of 1939, who were likely to be hostile to the Government” it found
                     that such policy “was most ruthlessly carried out”. The Tribunal thus
                     concluded that “from the beginning of the war in 1939 war crimes were
                     committed on a vast scale, which were also crimes against humanity”
                     and held that “they were all committed in execution of, or in connec-
                     tion with, the aggressive war, and therefore constituted crimes against
                     humanity” 126.
                        109. For its part, the International Military Tribunal for the Far East
                     (the Tokyo Tribunal), in its judgment of 12 November 1948, also
                     expressed concern with regards to the use of forced labour, the method of
                     recruitment, the confination of labourers in camps ; the Tokyo Tribunal
                     was also concerned with the little or no distinction made “between these
                     conscripted labourers on the one hand and prisoners of war and civilian
                     internees on the other hand”, all being regarded as “slave labourers” 127.
                        110. In our days, in its recent adjudication of the case Kononov v. Lat‑
                     via (2008‑2010), lodged with the European Court of Human Rights
                     (ECHR) by a survivor of the Second World War, the ECHR (for-
                     mer Section III, judgment of 24 July 2008) saw it fit to undertake an
                     examination of the evolution of international humanitarian law, from the
                     First and Second Hague Peace Conferences (1899 and 1907) to the after-
                     math of the Second World War (the Nuremberg and Tokyo Tribunals
                     trials, and the 1949 Geneva Conventions), to determine that the subjuga-

                       126   Op. cit. supra note 121, p. 468.
                       127   In the words of the Tribunal :
                                “Having decided upon a policy of employing prisoners of war and civilian internees
                             in work directly contributing to the prosecution of the war, and having established
                             a system to carry that policy into execution, the Japanese went further and supple-
                             mented this source of manpower by recruiting labourers from the native population
                             of the occupied territories. This recruiting of labourers was accomplished by false
                             promises, and by force. After being recruited, the labourers were transported to and
                             confined in camps. Little or no distinction appears to have been made between these
                             conscripted labourers on the one hand and prisoners of war and civilian internees
                             on the other hand. They were all regarded as slave labourers to be used to the limit
                             of their endurance. For this reason, we have included these conscripted labourers in
                             the term ‘civilian internees’ (. . .). The lot of these conscripted labourers was made
                             worse by the fact that generally they were ignorant of the principles of hygience [sic]
                             applicable to their unusual and crowded conditions and succumbed more readily to
                             the diseases resulting from the insanitary conditions of confinement and work forced
                             upon them by their Japanese captors.” (International Military Tribunal for the Far
                             East, judgment of 12 November 1948, in J. Pritchard and S. M. Zaide (eds.), The
                             Tokyo War Crimes Trial, Vol. 22, pp. 693‑694.)

                     126

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                     222 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tion and the ill-treatment of civilians was already prohibited well before
                     the Second World War (paras. 55-70).
                        111. In the same line of reasoning, the ECHR, in its subsequent judg-
                     ment (Grand Chamber, of 17 May 2010) in the Kononov v. Latvia case,
                     deemed it fit to undertake to an ever greater depth such examination of
                     the evolution of international humanitarian law, this time from the earlier
                     codifications of the nineteenth century to the aftermath of the Second
                     World War (paras. 206‑217), to find that “the ill-treatment, wounding
                     and killing” of villagers (in any case hors de combat) constituted, already
                     by the time of the 1907 Hague Regulations, “a war crime” (para. 216).
                     The Court pondered, inter alia, that :
                                 “While the notion of war crimes can be traced back centuries, the
                             mid‑nineteenth century saw a period of solid codification of the acts
                             constituting a war crime and for which an individual could be held
                             criminally liable. The Lieber Code [of] 1863 [the Oxford Manual
                             of 1880 (. . .)], and in particular the [1874] draft Brussels Declaration,
                             (. . .) inspired the Hague Convention and Regulations [of] 1907. These
                             latter instruments were the most influential of the earlier codifications
                             and were, in 1907, declaratory of the laws and customs of war : they
                             defined, inter alia, relevant key notions (combatants, levée en masse,
                             hors de combat), they listed detailed offences against the laws and
                             customs of war and they provided a residual protection through the
                             Martens clause, to inhabitants and belligerents for cases not covered
                             by the specific provisions of the Hague Convention and Regulations
                             [of] 1907. Responsibility therein was on States, which had to issue
                             consistent instructions to their armed forces and pay compensation if
                             their armed forces violated those rules.” (Para. 207.)

                        112. After reviewing the “Hague” and the “Geneva” branches of
                     humanitarian law, “the latter supplementing the former”, in the course of
                     the second half of the nineteenth century and the first half of the twenti-
                     eth century, the European Court further recalled that the Charter of the
                     Nuremberg Tribunal provided a “non‑exhaustive definition of war
                     crimes”, and its judgment opined that the humanitarian rules enshrined
                     into the 1907 Hague Convention and Regulations were generally recog-
                     nized as being “‘declaratory of the laws and customs of war’ by 1939 and
                     that violations of those provisions constituted crimes for which individu-
                     als were punishable” (para. 207).
                        113. The ECHR then added that “[i]nternational and national law (the
                     latter including transposition of international norms) served as a basis for
                     domestic prosecutions and liability” (para. 208) 128. In sum, from the
                     review above, it is clear that there has also been further judicial recog
                     nition of the fact that, well before the Second World War, ill-treatment of
                       128   Cf. also para. 212.

                     127

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                     223 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     civilians (such as forced labour) was illegal — it was a war crime — and
                     engaged both State and individual responsibility.

                                      3. The Prohibition in Works of Codification
                        114. The prohibition of forced labour as a form of slavery is not to be
                     taken lightly, keeping in mind the long time it has taken to eradicate it,
                     and the fact that it still survives in our days. Time and time again atten-
                     tion has been drawn into the everlasting struggle against forced labour as
                     slave work. In this respect, in 1958, for instance, J. H. W. Verzijl pointed
                     out that it was “shocking to have to acknowledge” that any attempt to
                     deal with stigmatized abuses and disgraces of the past was “relatively
                     recent”. Thus :
                              “It will suffice to remind ourselves of the humiliating historical evi-
                           dence that the formal abolition of slavery was only reluctantly
                           achieved, little by little, during the nineteenth century, that hidden or
                           even overt forms of serfdom still flourish (. . .), that it was still neces-
                           sary in 1956 to conclude a Convention for the Abolition of Slavery,
                           the Slave Trade and Institutions and Practices Similar to Slavery,
                           (. . .) a still existing evil surviving from the past.” 129

                        115. When, early in its life and in the era of the United Nations itself,
                     the International Law Commission (ILC) formulated the Principles of
                     International Law Recognized in the Charter of the Nuremberg Tribunal
                     and in the Judgment of the Tribunal (1950), it included, among “war
                     crimes”, the “deportation to slave‑labour or for any other purpose of
                     civilian population of or in occupied territory” (Principle VI (b)) ; and it
                     likewise included, among “crimes against humanity”, the “enslavement,
                     deportation and other inhuman acts done against any civilian popula-
                     tion” (Principle VI (c)) 130. Codified in 1950, those principles were already
                     deeply‑engraved in the universal juridical conscience for a long time.
                     Those crimes were already prohibited by international law likewise for a
                     long time.
                        116. The fact remains that the prohibition of forced labour as a form
                     of slavery soon marked its presence in endeavours of codification, not
                     only of the ILC in the mid‑twentieth century, but also of the Interna-
                     tional Committee of the Red Cross (ICRC) in the middle of last decade.
                     In fact, in accordance with a study undertaken by the ICRC entitled Cus‑
                     tomary International Humanitarian Law, published in 2005, uncompen-

                        129 J. H. W. Verzijl, Human Rights in Historical Perspective, Haarlem, Haarlem Press,

                     1958, pp. 5‑6.
                        130 UN, The Work of the International Law Commission, 7th ed., Vol. I, N.Y., 2007,

                     p. 265.

                     128

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                     224 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     sated and abusive forced labour is prohibited ; the study asserts that such
                     prohibition of forced labour attained the status of “a norm of customary
                     international law applicable in both international and non‑international
                     armed conflicts” 131 (Rule 95).

                              4. International Crimes and the Prohibitions of Jus Cogens
                        117. The fact remains that, by the time of the Second World War,
                     forced labour as a form of slave work was already prohibited by interna-
                     tional law. Well before the Second World War, and indeed before the
                     First World War, its wrongfulness was widely acknowledged. The fact
                     that wrongful practices nevertheless persisted, in times of peace and or
                     armed conflict — as they still persist today — does not mean that there
                     was a legal void in that respect. The prohibitions of international law do
                     not cease to exist because violations occur. Quite on the contrary, such
                     violations entail legal consequences for those responsible for them.

                        118. Already at the beginning of the twentieth century, the Hague
                     Convention (IV) of 1907 contained, in its preamble, the célèbre Mar‑
                     tens clause (cf. supra), invoking, for cases not included in the adopted
                     regulations annexed to it, “the principles of humanity” and “the dictates
                     of the public conscience” (para. 8). Due attention had been taken not to
                     leave anyone outside the protection granted by the corpus juris gentium —
                     by conventional and customary international law — against forced and
                     slave work in armaments industry. Such protection was extended by the
                     jus gentium to human beings, well before the sinister nightmare and the
                     horrors of the Third Reich.
                        119. In this line of thinking, in my previous dissenting opinion
                     (paras. 144‑146) in the Court’s Order of 6 July 2010 in the present case of
                     the Jurisdictional Immunities of the State (Germany v. Italy) (counter‑
                     claim), I drew attention (in the light of the submissions of the con-
                     tending Parties themselves in the present case, not necessarily diverging
                     herein) to the incidence of jus cogens, in the absolute prohibition of forced
                     and slave work in the war industry. In this respect, I pondered therein :

                              “In fact, we can go back — even before the Second Hague Peace
                           Conference (1907) — to the time of the First Hague Peace Con
                           ference (1899) (. . .). By the end of the nineteenth century, in the
                           days of the First Hague Peace Conference, there was a sense that States
                           could incur delictual responsibility for mistreatment of persons (e.g.,
                           for transfer of civilians for forced labour) ; this heralded the subse-

                        131 ICRC, Customary International Humanitarian Law — Vol. I : Rules (eds. J.‑M. Henc-

                     kaerts and L. Doswald‑Beck), Geneva/Cambridge, ICRC/Cambridge University Press,
                     2005, p. 330, and cf. pp. 331‑334 ; and cf. also ICRC, Customary International Humani‑
                     tarian Law — Vol. II : Practice — Part I (eds. J.‑M. Henckaerts and L. Doswald‑Beck),
                     Geneva/Cambridge, ICRC/Cambridge University Press, 2005, pp. 2225‑2262.

                     129

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                     225 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           quent age of criminal responsibility of individual State officials, with
                           the typification of war crimes and crimes against humanity.

                              The gradual awakening of human conscience led to the evolution
                           from the conceptualization of the delicta juris gentium to that of the
                           violations of international humanitarian law (in the form of war
                           crimes and crimes against humanity) — the Nuremberg legacy — and
                           from these latter to that of the grave violations of international
                           humanitarian law (with the four Geneva Conventions on interna-
                           tional humanitarian law of 1949, and their I Additional Protocol of
                           1977) 132. With that gradual awakening of human conscience, likewise,
                           human beings ceased to be objects of protection and became reckoned
                           as subjects of rights, starting with the fundamental right to life,
                           encompassing the right of living in dignified conditions.

                              Human beings were recognized as subjects of rights in all circum-
                           stances, in times of peace as well as of armed conflict. As to the former,
                           may it here be briefly recalled that, well before the 1948 Universal
                           Declaration of Human Rights, in the inter-war period, the pioneering
                           experiments of the minorities system and the mandates system under
                           the League of Nations granted direct access to the individuals con-
                           cerned to international instances (the Minorities Committees and the
                           Permanent Mandates Commission, respectively), in order to vindicate
                           the rights emanated directly from the law of nations (the evolving jus
                           gentium). As to the latter, likewise, as from the Second Hague Peace Con-
                           ference of 1907 onwards, human beings were recognized as being enti-
                           tled to war reparations claims.” (I.C.J. Reports 2010 (I), pp. 385‑386,
                           paras. 144‑146.)

                        120. This being so, such right to war reparations claims, being recog-
                     nized well before the end of the Second World War, could not be waived
                     by States in their agreements with other States ; it was related to other
                     rights inherent to the human beings victimized by the cruelty and untold
                     human suffering of arbitrary detention, deportation and forced labour in

                         132 I Geneva Convention, Arts. 49‑50 ; II Geneva Convention, Arts. 50‑51 ;

                     III Geneva Convention, Arts. 129‑130 ; IV Geneva Convention, Arts. 146‑147 ; I Addi-
                     tional Protocol, Arts. 85‑88. The I Additional Protocol of 1977 (Art. 85) preferred to stick
                     to the terminology of the four Geneva Conventions of 1949 in this particular respect, and
                     maintained the expression of “grave breaches” on international humanitarian law, in view
                     of the “purely humanitarian objectives” of those humanitarian treaties ; yet, it saw it fit
                     to state that “grave breaches” of those treaties (the four Geneva Conventions and the
                     I Additional Protocol) “shall be regarded as war crimes” (Art. 85 (5)). Cf. Y. Sandoz,
                     Ch. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 1977
                     to the Geneva Conventions of 1949, Geneva, ICRC/Nijhoff, 1987, pp. 990 and 1003.

                     130

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                     226 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     war industry. I have already considered this point in the present dissent-
                     ing opinion (cf. Section VII supra). In a logical sequence, I deem it now
                     appropriate to turn attention to the oral pleadings of the contending Par-
                     ties, and the intervening State, on jus cogens and removal of immunity,
                     and next to the problem of the opposition of State immunity to the indi-
                     viduals’ right of access to justice.

                       XIII. Oral Pleadings of the Parties, and the Intervening State,
                                 on Jus Cogens and Removal of Immunity :
                                                 Assessment

                        121. As to jus cogens and State immunity, Germany contends that ref-
                     erence is here made to primary rules of international law and not second-
                     ary rules (such as the consequences of violations) 133. Germany argues
                     that there cannot be an issue of conflict between two rules of general
                     international law, only a question of whether one of them has been mod-
                     ified by the operation of the other, and in the present case, in its view,
                     State practice does not indicate that rules of State immunity have been
                     modified in any way 134.

                        122. Italy, in turn, claims that jus cogens norms have effects on the
                     realm of State responsibility, also for the prevention of breaches of inter-
                     national law 135. Italy’s position is that in some specific cases, there is a
                     right to lift immunity in order to enforce jus cogens rules 136. Hence the
                     correctness of the decision of the Italian Court of Cassation to lift immu-
                     nity in such cases of violation of jus cogens rules, putting an end to the
                     continuation of the violation by Germany 137.

                        123. Greece, for its part, argued that, according to the Greek courts, if
                     rules endowed with a peremptory character have been breached, State
                     immunity cannot be invoked 138; in its view, the attempt to draw a distinc-
                     tion between a substantive rule (jus cogens) and a procedural one
                     (State immunity) does not have a legal value. A procedural rule cannot
                     take precedence over the substantive jus cogens rule, since that would be
                     inconsistent with the purpose and ratio of the substantive rule, and would
                     result in impunity for the States that have committed such grave breaches
                     of peremptory norms 139. Moreover — it added — such a distinction

                        133 CR 2011/17, pp. 49‑50, para. 3 ; it further argues that jus cogens cannot be under-

                     stood as expressing principles of law of higher value that override all other principles which
                     express less high values.
                        134 Ibid., p. 53, para. 6.
                        135 CR 2011/18, pp. 47‑48, para. 25.
                        136 Ibid., p. 49, para. 28.
                        137 Ibid., pp. 56‑58, paras. 16-18.
                        138 CR 2011/19, p. 36, para. 98.
                        139 Ibid., p. 37, para. 102.

                     131

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                     227 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     would hamper the right to an effective remedy, as provided for in interna-
                     tional instruments 140; thus, effective access to courts for the enforcement
                     of such rules (with no bar to jurisdiction due to immunity) ought to be
                     recognized 141.
                        124. Germany retorted that a decision to set aside immunity would
                     destabilize peace settlements and the principle of pacta sunt servanda
                     itself, as all peace treaties would be undermined by individual suits for
                     compensation (and even Italy itself could face such suits) 142. It also
                     claimed that the common good ought not to be undermined for the indi-
                     vidual good — and thus human rights cannot be recognized to be able to
                     jeopardize the structure of the international society.
                        125. Italy replied that what is requested from the Court is to examine
                     the legality of certain decisions of Italian courts based on a very specific
                     factual background, which makes the present case unique. Thus, the deci-
                     sion of the Court cannot be considered to have the catastrophic conse-
                     quences that Germany claims that it may have on the whole international
                     legal system 143. Italy added that its view brings one closer to the “princi-
                     ple of complementarity”, as its argument is that an individual has the
                     right to address his/her national courts only if he/she is unsuccessful
                     before the courts of the State in breach 144.
                        126. As to the judgment of the Areios Pagos in the Distomo Massacre
                     case, Greece recounts the proceedings before Greek courts and the deci-
                     sions thereof, and argues that the Greek Special Supreme Court is not a
                     “constitutional court” ; it enjoys such a role only in limited situations
                     regarding the constitutionality of laws and it does not correspond to the
                     courts of other States, the decisions of which take precedence within their
                     legal order 145. Thus, the impact of the decision in the Greek legal order
                     raises some questions, but cannot be considered as having reversed the
                     decision of Areios Pagos in the Distomo Massacre case 146.

                        127. In this respect, Germany claims that, despite the arguments raised
                     by Greece, it is a fact that following the Special Supreme Court’s decision
                     on the Margellos case, the Greek legal order does not recognize any limi-
                     tation to sovereign immunity for acts jure imperii, as the decision of that

                        140 CR 2011/19, p. 38, para. 106.
                        141 Ibid.
                        142 CR 2011/17, pp. 55‑56, para. 13. It further claimed that there is a risk of creating a

                     culture of “forum shopping”, which would cause serious problems in international relations
                     and would create an issue for the ownership of property abroad ; ibid., p. 59, para. 18.
                        143 CR 2011/21, pp. 14‑16, paras. 4‑7. Italy further questioned whether the risk of

                     “forum shopping”, as argued by Germany, is a real risk or not ; Italy claimed that its
                     argument and that of the Italian Court of Cassation have nothing to do with any sort of
                     “universal civil jurisdiction” ; ibid., pp. 49‑50, paras. 31‑33.
                        144 Ibid., pp. 49‑50, paras. 31-33.
                        145 CR 2011/19, pp. 23‑24.
                        146 Ibid., pp. 23‑24, paras. 43 and 46.

                     132

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                     228 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     court is a binding precedent for all Greek courts 147. Germany also argues
                     that the recognition and the enforcement of the Greek decision in the
                     Distomo case by the Italian courts violated Germany’s immunity 148. In
                     this regard, Germany also notes the acceptance of the Agent of Italy
                     regarding the illegality of the judicial mortgage on the Villa Vigoni and
                     the will of Italy to remedy the situation 149.
                        128. Italy argues that the enforcement of the Distomo Massacre judg-
                     ment was not a consequence of the alleged “forum shopping” created by
                     the Ferrini decision, and that there is no principle that renders any foreign
                     State immune for recognitions proceedings. Furthermore, it argues that
                     since the Greek courts had not recognized immunity to Germany based
                     on the same justifications and on similar circumstances as those of the
                     Ferrini case, Italy had no duty to accord immunity to Germany 150.
                        129. In my understanding, what jeopardizes or destabilizes the interna-
                     tional legal order are the international crimes and not individual suits for
                     reparation in the search for justice. In my perception, what troubles the
                     international legal order, are the cover-up of such international crimes
                     accompanied by the impunity of the perpetrators, and not the victims’
                     search for justice. When a State pursues a criminal policy of murdering
                     segments of its own population, and of the population of other States, it
                     cannot, later on, place itself behind the shield of sovereign immunities, as
                     these latter were never conceived for that purpose. Grave breaches of
                     human rights and of international humanitarian law, amounting to inter-
                     national crimes, are not at all acts jure imperii. They are anti‑juridical
                     acts, they are breaches of jus cogens, that cannot simply be removed or
                     thrown into oblivion by reliance on State immunity. This would block the
                     access to justice, and impose impunity. It is, in fact, the opposite that
                     should take place : breaches of jus cogens bring about the removal of
                     claims of State immunity, so that justice can be done.

                             XIV. State Immunity v. the Right of Access to Justice

                           1. The Prevailing Tension in the Case Law of the European Court
                                                   of Human Rights

                     (a) The Al-Adsani case (2001)
                        130. The tension between the right of access to justice and State immu-
                     nity has been present in the recent case law of the European Court of
                     Human Rights (ECHR). The leading case of Al‑Adsani v. United King‑
                     dom (2001) concerned the claim of a dual British/Kuwaiti national against
                     the United Kingdom, wherein he argued that British courts had failed, in
                       147 CR 2011/20, p. 19, para. 10.
                       148 Ibid., pp. 28‑29, paras. 28-30.
                       149 Ibid., p. 29, para. 31.
                       150 CR 2011/21, pp. 28‑29, paras. 1-4.

                     133

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                     229 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     breach of Articles 6 and 13 of the European Convention on Human
                     Rights, to protect his right of access to a court by granting State immu-
                     nity to Kuwait, against which he had brought a civil suit for torture suf-
                     fered while he was detained by the authorities in Kuwait.

                        131. In its judgment of 21 November 2001, the ECHR (Grand Cham-
                     ber), while accepting that the prohibition of torture has acquired the sta-
                     tus of a norm of jus cogens in international law, nevertheless found itself
                     unable to discern any firm basis for the conclusion that a State “no longer
                     enjoys immunity from civil suit in the courts of another State where acts
                     of torture are alleged” 151. This decision of the ECHR (Grand Chamber)
                     was taken by nine votes to eight 152. The shortcomings of the majority’s
                     reasoning are well formulated in the joint dissenting opinion of Judges
                     Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto
                     and Vajić ; they rightly concluded that, when there is a conflict between a
                     jus cogens norm and any other rule of international law, the former pre-
                     vails, with the consequence that the conflicting rule does not have legal
                     effects which contradict the content of the peremptory rule 153.

                        132. In my understanding, the dissenting judges touched upon the crux
                     of the matter in the majority’s reasoning. Unlike the majority, they duly
                     drew the necessary consequence of the finding that the prohibition of tor-
                     ture has attained the status of jus cogens, namely : a State cannot hide
                     itself behind the rules of State immunity in order to evade the conse-
                     quences of its actions and to avoid civil proceedings for a claim of torture
                     before a foreign jurisdiction 154. The dissenting judges also reasoned that
                     the distinction drawn by the majority between criminal and civil proceed-
                     ings is not in line with the very essence of the operation of jus cogens
                     rules : indeed, the criminal or civil nature of the proceedings at issue is not
                     material, as what really matters is the fact that there was a violation of a
                     jus cogens norm and thus any jurisdictional bar has to be lifted “by the
                     very interaction of the international rules involved” 155.
                        133. Similarly, in his dissenting opinion, Judge Loucaides pondered
                     that, once it is accepted that the prohibition of torture is indeed a jus
                     cogens norm, the consequence is that no immunity can be invoked in
                     respect of proceedings whose object is the attribution of responsibility for
                     acts of torture 156. It is indeed regrettable that the reasoning of the Court’s
                     majority failed to draw the relevant conclusions of the finding that the

                        151 ECHR, Al‑Adsani v. United Kingdom, application No. 35763/97, judgment of

                     21 November 2001, paras. 59‑61.
                        152 On the question of the alleged violation of Article 6 of the Convention.
                        153 ECHR, Al‑Adsani v. United Kingdom, application No. 35763/97, judgment of

                     21 November 2001, dissenting opinion of Judges Rozakis and Caflisch, joined by Judges
                     Wildhaber, Costa, Cabral Barreto and Vajić, para. 1.
                        154 Ibid., para. 3.
                        155 Ibid., para. 4.
                        156 Ibid., dissenting opinion of Judge Loucaides, p. 1.

                     134

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                     230 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     prohibition of torture is a jus cogens norm, which would entail, in the
                     circumstances of the Al‑Adsani case, an invalidating effect on the plea of
                     State immunity 157. Yet, the Court’s majority at least accepted the custom-
                     ary law nature of rules on State immunity, with the recognition of their
                     state of transition and of the possibility of imposing limitations upon
                     them (even when States act jure imperii), which seems to leave the door
                     open for future developments in the correct line 158.

                        134. In the present case of Germany v. Italy before this Court, Italian
                     courts rightly drew the necessary legal conclusion on the effect of viola-
                     tions of norms that have the status of jus cogens upon the plea for State
                     immunity in relation to civil claims. The facts underpinning the present
                     case constitute violations of peremptory norms, and the responsibility of
                     Germany for these violations is not contested. Thus, in the line of the
                     right reasoning of the dissenting judges in the case of Al‑Adsani before the
                     ECHR, the consequence is that Germany cannot hide behind rules of
                     State immunity to avoid proceedings relating to reparations for violations
                     of jus cogens norms before a foreign jurisdiction (Italy). In this regard, it
                     should not pass unnoticed that, unlike in the Al‑Adsani case, where the
                     complained conduct did not take place in the forum State (but rather in
                     Kuwait), some of the claims lodged with Italian courts pertained to crimes
                     committed in whole or in part on the territory of Italy itself 159.

                     (b) The McElhinney case (2001)
                        135. The McElhinney v. Ireland case (2001) concerned a claim for dam-
                     ages, pertaining to a legal action lodged in Ireland against both the Brit-
                     ish soldier who shot the claimant and the Secretary of State for
                     Northern Ireland. The domestic courts rejected his claim on the basis of
                     the plea of immunity submitted by the United Kingdom. The ECHR
                     (Grand Chamber), in its judgment of 21 November 2001, held that, while
                     there appeared to be “a trend in international and comparative law
                     towards limiting State immunity” for personal injury caused by an act or
                     omission committed in the territory of the forum State, the practice was
                     “by no means universal” (para. 38). It then found, by twelve votes to five,
                     that the decisions of the Irish courts had not exceeded “the margin of
                     appreciation in limiting an individual’s right to access to court” (para. 40).

                        136. Two of the five dissenting judges (Rozakis and Loucaides), in
                     their respective individual dissenting opinions, held that the majority’s
                     decision did not take into account developments in international law, and

                        157 Cf. Ch. L. Rozakis, “The Law of State Immunity Revisited : The Case Law of the Euro-

                     pean Court of Human Rights”, 61 Revue hellénique de droit international (2008), pp. 579‑680.

                        158 Cf. ibid., p. 593.
                        159 CR 2011/18, pp. 41‑46.

                     135

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                     231 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     disproportionately restricted the right of access to courts, unduly affect-
                     ing and impairing the essence of this right. Judge Loucaides added that
                              “The international law immunities originated at a time when indi-
                           vidual rights were practically non-existent and when States needed
                           greater protection from possible harassment through abusive judicial
                           proceedings. The doctrine of State immunity has in modern times
                           been subjected to an increasing number of restrictions, the trend being
                           to reduce its application in view of developments in the field of human
                           rights which strengthen the position of the individual.” (Para. 4.)

                        137. The other three dissenting judges (Caflisch, Cabral Barreto and
                     Vajić), in their joint dissenting opinion, also supported compliance with
                     the right of access to courts under Article 6 (1) of the European Conven-
                     tion (disproportionately restricted in the present case), as under Article 12
                     of the UN Convention on the Jurisdictional Immunity of States and their
                     Property, there was at present “no international duty, on the part of
                     States, to grant immunity to other States in matters of torts caused by the
                     latter’s agents”. They further pondered that

                             “The principle of State immunity has long ceased to be a blanket
                          rule exempting States from the jurisdiction of courts of law. (. . .)
                          [T]he edifice of absolute immunity of jurisdiction (and even of execu-
                          tion) began to crumble, in the first quarter of the twentieth century,
                          with the advent of State trading (. . .).
                             (. . .) [E]xceptions to absolute immunity have gradually come to be
                          recognized by national legislators and courts, initially in continental
                          Western Europe and, much later, in common law countries (. . .)
                             The exceptions in question have also found their way into the inter-
                          national law on State immunity, especially the tort exception.”
                          (Paras. 2‑4.)
                       138. In the present case of the Jurisdictional Immunities of the State
                     before this Court, it is telling — as Italy argues — that the claimants pur-
                     sued their suit before German courts, which did not find in their favour.
                     Thus, the reasoning of the ECHR in the McElhinney case, that it was
                     open to the applicant to bring a legal action in Northern Ireland (as he in
                     fact did), is not readily applicable to the circumstances of the present case
                     before this Court, as the original claimant did pursue other avenues
                     before turning to Italian courts : in the present case there was no other
                     reasonable alternative means to protect the rights at stake effectively 160.

                        160 Cf. Counter‑Memorial of Italy, para. 4.100. Cf. also Written Response of Italy to

                     the Questions Put by (. . .) Judge Cançado Trindade (. . .) at the End of the Public Sitting
                     Held on 16 September 2011, p. 9, where Italy states that “had domestic judges not removed
                     immunity, no other avenue would have remained open for war crime victims to obtain
                     reparation”.

                     136

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                     232 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     (c) The Fogarty case (2001)
                        139. The case of Fogarty v. United Kingdom (judgment of 21 Novem-
                     ber 2001) concerned an employment‑related dispute (an allegation of vic-
                     timization and discrimination by a former employee of the US Embassy
                     in London). The ECHR observed in this case that there was a trend in
                     international and comparative law towards limiting State immunity with
                     respect to employment-related disputes. It further noted that the ILC did
                     not intend to exclude the application of State immunity when the subject
                     of the proceedings was recruitment, including recruitment to a diplomatic
                     mission.
                        140. The ECHR concluded that State practice concerning employment
                     of individuals by an embassy of a foreign State is not uniform. The ECHR
                     observed that the limitations applied to the right of access to court must
                     “not restrict or reduce the access left to the individual in such a way or to
                     such an extent that the very essence of the right is impaired” (para. 33),
                     but decided as in the other aforementioned cases. In the circumstances of
                     the present case of the Jurisdictional Immunities of the State before this
                     Court, it seems, however, as Italy argued, that “no other avenue would
                     have remained open for war crime victims to obtain reparation” 161.
                     (d) The Kalogeropoulou and Others case (2002)
                        141. Last but not least, the case of Kalogeropoulou and Others (2002)
                     was brought by applicants who were relatives of the victims of the Dis-
                     tomo massacre. The applicants raised complaints under Article 6 of the
                     European Convention on Human Rights and Article 1 of Protocol No. 1
                     to the European Convention on Human Rights. The ECHR’s Chamber
                     seized of the case declared it inadmissible (decision of 12 December 2002),
                     even though, unlike the case of Al‑Adsani, this case of Kalogeropoulou and
                     Others pertained to crimes against humanity committed in the territory of
                     the forum State (i.e., Greece). Notwithstanding, the Court’s Chamber’s
                     decision rested on the premise that the right of access to court may be
                     subject to limitations (proportionate to the aim pursued). Such limita-
                     tions, however, in my understanding cannot impair the very essence of
                     the right of access to court.
                        142. The conclusion reached by the Court’s Chamber was that some
                     restrictions on access to court ought to be regarded as inherent to fair
                     trial, and it referred to State immunity ; but it added that this “does not
                     preclude a development in customary international law in the future”
                     (p. 9). This statement seems to go slightly further than the finding in the
                     Al‑Adsani and the McElhinney precedents, which did not expressly articu-
                     late this “open door” for future developments. Even if such an “open
                     door” for future developments may not appear an entirely sufficient find-
                     ing of the ECHR’s Chamber, it thus at least reckoned, one decade ago
                          161 Written Response of Italy to the Questions Put by (. . .) Judge Cançado Trindade

                     (. . .) at the End of the Public Sitting Held on 16 September 2011, p. 9.

                     137

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                     233 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     (in 2002), that the law on the matter at issue was undergoing a process of
                     transition 162.

                              2. The Prevailing Tension in the Case Law of National Courts
                        143. The aforementioned tension, prevailing also in the case law of
                     national courts, was the object of attention of the contending Parties in
                     their oral pleadings before the Court, particularly in their respective views
                     of the judgment of the Italian Court of Cassation in the Ferrini case
                     (2004). Germany claimed that the Corte di Cassazione decided to substi-
                     tute itself for the legislator and introduce a new rule, which has not yet
                     gained international support in State practice and judicial decisions of
                     other States 163; it further contended that the practice of domestic courts
                     shows recognition of the rule of State immunity even in cases of interna-
                     tional crimes 164. Germany concluded on this point that the Ferrini judg-
                     ment of the Corte di Cassazione remained, in its view, an isolated decision
                     in State practice, and that jurisdictional immunity in respect of acts jure
                     imperii remains a firm rule in international law 165.

                        144. Italy, in turn, argued that the Ferrini decision did not harm the rule
                     of immunity, which still remains fundamental, but rather redefined it in
                     order to ensure compliance with the basic obligations of the international
                     community 166; sovereign immunity for acts jure imperii is not to be regarded
                     as absolute, as it is subject to exceptions such as the tort exception. It is, in
                     its view, for national courts to classify and define the acts of a foreign State
                     in order to decide whether they are covered by immunity or not 167. Italy
                     further contended that, in the Ferrini case, the Corte di Cassazione also
                     ensured the effective access to justice for victims of violations, which has
                     two constitutive elements : the right to a fair trial and the right to repara-
                     tion. Since, according to the German courts, Mr. Ferrini and the other vic-

                         162 The Court’s Chamber placed much emphasis on the fact that it was necessary, under

                     Greek law, that the Minister of Justice authorized enforcements proceedings (Article 923
                     of the Greek Code of Civil Procedure), which was not obtained in the case at issue
                     (cf. pp. 11‑12). In this sense, the Ferrini case in Italy can be distinguished on this basis,
                     since in Italy the consent of the Minister of Justice does not seem to be necessary for
                     enforcement proceedings.
                         163 CR 2011/17, pp. 21‑22, and pp. 29‑31, paras. 16‑17, and pp. 27‑28, paras. 13‑14.
                         164 Ibid., p. 33, para. 27, and cf. para. 26. It further argued that the Ferrini judgment did

                     not distinguish between substantive and procedural rules, besides disregarding the systemic
                     context of war reparations, which allegedly falls under the exclusive competence of States
                     and are based on mutual understandings (or the action of the Security Council) ; ibid.,
                     p. 25, para. 9. Germany claimed, moreover, that the judgment in the Ferrini case confused
                     the concepts of personal and State immunity ; ibid., pp. 26‑27, paras. 10‑12.
                        165 Ibid., pp. 61‑62.
                        166 CR 2011/18, p. 60, para. 24.
                        167 Ibid., p. 13, para. 9, and p. 16, para. 3.

                     138

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                     234 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tims were not entitled to reparations based on German legislation, they
                     could only have recourse to the Italian courts, and the Corte di Cassazione
                     had thus to adjust the principle of immunity so as to preserve the coherence
                     of the international rules that apply in this case 168.

                        145. The decision of the Corte di Cassazione in the Ferrini case (2004)
                     was just one of the relevant decisions of the national courts invoked by the
                     contending Parties (Germany and Italy) and the intervening State (Greece)
                     in the course of the proceedings of the present case on the Jurisdictional
                     Immunities of the State before this Court. In the course of the proceedings,
                     the contending Parties as well as the intervening State referred to other
                     pertinent decisions of national courts, in order to substantiate their argu-
                     ments on the matter at issue. Thus, in so far as the practice of national
                     courts pertaining to State immunity is concerned, for example, Germany
                     referred, in support of its claims, to a recent summary decision of the Israeli
                     District Court of Tel Aviv‑Yafo 169, to a decision of the Federal Court in
                     Rio de Janeiro 170, and to another decision of the Polish Supreme Court 171.
                        146. Italy, for its part, countered the claimant’s argument by contend-
                     ing that “when confronted with claims arising from breaches of jus cogens
                     rules, domestic courts have taken different views as regards the question
                     of the immunity enjoyed by the wrongdoing State” 172. In support of this
                     contention, Italy cites, in addition to the aforementioned judgments of
                     the Greek Areios Pagos in the Distomo Massacre case and of the Italian
                     Corte di Cassazione in the Ferrini case, two other recent judgments,
                     respectively from the Superior Court of Quebec 173, and from the French
                     Cour de cassation 174, which, in its view, go “in the direction of recognizing
                     that the principle of immunity for acta iure imperii may be subject to
                     restrictions in this kind of cases” 175.
                        147. Greece, for its part, points out that “the fundamental argument in
                     the position of the Greek courts is based on the recognition that there is

                        168  CR 2011/18, pp. 61‑62, para. 27.
                        169  Case of Orith Zemach et al. v. Federal Republic of Germany, District Court Tel Aviv-
                     Yafo, decision of 31 December 2009, Case 2143-07, referred to by Germany in its oral
                     pleadings : CR 2011/17, p. 32, para. 24.
                         170 Case of Barreto v. Federal Republic of Germany, Justiça Federal, Seção Judiciária do

                     Rio de Janeiro, Ordinary Proceedings No. 2006.5101016944-1, 9 July 2008, referred to by
                     Germany in its oral pleadings : CR 2011/17, p. 32, para. 23. This decision remains pending
                     of appeal to date.
                         171 Case of Natoniewski v. Federal Republic of Germany, Polish Supreme Court, deci-

                     sion of 29 October 2010, File ref. IV CSK 465/09, referred to by Germany in its oral plead-
                     ings : CR 2011/17, p. 33, para. 25.
                         172 CR 2011/18, p. 40, para. 7.
                         173 Case of Kazemi (Estate of) and Hashemi v. Iran, Ayatollah Ali Khamenei and

                     Others, Superior Court of Quebec, 25 January 2011, 2011 QCCS 196, referred to by Italy
                     in its oral pleadings : CR 2011/18, p. 40, para. 7.
                         174 Cour de cassation, première chambre civile, France, 9 March 2011, No. 09-14743,

                     referred to by Italy in its oral pleadings : CR 2011/18, p. 40, para. 7.
                         175 CR 2011/18, p. 40, para. 7.

                     139

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                     235 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     an individual right to reparation in the event of grave violations of
                     humanitarian law” 176. It argues that
                              “the obligation on the State to compensate individuals for violations
                              of the rules of humanitarian law seems to derive from Article 3 of the
                              Hague Convention (IV) of 1907 (. . .). That is made clear by the fact
                              that individuals are not excluded from the text of Article 3. This line
                              of argument also emerges from the travaux préparatoires of the Sec-
                              ond Hague Conference.” 177
                        Greece adds that the obligation to pay reparation, on the part of the
                     State which committed a wrongful act, is, in its view, well‑established in
                     international law 178. Human rights and international humanitarian law
                     treaties contain some specific rules that lay down a State obligation of
                     reparation to the benefit of individual victims of treaty breaches.

                        148. The over-all picture resulting from the pleadings before the Court
                     discloses the tension which ensues from the relevant case law of national
                     courts, as to claims of State immunity and the exercise of the right of
                     access to justice. The Court could hardly thus base its reasoning on the
                     practice of national courts only. It has to resort to other present-day
                     manifestations of international law, such as those listed in Article 38 of its
                     Statute (the formal “sources” of international law), and to go beyond
                     that, as it has done at times in the past. Only in this way can it perform
                     properly its function, in the settlement of a contentious case like the pres-
                     ent one, as “the principal judicial organ of the United Nations” (Arti-
                     cle 92 of the UN Charter).

                               3. The Aforementioned Tension in the Age of the Rule of Law
                                           at National and International Levels
                        149. This is even more compelling if one bears in mind the aforemen-
                     tioned tension in the current age of the rule of law at national and inter-
                     national levels. The origins of this concept (the rule of law essentially at
                     domestic level), in both civil law and common law countries, can be
                     traced back to the end of the eighteenth century, and it gradually takes
                     shape throughout the nineteenth century. It comes to be seen, especially
                     in the twentieth century, as being conformed by a set of fundamental
                     principles and values, and the underlying idea of the needed limitation of
                     power. One such principle is that of equality of all before the law.

                        176 CR 2011/19, p. 22 (translation).
                        177 Ibid., pp. 22‑23 (translation).
                        178 Cf. passages on page 4 of this memorandum. Greece refers to the Ethiopia-Eritrea

                     Claims Commission in support of its claim that “individuals are perceived as the holders of
                     secondary rights under international humanitarian law” ; CR 2011/19, p. 26 (translation).

                     140

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                     236 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        150. The concept of rule of law moves away from the shortsightedness
                     of legal positivism (with its characteristic subservience to the established
                     power), and comes closer to the idea of an “objective” justice, at national
                     and international levels, in line with jusnaturalist legal thinking. Within
                     the realm of this latter, it is attentive to the protection of human rights,
                     anterior and superior to the State. Not surprisingly, the concept of rule of
                     law has marked its presence also in the modern domain of the law of
                     international organizations, within which it has gained currency in recent
                     years.
                        151. We witness, nowadays, within the framework of the general phe-
                     nomenon of our age, that of the jurisdictionalization of the international
                     legal order itself, with the expansion of international jurisdiction (as evi-
                     denced by the creation and co‑existence of multiple contemporary inter-
                     national tribunals) 179, the reassuring enlargement of the access to
                     justice — at international level — to a growing number of justiciables 180.
                     Not surprisingly, the theme of the rule of law (preéminence du droit) at
                     national and international levels, has lately become one of the items of
                     the UN General Assembly itself (from 2006 onwards), wherein it has been
                     attracting growing attention to date 181.
                        152. I have drawn attention to this development in my dissenting opin-
                     ion in the case concerning Questions relating to the Obligation to Prose‑
                     cute or Extradite (Belgium v. Senegal), Provisional Measures, Order of
                     28 May 2009, I.C.J. Reports 2009 (p. 185, para. 55 and p.199, para. 101).
                     An impulse to this development in the UN General Assembly was given
                     by the 2005 progress review in the implementation of the 2000 Millenium
                     Declaration and the Millenium Development Goals. Attention was drawn
                     then to a core group of multilateral treaties 182, concerned, ultimately and
                     to a large extent, with the rights of the human person.

                       153. The World Summit Outcome, adopted in September 2005, recog-
                     nized the needed adherence to, and implementation of, the rule of law at

                         179 Cf., e.g., Société Française pour le droit international (SFDI), La juridictionnali‑

                     sation du droit international (Colloque de Lille de 2002), Paris, Pedone, 2003, pp. 3‑545 ;
                     A. A. Cançado Trindade, “Le développement du droit international des droits de l’homme
                     à travers l’activité et la jurisprudente des Cours européenne et interaméricaine des droits de
                     l’homme”, 16 Revue universelle des droits de l’homme (2004), pp. 177‑180.
                         180 Cf., in this respect, A. A. Cançado Trindade, El Derecho de Acceso a la Justicia en

                     Su Amplia Dimensión, Santiago de Chile, CECOH/Librotecnia, 2008, pp. 61‑407.
                         181 Cf., on the item “The Rule of Law at the National and International Levels”,

                     the following resolutions of the UN General Assembly : resolutions A/RES/61/39, of
                     4 December 2006 ; A/RES/62/70, of 6 December 2007 ; A/RES/63/128, of 11 December
                     2008 ; A/RES/64/116, of 16 December 2009 ; A/RES/65/32, of 6 December 2010. For a
                     recent examination of this issue, in the light of the aforementioned resolutions of the
                     UN General Assembly, cf. A. A. Cançado Trindade, Direito das Organizações Internacio‑
                     nais, 4th ed., Belo Horizonte/Brazil, Edit. Del Rey, 2009, pp. 584‑587 and 645‑651.
                         182 Cf. UN, Multilateral Treaty Framework : An Invitation to Universal Participation —

                     Focus 2005 : Responding to Global Challenges, New York, UN, 2005, pp. 1‑154.

                     141

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                     237 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     national and international levels. The main traits of that memorable exer-
                     cise may thus be singled out : first, the aforementioned focus on multilat-
                     eral treaties ; secondly, the search for the primacy of the rule of law ;
                     thirdly, the assertion of that primacy at both national and international
                     levels ; and fourthly, the overcoming of the purely inter‑State outlook of
                     the matter.
                        154. This, in my view, has an incidence in distinct areas of contempo-
                     rary international law. In so far as State immunities are concerned, for
                     example, the 1972 European Convention on State Immunity (Art. 11)
                     and the 2004 UN Convention on Jurisdictional Immunities of States and
                     Their Property (Art. 12) provide for the personal injury (tort) exception.
                     Both Conventions thus acknowledge that their subject-matter does not
                     exhaust itself in purely inter‑State relations.
                        155. It goes in fact beyond them, in encompassing the way States treat
                     human beings under their respective jurisdictions. State immunities have
                     not been devised to allow States that committed atrocities (delicta impe‑
                     rii) to shield themselves behind them. Before turning to this point, I shall
                     address, in the following paragraphs, the old dichotomy between acts jure
                     imperii and acts jure gestionis (as considered in the present case), and the
                     treatment of the human person in face of State immunities, disclosing the
                     shortsightedness and the overcoming of the strict inter‑State outlook.

                           XV. The Contentions of the Parties as to Acts Jure Imperii
                                          and Acts Jure Gestionis

                       156. In the present case before the Court opposing Germany to Italy,
                     the contending Parties put forward distinct lines of arguments concerning
                     the distinction between acta jure imperii and acta jure gestionis for the
                     purpose of the application of sovereign immunity, and, more broadly, on
                     the question of the evolution from absolute to relative immunity. Ger-
                     many essentially argued that at the time of German presence on Italian
                     soil from 1943‑1945 “the doctrine of absolute sovereign immunity was
                     uncontested”. It submitted that it was the United States Tate Letter,
                     “based on a general consensus, [that] brought about a fundamental turn-
                     around in 1952”. It argued that since then “judicial practice has distin-
                     guished between two categories of State activities, acta jure imperii and
                     acta jure gestionis” 183.
                       157. For its part, Italy argued that, at first, the exercise of jurisdiction
                     was made exclusively based on the distinction between acta jure imperii
                     and acta jure gestionis and that “more recently the law and practice of
                     many States” have also supported “exceptions to State immunity for
                     some activities in the domain of sovereign acts” 184. Italy submitted that
                     the evolution from absolute immunity to relative immunity has its origins

                       183   Memorial of Germany, paras. 91-92.
                       184   Counter-Memorial of Italy, p. 45, para. 4.13.

                     142

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                     238 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     in the successive rulings of national courts. And Greece reiterated this
                     view in its “written statement” of 4 August 2011 (paras. 43‑49). In this
                     regard, Italy referred to Belgian case law as pioneer in the evolution of
                     the private-acts exception to immunity and argued that Italian case law,
                     since the nineteenth century, “has been consistent in distinguishing the
                     State as a political entity exercising sovereign powers and entitled to
                     immunity and the State as a legal person not entitled to immunity” 185.

                        158. Italy added that “Belgian and Italian case law did not long remain
                     isolated”, and there were also repercussions in the same sense in legal
                     doctrine as from the end of the nineteenth century 186. Italy thus submit-
                     ted that the turning point of the distinction between acta jure imperii and
                     acta jure gestionis, was not, as Germany claimed, represented by the
                     United States Tate Letter of 1952, as “well before the Second World War,
                     the denial of State immunity before municipal courts was not considered
                     prejudicial to the dignity or sovereignty of a foreign State” and “the evo-
                     lution towards restrictive immunity has its ratio in the necessity of pro-
                     tecting private persons”. It then added that “exceptions to immunity are
                     not limited to acta jure gestionis” 187.

                        159. In the course of the oral pleadings before the Court, turning to
                     the personal injury (tort) exception — as provided for in Article 12 of the
                     2004 UN Convention on Jurisdictional Immunities of States and Their
                     Property —, Germany claimed that that provision does not codify cus-
                     tomary law, and does not apply to the actions of armed forces, and that
                     international State practice excludes armed forces from any exception to
                     immunity 188. Italy, for its part, argued that the tort exception provides
                     for the lift of immunity if the tortuous act took place in whole or in part
                     within the forum State, as it happened in the present case 189. It further
                     claimed that Article 12 of the 2004 UN Convention does not make any
                     distinction between acts jure imperii and acts jure gestionis. And it added
                     that the specific torts that German forces committed in Italy were not just
                     torts, but grave violations of jus cogens ; thus, the tendency to recognize
                     the tort exception in order to provide relief and access to justice, coupled
                     with the tendency to lift immunity in case of breaches of peremptory
                     norms, means that there was no obligation of Italy to accord immunity to
                     Germany for these acts 190.
                        160. This debate between the contending Parties was confined to the
                     paradigm of inter‑State relations. It did not free itself from the chains of

                       185 Counter-Memorial of Italy, paras. 4.15‑4.16.
                       186 Cf. ibid., para. 4.17.
                       187 Ibid., paras. 4.20‑4.50.
                       188 CR 2011/17, pp. 37‑38, paras. 2‑3.
                       189 CR 2011/18, p. 41, paras. 9‑11.
                       190 CR 2011/21, pp. 35‑36, paras. 16‑17.

                     143

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                     239 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     the lexicon of traditional international law, with the exception of the sole
                     reference to jus cogens. The evolution of law to which the two contending
                     Parties referred — with an entirely different reading and interpretation
                     advanced by each of them — can be better appreciated within a larger
                     framework, going well beyond the strict outlook of an inter‑State legal
                     order. I purport to draw attention, in the following paragraphs, to this
                     point, so as to arrive at a better understanding of the matter at issue.

                                 XVI. The Human Person and State Immunities :
                            The Shortsightedness of the Strict Inter‑State Outlook

                        161. To that end, an appropriate starting‑point lies in the identification
                     of the distortions of the State‑centric outlook of the international legal
                     order, leading to an awareness of myth surrounding the role of the State.
                     Shaken by the horrors of the Second World War and the collapse of rea-
                     son (rational thinking) in European relations, the learned thinker
                     Ernst Cassirer (1874‑1945), studied the role played by myth in that col-
                     lapse. He concluded, shortly before dying, that civilization was — unlike
                     what most people used to assume — not solid at all, but rather a fragile
                     layer, below which lay extreme violence and recurring massacres and
                     atrocities throughout history 191. Cassirer, focusing on the twentieth cen-
                     tury myth of the State, identified the deleterious influence of traces of
                     Machiavellian thinking (dismissal of, or indifference to, ethical consider-
                     ations), of Hobbesian thinking (indissoluble links between the rulers and
                     those ruled, with the subjection of the latter to the former), and of Hege-
                     lian thinking (the State as the supreme historical reality that has to pre-
                     serve itself, the interests of which stand above anything, irrespective of
                     any ethical considerations) 192.
                        162. One has to be careful with myths — E. Cassirer further warned —
                     including the “political myths”, in particular those which have led, in the
                     twentieth century, to so much extreme violence and to totalitarianism 193.
                     Another learned thinker, the historian Arnold Toynbee, also propounded
                     the same view in this particular respect. In an insightful essay published
                     in 1948, Toynbee questioned the very bases of what was understood by
                     civilization (as “a movement and not a condition”), characterizing this
                     latter as no more than quite modest advances at social and ethical levels.
                     Under its thin layer — he added— barbarism unfortunately persisted 194,
                     as demonstrated by the uncontrolled and extreme violence of his times.

                        191 E. Cassirer, El Mito del Estado, Bogotá/Mexico City, Fondo de Cultura Econó-

                     mica, 1996 [reed.], pp. 338‑339, and cf. pp. 347 and 350. His book The Myth of State was
                     published posthumously in distinct idioms (1946 onwards).
                        192 Ibid., pp. 168 (Machiavelli), 207 (Hobbes) and 311 and 313 (Hegel), and cf. p. 323.
                        193 Ibid., pp. 333‑336, 341‑342, 344‑345 and 351.
                        194 A. J. Toynbee, Civilization on Trial, Oxford/New York, Oxford University Press,

                     1948, pp. 54‑55, 150‑151, 159, 161, 213, 222 and 234.

                     144

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                     240 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        163. State‑centric thinking, to the exclusion of human beings, gradual
                     ly made its incursions into international legal thinking — with disas-
                     trous consequences, as illustrated by the horrors of the Second World
                     War, and the successive atrocities throughout the twentieth century and
                     the beginning of the twenty-first century. The term “sovereignty”, for
                     example, has a long-standing and troubling history : from the times of
                     Jean Bodin (1530‑1596) and of Emerich de Vattel (1714‑1767) up to the
                     present, in the name of State sovereignty — unduly and inadvertently
                     diverted from inter‑State to intra‑State relations — millions of human
                     beings were sacrificed. The misuses of language, having repercussions in
                     international legal thinking, sought to exert influence in the international
                     scenario, for whatever purposes, devoid of ethical considerations.

                       164. Soon it was realized that there should be limits to what one could
                     do, in the sphere of inter-State relations. International legal language
                     became then engaged in the recognition and construction of the principle
                     of the equality of States, but again in the framework of sovereignty (inter-
                     nal and external), pursuant to an essentially State-centric outlook and rea-
                     soning 195. It was in the blurred inter-State outlook of sovereignties in
                     potential or actual confrontation that some jargon, remindful of the West-
                     phalian paradigm, was to flourish. Such was the case of State immunities.

                        165. In fact, the origins of the term “immunity” (from Latin immunitas,
                     deriving from immunis) go back to the mid‑eighteenth century ; the word was
                     used, from then onwards, to refer to the condition of someone exempted
                     from taxes, or from any charges or duties. Towards the end of the nineteenth
                     century, the term “immunity” was introduced into the lexicon of constitutional
                     law and international law (in relation to parliamentarians and diplomats,
                     respectively) 196. In criminal law, it became associated with “cause of
                     impunity” 197. In international law, the term came to be used also in respect of
                     “prerogatives” of the sovereign State 198.
                        166. In any case, as such, the term “immunity” has all the time meant
                     to refer to something wholly exceptional, an exemption from jurisdiction
                     or from execution 199. It was never meant to be a “principle”, nor a norm
                     of general application. It has certainly never been intended, by its invoca-
                        195 S. Beaulac, The Power of Language in the Making of International Law, Leiden,

                     Nijhoff, 2004, pp. 154‑155 and 188, and cf. pp. 29, 190‑191 and 196.
                        196 Dictionnaire historique de la langue française (eds. A. Rey), 3rd ed., Paris, Diction-

                     naires Le Robert, 2000, pp. 1070‑1071 ; The Oxford English Dictionary (prep. J. A. Simpson
                     and E. S. C., Weiner), 2nd ed., Vol. VII, Oxford, Clarendon Press, 1989, p. 691 ; The Oxford
                     Dictionary of English Etymology (eds. C. T. Onions et al.), Oxford, Clarendon Press, 1966,
                     p. 463 ; Dictionnaire étymologique et historique du français) (eds. J. Dubois, H. Mitterand
                     and A. Dauzat), Paris, Larousse, 2007, p. 415.
                        197 G. Cornu/Association Henri Capitant, Vocabulaire juridique, 8th rev. ed., Paris,

                     PUF, 2007, p. 467.
                        198 Ibid., p. 468.
                        199 Dictionnaire de droit international public (ed. J. Salmon), Brussels, Bruylant, 2001,

                     pp. 559‑560.

                     145

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                     241 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tion, to except jurisdiction on, and to cover‑up, international crimes, let
                     alone atrocities or grave violations of human rights or of international
                     humanitarian law. It has certainly never been intended to exclude repara-
                     tions to victims of such atrocities or grave violations. To argue otherwise
                     would not only beg the question, but also incur a serious distortion of the
                     term “immunity”.
                        167. The theory of State immunity was erected at a time and in an
                     atmosphere which displayed very little concern with the treatment dis-
                     pensed by States to human beings under their respective jurisdictions.
                     Gradually, pursuant to an inter-State outlook perceived with myopia, the
                     gradual introduction was to take place, towards the end of the nine-
                     teenth century — due to a large extent to the work of Italian and Belgian
                     courts, and of national courts of the leading trading nations — of the
                     distinction between acta jure imperii and acta jure gestionis : State immu-
                     nity was then limited only to the former, to the so-called acta jure imperii.
                        168. As this development took place, those responsible for it did not
                     have in mind international crimes : concern was rather turned to commer-
                     cial transactions mainly, so as to exclude the incidence of immunity when
                     the State was acting as a private entity. Reliance upon this distinction in
                     legislative endeavours, including the drafting of conventions on State
                     immunities — such as the 1972 European Convention on State Immunity,
                     adopted in Basel four decades ago and in force as from 1976 — served at
                     least to put an end to the notion of absolute immunity 200. Likewise, in the
                     American continent, the Inter‑American Juridical Committee of the
                     Organization of American States (OAS) concluded, in 1983, the draft
                     Inter-American Convention on Jurisdictional Immunities of States, which
                     took into account the on-going evolution towards restricting State immu-
                     nity.

                        169. Such evolution was prompted by the involvement of States in
                     commercial relations, excluded from the domain of State immunity. The
                     Inter‑American Juridical Committee questioned the “rigidity” of the clas-
                     sic distinction between acts jure imperii and jure gestionis, and refused to
                     make reference to such traditional categorization of acts 201. In any case,
                     it deliberately shifted away from absolute immunity. The fact remains
                         200 Cf., in general, inter alia, H. Fox, The Law of State Immunity, 2nd ed., Oxford Univer-

                     sity Press, 2008, pp. 502‑598 ; M. Cosnard, La soumission des Etats aux tribunaux internes
                     face à la théorie des immunités des Etats, Paris, Pedone, 1996, pp. 203‑403 ; T. R. Giuttari,
                     The American Law of Sovereign Immunity — An Analysis of Legal Interpretation, London,
                     Praeger Publs., 1970, pp. 63‑142 ; I. Sinclair, “The Law of Sovereign Immunity — Recent
                     Developments”, 167 RCADI (1980), pp. 121‑217 and 243‑266 ; P. D. Trooboff, “Foreign
                     State Immunity : Emerging Consensus on Principles”, 200 RCADI (1986), pp. 252‑274 ;
                     W. W. Bishop Jr., “New United States Policy Limiting Sovereign Immunity”, 47 Amer‑
                     ican Journal of International Law (1953), pp. 93‑106 ; J. Combacau, “L’immunité de l’Etat
                     étranger aux Etats-Unis : la lettre Tate vingt ans après”, 18 Annuaire français de droit inter‑
                     national (1972), pp. 455‑468 .
                         201 Cf. Comité Jurídico Interamericano, Informes y Recomendaciones, Vol. XV (1983),

                     Washington D.C., OEA/Secretaría General, 1983, p. 48.

                     146

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                     242 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     that restrictive immunity entered into the lexicon of modern international
                     law ; but again, the underlying major concern, and the main motivation,
                     were with commerce, essentially with commercial relations and transac-
                     tions, excluded therefrom.

                        170. In his sharp criticism of State immunities in 1951, Hersch Lauter-
                     pacht challenged the prerogatives of the sovereign State that denied legal
                     remedies to individuals for the vindication of their rights ; to him, abso-
                     lute immunity led to injustice, and the move towards restrictive immu-
                     nity, on the ground of the distinction between acts jure imperii and jure
                     gestionis, was not a solution either, it failed to provide a guide or basis for
                     the development of international law 202. To Lauterpacht, the concept of
                     State immunity was rather “absolutist”, a manifestation of the Hobbesian
                     conception of the State ; rather than a principle, it was an “anomaly”, to
                     be reassessed in the gradual “general progression towards the rule of law
                     within the State” 203. After all, one could no longer “tolerate the injustice”
                     arising whenever the State “screens itself behind the shield of immunity in
                     order to defeat a legitimate claim” 204.

                        171. This becomes clearer if we move away from the rather circum-
                     scribed historical context which motivated the formulation of the distinc-
                     tion between acts jure imperii and jure gestionis, namely, trade relations
                     and transactions. If we enter the larger domain to the treatment dispensed
                     by the State to human beings under their respective jurisdictions, that
                     traditional distinction will appear even more insufficient and inadequate.
                     One ought to proceed to the definitive overcoming of the strict and dan-
                     gerous exclusively inter-State outlook of the past.

                                   XVII. The State‑Centric Distorted Outlook
                                       in Face of the Imperative of Justice

                        172. The beginning of the personification of the State — in fact, of the
                     modern theory of the State — in the domain of international law took
                     place, in the mid‑eighteenth century, with the work of Emer de Vattel (Le
                     droit des gens ou Principes de la loi naturelle appliquées à la conduite et aux
                     affaires des nations et des souverains, 1758), which was to have many
                     repercussions in the international legal practice of his times. The empha-
                     sis on State personality and sovereignty led to the conception of an inter-
                     national law applicable strictly to the relations among States (the jus inter
                     gentes, rather than the jus gentium), that is, an inter‑State legal order ; it

                        202 H. Lauterpacht, “The Problem of Jurisdictional Immunities of Foreign States”, 28

                     British Yearbook of International Law (1951), pp. 220 and 226‑227.
                        203 Ibid., pp. 232‑233 and 249‑250.
                        204 Ibid., p. 235.

                     147

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                     243 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     amounted to a reductionist outlook of the subjects of the law of nations,
                     admitting only and exclusively the States as such 205.

                        173. The consequences of this State-centric distortion were to prove
                     disastrous for human beings, as widely acknowledged in the mid‑tenth
                     century. In the heyday of the inter-State frenzy, individuals had been rel-
                     egated to a secondary level. To G. W. F. Hegel (1770‑1831), apologist of
                     the Prussian State, for example, the individual was entirely subsumed
                     under the State ; society itself was likewise subordinated to the State 206.
                     The State was an end in itself (Selbstzweck), and freedom could only be
                     the one granted by the State itself 207. Hegel endorsed and justified the
                     authoritarian and absolutely sovereign State ; to him, the State should be
                     stronger than society, and individuals could only pursue their interests
                     within the sovereign State 208.
                        174. From the late nineteenth century onwards, legal positivism wholly
                     personified the State, endowing it with a “will of its own”, and reducing
                     the rights of human beings to those which the State “conceded” to them.
                     The consent of the “will” of the States (according to the voluntarist posi-
                     tivism) was erected into the alleged predominant criterion in international
                     law, denying jus standi to individuals, to human beings ; this rendered dif-
                     ficult a proper understanding of the international community, and under-
                     mined international law itself, reducing its dimension to that of a strictly
                     inter‑State law, no more above but rather among sovereign States 209. In
                     fact, when the international legal order moved away from the universal
                     vision of the so‑called “founding fathers” of the law of nations (droit des
                     gens — supra), successive atrocities were committed against human
                     beings, against humankind.
                        175. Such succession of atrocities — war crimes and crimes against
                     humanity — occurred amidst the myth of the all‑powerful State, and even
                     the social milieu was mobilized to that end. The criminal policies of the
                     State — gradually taking shape from the outbreak of the First World
                     War onwards — counted on “technical rationality” and bureaucratic
                     organization ; in face of the aforementioned crimes, without accountabil-
                     ity, individuals became increasingly vulnerable 210, if not defenceless. It
                     soon became clear that there was a great need for justice, not only for the
                     victims of their crimes and their relatives, but for the social milieu as a
                     whole ; otherwise life would become unbearable, given the denial of the

                        205 Cf., e.g., E. Jouannet, Emer de Vattel et l’émergence doctrinale du droit international

                     classique, Paris, Pedone, 1998, pp. 255, 311, 318‑319, 344 and 347.
                        206 Eric Weil, Hegel et l’Etat [1950], 4th ed., Paris, Librairie Philosophique J. Vrin,

                     1974, pp. 11, 24 and 44.
                        207 Ibid., pp. 45 and 53.
                        208 Ibid., pp. 55‑56, 59, 62, 100 and 103.
                        209 P. P. Remec, The Position of the Individual in International Law According to Grotius

                     and Vattel, The Hague, Nijhoff, 1960, pp. 36‑37.
                        210 G. Bensoussan, Auschwitz en héritage ? D’un bon usage de la mémoire, 9th rev. ed.,

                     Paris, Mille et Une Nuits, 2006, pp. 174, 183, 187, 197 and 246.

                     148

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                     244 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     human person, her annihilation, perpetrated by those successive crimes of
                     State 211.

                        176. It was at the time of the prevalence of the inter-State myopia that
                     the practice on State immunity took shape and found its greatest develop-
                     ment, discarding legal action on the part of individuals against what came
                     to be regarded as sovereign “acts of State”. Yet, the individual’s submis-
                     sion to the “will” of the State was never convincing to all, and it soon
                     became openly challenged by the more lucid doctrine. The idea of abso-
                     lute State sovereignty — which led to the irresponsibility and the alleged
                     omnipotence of the State, not impeding the successive atrocities commit-
                     ted by it (or in its name) against human beings — appeared with the pass-
                     ing of time entirely unfounded. The State — it is nowadays
                     acknowledged — is responsible for all its acts — both jure gestionis and
                     jure imperii — as well as for all its omissions 212. In case of (grave) viola-
                     tions of human rights, the direct access of the individuals concerned to
                     the international jurisdiction is thus fully justified, to vindicate such
                     rights, even against their own State 213.

                                XVIII. The Human Person and State Immunities :
                               The Overcoming of the Strict Inter‑State Outlook

                        177. In the present case concerning the Jurisdictional Immunities of the
                     State (Germany v. Italy : Greece intervening) before this Court, we are
                     faced with a matter entirely different from those which prompted the tra-
                     ditional doctrines of the past. We are here before the invocation of State
                     immunity in respect of the perpetration of international crimes (of grave
                     violations of human rights and of international humanitarian law), and of
                     the individual victims’ right of access to justice, in order to vindicate their
                     right to reparation under general international law. 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.

                       178. War crimes and crimes against humanity are not to be considered
                     acta jure gestionis, or else “private acts” ; they are crimes. They are not to
                     be considered acta jure imperii either ; they are grave delicta, crimes. The
                     distinction between acts jure imperii and acts jure gestionis, between sov-
                     ereign or official acts of a State and acts of a private nature, is a remnant
                     of traditional doctrines which are wholly inadequate to the examination

                        211 Op. cit. supra note 210, p. 207.
                        212 Ibid., pp. 247‑259.
                        213 S. Glaser, “Les droits de l’homme à la lumière du droit international positif”, in
                     Mélanges offerts à H. Rolin — Problèmes de droit des gens, Paris, Pedone, 1964, pp. 117‑118,
                     and cf. pp. 105‑106 and 114‑116.

                     149

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                     245 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     of the present case on the Jurisdictional Immunities of the State before the
                     Court. Such traditional theories, in their myopia of State-centrism, forgot
                     the lessons of the founding fathers of the law of nations, pointing to the
                     acknowledgement that individuals are subjects of the law of nations (droit
                     des gens).
                        179. No State can, nor was ever allowed, to invoke sovereignty to
                     enslave and/or to exterminate human beings, and then to avoid the legal
                     consequences by standing behind the shield of State immunity. There is
                     no immunity for grave violations of human rights and of international
                     humanitarian law, for war crimes and crimes against humanity. Immu-
                     nity was never conceived for such iniquity. To insist on pursuing a strictly
                     inter-State approach in the relationships of responsibility leads to mani-
                     fest injustice. The present case of the Jurisdictional Immunities of the State
                     (Germany v. Italy : Greece intervening) gives eloquent testimony of this.

                        180. Individuals are indeed subjects of international law (not merely
                     “actors”), and whenever legal doctrine departed from this, the conse-
                     quences and results were catastrophic. Individuals are titulaires of rights
                     and bearers of duties which emanate directly from international law (the
                     jus gentium). Converging developments, in recent decades, of the interna-
                     tional law of human rights, of international humanitarian law, and of the
                     international law of refugees, followed by those of international criminal
                     law, give unequivocal testimony of this.

                        181. The doctrine of sovereign immunities, which blossomed with the
                     myopia of a State‑centric approach — which could only behold inter-
                     State relations — unduly underestimated and irresponsibly neglected the
                     position of the human person in international law, in the law of nations
                     (droit des gens). The distinction between acts jure imperii and acts jure
                     gestionis is of no assistance to a case like the present one before the Court.
                     International crimes are not acts of State, nor are they “private acts”
                     either ; a crime is a crime, irrespective of who committed it.

                       182. History shows that war crimes and crimes against humanity are
                     generally committed by individuals with the support of the so-called State
                     “intelligence” (with all its cruelty), misuse of language, material resources
                     and the apparatus of the State, in pursuance of State policies. The indi-
                     vidual and the State responsibilities for such crimes are thus complemen-
                     tary, one does not exclude the other ; there is no room for the invocation
                     of State immunities in face of those crimes.

                       183. Perpetrators of such crimes — individuals and States alike — can-
                     not seek to avoid the legal consequences of those anti-juridical acts, of
                     those breaches of jus cogens, by invoking immunities. International legal
                     doctrine in our days appears to be at last prepared to acknowledge the

                     150

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                     246 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     duties of States vis-à-vis individuals under their respective jurisdictions 214.
                     This should have been the primary concern in the adjudication of the
                     present case before the Court.

                                   XIX. No State Immunities for Delicta Imperii

                        184. This brings me to the next point to consider, namely, the absence
                     or inadmissibility of State immunities in face of delicta imperii, of interna-
                     tional crimes in breach of jus cogens. I shall refer to two illustrations of
                     such delicta imperii often referred in the course of proceedings of the cas
                     d’espèce, namely, the perpetration of massacres of civilians in situations
                     of defencelessness (as illustrated, inter alia, by the massacre of Distomo in
                     Greece, and the massacre of Civitella in Italy), and the practice of depor-
                     tation and subjection to forced labour in war industry, that took place
                     during the Second World War. Such delicta imperii, marking the factual
                     origin of the claim of State immunity before the Court, were committed
                     within a pattern of extreme violence which led to several other episodes of
                     the kind, not only in Greece and Italy, but also in other occupied coun-
                     tries as well, during the Second World War.

                               1. Massacres of Civilians in Situations of Defencelessness
                     (a) The massacre of Distomo
                        185. In my separate opinion at a prior stage of the present case oppos-
                     ing Germany to Italy, with Greece intervening (Court’s Order of 4 July
                     2011, on Greece’s Request for Intervention), I have already referred to
                     the massacre of Distomo (on 10 June 1944) — wherein 218 villagers (men,
                     women and children) were murdered by the Nazi forces — a massacre
                     which was brought to the attention of the Court in the course of the pro-
                     ceedings. In that separate opinion, I evoked one of the historical accounts
                     of it (para. 29).
                        186. There are, furthermore, other historical accounts of that massa-
                     cre, including one of the devastation of, and the desolation in, the Greek
                     village of Distomo, shortly after its perpetration : this was recalled by
                     Sture Linnér, the (then) Head of the Mission of the International Com-
                     mittee of the Red Cross (ICRC) in Greece, who arrived at the village
                     shortly after the aforementioned massacre in order to provide assistance.

                        214 Cf., e.g., J. Stigen, “Which Immunity for Human Rights Atrocities ?”, in Protecting

                     Humanity — Essays in International Law and Policy in Honour of N. Pillay (ed. C. Eboe-
                     Osuji), Leiden, Nijhoff, 2010, pp. 750‑751, 756, 758, 775-779, 785 and 787 ; M. Panezi,
                     “Sovereign Immunity and Violation of Jus Cogens Norms”, 56 Revue hellénique de droit
                     international (2003), pp. 208‑210 and 213‑214 ; P. Gaeta, “Are Victims of Serious Violations
                     of International Humanitarian Law Entitled to Compensation ?”, International Humani‑
                     tarian Law and International Human Rights Law (ed. O. Ben-Naftali), Oxford University
                     Press, 2011, pp. 319‑320 and 325.

                     151

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                     247 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     The account that follows (excerpt), describes the brutalities of the Nazi
                     forces, as verified in the bodies of the victims that he found at the village
                     of Distomo and on the way thereto :
                              “We needed too much time to cross the broken roads and the many
                           blockades to reach, at dawn, the central road that led to Distomo.
                           From the edges of the road, vultures got up from low height, slowly
                           and unwillingly, when they heard us approach. From every tree, along
                           the road and for hundreds of metres, human bodies were hanging,
                           stabilised with bayonets, some of whom were still alive. They were
                           villagers who were punished in this way : they were suspected for help-
                           ing the partisans of the area, who attacked an SS detachment. The
                           smell was unbearable.

                             Inside the village, the fire was still burning in the ashes of the
                           houses. Hundreds of people, of all ages, from elders to newborns,
                           were lying on the ground. They [the Nazis] had torn the uterus and
                           removed the breasts of many women ; others were lying strangled with
                           their intestines still tied around their necks. It seemed that no one had
                           survived.
                             But ! An elder man at the end of the village ! He had miraculously
                           survived the massacre. He was shocked by the terror, his gaze was
                           empty and his speech was incomprehensible. We got out of the car in
                           the middle of the disaster and we shouted in Greek : ‘The Red Cross,
                           the Red Cross ! We came to help’.” 215
                        187. In the adjudication of the case of the Massacre of Distomo, the
                     legacy of the decisions of the Livadia Court of First Instance (case of Pre‑
                     fecture of Voiotia v. Federal Republic of Germany, 1997) and of the Areios

                        215 “Απαιτήθηκε ανυπόφορα μεγάλο χρονικό διάστημα έως ότου διασχίσουμε τους

                     χαλασμένους δρόμους και τα πολλά μπλόκα για να φτάσουμε, χαράματα πια, στον
                     κεντρικό δρόμο που οδηγούσε στο Δίστομο. Από τις άκρες του δρόμου ανασηκώνονταν
                     γύπες από χαμηλό ύψος, αργά και απρόθυμα, όταν μας άκουγαν που πλησιάζαμε. Σε
                     κάθε δέντρο, κατά μήκος του δρόμου για εκατοντάδες μέτρα, κρεμόντουσαν ανθρώπινα
                     σώματα, σταθεροποιημένα με ξιφολόγχες, κάποια εκ των οποίων ήταν ακόμη ζωντανά.
                     Ήταν οι κάτοικοι του χωριού που τιμωρήθηκαν με αυτόν τον τρόπο : θεωρήθηκαν
                     ύποπτοι για παροχή βοήθειας στους αντάρτες της περιοχής, οι οποίοι επιτέθηκαν σε
                     δύναμη των Ες Ες. Η μυρωδιά ήταν ανυπόφορη.
                        Μέσα στο χωριό σιγόκαιγε ακόμη φωτιά στα αποκαΐδια των σπιτιών. Στο χώμα
                     κείτονταν διασκορπισμένοι εκατοντάδες άνθρωποι κάθε ηλικίας, από υπερήλικες έως
                     νεογέννητα. Σε πολλές γυναίκες είχαν σχίσει τη μήτρα με την ξιφολόγχη και αφαι-
                     ρέσει τα στήθη, άλλες κείτονταν στραγγαλισμένες, με τα εντόσθια τυλιγμένα γύρω από
                     το λαιμό. Φαινόταν σαν να μην είχε επιζήσει κανείς.
                        Μα να ! Ένας παππούς στην άκρη του χωριου ! Από θαύμα είχε καταφέρει να γλυτώσει
                     τη σφαγή. Ήταν σοκαρισμένος από τον τρόμο, με άδειο βλέμμα, τα λόγια του πλέον μη
                     κατανοητά. Κατεβήκαμε στη μέση της συμφοράς και φωνάζαμε στα ελληνικά : « Ερυθρός
                     Σταυρός ! Ερυθρός Σταυρός ! ‘Ήρθαμε να βοηθήσουμε’” (Sture Linnér, Min Odyssé (1982),
                     as reprinted in : Petros Antaios et al. (eds.), Η Μαύρη Βίβλος της Κατοχής (The Black Book
                     of Occupation), 2nd ed., Athens, National Council for the Claim of Reparations Owed by
                     Germany to Greece, 2006, pp. 114‑115.) [Unofficial translation.]

                     152

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                     248 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     Pagos (2001, upon appeal from Germany) — whether one fully agrees
                     with the whole of their reasoning or not — is that the Third Reich’s acts
                     (of their armed forces) carried out in the territory of the forum State (i.e.
                     the massacre of Distomo, in Greece) were not acts jure imperii, but rather
                     breaches of jus cogens (failing to comply with the obligations imposed
                     upon it by the Regulations annexed to the IV Hague Convention (1907)
                     respecting the Laws and Customs of War on Land), thereby discarding the
                     possibility of any invocation of sovereign immunity 216.
                        188. Furthermore, it should not pass unnoticed that, in the course of
                     the proceedings before this Court in the present case concerning the Juris‑
                     dictional Immunities of the State, counsel for Germany took the commend-
                     able initiative — in a sign of maturity — of recognizing the responsibility
                     of the State for the massacre of Distomo. To this effect, in the public sit-
                     ting before the Court, after recalling the origins of the claim against Ger-
                     many “enshrined in the judgment of the Court of Livadia”, pertaining to
                     the Massacre of Distomo case, counsel for Germany — though contending
                     that the issue of State immunity was a distinct one — stated :
                                “(. . .) Let me emphasize again : this was an abominable crime. We,
                              as counsel for Germany, in the name of Germany, deplore deeply
                              what happened at Distomo, being ourselves unable to understand
                              how military forces may exceed any boundaries of law and humanity
                              by killing women, children and elderly men (. . .).” 217

                     (b) The massacre of Civitella
                        189. Another massacre, in the same pattern of extreme violence, was
                     perpetrated, on 29 June 1944, by the Nazi forces in the town of Civitella
                     (near the town of Arezzo), in Italy, during which 203 civilians were killed.
                     The matter was again brought into the cognizance of the Italian Court of
                     Cassation, half a decade after its decision of 2004 in the Ferrini case.
                     Thus, on 29 May 2008, the Corte di Cassazione rendered 12 identical deci-
                     sions endorsing its position in the Ferrini case 218, to the effect that State

                         216 For the view that the focus on territoriality (of those two Greek courts’ decisions

                     as well as of the decision of the Italian Corte di Cassazione in the Ferrini case, 2004) could
                     have yielded to greater stress on universal values shared by the international community,
                     cf. Xiaodong Yang, “Jus Cogens and State Immunity”, 3 New Zealand Yearbook of Inter‑
                     national Law (2006), pp. 163‑164 and 167‑169. And, on the divergences of State practice
                     causing the erosion of State immunities, in face of the growing demand for protection of
                     the rights of the human person, cf. R. Garnett, “Should Foreign State Immunity Be Aboli-
                     shed ?”, 20 Australian Year Book of International Law (1999), pp. 175‑177 and 190.
                        217 CR 2011/20, p. 28, para. 28.
                        218 Cf. R. Pavoni and S. Beaulac, “L’immunité des Etats et le jus cogens en droit inter-
                     national — Etude croisée Italie/Canada”, 43 Revue juridique Thémis (2009), Montréal,
                     pp. 503‑506 and 515‑516 ; and A. Atteritano, “Immunity of States and Their Organs : The
                     Contribution of Italian Jurisprudence over the Past Ten Years”, 19 Italian Yearbook of
                     International Law (2009), p. 35.

                     153

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                     249 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     immunity does not apply in cases of international crimes (grave breaches
                     of human rights and of international humanitarian law) amounting to
                     breaches of jus cogens.
                        190. Shortly afterwards, on 13 January 2009, the Italian Court of Cas-
                     sation again confirmed its position (judgment of 21 October 2008), in the
                     case of the Massacre of Civitella. In effect, the case Milde v. Civitella con-
                     cerned criminal proceedings against a Nazi officer, former member of the
                     Wehrmacht (the armed forces), who took part in that massacre, con-
                     ducted by the Hermann Göring tank division on 29 June 1944. The Corte
                     di Cassazione, having found that the Massacre of Civitella was an interna-
                     tional crime, denied immunity from civil jurisdiction, and upheld the
                     right to reparation of the victims or their surviving relatives, from the
                     Federal Republic of Germany and from Milde (as joint debtors).
                        191. The keypoint of the Italian Court of Cassation’s decision, in the
                     line of the interpretative guidelines of the Ferrini judgment 219, was its
                     denial of State immunity in the occurrence of State pursuance of a crimi-
                     nal policy conducive to the perpetration of crimes against humanity. The
                     decision of the Corte di Cassazione, in the case of the Massacre of Civitella,
                     was clearly value-oriented, in the sense that a State cannot avail itself of
                     immunity in case of grave violations of human rights ; emphasis was led, in
                     such circumstances, on the individual victim’s right to reparation 220.

                           2. Deportation and Subjection to Forced Labour in War Industry
                        192. Attention has already been drawn to the long-standing prohibi-
                     tion, in the realm of international humanitarian law, of ill‑treatment of
                     civilians, deported and subjected to forced labour in war industry, in
                     infrahuman conditions. This prohibition, as already pointed out, is set
                     forth at normative level, and found in works of codification of interna-
                     tional law. It amounts to cruel, inhuman and degrading treatment (in the
                     domain of international human rights law), and belongs to the domain of
                     jus cogens.
                        193. Such international crime soon met with judicial recognition, not
                     only of international criminal tribunals, such as in the pioneering trials of
                     the Nuremberg and the Tokyo Tribunals, but also of international human
                     rights tribunals, as acknowledged by the recent adjudication by the
                     ECHR of the case Kononov v. Latvia (2008‑2010). Such crime is not an
                     act jure imperii nor an act jure gestionis : it is an international crime, irre-
                     spective of whom committed it, engaging both State and individual
                     responsibility.

                        219 Cf. A. Gianelli, “Crimini Internazionali ed Immunità degli Stati dalla Giurisdizione

                     nella Sentenza Ferrini”, 87 Rivista di diritto internazionale (2004), pp. 648‑650, 655-657,
                     660-667, 671‑680 and 683‑684.
                        220 A. Ciampi, “The Italian Court of Cassation Asserts Civil Jurisdiction over Germany

                     in a Criminal Case relating to the Second World War — The Civitella Case”, 7 Journal
                     of International Criminal Justice (2009), pp. 605 and 607‑608 ; and cf. pp. 599‑601, on the
                     uniqueness of the Civitella proceedings.

                     154

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                     250 	jurisdictional immunities of the state (diss. op. cançado trindade)

                       194. Parallel to the concentration camps (of extermination), in the
                     course of the Second World War Nazi Germany established also a net-
                     work of forced labour camps, less studied by historians to date. They
                     were intended to exploit the forced labour of detainees from the occupied
                     countries. There were numerous camps of this kind, erected also by pri-
                     vate enterprises within their premises ; in this “privatized” system, the
                     forced labour of detainees was exploited 221, even without remuneration,
                     and in infra-human conditions of living, or rather surviving.

                        195. Those subjected to this ordeal were detained civilians and prison-
                     ers of war from occupied countries, who were deported to work in private
                     industry in Nazi Germany ; there, they were subjected to forced labour in
                     the production of weapons, in sub‑human conditions of work 222. They
                     became part of a vast productive enterprise aimed at the planified destruc-
                     tion of the enemies and the perpetration of massacres, in a campaign of
                     extermination in the so-called total war 223. Civilians, and prisoners of war
                     who became forced labourers 224, were all subsumed in this process of
                     dehumanization of all those involved in this enterprise.

                        196. The regime of forced labour during the Second World War —
                     insufficiently studied to date — was marked by manipulation, distortions
                     and lies ; according to the few historical accounts available, workers were
                     constantly threatened, and forced labour was reduced into slave work in
                     Nazi Germany’s war industry 225. From 1943 onwards, forced labour
                     became vital to Nazi Germany’s war efforts ; slave workers hoped to sur-
                     vive by participating, under coercion and domination, in the war industry
                     of their persecutors 226. Forced labour in occupied countries was put in
                     practice by the Third Reich with a long-term projection, in order to sus-
                     tain the war economy 227.

                        221 C. R. Browning, A l’intérieur d’un camp de travail nazi — Récits des survivants :

                     mémoire et histoire, Paris, Les Belles Lettres, 2010, p. 24.
                        222 E. Traverso, La Violencia Nazi — Una Genealogía Europea, Buenos Aires/

                     Mexico D.F., Fondo de Cultura Económica, 2002, pp. 42‑43, and cf. p. 92.
                        223 The sinister book by E. Ludendorff (La guerre totale [1935], Paris, Perrin, 2010

                     (reed.), pp. 49‑286), a crude incitement to total war (of extermination) involving the whole
                     population, launched in 1935, had by 1939 sold some 100,000 copies, in anticipation of
                     Hitler’s total war of 1939‑1945, with its devastating consequences.
                        224    E. Traverso, op. cit. supra note 222, pp. 96 and 100.
                        225    C. R. Browning, op. cit. supra note 221, pp. 34 and 197.
                         226 Ibid., pp. 350‑351.
                         227 In this regard, Himmler is reported to have stressed, in a speech delivered to the

                     senior leadership of the SS in June 1942, that “if we do not fill our camps with slaves
                     (. . .), then even after years of war we will not have enough money to be able to equip the
                     settlements in such a manner that real Germanic people can live there and take root in the
                     first generation” ; cited in M. Mazower, Hitler’s Empire — Nazi Rule in Occupied Europe,
                     London, Penguin Books, 2009, p. 309.

                     155

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                     251 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        197. Members of the civilian populations of the occupied countries
                     during the Second World War were deported and subjected to conditions
                     of slave labour in the war industry in Germany. Likewise — as the pres-
                     ent case discloses — besides civilians, members of the Italian armed forces
                     were denied and deprived of the status of prisoners of war (and the pro-
                     tections ensuing from that status) and used as forced labourers in the
                     German war industry. These crimes, perpetrated with great cruelty 228,
                     generated, not surprisingly, much resentment in occupied countries, and
                     incited the organized resistance movements therein to struggle against
                     them 229.
                        198. It is estimated that, “[b]y the fall of 1944, 7.7 million foreign
                     workers were in Germany” 230. The conditions of “slave labour” and
                     “forced labour” have thus been defined by German reparations law 231:

                               “[Slave labour :] Work performed by force in a concentration camp
                             (as defined in the German Indemnification Law) or a ghetto or another
                             place of confinement under comparable conditions of hardship, as
                             determined by the German Foundation.

                                [Forced labour :] Work performed by force (other than ‘slave
                             labour’) in the territory of the German Reich or in a German-occupied
                             area, and outside the territory of Austria, under conditions resem-
                             bling imprisonment or extremely harsh living conditions ; or work
                             performed by force under a program of implementing the National
                             Socialist policy of ‘extermination through work’ (Vernichtung durch
                             Arbeit) outside the territory of Austria.” 232

                        228 In one of the testimonies on them, from Maideneck (Communiqué of the Commis-

                     sion extraordinaire polono-soviétique), it is reported that :
                                “The Germans forced numerous groups (1,200 people) of professors, doctors,
                             engineers and other specialists brought over from Greece to carry out work beyond
                             their physical capabilities — the transport of heavy stones. The SS beat to death any
                             who fell, exhausted by this back‑breaking work. That entire group of Greek intel-
                             lectuals was wiped out within five weeks by a system of starvation, gruelling work,
                             beatings and murder.” [Translation by the Registry.] In : Paroles de déportés —
                             Témoignages et rapports officiels, Paris, Bartillat, 2009 (reed.), p. 113.

                        229 J. Bourke, La Segunda Guerra Mundial — Una Historia de las Víctimas, Barcelona,

                     Paidós, 2002, p. 43, and cf. pp. 144 and 175.
                        230 J. Authers, “Making Good Again : German Compensation for Forced and Slave

                     Labourers”, in The Handbook of Reparations (ed. P. de Greiff), Oxford University Press,
                     2006, pp. 421‑422.
                        231 Law of 2000, Art. 11 (on “Eligible Persons”).

                       232   J. Authers, op. cit. supra note 230, p. 435.

                     156

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                     252 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     XX. The Prevalence of the Individual’s Right of Access to Justice :
                      The Contending Parties’ Invocation of the Case Goiburú et Al.
                                             (IACtHR, 2006)

                        199. From all the aforementioned, it results, in my perception, that it
                     is not at all State immunity that cannot be waived, as some droit-d’étatistes
                     keep on insisting even in our days, seemingly incapable of learning the
                     lessons of history (including international legal history). There is no
                     immunity for crimes against humanity. In cases of international crimes,
                     of delicta imperii, what cannot be waived, in my understanding, is the
                     individual’s right of access to justice, encompassing the right to repara-
                     tion for the grave violations of the rights inherent to him as a human
                     being. Without that right, there is no credible legal system at all, at
                     national or international levels.

                        200. Some decades ago, on the basis of a Kantian aphorism (“Out of
                     the crooked timber of humanity no straight thing was ever made”),
                     Isaiah Berlin pondered that “[t]he first public obligation is to avoid

                     extremes of suffering” 233. To force people into “neat uniforms” demanded
                     by dogmatisms — he added — is “almost always the road to inhuman-
                     ity” ; the unprecedented atrocities of the twentieth century show that it is
                     possible to attain “a high degree of scientific knowledge and skill” and yet
                     to subjugate, humiliate and “destroy others without pity” 234.

                        201. Tragedy — distinct from mere disaster — is due to “avoidable
                     human mistakes”, some with devastating consequences. At the end, con-
                     cluded Berlin, we are left with a constant return to the idea of an “objec-
                     tive” justice, to universal principles — in the line of natural law thinking,
                     forbidding the treatment of human beings “as means to ends” 235. In this
                     respect, another great thinker of the twentieth century, Simone Weil, pon-
                     dered, in an illuminating essay (of 1934, ever since republished in distinct
                     countries and idioms) 236, that, from the times of The Iliad of Homer until
                     nowadays, the influence of war upon human beings has been constantly
                     revealing an “essential evil” of humanity, namely, “the substitution of the
                     ends by the means” ; the search for power takes the place of the ends, and
                     transforms human life into a means, which can be sacrificed 237.

                       202. From Homer’s Iliad until today — she added — the unreasonable
                     demands of the struggle for power leave no time to think of what is truly

                        233 I. Berlin, The Crooked Timber of Humanity — Chapters in the History of Ideas

                     [1959], Princeton University Press, 1991, p. 17, and cf. pp. 18‑19.
                        234 Ibid., pp. 19 and 180.
                        235 Ibid., pp. 185, 204‑205 and 257.
                        236 S. Weil, “Réflexions sur les causes de la liberté et de l’oppression sociale”, Œuvres,

                     Paris, Quarto Gallimard, 1999, pp. 273‑347.
                        237 S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barce-

                     lona, Ed. Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81‑82.

                     157

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                     253 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     important ; individuals are “completely abandoned to a blind collectiv-
                     ity”, incapable of “subjecting their actions to their thoughts”, incapable
                     of thinking 238. The terms, and distinction between “oppressors and
                     oppressed”, almost lose meaning, given the “impotence” of all individuals
                     in face of the “social machine” of destruction of the spirit and fabrication
                     of the inconscience ; all start living — or rather surviving — in the painful
                     domain of the inhuman, in a world wherein “nothing is the measure of
                     man”, wherein there is no attention at all to the needs of the spirit 239.

                        203. The prevalence of the individual’s right of access to justice cannot
                     be challenged even in the light of the stratified inter‑State mechanism of
                     litigation before the ICJ. In this respect, in my dissenting opinion in the
                     case concerning Questions relating to the Obligation to Prosecute or Extra‑
                     dite (Belgium v. Senegal), I deemed it fit to ponder that

                                 “Facts tend to come before the norms, requiring of these latter the
                              aptitude to cover new situations they are meant to regulate, with due
                              attention to superior values 240. Before this Court, States keep on
                              holding the monopoly of jus standi, as well as locus standi in judicio,
                              in so far as requests for provisional measures are concerned, but this
                              has not proved incompatible with the preservation of the rights of the
                              human person, together with those of States. The ultimate beneficiar-
                              ies of the rights to be thereby preserved have been, not seldom and
                              ultimately, human beings, alongside the States wherein they live.
                              Reversely, requesting States themselves have, in their arguments
                              before this Court, gone beyond the strictly inter-State outlook of the
                              past, in invoking principles and norms of the international law of
                              human rights and of international humanitarian law, to safeguard the
                              fundamental rights of the human person.

                                 In so far as material or substantive law is concerned, the inter‑State
                              structure of litigation before this Court has not been an unsurmount-
                              able obstacle to such vindication of observance of principles and
                              norms of international human rights law and international humani-
                              tarian law (. . .).” (Provisional Measures, Order of 28 May 2009,
                              I.C.J. Reports 2009, pp. 174‑175, paras. 23‑34.)

                       204. Moreover, in my separate opinion appended to this Court’s Advi-
                     sory Opinion of the day before yesterday, on Judgment No. 2867 of the
                     Administrative Tribunal of the International Labour Organization upon a

                        238 Op. cit. supra note 237, pp. 84 and 130.
                        239 Ibid., pp. 130‑131.
                        240 Cf., inter alia, G. Morin, La révolte du droit contre le code — La révision nécessaire

                     des concepts juridiques, Paris, Libr. Rec. Sirey, 1945, pp. 2, 6‑7 and 109‑115.

                     158

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                     254 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     Complaint Filed against the International Fund for Agricultural Develop‑
                     ment, I dwell further upon this particular point. It is not my intention to
                     repeat herein the critical reflections I developed two days ago (keeping in
                     mind the Court’s mission as the principal judicial organ of the United
                     Nations), in my separate opinion in that Advisory Opinion. I thus limit
                     myself only to refer to those reflections herein, for the purposes of the
                     present dissenting opinion.
                        205. In the course of the proceedings in the present case concerning the
                     Jurisdictional Immunities of the State, both Germany and Italy expressly
                     referred to the judgment of 22 September 2006 of the IACtHR in the case
                     of Goiburú et al. v. Paraguay. Italy was the first to invoke this judgment
                     of the IACtHR, in its Counter‑Memorial, of 22 December 2009, in sup-
                     port of its argument that the right of access to justice “is conceived in all
                     systems of human rights of protection as a necessary complement of the
                     rights substantively granted” (para. 4.94). Italy added that,

                                “Accordingly, it is not surprising that the Inter‑American Court of
                              Human Rights has described access to justice as a peremptory norm
                              of international law in a case in which the substantive rights violated
                              were also granted by jus cogens.” 241 (Para. 4.94.)

                        206. For its part, Germany referred to the IACtHR’s judgment in the
                     case of Goiburú et al., in the first round of its oral pleadings, so as to
                     respond to the argument of Italy in this regard. Germany first submits
                     that the Goiburú et al. case (in the line of other cases decided by the IAC-
                     tHR), in its view “did not concern war damages” (para. 25). Germany
                     added that that case concerned the right of access to justice in the State
                     which was responsible for the wrongful act and thus did not concern the
                     rule of foreign State immunity (para. 25) 242.
                        207. The case of Goiburú et al. pertained to the “Operation Condor”,
                     whereby the States of the Southern Cone of South America, during the
                     period of the dictatorships in the 70s, mounted a network of collabora-
                     tion of their so‑called “intelligence services”, to pursue, at inter‑State
                     level, their joint criminal policies of repression. These latter were
                     co-ordinated State policies of extermination of targeted segments of

                     their respective populations, consisting of “anti-insurrection” trans‑
                     frontier operations, which comprised illegal or arbitrary detentions, kid-
                     nappings, torture, murders or extra‑judicial executions, and forced
                     disappearances of persons. Planified at the highest level of the State, the
                     “Operation Condor” also secured the cover‑up of the operations, and,

                        241 Counter-Memorial of Italy, pp. 76‑77.
                        242 CR 2011/17, p. 44, para. 25 ; Germany also referred to “an approach similar to that of
                     the Inter‑American Court of Human Rights”, taken one year later, by the UN Committee
                     of Human Rights, in its “general comment” No. 32, on Article 14 of the UN Covenant on
                     Civil and Political Rights.

                     159

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                     255 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     with that, the irresponsibility and the absolute impunity of the official
                     perpetrators 243.
                       208. In the cas d’espèce before the IACtHR, the respondent State itself
                     recognized, in a commendable spirit of procedural co-operation, its
                     own international responsibility for the existence, at the time the grave
                     wrongs took place, of a criminal State policy. Those were crimes of State,
                     of equivalent gravity to those perpetrated in Asia also in the 70s, in
                     Europe three decades earlier, and again in Europe, and in Africa, two
                     decades later. Time and time again succeeding generations witnessed, in
                     distinct regions of the world, the perpetration of true crimes of State
                     (whether segments of the international legal doctrine like this expression
                     or not).

                        209. In its judgment of 22 September 2006 in the case of Goiburú et
                     al., concerning Paraguay, the IACtHR established the grave violations of
                     human rights that had taken place, and, accordingly, it ordered the cor-
                     responding reparations. In an obiter dictum, the IACtHR observed that,
                     while the State, through its institutions, mechanisms and powers, should
                     function “in such a way as to ensure protection against criminal action”,
                     in the present case, however, the instrumentalization of the State power
                     was a means to violate the rights that it should guarantee : worse still,
                     such breaches counted on “inter‑State collaboration”, with the State con-
                     stituting itself as “the main factor of the grave crimes committed, giving
                     place to a clear situation of ‘State terrorism’” (paras. 66‑67).
                        210. In my separate opinion in the Goiburú et al. case, I sought inter
                     alia to identify the elements of approximation and complementarity
                     (insufficiently dealt with by international legal doctrine to date) between
                     the international law of human rights and international criminal law,
                     namely : (a) the (active and passive) international legal personality of the
                     individual ; (b) the complementarity of the international responsibility of
                     the State and that of the individual ; (c) the conceptualization of crimes
                     against humanity ; (d) the prevention and guarantee of non-repetition (of
                     the grave violations of human rights) ; and (e) the reparatory justice in
                     the confluence between the international law of human rights and inter-
                     national criminal law (para. 34) 244.
                        211. Although the “Operation Condor” belongs to the past, scars have
                     not yet healed, and they probably never will. The countries where it was
                     mounted still struggle with their past, each one in its own way. Yet, being
                     a region with a strong tradition of international legal thinking, advances
                     in international justice have occurred therein, as some cases, and other
                     situations of the kind, have been brought to international justice (before
                     the IACtHR), and no State of the region dares nowadays to invoke State
                     immunity in respect of those crimes. May it here be recalled, in historical

                        243 A. A. Cançado Trindade, Evolution du droit international au droit des gens — L’accès

                     des individus à la justice internationale : le regard d’un juge, Paris, Pedone, 2008, pp. 174‑175.
                        244 Ibid., pp. 139 and 167.

                     160

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                     256 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     perspective, that Article 8 of the 1948 Universal Declaration of Human
                     Rights, on the right to an effective remedy before competent national
                     courts to safeguard fundamental rights, has, as its travaux préparatoires
                     reveal, a Latin American origin, being a Latin American contribution to
                     the Universal Declaration.

                        212. In effect, to uphold State immunity in cases of the utmost gravity
                     amounts to a travesty or a miscarriage of justice, from the perspective not
                     only of the victims (and their relatives), but also of the social milieu con-
                     cerned as a whole. The upholding of State immunity, making abstraction
                     of the gravity of the wrongs at issue, amounts to a denial of justice to all
                     the victims (including their relatives as indirect — or even direct — vic-
                     tims). Furthermore, it unduly impedes the legal order to react in due pro-
                     portion to the harm done by the atrocities perpetrated, in pursuance of
                     State policies.
                        213. The finding of the particularly grave violations of human rights
                     and of international humanitarian law provides, in my understanding, a
                     valuable test for the removal of any bar to jurisdiction, in pursuance of
                     the necessary realization of justice. In sum and conclusion on this point :
                     (a) there is no State immunity in such cases of extreme gravity, cases of
                     delicta imperii ; and (b) grave breaches of human rights and of interna-
                     tional humanitarian law ineluctably entail the duty to provide reparation
                     to the victims.

                               XXI. The Individual’s Right of Access to Justice :
                                The Evolving Case Law towards Jus Cogens

                        214. Unlike the IACtHR, the ECHR has approached a fundamental
                     right, such as that of access to justice — and to a fair trial — (Articles 6 (1)
                     and 13 of the European Convention on Human Rights), with attention
                     drawn also to permissible or implicit limitations. Thus, in its jurisprudence
                     constante (judgments in cases Ashingdane v. United Kingdom, of 28 May
                     1985 ; Waite and Kennedy v. Germany, of 18 February 1999 ; T. P. and
                     K. M. v. United Kingdom, of 10 May 2001 ; Z. and Others v. United King‑
                     dom, of 10 May 2001 ; Cordova v. Italy, of 30 January 2003 ; Ernst v. Bel‑
                     gium, of 15 July 2003 ; among others), the ECHR has laid down the test
                     for permissible limitations, namely, pursuance of a legitimate aim, propor-
                     tionality, and no impairment of the essence of the right.

                       215. This flexibility was useful to the ECHR’s (Grand Chamber’s)
                     majority in the decisions on cases concerning immunities (cf. Section XII
                     supra). But it should not pass unnoticed that the Ashingdane case, which
                     marks the beginning of the adoption by the ECHR of this inadequate
                     approach to a fundamental right such as that of access to justice, was not
                     a case of grave violations of human rights concerning several victims ; it

                     161

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                     257 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     was rather a single individualized case, of alleged breaches of Articles 5 (1)
                     and (4) and 6 (1) of the European Convention, wherein the ECHR found
                     no violation of this latter. In sum, a fundamental right is, in my view, to
                     be approached as such, and not as from permissible or “implicit” limita-
                     tions.

                        216. For its part, on the other side of the Atlantic, the IACtHR has
                     focused, to a far greater extent, on the essence of the fundamental right of
                     access to justice itself, and not on its “limitations”. These latter have not
                     been used, or relied upon, to uphold State immunity — not until now.
                     The ECHR has granted the “margin of appreciation” to Contracting
                     States, the IACtHR has not done so (at least not in my times serving it).
                     The result has been the approach, by the IACtHR, of the right of access
                     to justice (Articles 8 and 25 of the American Convention on Human
                     Rights) as a true fundamental right, with not much space left for consid-
                     eration of “limitations”. The major concern has been with its guarantee.
                        217. The adjudication, by the IACtHR, of cases of gravity of viola-
                     tions of human rights, has led to a jurisprudential development stressing
                     the fundamental character of the right of access to justice. This right
                     assumes an imperative character in face of a crime of State : it is a true
                     droit au Droit, a right to a legal order which effectively protects the fun-
                     damental rights of the human person 245, which secures the intangibility of
                     judicial guarantees (Articles 8 and 25 of the American Convention) in any
                     circumstances. We are here, in sum, in the domain of jus cogens 246, as the
                     IACtHR itself acknowledged in its judgments in the cases of Goiburú et
                     al. v. Paraguay (of 22 September 2006) and of La Cantuta v. Peru (of
                     29 November 2006) 247.
                        218. The ECHR could have reached a similar conclusion, had its
                     majority developed its reasoning on the corresponding provisions (Arti-
                     cles 6 (1) and 13 of the European Convention) with attention focused on
                     the essence of the right of access to justice, rather than on its permissible
                     or implicit “limitations”. Had it done so — as it should — the Court’s

                         245 IACtHR, case of Myrna Mack Chang v. Guatemala (judgment of 25 November 2003),

                     separate opinion of Judge Cançado Trindade, paras. 9‑55.
                         246 IACtHR, case of the Massacre of Pueblo Bello, concerning Colombia (judgment

                     of 31 January 2006), separate opinion of Judge Cançado Trindade, paras. 60‑62 and 64.
                         247 Paras. 131 and 160, respectively. On this jurisprudential construction,

                     cf. A. A. Cançado Trindade, “The Expansion of the Material Content of Jus Cogens : The
                     Contribution of the Inter-American Court of Human Rights”, La Convention européenne
                     des droits de l’homme, un instrument vivant — Mélanges en l’honneur de Ch. L. Rozakis
                     (eds. D. Spielmann et al.), Brussels, Bruylant, 2011, pp. 27‑46 ; A. A. Cançado Trindade,
                     “Jus Cogens : The Determination and the Gradual Expansion of Its Material Content in
                     Contemporary International Case Law”, XXXV Curso de Derecho Internacional Orga‑
                     nizado por el Comité Jurídico Interamericano — 2008, Washington D.C., Secretaría General
                     de la OEA, 2009, pp. 3‑29 ; A. A. Cançado Trindade, “La Ampliación del Contenido Mate-
                     rial del Jus Cogens”, XXXIV Curso de Derecho Internacional Organizado por el Comité
                     Jurídico Interamericano — 2007, Washington D.C., Secretaría General de la OEA, 2008,
                     pp. 1‑15.

                     162

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                     258 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     majority would not have upheld State immunity the way it did (cf. Sec-
                     tion XII supra). In my perception, Articles 6 and 13 of the European
                     Convention — like Articles 8 and 25 of the American Convention —
                     point to an entirely different direction, and are not at all “limited” with
                     regard to State immunity.
                        219. Otherwise States could perpetrate grave violations of human
                     rights (such as massacres or subjection of persons to forced labour) and
                     get away with that, by relying on State immunity, in a scenario of lawless-
                     ness. Quite on the contrary, States parties are bound, by Articles 6 and 13
                     of the European Convention, to provide effective (domestic) remedies in
                     a fair trial, with all the guarantees of the due process of law, in any cir-
                     cumstances. This is proper of the rule of law, referred to in the preamble
                     of the European Convention. There is no room for the privilege of State
                     immunity here 248; where there is no right of access to justice, there is no
                     legal system at all. Observance of the right of access to justice is impera-
                     tive, it is not “limited” by State immunity ; we are here in the domain of
                     jus cogens.
                        220. It is immaterial whether the harmful act in grave breach of human
                     rights was a governmental one (jure imperii), or a private one with the
                     acquiescence of the State (jure gestionis), or whether it was committed
                     entirely in the forum State or not (deportation to forced labour is a
                     trans‑frontier crime). This traditional language — the conceptual poverty
                     of which is conspicuous — is alien to what we are here concerned with,
                     namely, the imperative of the realization of justice in cases of grave
                     breaches of human rights and of international humanitarian law. State
                     immunity does not stand in the domain of redress for grave violations of
                     the fundamental rights of the human person.

                           XXII. Out of Lawlessness : The Individual Victim’s Right
                                        to the Law (Droit au Droit)

                        221. This leads me to the right of access to justice, in its proper dimen-
                     sion : the right of access to justice lato sensu comprises not only the formal
                     access to justice (the right to institute legal proceedings), by means of an
                     effective remedy, but also the guarantees of the due process of law (with
                     equality of arms, conforming the procès équitable), up to the judgment (as
                     the prestation juridictionnelle), with its faithful execution, with the provi-
                     sion of the reparation due. The realization of justice is in itself a form of
                     reparation, granting satisfaction to the victim. In this way those victim-

                        248 Cf., to this effect, J. Bröhmer, State Immunity and the Violation of Human Rights,

                     The Hague, Nijhoff, 1997, pp. 164, 181 and 186‑188 ; W. P. Pahr, “Die Staatenimmunität
                     und Artikel 6 Absatz 1 der Europäischen Menschenrechtkonvention”, Mélanges offerts
                     à P. Modinos — Problèmes des droits de l’homme et de l’unification européenne, Paris,
                     Pedone, 1968, pp. 222‑232.

                     163

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                     259 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ized by oppression have their right to the law (droit au Droit) duly vindi-
                     cated.
                        222. It is not my intention to dwell much further on this point — which
                     I have done elsewhere 249 — but just refer to it in the course of my reason-
                     ing in the present dissenting opinion. May I just recall that, in its jurispru‑
                     dence constante, the IACtHR has rightly taken together the interrelated
                     provisions of the right to an effective remedy and the guarantees of due
                     process of law (Articles 8 and 25 of the American Convention on Human
                     Rights), while the ECHR has begun only more recently — in the course
                     of the last decade, from the case Kudla v. Poland (judgment of 18 October
                     2000) onwards — to follow the same approach, bringing together Arti-
                     cles 6 (1) and 13 of the European Convention on Human Rights. This is
                     reassuring, as the two provisions reinforce each other, to the benefit of
                     the protected persons. The jurisprudential construction of the two inter-
                     national human rights tribunals is today converging, in respect of the
                     right of access to justice lato sensu.

                        223. The individual’s right to reparation, as already pointed out, is one
                     of its components. In the case Hornsby v. Greece (judgment of 19 March
                     1997), the ECHR, after recalling the right to institute proceedings before
                     a court and the right to procedural guarantees, added that the right of
                     access to justice would be “illusory” if the legal system did not allow a
                     final and operative binding judicial decision ; in the view of the ECHR, a
                     judgment not duly executed would lead to situations incompatible with
                     the rule of law which the States parties undertook to respect when they
                     ratified the European Convention.
                        224. The jurisprudential construction bringing the right of access to
                     justice into the domain of jus cogens (supra) is, in my understanding, of
                     great relevance here, to secure the ongoing evolution of contemporary
                     international law upon humanist foundations. From this perspective, it is
                     most unfortunate that the 2004 UN Convention on the Jurisdictional
                     Immunities of States and Their Property olympically ignored the inci-
                     dence of jus cogens. In its travaux préparatoires it had the occasion to take
                     it in due account, but it preferred simply not to do so : its draftsmen
                     dropped the matter in 1999, when the Working Group of the ILC was
                     evasive about it, and the Working Group of the Sixth Committee of the
                     UN General Assembly argued that the matter “was not yet ripe” for cod-
                     ification (as recalled with approval by the Court in the present Judgment,
                     para. 89).

                       225. This is simply not true, as, by that time, the IACtHR and the ad
                     hoc International Criminal Tribunal for the former Yugoslavia (ICTY)
                     were already engaged in their jurisprudential construction on the expand-
                     ing material content of jus cogens (being the two contemporary interna-

                        249 A. A. Cançado Trindade, Evolution du droit international au droit des gens gens —

                     L’accès des individus à la justice internationale (. . .), op. cit. supra note 243, pp. 113‑119.

                     164

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                     260 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tional tribunals which have most contributed to that development to
                     date) 250. There were, moreover, other manifestations of contemporary
                     international law that could have been taken into account, but were not.
                     The 2004 UN Convention, which has not yet entered into force, has been
                     heavily criticized 251 for not having addressed the problem of the jurisdic-
                     tional immunities of States in face of grave violations of human rights and
                     of international humanitarian law.
                        226. Its draftsmen were aware of the problem, but the Working Groups
                     of the ILC and of the VI Committee of the General Assembly, finding the
                     matter “not ripe” to be taken into account, took the easier path to con-
                     clude the Convention and have it approved, leaving the problem unre-
                     solved, continuing to raise uncertainties, — as the present case before this
                     Court concerning the Jurisdictional Immunities of the State bears witness
                     of. Worse still, the majority of the ECHR (Grand Chamber) in the Al-
                     Adsani case (cf. supra) availed itself of that omission of the draftsmen of
                     the 2004 UN Convention to arrive at its much-criticized decision in
                     2001 252, and, over a decade later, the Court’s majority in the present case
                     does the same in the Judgment (paras. 89‑90) adopted today. I cannot at
                     all accept that contemporary international law can thereby be “frozen”,
                     and hence the care I have taken to elaborate and to present this dissenting
                     opinion.

                                            XXIII. Towards the Primacy
                                        of the Never Vanishing Recta Ratio

                       227. Grave breaches of human rights and of international humanitar-
                     ian law amount to breaches of jus cogens, entailing State responsibility
                     with aggravating circumstances, and the right to reparation to the vic-
                     tims. This is in line with the idea of rectitude (in conformity with the recta
                     ratio of natural law), underlying the conception of law (in distinct legal
                     systems — Recht/diritto/droit/direito/derecho/right) as a whole. Before I
                     move on to this next point, may I, at this stage of the present dissenting
                     opinion, raise just a couple of questions, which I find indeed appropriate
                     to ask : when will human beings learn the lessons of the past, when will
                        250 Cf. note 247 supra.
                        251 E.g., L. Caflisch, “Immunité des Etats et droits de l’homme : Evolution récente”,
                     in Internationale Gemeinschaft und Menschenrecht — Festschrift für G. Ress, Cologne/
                     Berlin, C. Heymanns Verlag, 2005, pp. 937‑938, 943 and 945 ; C. Keith Hall, “UN Conven-
                     tion on State Immunity : The Need for a Human Rights Protocol”, 55 International and
                     Comparative Law Quarterly (2006), pp. 412‑413 and 426 ; L. McGregor, “Torture and State
                     Immunity : Deflecting Impunity, Distorting Sovereignty”, 18 European Journal of Interna‑
                     tional Law (2007), pp. 903‑904, 914 and 918‑919 ; L. McGregor, “State Immunity and Jus
                     Cogens”, 55 International and Comparative Law Quarterly (2006), pp. 437‑439 and 445.
                        252 The ECHR (Grand Chamber) referred in detail to that omission of the Working

                     Group of the ILC in 1999, in paragraphs 23‑24, 62‑63 and 65-67 of its judgment of
                     21 November 2001 in the Al-Adsani case.

                     165

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                     261 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     they learn from the terrible sufferings of previous generations, of the kind
                     which lie in the factual origins of the present case ? As they have not
                     learned to date (as it seems), perhaps they never will.

                        228. When will they stop dehumanizing their fellow human beings ? As
                     they have not stopped to date, perhaps they never will. When will they
                     reflect in their laws the superior values (neminem laedere) needed to live in
                     peace and with justice ? As they have not done it yet, perhaps they never
                     will. In all probability, they will keep on living with evil, subjecting them-
                     selves thereunder. Yet, even in this grim horizon, endeavours towards the
                     primacy of the recta ratio also seem never to vanish, as if suggesting that
                     there is still always hope, in the perennial quest for justice, never reaching
                     an end, like in the myth of Sisyphus.

                        229. It is thus not surprising to find that the (underlying) problem of
                     evil has been and continues to be one raising major concern, throughout
                     the history of human thinking. As lucidly warned, in the aftermath of the
                     Second World War, by R. P. Sertillanges, for centuries philosophers,
                     theologians and writers have drawn their attention to that problem, with-
                     out however finding a definite or entirely satisfactory answer to it. In his
                     own words, “All souls, all groups and all civilizations fear evil. (. . .) The
                     problem of evil calls into question the destiny of all, the future of
                     humankind.” 253
                        230. The effects of the planified criminal State policies of the Third
                     Reich over the population have been addressed by various contempo-
                     raries of those years of darkness. The historical novels of the thirties, of a
                     sensitive person like Klaus Mann, for example, while criticizing the intel-
                     lectuals who let themselves be co‑opted by Nazism (in Mephisto, pub-
                     lished in 1936), or else describing the drama of those who emigrated into
                     exile to escape persecution (in Le volcan, published in 1939), are perme-
                     ated by premonitions of the social cataclysm that was soon to take place
                     (like a volcano that was already erupting), and was to victimize millions
                     of human beings 254 — amongst whom forced labourers from the occu-
                     pied countries.
                        231. In fact, throughout the last century, there were States which
                     indeed pursued criminal policies — through those who spoke and acted in
                     their names (as institutions have no moral conscience) — and victimized
                     millions of human beings, incurring in responsibility for grave violations
                     of human rights and of international humanitarian law of various kinds.
                     The facts are fully documented nowadays by historians. What remains to
                     be further developed, by jurists, is the responsibility of States themselves

                        253 A.-D. Sertillanges, Le problème du mal — L’histoire, Paris, Aubier, 1948, p. 5.

                     [Translation by the Registry.]
                        254 Cf. K. Mann, Mefisto [Mephisto, 1936], Barcelona, Debolsillo, 2006 (reed.),

                     pp. 31‑366 ; K. Mann, Le volcan [1939], Paris, Grasset, 1993, pp. 9‑404.

                     166

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                     262 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     (besides that of their officials) for the crimes perpetrated, which from time
                     to time, over decades, became the object of some rather solitary and pen-
                     etrating studies 255.
                        232. The human suffering which ensued from those atrocities (narrated
                     in some historical accounts and testimonies of surviving victims) can
                     hardly be measured, goes beyond imagination, and is simply devastating.
                     Moreover, suffering projects itself in time, especially if victims of grave
                     violations of their rights have not found justice. In my own experience of
                     the international adjudication (in the IACtHR) of cases of massacres,
                     there were episodes when, many years after their occurrence, the surviv-
                     ing victims (or their ayants droit) remained in search of judicial recogni-
                     tion of their suffering 256. Unlike what one may easily assume, human
                     suffering not always effaces with the passing of time : it may also increase,
                     in face of manifest injustice — and particularly in cultures that wisely
                     cultivate the links of the living with their dead. Human suffering, in cases
                     of persisting injustice, may project itself on an inter‑generational scale.

                        233. The lucid German thinker Max Scheler (1874-1928), in an essay
                     published posthumously (Le sens de la souffrance, 1951), expressed his
                     belief that all sufferings of human beings have a meaning, and, the more
                     profound they are, the harder it is to struggle against their causes 257. And
                     in one of his thoughtful writings in the years following the Second World
                     War (an essay originally published in 1953), the learned German philoso-
                     pher Karl Jaspers (1883‑1969) pondered that reason exists “only by deci-
                     sion”, it “arises from freedom”, it is inseparable from existence itself ;
                     although we know that we stand all at the mercy of events beyond our
                     control, “[r]eason can stand firm only in the strength of Reason itself” 258.

                        234. Shortly afterwards, in his book Origine et sens de l’histoire (1954),
                     Karl Jaspers clearly expressed his belief that
                             “(. . .) It is on [natural law] that the law of nations is founded, on
                           [natural law] that a court would be constituted, within the world order,
                           to protect the individual against abuse by the State by allowing him
                           recourse to effective justice, exercised in the name of human s overeignty.
                             (. . .) [I]t can be shown that the totalitarian State and total war are
                           contrary to natural law, not only because they treat as an end that

                        255 Cf., inter alia, Vespasien V. Pella, La criminalité collective des Etats et le droit pénal

                     de l’avenir, Bucharest, Imprimerie de l’Etat, 1925, pp. 1‑340 ; Roberto Ago, “Le délit inter-
                     national”, 68 RCADI (1939), pp. 419‑545 ; Pieter N. Drost, The Crime of State — Book I :
                     Humanicide, Leiden, Sijthoff, 1959, pp. 1‑352 ; J. Verhaegen, Le droit international pénal de
                     Nuremberg — Acquis et regressions, Brussels, Bruylant, 2003, pp. 3‑222.
                        256 Cf. A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional —

                     Memorias de la Corte Interamericana de Derechos Humanos, Belo Horizonte/Brazil, Edit.
                     Del Rey, 2011, pp. 159‑165.
                        257 M. Scheler, Le sens de la souffrance, Paris, Aubier, [1951], pp. 5 and 27.
                        258 K. Jaspers, Reason and Anti-Reason in Our Time [1953], Hamden/Conn., Archon

                     Books, 1971 (reed.), pp. 50, 59 and 84.

                     167

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                     263 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           which is the means and conditions of life, but also because they pro-
                           claim the absolute value of the means, thus destroying the sense of
                           the collective, of human rights.
                              Natural law is confined to organizing the conditions of life (. . .)
                           representing all aspects of the human condition in this world” 259.
                        235. In an illuminating essay published in Germany promptly after the
                     war, in 1946 (titled Die Schuldfrage/La question de la culpabilité) — derived
                     from a course he delivered in the winter of 1945‑1946 at the University of
                     Heidelberg, which has been re-edited ever since and has survived the onslaught
                     of the passing of time —, K. Jaspers distinguished between criminal guilt,
                     political guilt, moral guilt and metaphysical guilt, seeking to establish degrees
                     of personal responsibility proportional to one’s participation in the occur-
                     rences at issue. In one passage of his long-lasting essay, in addressing the
                     “differentiation of the German guilt”, K. Jaspers, discarding excuses on the
                     basis of State sovereignty, asserted, in respect of the Second World War, that
                              “This time there can be no doubt that Germany planned and pre-
                           pared this war and started it without provocation from any other side.
                           It is altogether different from 1914. (. . .) Germany, (. . .) violating
                           international law, has committed numerous acts resulting in the exter-
                           mination of populations and in other inhumanities.” 260
                        236. And then he identified the question, which he phrased “How can
                     we speak of crimes in the realm of political sovereignty ?” — with what he
                     identified as “a habit of thought derived from the tradition of political life
                     in Europe”. And he added that
                           “heads of States (. . .) are men and answer for their deeds. (. . .) The
                           acts of States are also the acts of persons. Men are individually
                           responsible and liable for them. (. . .) In the sense of humanity, of
                           human rights and natural law, (. . .) laws already exist by which crimes
                           may be determined.” 261
                     In fact, throughout all the proceedings before this Court in the present
                     case concerning the Jurisdictional Immunities of the State, Germany rec-
                     ognized its State responsibility (cf. paras. 24‑31) for the historical facts
                     lying in the origins of the cas d’espèce.
                        237. Moreover, in the course of the last decades it provided the corre-
                     sponding compensation on distinct occasions and circumstances. In addi-
                     tion, on successive occasions, Germany — homeland of universal thinkers
                     and writers like, e.g., I. Kant (1724‑1804) and J. W. Goethe (1749‑1832) —

                         259 K. Jaspers, Origine et sens de l’histoire, Paris, Libr. Plon, 1954, p. 245. [Translation

                     by the Registry.]
                         260 K. Jaspers, The Question of German Guilt, N.Y., Fordham University Press, 2001

                     (reed.), p. 47. And cf. K. Jaspers, La culpabilité allemande, Paris, Editions de Minuit, 2007
                     (reed.), pp. 64‑65.
                         261 K. Jaspers, The Question of German Guilt, op. cit. supra note 260, pp. 49‑50. And

                     cf. K. Jaspers, La culpabilité allemande, op. cit. supra note 260, p. 66.

                     168

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                     264 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     expressed public apologies, such as the renowned silent apology of former
                     Chancellor Willy Brandt in Warsaw, Poland, on 7 December 1970, among
                     other and successive acts of contrition. This being so, I wonder why Ger-
                     many has not yet provided reparation to the surviving IMIs who have not
                     received it to date (cf. infra), instead of having brought the present case
                     before this Court.
                        238. In my view, in the present Judgment the Court could and should
                     have gone beyond expressing its “surprise” and “regret” (para. 99) at the
                     persistence of the unresolved situation concerning the IMIs. In effect, to
                     attempt to make abstraction of grave violations of human rights or of
                     international humanitarian law, or to attempt to assimilate them to any
                     kind of “tort”, is like trying to withhold the sunlight with a blindfold.
                     Even in the domain of State immunities, there has been acknowledgment
                     of the changes undergone by it, in the sense of restricting or discarding
                     such immunities in the occurrence of those grave breaches, due to the
                     advent of the international law of human rights, with attention focused
                     on the right of access to justice and international accountability 262.

                        239. There is nowadays a growing trend of opinion sustaining the
                     removal of immunity in cases of international crimes, for which repara-
                     tion is sought by the victims 263. In effect, to admit the removal of State
                     immunity in the realm of trade relations, or in respect of local personal
                     tort (e.g., in traffic accidents), and at the same time to insist on shielding
                     States with immunity, in cases of international crimes — marked by grave
                     violations of human rights and of international humanitarian law — in
                     pursuance of State (criminal) policies, in my perception amounts to a
                     juridical absurdity.

                             XXIV. The Individuals’ Right to Reparation as Victims
                                  of Grave Violations of Human Rights and
                                     of International Humanitarian Law

                                         1. The State’s Duty to Provide Reparation
                                                   to Individual Victims
                        240. As early as in 1927‑1928, the PCIJ gave express judicial recogni-
                     tion to a precept of customary international law, reflecting a fundamental
                     principle of international law, to the effect that

                        262 Cf. [Various Authors], Le droit international des immunités : contestation ou consoli‑

                     dation ? (Colloque de Paris de 2003, ed. J. Verhoeven), Paris/Brussels, LGDJ/Larcier, 2004,
                     pp. 6‑7, 52‑53 and 55.
                        263 Cf. ibid., p. 121, and cf. pp. 128‑129, 138 and 274. And cf. also : M. Frulli, Immunità

                     e Crimini Internazionali — L’Esercizio della Giurisdizione Penale e Civile nei Confronti degli
                     Organi Statali Sospettati di Gravi Crimini Internazionali, Torino, G. Giappichelli Edit., 2007,
                     pp. 135, 140 and 307-309 ; [Various Authors], Droit des immunités et exigences du procès équi‑
                     table (Colloque de Paris de 2004, ed. I. Pingel), Paris, Pedone, 2004, pp. 20, 31, 150 and 152.

                     169

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                     265 	jurisdictional immunities of the state (diss. op. cançado trindade)

                             “the breach of an engagement involves an obligation to make repa-
                             ration in an adequate form. Reparation therefore is the indispensable
                             complement of a failure to apply a convention.” (Factory at Chorzów,
                             Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.)
                     The PCIJ added that such reparation “must, as far as possible, wipe out
                     all the consequences of the illegal act and re-establish the situation
                     which would, in all probability, have existed if that act had not been
                     committed” (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J.,
                      Series A, No. 17, pp. 29 and 47‑48).
                         241. In the present case concerning the Jurisdictional Immunities of the
                      State, as already indicated, Germany itself recognized its State responsi-
                      bility for the grave breaches of human rights and of international human-
                      itarian law which rest in the factual origins of the cas d’espèce
                      (cf. Section III supra). The State’s obligation of reparation ineluctably
                     ensues therefrom, as the “indispensable complement” of those grave
                     breaches. As the jurisprudence constante of the old PCIJ further indicated,
                     already in the inter‑war period, that obligation is governed by interna-
                      tional law in all its aspects (e.g., scope, forms, beneficiaries) ; compliance
                      with it shall not be subject to modification or suspension by the respon-
                      dent State, through the invocation of provisions, interpretations or
                      alleged difficulties of its own domestic law (Jurisdiction of the Courts
                      of Danzig, Advisory Opinion, 1928, P.C.I.J., Series B, No. 15, pp. 26‑
                      27 ; Greco‑Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J.,
                      Series B, No. 17, pp. 32 and 35 ; Free Zones of Upper Savoy and the Dis‑
                      trict of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167 ; Treat‑
                      ment of Polish Nationals and Other Persons of Polish Origin or Speech
                      in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B,
                      No. 44, p. 24).
                         242. The individuals’ right to reparation as victims of grave violations
                      of human rights and of international humanitarian law was much dis-
                      cussed before this Court in the present case. In this regard, Germany con-
                      tended that, under general international law, individuals are not granted
                      the right of reparation, “and certainly not for war damages” 264. In its
                     view, “Article 3 of the IV Hague Convention of 1907, as well as Article 91
                     of the First Additional Protocol (of 1977) to the Four Geneva Conven-
                      tions on International Humanitarian Law of 1949, given the very struc-
                      ture of the Conventions, can only deal with State responsibility at
                      inter‑State level, and, hence, cannot have any direct effect for individu
                      als” 265. As to, more specifically, whether individual victims are conferred
                      rights which can be invoked before courts of law, Germany argued that
                             “it is hard to see how the unwarranted blend of two different concepts,
                             one of which — the right of access to justice — is subjected to various
                             limitations, and the other of which — the alleged right of action as a

                       264   CR 2011/17, p. 42.
                       265   Ibid.

                     170

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                     266 	jurisdictional immunities of the state (diss. op. cançado trindade)

                              consequence of a war crime — simply does not exist de lege lata, can
                              together create a super‑rule of jus cogens” 266.
                        243. In turn, Italy contended that the goal of “preserving individual
                     rights from an unjust privilege and granting the individual access to jus-
                     tice and to tort reparation also characterized further developments of the
                     immunity rule and its exceptions” 267. It further claimed that
                              “[t]he restriction of immunity in cases of individuals bringing lawsuits
                              to obtain redress for a grave breach of the most fundamental princi-
                              ples of human dignity granted by jus cogens rules seems to be a rea-
                              sonably balanced solution”. 268

                       Moreover, it also argued that “[w]hen the victims of violations of fun-
                     damental rules of the international legal order, deprived of any other
                     means of redress, resort to national courts, the procedural bars of State
                     immunity cannot bring the effect of depriving such victims of the only
                     available remedy” 269.
                       244. For its part, Greece also held, in this respect, that “the funda
                     mental argument in the position of the Greek courts is based on the rec-
                     ognition that there is an individual right to reparation in the event of
                     grave violations of humanitarian law” 270. Greece claimed that
                              “the obligation on the State to compensate individuals for violations
                              of the rules of humanitarian law seems to derive from Article 3 of the
                              IV Hague Convention of 1907, even though it is not expressly stated
                              in that Article and even though individuals needed State mediation
                              through inter‑State treaties. (. . .) That is made clear by the fact that
                              individuals are not excluded from the text of Article 3. This line of
                              argument also emerges from the travaux préparatoires of the Sec-
                              ond Hague [Peace] Conference.” 271
                        245. The individual right to reparation is well‑established in interna-
                     tional human rights law, which counts on a considerable case law of
                     international human rights tribunals (such as the European and
                     Inter‑American Courts) on the matter 272. Beyond that, public interna-
                        266 CR 2011/17, p. 45.
                        267 Counter-Memorial of Italy, para. 4.22.
                        268 Ibid., para. 4.101.
                        269 Ibid., para. 4.103.
                        270 CR 2011/19, p. 22 (translation).
                        271 Ibid., pp. 22‑23 (translation).
                        272 The case law on the matter of the IACtHR has been particularly singled out, for

                     the diversity of forms of the reparations it has granted to the victims ; cf., e.g. [Various
                     Authors], Réparer les violations graves et massives des droits de l’homme : la Cour inter
                     américaine, pionnière et modèle ?, op. cit. supra note 67, pp. 17‑334 ; [Various Authors], Le
                     particularisme interaméricain des droits de l’homme (eds. L. Hennebel and H. Tigroudja),
                     Paris, Pedone, 2009, pp. 7‑413 ; [Various Authors], Reparations for Victims of Genocide,
                     War Crimes and Crimes against Humanity — Systems in Place and Systems in the Making
                     (eds. C. Ferstman, M. Goetz and A. Stephens), Leiden, Nijhoff, 2009, pp. 217‑282.

                     171

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                     267 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tional law itself has been undergoing a continuous development in rela-
                     tion to reparation for war-related individual claims, traditionally regarded
                     as being subsumed by inter-State peace arrangements. From the nineties
                     onwards, there have been attempts to re-structure such classical approach
                     into the new line of the adjudication of individual claims by “regular
                     courts of law” 273. After all, the ultimate victims of violations of interna-
                     tional humanitarian law are individuals, not States.

                        246. Individuals subjected to forced labour in the German war indus-
                     try (1943‑1945), or the close relatives of those murdered in Distomo,
                     Greece, or in Civitella, Italy, in 1944, during the Second World War, or
                     victimized by other State atrocities, are the titulaires (with their ayants-
                     droits) of the corresponding right to reparation. Victims are the true bear-
                     ers of rights, including the right to reparation, as generally recognized
                     nowadays. Illustrations exist nowadays also in the domain of interna-
                     tional humanitarian law. A study of the International Committee of the
                     Red Cross (ICRC) on customary international humanitarian law rules 274
                     can be recalled in this connection. Rule 150 reads as follows : “A State
                     responsible for violations of international humanitarian law is required to
                     make full reparation for the loss or injury caused.” 275 As to, specifically,
                     the question of “reparation sought directly by individuals”, Rule 150
                     refers to “an increasing trend in favour of enabling individual victims of
                     violations of international humanitarian law to seek reparation directly
                     from the responsible State” 276.

                        247. Furthermore, the 2004 Report of the International Commission
                     of Inquiry on Darfur to the UN Secretary‑General, after asserting that
                     grave violations of human rights and of international humanitarian law
                     “can entail not only the individual criminal liability of the perpetrator but
                     also the international responsibility of the State (or State‑like entity) on
                     whose behalf the perpetrator was acting”, added that such international
                     responsibility requires that that “the State (or the State‑like entity) must
                     pay compensation to the victim” (para. 593).

                        273 R. Dolzer, “The Settlement of War-Related Claims : Does International Law Reco-

                     gnize a Victim’s Private Right of Action ? Lessons After 1945”, 20 Berkeley Journal of
                     International Law (2002), p. 296.
                        274 ICRC, Customary International Humanitarian Law (eds. J.‑M. Henckaerts and

                     L. Doswald-Beck), Vol. I : Rules, Geneva/Cambridge, Cambridge University Press, 2005,
                     esp. pp. 537‑550.
                        275 Ibid., p. 537 ; according to the appended summary, State practice establishes this

                     Rule as one of “customary international law applicable in both international and non-
                     international armed conflicts”.
                        276 Ibid., p. 541 ; in this regard, Rule 150 refers to Article 33 (2) of the ILC Articles on

                     State Responsibility and the commentary thereof, and asserts that reparations have been
                     granted directly to individual victims through different procedures, ranging from mecha-
                     nisms set up by inter‑State agreements to reparations sought by individuals directly before
                     national courts.

                     172

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                     268 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        248. After singling out the impact of international human rights law
                     on the domain of State responsibility, the 2004 Report stated that there is
                     nowadays “a strong tendency towards providing compensation not only
                     to States but also to individuals based on State responsibility” (p. 151,
                     note 217). The aforementioned Report of the Commission on Darfur
                     then concluded that, under the impact of the international law of human
                     rights,
                           “the proposition is warranted that at present, whenever a gross breach
                           of human rights is committed which also amounts to an international
                           crime, customary international law not only provides for the criminal
                           liability of the individuals who have committed that breach, but also
                           imposes an obligation on States of which the perpetrators are nation-
                           als, or for which they acted as de jure or de facto organs, to make
                           reparation (including compensation) for the damage made” (para. 598).
                       249. Reference can also be made to the legal regime of the Ethiopia‑
                     Eritrea Claims Commission : according to Article 5 (1) of the Agreement
                     of 12 December 2000 between the Governments of the State of Eritrea
                     and of the Federal Democratic Republic of Ethiopia, the Commission
                     was thereby set up in order
                           “to decide through binding arbitration all claims for loss, damage or
                           injury by one Government against the other, and by nationals (. . .)
                           of one party against the Government of the other party or entities
                           owned or controlled by the other party”.

                     Furthermore, the 2010 draft Declaration of International Law Principles
                     on Reparation for Victims of Armed Conflict (Substantive Issues), of the
                     ILA International Committee on Reparation for Victims of Armed Con-
                     flict, in addressing the right to reparation (under Article 6), acknowledges
                     the enhanced position of individuals in international human rights law,
                     and sees no reason why individuals were to have a weaker position under
                     the rules of international law applicable in armed conflicts.

                       250. In the same vein, the 2005 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 277, sets forth, in Article 15, the duty of States to pro-
                     vide for reparation to victims :

                              “In accordance with its domestic laws and international legal obli-
                           gations, a State shall provide reparation to victims for acts or omis-
                           sions which can be attributed to the State and constitute gross

                       277 Adopted and proclaimed by UN General Assembly resolution 60/147, of 16 Dec

                     ember 2005.

                     173

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                     269 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           violations of international human rights law or serious violations of
                           international humanitarian law.”
                     All these recent developments go beyond the strict and traditional
                     inter‑State dimension, in establishing the individuals’ right to reparation
                     as victims of grave violations of human rights and of international
                     humanitarian law.
                         251. It would appear odd, if not surreal, if the domain of State immu-
                     nity were to remain oblivious of such significant developments in recent
                     years. The titulaires of the right to reparation for those grave violations
                     are the individual victims who suffered them. As I sustained in my
                     dissenting opinion (para. 178) in this Court’s Order of 6 July 2010 (dis-
                      missing the Italian counter‑claim) in the present case concerning the
                      Jurisdictional Immunities of the State, States cannot at all waive rights
                      that do not belong to them. One cannot at all turn one’s back to signifi-
                      cant developments in areas of international law, such as those of the
                      international law of human rights and international humanitarian law, so
                      as to deprive the human person of its right to redress. This would lead to
                      manifest injustice.

                        252. It appears clearly to me without foundation to claim that the
                     regime of reparations for grave breaches of human rights and of interna-
                     tional humanitarian law would exhaust itself at inter‑State level, to the
                     detriment of the individuals who suffered the consequences of war crimes
                     and crimes against humanity. After all, those individuals are the titulaires
                     of the right to reparation, as a consequence of those grave violations of
                     international law inflicted upon them. An interpretation of the regime of
                     reparations as belonging purely to the inter‑State level would furthermore
                     equate to a complete misconception of the position of the individual in
                     the international legal order. In my own conception, “the human person
                     has emancipated herself from her own State, with the acknowledgement
                     of her rights, which are prior and superior to this latter” 278. Thus, the
                     regime of reparations for grave breaches of human rights and of interna-
                     tional humanitarian law cannot possibly exhaust itself at the inter‑State
                     level, wherein the individual is left at the end without any reparation
                     at all.
                        253. It is also to be kept in mind that national courts are not the only
                     avenue for victims to obtain redress for grave violations of human rights
                     and of international humanitarian law. There have been, in fact, other
                     avenues, in the international fora, for individuals to seek and obtain repa-
                     ration. These include Mixed Claims Tribunals and Commissions, and
                     quasi‑judicial bodies set up either by the UN Security Council, or by
                     peace treaties, or at the initiative of States or corporations, and “dormant
                        278 A. A. Cançado Trindade, The Access of Individuals to International Justice, Oxford

                     University Press, 2011, p. 209 ; A. A. Cançado Trindade, Evolution du droit international au
                     droit des gens — L’accès des individus à la justice internationale…, op. cit. supra note 243,
                     pp. 29 and 146.

                     174

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                     270 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     claims” arbitrations 279. Thus, national courts are one avenue for victims
                     to obtain redress, depending on the circumstances of the case, but they
                     are not the only one. In contemporary international law, national and
                     international courts are in increasingly closer contact with each other, in
                     distinct domains.

                        254. For example, in the protection of individual rights, where there is
                     a convergence between public domestic law and international law, they
                     are so, by means of the States’ duty, to provide effective local remedies 280.
                     In the realm of the law of regional integration, the preliminary ruling
                     procedure (e.g., as under Article 234 of the EC Treaty) affords another
                     example to the same effect. In international criminal law, the principle of
                     complementarity provides yet another illustration. And the examples
                     multiply, disclosing ultimately the unity of the law. In fact, what ulti-
                     mately matters is the realization of justice at national and international
                     levels. After all, international crimes are not acts jure imperii, they remain
                     crimes irrespective of who committed them ; they are grave breaches of
                     human rights and of international humanitarian law which require repa-
                     rations to the victims ; claims of State immunity cannot do away with the
                     State’s duty to provide reparation to the individual victims.

                        255. In effect, the acknowledgment of the individual’s right to repara-
                     tion (corresponding to that obligation of the State), as a component of
                     the individual’s right of access to justice lato sensu — with judicial recog-
                     nition nowadays from both the IACtHR and the ECHR — becomes even
                     more compelling in respect of grave violations of human rights and of inter‑
                     national humanitarian law, like the ones which form the factual back-
                     ground of the present case relating to the Jurisdictional Immunities of the
                     State before this Court. Immunities can hardly be considered in a legal
                     vacuum. From the very start of the present case, in the written phase of
                     the proceedings, up to the conclusion of the oral phase, the punctum pru‑
                     riens of a major difference between the contending Parties was precisely
                     the counterposition of State immunities to the State’s duty to provide
                     reparation to those victimized by grave violations of human rights and of
                     international humanitarian law.
                        256. Germany’s thesis, clearly expounded in its Memorial, is that
                     “Italy is bound to abide by the principle of sovereign immunity which
                     debars private parties from bringing suits against another State before the
                     courts of the forum State” (para. 47). In its view, “Italy cannot rely on

                         279 Cf., e.g., E.‑C. Gillard, “Reparation for Violations of International Humanitarian

                     Law”, 85 International Review of the Red Cross (Sept. 2003), note 851, pp. 539‑545 ; and
                     cf., generally, [Various Authors], Redressing Injustices through Mass Claims Processes —
                     Innovative Responses to Unique Challenges, Oxford University Press/PCA, 2006, pp. 3‑425.

                         280 A. A. Cançado Trindade, “Exhaustion of Remedies in International Law and the

                     Role of National Courts”, 17 Archiv des Volkerrechts, Tübingen (1977‑1978), pp. 333‑370.

                     175

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                     271 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     any justification for disregarding the immunity which Germany enjoys
                     under that principle” (para. 47). Contrariwise, Italy’s thesis, as expounded
                     in its Counter‑Memorial, is that
                           “the State which has committed grave violations of fundamental rules
                           cannot be regarded as being entitled to invoke immunity for its
                           wrongful acts, even if these acts are to be qualified as acta jure imperii.
                           If granted, immunity would amount to an absolute denial of justice
                           for the victims and to impunity for the State.” (Para. 4.110.)

                     In its view,
                           “[t]he international legal order cannot, on the one hand, establish that
                           there are some fundamental substantive rules, which cannot be dero-
                           gated from and whose violation cannot be condoned, and on the other
                           hand grant immunity to the author of violations of these fundamen-
                           tal rules in situations in which it is clear that immunity substantially
                           amounts to impunity” (para. 4.111).
                        257. Consideration of this matter — the State’s duty to provide repa-
                     ration to individual victims of grave violations of human rights and of
                     international humanitarian law — cannot possibly be avoided. It is a
                     State’s duty under customary international law and pursuant to a funda-
                     mental general principle of law. This brings me now to the issue of com-
                     pliance or otherwise, by the responsible State, with the duty to provide
                     reparation to the victims — referred to by Italy — for those grave viola-
                     tions which took place in the Second World War. The following points
                     will be addressed in sequence : first, the categories of victims in the cas
                     d’espèce ; secondly, the legal framework of the “Remembrance, Responsi-
                     bility and Future” Foundation (2000) ; and thirdly, assessment of the sub-
                     missions of the contending Parties.

                                    2. The Categories of Victims in the Cas d’Espèce
                       258. According to Italy, there are three categories of victims of the
                     aforementioned violations 281, entitled to receive reparation, namely :
                           “(i) soldiers who were imprisoned, denied the status of prisoners of
                           war, and sent to forced labour [the so‑called ‘Italian military intern-
                           ees’] ; (ii) civilians who were detained and transferred to detention
                           camps where they were sent to forced labour ; (iii) civilian popula-
                           tions who were massacred as part of a strategy of terror and reprisals
                           against the actions of freedom fighters” 282.

                         281 Germany also classifies the victims into the three categories described by Italy ;

                     cf. Memorial of Germany, para. 13.
                         282 Counter-Memorial of Italy, para. 2.8.

                     176

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                     272 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        259. Italy contends that “none, or very few, of them has obtained [rep-
                     aration] so far” 283. Italy further argues, with regard to Mr. Ferrini in par-
                     ticular, that he belongs to the category of (ii) civilians who were detained
                     and transferred to detention camps to be used as forced labour 284. While
                     Mr. Ferrini had already initiated proceedings before the Tribunale di
                     Arezzo in 1998, he also sought to obtain reparation from German author-
                     ities. Italy claims that Mr. Ferrini decided not to submit a request for
                     compensation under the law of 2 August 2000 (establishing the “Remem-
                     brance, Responsibility and Future” Foundation) “since he had not
                     been detained in ‘another place of confinement’ within the meaning of
                     Section 11, paragraph 1 of the Foundation Act and was furthermore not
                     in a position to demonstrate that he met the requirements as set up by the
                     guidelines of the Foundation” 285.

                        260. Italy adds that “[i]n 2001 Mr. Ferrini, together with other com-
                     plainants, also lodged a constitutional complaint against Sections 10,
                     paragraph 1, 11, paragraph 3, and 16, paragraphs 1 and 2 of the Founda-
                     tion Law with the Federal Constitutional Court” and that “[t]his com-
                     plaint was later rejected by the Federal Constitutional Court” 286. Keeping
                     this background information in mind, attention may now be turned to the
                     legal framework of the “Remembrance, Responsibility and Future” Foun-
                     dation, established in 2000.

                               3. The Legal Framework of the “Remembrance, Responsibility
                                             and Future” Foundation (2000)
                        261. In the years 1999‑2000, Germany conducted diplomatic negotia-
                     tions with a number of States — which formerly were belligerent parties
                     in the Second World War — concerning reparation for individuals who
                     had, during the war, been subjected to forced labour in German compa-
                     nies and in the public sector 287. According to Italy, those negotiations
                     were triggered by lawsuits brought by former forced labourers against
                     German companies in US courts, and, against that background, Ger-

                        283   Counter-Memorial of Italy, para. 2.8.
                        284   In Italy’s words :
                                 “War crimes were widely committed against the civilian population, and thou-
                              sands of civilians of military age, among them Mr. Ferrini, Mr. Mantelli, and
                              Mr. Maietta (whose cases are referred to by the Applicant in its Memorial), were also
                              transferred to detention camps in Germany, or in territories controlled by Germany,
                              where they were employed as forced labour as another form of retaliation against the
                              Italian civilian population.” (Ibid., para. 2.7.)
                        285 Ibid., para. 2.43 (note 43). Cf. summary of facts reported in Associazione Nazio‑

                     nale Reduci dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (ANRP) and
                     275 Others v. Germany, p. 5 (Annex 10 to Italy’s Counter‑Memorial).
                        286 Counter-Memorial of Italy, para. 2.43 (note 43).
                        287 Ibid., para. 2.27. And cf., generally, J. Authers, op. cit. supra note 230, pp. 420‑449.

                     177

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                     273 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     many and the United States concluded an agreement that envisaged the
                     establishment of a mechanism for addressing reparation claims of former
                     forced labourers 288.
                        262. Upon the conclusion of such agreement, on 2 August 2000 a Ger-
                     man federal law was adopted, setting up the “Remembrance, Responsi-
                     bility and Future” Foundation 289. The purpose of the Foundation was to
                     make funds available to persons who had been victims of forced labour
                     “and other injustices from the National Socialist period” (Article 2 (1) of
                     the Foundation Law). The Foundation did not provide reparation
                     directly to individuals defined by the Foundation Law, but rather to
                     so‑called “partner organizations”, which received specified global
                     amounts (Article 9 of the Foundation Law) 290.
                        263. The categories of persons entitled to receive reparation, according
                     to the Article 11 of the Foundation Law, were thus defined : (a) individu-
                     als “detained in a concentration camp, or in another prison or camp, or
                     in a ghetto under comparable conditions, and subjected to forced labour”
                     (Art. 11 (1)) ; (b) individuals “deported from their home country to Ger-
                     many in the borders of 1937, or a territory occupied by Germany, and
                     subjected to forced labour in a private company or in the public sector,
                     and (. . .) detained (. . .) or subjected to particularly bad conditions of
                     life” (Art. 11 (2)) ; and (c) it was expressly stated — importantly for the
                     proceedings of the present case — that the status of a prisoner of war
                     does not give entitlement to payments or benefits under the Law
                     (Art. 11 (3)) 291.

                       264. Thus, although the Foundation Law was intended specifically to
                     cover categories of victims who were left out of other German reparation
                     arrangements, the Article 11 (3) of the Foundation Law expressly
                     excluded prisoners of war, stating that “[e]ligibility cannot be based on
                     prisoner‑of‑war status”. As to the scope of this provision, it has been
                     pointed out that, in the official commentary of the Foundation Law,

                             “the Federal Government explained the exclusory clause as follows :

                                  ‘Prisoners of war subjected to forced labour are in principle not
                               entitled to payments because the rules of international law allowed
                               a detaining power to enlist prisoners of war as workers. However,

                       288  Counter-Memorial of Italy, para. 2.27.
                       289  Hereinafter referred to as “the Foundation”.
                        290 Cf. B. Fassbender, “Compensation for Forced Labour in World War II : The

                     German Compensation Law of 2 August 2000”, 3 Journal of International Criminal Justice
                     (2005), pp. 244‑245 ; cf. also, Counter-Memorial of Italy, paras. 2.27‑2.28.
                        291 Cf. B. Fassbender, “Compensation for Forced Labour in World War II...”, op. cit.

                     supra note 290, p. 246.

                     178

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                     274 	jurisdictional immunities of the state (diss. op. cançado trindade)

                                 persons released as prisoners of war who were made ‘civilian wor-
                                 kers’ (Zivilarbeiter) can be entitled under the [Foundation Law] if
                                 the other requirements are met.’

                                 However, in ‘guidelines’ adopted in August 2001 in agreement with
                              the Federal Ministry of Finance, the Board of the Foundation further
                              limited the exclusionary effect of the clause by determining that ‘pris-
                              oners of war who have been taken to a concentration camp’ are not
                              excluded from benefits under the Statute ‘because in this case special
                              discrimination and mistreatment on account of the National Socialist
                              ideology is relevant, and imprisonment in a concentration camp can-
                              not be regarded as a general wartime fate (. . .)’.” 292

                       265. Against this background, an expert opinion (by C. Tomuschat)
                     concerning the issue of the entitlement of “Italian military internees” to
                     reparation under the Foundation Law 293 cannot pass unnoticed here.
                     Such expert opinion advised the German Government that, although
                     Germany treated persons that were to be given the status of prisoners of
                     war (POWs) as forced labourers, their status was actually that of prison-
                     ers of war. In the words of the expert opinion, the “Italian military intern-
                     ees” “possessed, up until their final liberation after the end of the Second
                     World War, POW status in accordance with the rules of international
                     law, although the German Reich massively infringed this status. Accord-
                     ingly, the exclusion clause [Article 11 (3) of the Foundation Law] can in
                     principle be applied to them” 294.

                        266. Thus, the expert opinion prioritized the military internees’ de jure
                     status — a status (with all the rights attached to it) which was in fact
                     denied to them — over their de facto treatment. On the basis of the advice
                     provided by the aforementioned expert opinion, many victims fell under
                     the exception of Section 11 (3) of the Foundation Law (supra) and were
                     thus excluded from that reparation scheme. Against this background,
                     Italy submits that, since the year 2000, “thousands of [Italian military
                     internees] and Italian civilians subjected to forced labour had lodged
                     requests for compensation” on the basis of the Foundation Law and
                     those requests “were almost all rejected”. It adds that
                              “[i]n 2003, German administrative courts had dismissed the lawsuits
                              filed by a certain number of [Italian military internees]. With the sole
                              exception of the Ferrini case, all the claims submitted before Italian

                        292Op. cit. supra note 290, p. 246.
                        293Counter-Memorial of Italy, Annex 8.
                        294The expert opinion concluded, however, that a different assessment should be given
                     concerning “Italian military internees”, who, in addition to the violation of their prisoner
                     of war status, suffered measures of racist persecution.

                     179

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                     275 	jurisdictional immunities of the state (diss. op. cançado trindade)

                           courts were filed starting from 2004. At that time it was already evi-
                           dent that Italian forced labourers had no possibility of obtaining
                           redress from German authorities.” 295

                        267. In my understanding, it is regrettable that the “Italian military
                     internees” were actually precluded from obtaining reparation on the basis
                     of a status which they were de facto denied. This was precisely one of the
                     many violations committed by Nazi Germany against those persons : the
                     denial of their right, under international law, to be treated as prisoners of
                     war. Relying on this violation to commit yet another violation — the
                     denial of reparation — amounts to, as Italy puts it, “a Kafkaesque black
                     hole of law” 296, and amounts to a double injustice 297.

                              4. Assessment of the Submissions of the Contending Parties
                        268. May I now turn to the arguments of the contending Parties con-
                     cerning the issue of the reparations due to the victims referred to by Italy,
                     put forward by them in the written and oral phases of the proceedings
                     before the Court in the present case. The materials and submissions of
                     Germany do not generally address which specific victims have in fact
                     received reparation. While Germany does not provide a full account of
                     the reparations it paid after 1945 by stating that “[t]his is not the place to
                     provide a complete balance sheet of all the reparations which the Allied
                     Powers received from Germany after 1945”, it nevertheless argues that,
                     under the two 1961 Agreements between Germany and Italy, “consider-
                     able payments were made to Italy” 298; it adds that it made payments to
                     Italy “on grounds of equity”, despite the waiver clause of the Peace
                     Treaty 299.
                        269. The more telling submission of Germany is when it clearly admits
                     that the “Italian military internees” have not received reparation on the
                     basis of an interpretation given of the Foundation Law :

                         295 Counter-Memorial of Italy, para. 2.43. The assertion that Italian military internees

                     have not received reparation for their forced labour is also found in expert writing ;
                     cf. R. Buxbaum, “German Reparations after the Second World War”, 6 African-American
                     Law and Policy Report (2004), p. 39.
                         296 CR 2011/18, p. 33, para. 28.
                         297 It has been pointed out, in this connection, that “[t]he Italians were not prisoners of

                     war who happened also to be subjected to forced labour. Instead, the exploitation of their
                     labour force was the principal reason for their continued detention in Germany” (B. Fass-
                     bender, “Compensation for Forced Labour in World War II . . .”, op. cit. supra note 290,
                     p. 251). Furthermore, “the living conditions of the Italians were worse than those of the
                     Western Allied soldiers captured by Germany. In particular, Italian detainees suffered
                     from poor nourishment.” In a third period, between August 1944 and the end of the war,
                     the detained Italian soldiers were given the status of “civilian workers” (Zivilarbeiter) in
                     order to “exploit their manpower in a more efficient way” (ibid., p. 244, note 2).
                         298 Reply of Germany, paras. 30‑33.
                         299 Ibid., para. 33.

                     180

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                     276 	jurisdictional immunities of the state (diss. op. cançado trindade)

                                “It is only after the adoption of the 2000 German law on the
                             ‘Remembrance, Responsibility and Future’ Foundation that Italy
                             made representations to Germany on account of the exclusion of the
                             Italian military internees (‘IMIs’) from the scope ratione personae of
                             that law. As prisoners of war, this group of persons was not taken into
                             account for the purposes of that belated reparation scheme.” 300

                        270. For its part, in its written submissions, Italy notes that “[a] very
                     large number of victims remained uncovered” by the two 1961 Agree-
                     ments between Germany and Italy and “has never received appropriate
                     reparation” 301. While Italy recognizes that Germany has adopted and
                     implemented, over the past decades, a number of measures in order to
                     address the reparation claims from victims of war atrocities, and notes
                     that two important pieces of legislation (the Federal Compensation Law
                     of 1953 and the Foundation Law of 2 August 2000) were adopted, it adds
                     that, nevertheless, neither provided an effective legal avenue for Italian
                     victims to obtain reparation 302. In this regard, Italy argues that under the
                     1953 federal compensation law, foreign nationals were generally excluded
                     from compensation, and that, with regard to the Foundation Law :

                             “while more than 130,000 Italian forced labourers lodged requests for
                             compensation under the law of 2 August 2000, the great majority of
                             such requests (more than 127,000) were rejected because of the unduly
                             strict requirements for compensation set under that law” 303.

                       271. Italy also claims that
                             “the measures adopted so far by Germany (both under the relevant
                             agreements as well as in unilateral acts) have proved insufficient, in
                             particular because such measures did not cover several categories of
                             victims such as the Italian military internees and the victims of mas-
                             sacres perpetrated by German forces during the last months of the
                             Second World War.” 304
                     For its part, Germany does not make reference to specific victims, and,
                     instead, only argues generally that “reparations were made” through “a
                     comprehensive scheme for all countries concerned and covering all war
                     damages” 305.
                       272. Germany also recalls the lump‑sum payments made to Italy
                     and Greece, and claims that “[r]oughly 3,400 Italian civilians were com-

                       300 Reply of Germany, para. 13 (emphasis added).
                       301 Counter-Memorial of Italy, para. 2.18.
                       302 Ibid., paras. 2.20‑2.21.
                       303 Ibid., para. 2.21.
                       304 Ibid., para. 7.9.
                       305 CR 2011/20, pp. 11‑12.

                     181

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                     277 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     pensated for their forced labour by the “Remembrance, Responsibility
                     and Future” Foundation, and that “roughly 1,000 Italian military intern-
                     ees were awarded compensation for forced labour under the Foundation
                     scheme” 306. As to this latter group of victims, Germany argues that
                     it “decided to make ex gratia payments to former forced labourers in the
                     year 2000”, but then admits that “prisoners of war were not included in
                     this specific scheme” ; only “those military internees who had also been
                     subjected to racial and/or ideological persecution were entitled to
                     payments” 307.

                        273. It ensues, from the aforementioned submissions, that not all “Ital-
                     ian military internees” were provided reparations, but only those who
                     had also been victims of “racial and/or ideological persecution” 308. Italy
                     retorts to this argument of Germany by arguing that the issue underlying
                     the present dispute does not concern those latter victims, but rather
                     hinges upon the “obligation to make reparation for war crimes commit-
                     ted against several thousands of Italian victims that have not received any
                     reparation, as indirectly admitted by Germany” 309. Italy thus concludes
                     that “there is plain and unrestricted recognition of the fact that the rest of
                     the victims — in other words, those who were not victims of persecution,
                     and these represent the vast majority — remained totally unsatisfied” 310.

                        274. As already pointed out, at the end of the oral hearings before the
                     Court of 16 September 2011, one of the questions I put to the contending
                     Parties aimed at clarifying this particular factual issue : I then asked
                     whether “the specific Italian victims to whom the Respondent refers effec-
                     tively received reparation”, and, if they have not received reparation,
                     whether “they are entitled to it and how can they effectively receive it, if
                     not through national proceedings” 311. The responses of the contending
                     Parties to this question served to clarify their respective positions on the
                     matter at issue.
                        275. Germany, for its part, seemed to evade the question by referring
                     to the Court’s Order of 6 July 2010 (counter-claim) and by arguing
                     that “the question of whether reparations related to World War II
                     are still due or not is not the subject-matter of the proceedings before
                     the Court” 312. It also affirmed that the reparation scheme for the Sec-

                       306  CR 2011/20, pp. 12‑13.
                       307  Ibid., p. 13, para. 10.
                        308 To whom Italy has already recognized that reparations were made, cf. CR 2011/21,

                     p. 25, para. 33.
                        309 Ibid.
                        310 Ibid., p. 26, para. 35.
                        311 Ibid., p. 54.
                        312 Written Response of Germany to the Questions Put by (. . .) Judge Cançado Trin-

                     dade (. . .) at the End of the Public Sitting Held on 16 September 2011, p. 3.

                     182

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                     278 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ond World War was a classic inter-State and comprehensive 313 regime,
                     and further argued that those victims who consider to have a claim
                     against Germany can institute proceedings in German courts 314. Ger-
                     many thus shed no light into the factual question of whether or not those
                     specific victims have received reparations ; it appeared to evade this ques-
                     tion by relying, somewhat equivocally, on the Court’s Order of 6 July
                     2010 (counter‑claim).

                        276. Italy, for its part, provided a clear answer to this specific question,
                     in affirming unambiguously that “[n]one of the categories of victims
                     referred to in the cases underlying the present dispute has received
                     reparation” 315. It added that some categories of victims were never able
                     to claim compensation because no mechanism was put in place while oth-
                     ers have been trying to obtain compensation for a decade without any
                     success. Italy further argues that there is strong reluctance on Germany’s
                     part to conclude an agreement aimed at making reparation to these cat-
                     egories of victims. It also claimed that the question of reparation for the
                     Italian military internees was addressed by the Italian Ambassador in
                     Berlin during discussions on the possibility of compensation by the Foun-
                     dation 316.
                        277. Italy also submitted that, at the moment, there is no other alter-
                     native than national proceedings for these categories of victims to receive
                     reparation. Italy argued that had domestic judges not removed immunity,
                     no other avenue would have remained open for war crime victims to
                     obtain reparation 317. In its comments on Germany’s written reply to my
                     question, Italy further claimed that Germany’s arguments make it clear
                     that no reparation has been made to numerous Italian victims of war
                     crimes, as its refusal to make reparation was grounded on the argument
                     that it had been relieved of the obligation to make reparation on the basis
                     of the waiver clause of Article 77 of the 1947 Peace Treaty 318. Germany

                          313 Italy takes issue with Germany’s statement that the reparation regime set up for the

                     Second World War was “comprehensive”. Italy argues that Germany itself, both in its written
                     and oral submissions, admitted that reparations made in relation to Italian victims of war
                     crimes were only “partial”. Italy further contends that the 1961 Agreement only provided for
                     reparations for victims of persecution. Thus, Italy submits that the characterization of the
                     reparation scheme as “comprehensive” cannot be accurate, in particular concerning Italian
                     victims of war crimes. Comments of Italy on Germany’s Written Reply to the Questions Put
                     by (. . .) Judge Cançado Trindade and on Greece’s Written Reply to the Question Put by
                     Judge Cançado Trindade at the Public Sitting Held on 16 September 2011, pp. 1‑2.
                          314 Written Response of Germany to the Questions Put by (. . .) Judge Cançado Trin-

                     dade (. . .) at the End of the Public Sitting Held on 16 September 2011, p. 3.
                          315 Written Response of Italy to the Questions Put by (. . .) Judge Cançado Trindade

                     (. . .) at the End of the Public Sitting Held on 16 September 2011, p. 9.
                          316 Op. cit. supa note 315, pp. 9‑10.
                          317 Ibid.
                          318 Comments of Italy on Germany’s Written Reply to the Question Put by (. . .)

                     Judge Cançado Trindade and on Greece’s Written Reply to the Question Put by
                     Judge Cançado Trindade at the Public Sitting Held on 16 September 2011, p. 2.

                     183

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                     279 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     did not contest Italy’s clear assertion that “[n]one of the categories of
                     victims referred to in the cases underlying the present dispute has received
                     reparation” 319; in its comments to Italy’s response to my question, Ger-
                     many had an opportunity to rebut this statement and set the record
                     straight. Yet, it remained silent to this strong statement 320, and this
                     should not pass unnoticed.

                        278. As already indicated, the question of whether reparations have or
                     have not been paid has to be assessed in light of the records before the
                     Court ; both Parties have been given ample opportunity to clarify this
                     issue in their written and oral proceedings. They have further been
                     requested by me to provide a clear answer to a simple factual question.
                     Italy did so ; Germany evaded this question, arguing that the issue of rep-
                     arations is excluded from the present dispute by virtue of the Court’s
                     Order of 6 July 2010 (counter‑claim). This is far from convincing ; had it
                     provided a clear answer to my question, it would have assisted the Court
                     to clarify further this factual question. On the basis of the foregoing, it
                     appears, from the materials submitted by the contending Parties, together
                     with their submissions, that the specific victims referred to in Italy’s recent
                     case law have not in fact received reparation.
                        279. In conclusion on the matter at issue, the records before the Court
                     show that Italy has repeatedly claimed in the present proceedings that
                     none of the victims referred to in Italy’s recent case law received repara-
                     tion. This is its basic argument, on which its case rests. Germany had
                     ample opportunity, in its written and oral submissions, as well as in its
                     responses and further comments to the questions I put to both contend-
                     ing Parties (supra), to rebut this argument. It did not provide evidence of
                     reparation made to these specific victims, and, instead, limited its argu-
                     ments to general references of payments, while admitting that “Italian
                     military internees” were left outside the scope of the scheme of the
                     “Remembrance, Responsibility and Future” Foundation.

                        280. In sum, and as already indicated, on the basis of an expert opin-
                     ion (by C. Tomuschat), Germany did not make reparation to Italian pris-
                     oners of war used as forced labourers (“Italian military internees”)
                     through the Foundation. It resorted to an appraisal which led to a treat-
                     ment of those victims that incurs, in my understanding, into a double
                     injustice to them : first, when they could have benefited from the rights
                     attached to the status of prisoners of war, such status was denied to them ;
                     and secondly, now that they seek reparation for violations of interna-
                     tional humanitarian law of which they were victims (including the viola-

                          319 Written Response of Italy to the Questions Put by (. . .) Judge Cançado Trindade

                     (. . .) at the End of the Public Sitting Held on 16 September 2011, p. 9.
                          320 Comments of Germany on Italy’s Written Reply to the Question Put by (. . .)

                     Judge Cançado Trindade and on Greece’s Written Reply to the Question Put by
                     Judge Cançado Trindade at the Public Sitting Held on 16 September 2011, pp. 1‑2.

                     184

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                     280 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     tion of denying them the status of prisoners of war), they are seen to be
                     treated as prisoners of war.
                        281. It is regrettably too late to consider them prisoners of war (and,
                     worse still, to deny them reparation) : they should be so considered during
                     the Second World War and in its immediate aftermath (for the purpose of
                     protection), but they were not. These are the uncontested and the distress-
                     ing facts. On the basis of the foregoing, it can thus at last be concluded,
                     on the basis of the records before the Court, that many victims of Nazi
                     Germany’s grave violations of human rights and of international human-
                     itarian law have in fact been left without reparation.

                           XXV. The Imperative of Providing Reparation to Individual
                                 Victims of Grave Violations of Human Rights
                                   and of International Humanitarian Law

                                1. The Realization of Justice as a Form of Reparation
                        282. In my understanding, it is imperative that reparation is provided
                     to the individual victims of the grave violations of human rights and of
                     international humanitarian law at issue in the cas d’espèce. The individual
                     victim’s right to reparation is ineluctably linked to the grave violations of
                     human rights and of international humanitarian law that they suffered. In
                     the present case concerning the Jurisdictional Immunities of the State, the
                     contending claims of war reparations and State immunities could not at
                     all have been dissociated, and certainly not at all in the way they were
                     by the Court’s Order of 6 July 2010, summarily dismissing the Italian
                     counter-claim. That decision was taken by the Court (with my firm
                     dissent), without a public hearing, and on the basis of two succinct para-
                      graphs (28 and 29) containing, each of them, a petitio principii, simply
                      begging the question 321.

                        283. Notwithstanding, as I have pointed out in the present dissenting
                     opinion (paras. 18‑23 supra), the contending Parties, Germany and Italy,
                     kept on referring to the factual and historical background of the cas
                     d’espèce, in advancing their opposite views on State immunities. This was
                     not surprising, as claims of State immunities and war reparations, in the
                     circumstances of the present case, go inevitably together, as the two faces
                     of the same coin. This is one of the many lessons to be extracted from the
                     present case. Its factual background confirms that, whenever a State
                     sought to stand above the law, abuses were committed against human
                        321 Cf. Judgment No. 2867 of the Administrative Tribunal of the International Labour

                     Organization upon a Complaint Filed against the International Fund for Agricultural
                     Development, I.C.J. Reports 2012 (I), separate opinion of Judge Cançado Trindade,

                     p. 91, para. 111.

                     185

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                     281 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     beings 322, including grave violations of human rights and of international
                     humanitarian law.
                       284. The rule of law (état de droit) implies restrictions imposed upon
                     the power of the State by the law, as no State stands above this latter ; the
                     rule of law seeks to preserve and guarantee certain fundamental values, in
                     the line of natural law thinking. Whenever those values are forgotten, in
                     the mounting of a State apparatus of oppression leading to systematic
                     and grave violations of human rights and of international humanitarian
                     law, law reacts. And the realization of justice, which takes place also to
                     put an end to impunity, in my view constitutes by itself a relevant form of
                     reparation (satisfaction) to the victims.

                               2. Reparation as the Reaction of Law to Grave Violations
                        285. It indeed resembles a reaction of the law to the extreme violence
                     victimizing human beings. We enter here into the domain of jus cogens
                     (cf. infra) ; law reacts to assert its primacy over brute force, to seek to
                     regulate human relations according to the precepts of the recta ratio (of
                     natural law), and to mitigate human suffering. Hence the imperative of
                     having justice done, and of providing reparation to the victims. In his
                     work L’Ordinamento Giuridico (originally published in 1918), the Italian
                     jusphilosopher Santi Romano sustained that sanction is not circum-
                     scribed to specific legal norms, but is rather immanent to the juridical
                     order as a whole, operating as an “effective guarantee” of all the subjec-
                     tive rights set forth therein 323. In face of the acts of extreme violence vic-
                     timizing human beings, violating fundamental rights inherent to them,
                     the legal order (national and international) reacts, so as to secure the pri-
                     macy of justice and to render viable the reparation (satisfaction) to the
                     victims.
                        286. I had the occasion, one decade ago, to dwell upon this particular
                     point, in the adjudication of a case in another international jurisdiction
                     (the IACtHR). I then pointed out that the law, emanating ultimately from
                     human conscience and moved on by this latter, comes to provide the repa‑
                     ratio (from the Latin term reparare, “to dispose again”) ; and law inter-
                     venes, moreover, to guarantee the non-repetition of the harmful acts 324.
                     The reparatio does not put an end to the human rights violations already
                     perpetrated 325, but it at least avoids the aggravation of the harm already
                     done (by the indifference of the social milieu, by impunity or by oblivion).

                        322 E. Cassirer, El Mito del Estado, op. cit. supra note 191, pp. 311‑319 ; A. Ross, Sobre

                     el Derecho y la Justicia, 2nd ed., Buenos Aires, Eudeba, 1997, pp. 314‑315.
                        323 Santi Romano, L’ordre juridique (transl., 2nd ed.), Paris, Dalloz, 2002 (reed.), p. 16.
                        324 IACtHR, case Bulacio v. Argentina (judgment of 18 September 2003), separate

                     opinion of Judge Cançado Trindade, para. 35.
                        325 Human capacity of both promoting the common good and to commit evil has

                     not ceased to attract the attention of human thinking throughout the centuries ; cf., e.g.,
                     F. Alberoni, Las Razones del Bien y del Mal, Mexico, Gedisa Edit., 1988, pp. 9‑196 ;
                     A.‑D. Sertillanges, Le problème du mal, op. cit. supra note 253, pp. 5‑412.

                     186

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                     282 	jurisdictional immunities of the state (diss. op. cançado trindade)

                       287. Under this outlook, the reparatio is endowed, in my understand-
                     ing, with a double meaning, as I stated on that occasion, namely :
                           “it provides satisfaction (as a form of reparation) to the victims, or
                           their relatives, whose rights have been violated, at the same time that
                           it re-establishes the legal order broken by such violations — a legal
                           order erected on the full respect for the rights inherent to the human
                           person. The legal order, thus re-established, requires the guarantee of
                           non-repetition of the harmful acts (. . .).
                              The reparatio disposes again, reorganizes the life of the victimized
                           survivors, but it does not manage to eliminate the pain which is
                           already ineluctably incorporated to their day-to-day existence. The
                           loss is, from this angle, rigorously irreparable. Yet, the reparatio is an
                           inescapable duty of those who have the responsibility to impart jus-
                           tice. In a stage of greater development of human conscience, and thus
                           of law itself, it is beyond doubt that the realization of justice over-
                           comes every and any obstacle, including those ensuing from the abu-
                           sive exercise of rules or institutes of positive law, thus rendering
                           imprescriptible the grave breaches of human rights (. . .). The repara‑
                           tio is a reaction, at the level of the law, to human cruelty, manifested
                           in the most diverse forms : the violence in the treatment of fellow
                           human beings semejantes, the impunity of those responsible on the
                           part of the public power, the indifference and oblivion of the social
                           milieu.
                              This reaction of the broken legal order (the substratum of which is
                           precisely the observance of human rights) is moved, ultimately, by the
                           spirit of human solidarity (. . .). The reparation, thus understood,
                           encompassing, in the framework of the realization of justice, the sat-
                           isfaction to the victims (or their relatives) and the guarantee of
                           non-repetition of the harmful acts, (. . .) is endowed with undeniable
                           importance. The rejection of the indifference and oblivion, and the
                           guarantee of non‑repetition of the violations, are manifestations of
                           the links of solidarity between those victimized and those who can be
                           so, in the violent world, devoid of values, wherein we live. This is,
                           ultimately, an eloquent expression of the links of solidarity that unite
                           the living to their dead 326. (. . .)” 327

                                          XXVI. The Primacy of Jus Cogens :
                                          A Rebuttal of Its Deconstruction

                       288. This leads me to my last line of considerations. In the present dis-
                     senting opinion, I have already expressed my firm opposition to the pos-
                        326 On these links of solidarity, cf. my separate opinions in the case Bámaca Velásquez

                     v. Guatemala (judgments of the IACtHR on the merits, of 25 November 2000, and on
                     reparations, of 22 February 2002).
                        327 IACtHR, case Bulacio v. Argentina (judgment of 18 September 2003), separate

                     opinion of Judge Cançado Trindade, paras. 36 and 38‑40.

                     187

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                     283 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ture of stagnation in respect of jus cogens whenever claims of State
                     immunity are at stake (paras. 224-227 supra). In fact, in this and other
                     respects (methodology, approach adopted and pursued, reasoning, con-
                     clusions), there seems to be an abyss separating my own position from
                     that of the Court’s majority in the present case concerning the Jurisdic‑
                     tional Immunities of the State. In laying the foundations of my own per-
                     sonal position on the issues dealt with in the present Judgment, may I
                     now concentrate my dissenting opinion, at last, on one point which is
                     particularly dear to me : the consolidation and primacy of jus cogens in
                     international law. In effect, without the primacy of jus cogens, interna-
                     tional law would have a grim future. I could not accept that, as all hope
                     for a better future would then vanish.
                        289. I am a surviving Judge from the painful international adjudica-
                     tion of a cycle of cases of massacres that recently reached a contemporary
                     international tribunal, the IACtHR, during which I was in contact with
                     the most somber side of human nature. Now that those cases have been
                     decided, and belong to the history of contemporary international law
                     (and in particular the international law of human rights), I have orga-
                     nized my memories of that experience 328, so that present and future gen-
                     erations of scholars of the law of nations (droit des gens) may perhaps
                     benefit from the lessons I have extracted therefrom. It is not my intention
                     to recollect those lessons in the present dissenting opinion, but only and
                     briefly to refer to them and to point out that, in my view, one cannot
                     approach cases of the kind involving grave breaches of human rights and
                     of international humanitarian law — without close attention to funda‑
                     mental human values. Unlike what legal positivism assumes, law and eth-
                     ics go ineluctably together, and this should be kept in mind for the faithful
                     realization of justice, at national and international levels.

                        290. The invocation of “elementary considerations of humanity” 329
                      cannot be rhetorical, failing to guard coherence in not anticipating nor
                      addressing the consequences of the application of those considerations in
                      practice. Moreover, one should not pursue a very restrictive view of
                      opinio juris 330, reducing it to the subjective component of custom and
                     distancing it from the general principles of law, up to a point of not tak-
                      ing account of it at all 331. In the present case, the “acts committed on the

                        328 A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional — Memo‑

                     rias de la Corte Interamericana de Derechos Humanos, op. cit. supra note 256, pp. 1‑340 ;
                     and cf. also A. A. Cançado Trindade, State Responsibility in Cases of Massacres : Contem‑
                     porary Advances in International Justice (Inaugural Address, 10 November 2011), Utrecht,
                     Universiteit Utrecht, 2011, pp. 1‑71 ; A. A. Cançado Trindade, “Die Entwicklung des
                     interamerikanischen Systems zum Schutz der Menschenrechte”, 70 Zeitschrift für auslän‑
                     disches öffentliches Recht und Völkerrecht (2010), pp. 629‑699, esp. pp. 695‑699.
                        329 Cf. Judgment, para. 52.
                        330 Cf. ibid., para. 55.
                        331 Cf. ibid., para. 78.

                     188

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                     284 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     territory of the forum State by the armed forces of a foreign State” 332
                     (as the Court depicts them), are “acts” the illegality of which has been
                     recognized by the responsible State itself, Germany, “at all stages of the
                     proceedings” 333 of the present case. They are not acta jure imperii 334, as
                     the Court repeatedly characterizes them ; they are unlawful acts,
                     delicta imperii, atrocities, international crimes of the utmost gravity,
                     engaging the responsibility of the State and of the individuals that perpe-
                     trated them. The traditional distinction between acts jure imperii and jure
                     gestionis, as I have already indicated, is immaterial here, in a case of the
                     gravity of the present one.
                        291. The principle of the sovereign equality of States is indeed a funda-
                     mental principle applicable at the level of inter-State relations 335: had it
                     been duly observed, those atrocities or international crimes would not
                     have occurred in the way and at the time they did (in 1943‑1945). In any
                     case, that principle is not the punctum pruriens here, as we are concerned
                     in the cas d’espèce with atrocities or international crimes committed at
                     intra-State level. The central principles at issue here are, in my perception,
                     the principle of humanity and the principle of human dignity. State
                     immunity cannot, in my view, be unduly placed 336 above State responsi-
                     bility for international crimes and its ineluctable complement, the respon-
                     sible State’s duty of reparation to the victims.
                        292. As already indicated, the jurisprudence constante of the Hague
                     Court (PCIJ and ICJ) upholds the understanding that, as a matter of
                     principle, a violation of international law and the corresponding duty of
                     providing reparation form an indissoluble whole, so as to make the conse-
                     quences thereof cease. State immunities cannot be made to operate, as in
                     the present Judgment, like thunder coming out of a dark storm (the social
                     cataclysm of the Second World War) and falling upon that indissoluble
                     whole, dismantling it altogether. As I have further also indicated, State
                     immunity is not a right but rather a prerogative or privilege ; it cannot be
                     upheld in a way that leads to manifest injustice.
                        293. In order to try to justify the upholding of State immunity even in
                     the circumstances of the cas d’espèce, the Court’s majority pursues an
                     empirical factual exercise of identifying the incongruous case law of
                     national courts and the inconsistent practice of national legislations on
                     the subject-matter at issue. This exercise is characteristic of the methodol-
                     ogy of legal positivism, over‑attentive to facts and oblivious of values. Be
                     that as it may, even in its own outlook, the examination of national courts
                     decisions, in my view, is not at all conclusive for upholding State immu-
                     nity in cases of international crimes.

                       332 Cf. Judgment, para. 65.
                       333 Cf. ibid., para. 60.
                       334 Cf. ibid., para. 60 and cf. also paras. 61-65, 72 and 77.
                       335 Cf. ibid., para. 57.
                       336 Cf. ibid., paras 90 and 106.

                     189

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                     285 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        294. As to national legislations, pieces of sparse legislation in a handful
                     of States 337, in my view, cannot withhold the lifting of State immunity in
                     cases of grave violations of human rights and of international humanitarian
                     law. Such positivist exercises are leading to the fossilization of international
                     law, and disclosing its persistent underdevelopment, rather than its progres-
                     sive development, as one would expect. Such undue methodology is coupled
                     with inadequate and unpersuasive conceptualizations, of the kind so wide-
                     spread in the legal profession, such as, inter alia, the counterpositions of
                     “primary” to “secondary” rules, or of “procedural” to “substantive” rules 338,
                     or of obligations of “conduct” to those of “result”. Words, words, words . . .
                     Where are the values ?

                        295. At times, resorting to conceptualizations of the kind may lead to
                     manifest injustice, as in the present case concerning the Jurisdictional
                     Immunities of the State. Once again the Court resorts to the counterposi-
                     tion between procedural law (where it situates immunity, as it did in its
                     earlier judgment of 2002 in the Arrest Warrant of 11 April 2000 case,
                     opposing the Democratic Republic of the Congo to Belgium) and sub-
                     stantive law 339. To me, the separation between procedural and substan-
                     tive law is not ontologically nor deontologically viable : la forme conforme
                     le fond. Legal procedure is not an end in itself, it is a means to the realiza-
                     tion of justice. And the application of substantive law is finaliste, it pur-
                     ports to have justice done.
                        296. In the present Judgment, the Court’s majority starts from the wrong
                     assumption that no conflict exists, or can exist, between the substantive
                     “rules of jus cogens” (imposing the prohibitions of “the murder of civilians
                     in occupied territory, the deportation of civilian inhabitants to slave labour
                     and the deportation of prisoners of war to slave labour”) and the procedural
                     “rules of State immunity” 340. This tautological assumption leads the Court
                     to its upholding of State immunity even in the grave circumstances of the
                     present case. There is thus a material conflict, even though a formalist one
                     may not be discernible. The fact remains that a conflict does exist, and the
                     Court’s reasoning leads to what I perceive as a groundless deconstruction of
                     jus cogens, depriving this latter of its effects and legal consequences.
                        297. This is not the first time that this happens ; it has happened before,
                     e.g., in the last decade, in the Court’s Judgments in the cases of the Arrest
                     Warrant (2002) and of the Armed Activities on the Territory of the Congo
                     (Democratic Republic of the Congo v. Rwanda) (2006), recalled by the
                     Court with approval in the present Judgment 341. It is high time to give
                     jus cogens the attention it requires and deserves. Its deconstruction, as in
                     the present case, is to the detriment not only of the individual victims of

                       337 Cf. Judgment, para. 88.
                       338 Cf. ibid., paras. 58 and 100.
                       339 I.C.J. Reports 2002, p. 3. And cf. Judgment, para. 58.
                       340 Cf. Judgment, para. 93 and cf. also para. 95.
                       341 Cf. ibid., para. 95.

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                     286 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     grave violations of human rights and of international humanitarian law,
                     but also of contemporary international law itself. In sum, in my under-
                     standing, there can be no prerogative or privilege of State immunity in
                     cases of international crimes, such as massacres of the civilian population,
                     and deportation of civilians and prisoners of war to subjection to slave
                     labour : these are grave breaches of absolute prohibitions of jus cogens,
                     for which there can be no immunities.

                        298. State immunities cannot keep on being approached in the light of
                     an atomized or self‑sufficient outlook (contemplating State immunities in
                     a void), but rather pursuant to a comprehensive view of contemporary
                     international law as a whole, and its role in the international community.
                     International law cannot be frozen by continued and prolonged reliance
                     on omissions of the past, either at normative level (e.g., in the drafting of
                     the 2004 United Nations Convention on Jurisdictional Immunities of
                     States and Their Property), or at judicial level (e.g., the majority decision
                     of the ECHR [Grand Chamber] in the Al-Adsani case, 2001, and of this
                     Court in the present case), already pointed out. The assertion by the
                     Court, in the present Judgment, that, analogically, there is nothing “inher-
                     ent in the concept of jus cogens” which would require the modification, or
                     displace the application, of rules determining the scope and extent of
                     jurisdiction 342, simply begs the question : it requires persuasive demon-
                     stration, not provided to date.
                        299. The Court cannot, by its decisions, remain indifferent to, or obliv-
                     ious of, the enormous suffering of victims of grave violations of human
                     rights and of international humanitarian law ; it cannot remain over‑atten-
                     tive to the apparent sensitivities of States, to the point of conniving at
                     denial of justice, by unduly ascribing to State immunities an absolute
                     value. Quite on the contrary, the individual victims of State atrocities
                     cannot be left without any form of redress. State immunity is not sup-
                     posed to operate as a bar to jurisdiction in circumstances such as those
                     prevailing in the present case concerning the Jurisdictional Immunities of
                     the State. It is not to stand in the way of the realization of justice. The
                     pursuit of justice is to be preserved as the ultimate goal ; securing justice
                     to victims encompasses, inter alia, enabling them to seek and obtain
                     redress for the crimes they suffered. Jus cogens stands above the preroga-
                     tive or privilege of State immunity, with all the consequences that ensue
                     therefrom, thus avoiding denial of justice and impunity.

                               XXVII. A Recapitulation : Concluding Observations

                       300. From all the preceding considerations, it is crystal clear that my
                     own position, in respect of all the points which form the object of the pres-
                       342   Cf. Judgment, para. 95.

                     191

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                     287 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     ent Judgment on the case concerning the Jurisdictional Immunities of the
                     State, stands in clear opposition to the view espoused by the Court’s major-
                     ity. My dissenting position is grounded not only on the assessment of the
                     arguments produced before the Court by the contending Parties (Germany
                     and Italy) and the intervening State (Greece), but above all on issues of
                     principle and on fundamental values, to which I attach even greater impor-
                     tance. I have thus felt obliged, in the faithful exercise of the international
                     judicial function, to lay the foundations of my dissenting position in the cas
                     d’espèce in the present dissenting opinion. I deem it fit, at this stage, to
                     recapitulate all the points of my dissenting position, expressed herein, for
                     the sake of clarity, and in order to stress their interrelatedness.
                        301. Primus : One cannot take account of inter-temporal law only in a
                     way that serves one’s interests in litigation, accepting the passing of time
                     and the evolution of law in relation to certain facts but not to others, of
                     the same continuing situation. One cannot hide behind static dogmas so
                     as to escape the legal consequences of the perpetration of atrocities in the
                     past ; the evolution of law is to be taken into account. Secundus : Like-
                     wise, one cannot make abstraction of the factual context of the present
                     case ; State immunities cannot be considered in the void, they constitute a
                     matter which is ineluctably linked to the facts which give origin to a con-
                     tentious case. Recognition of this interrelatedness is even more forceful,
                     in a unique and unprecedented case like the present one, in which the
                     Complainant State, throughout the proceedings before the Court (written
                     and oral phases), recognized its own responsibility for the harmful acts
                     lying in the origins, and forming the factual background, of the present
                     case.

                        302. Tertius : There have been doctrinal developments, from a genera-
                     tion of jurists which witnessed the horrors of two World Wars in the
                     twentieth century, which did not at all pursue a State‑centric approach,
                     and were centred on fundamental human values, and on the human per-
                     son, guarding faithfulness to the historical origins of the droit des gens, as
                     one ought to do nowadays as well. State immunities are, after all, a pre-
                     rogative or a privilege, and they cannot keep on making abstraction of
                     the evolution of international law, taking place nowadays in the light of
                     fundamental human values.
                        303. Quartus : The more lucid contemporary international legal doc-
                     trine, including the work of learned institutions in international law,
                     gradually resolves the tension between State immunity and the right of
                     access to justice rightly in favour of the latter, particularly in cases of
                     international crimes. It expresses its concern with the need to abide by the
                     imperatives of justice and to avoid impunity in cases of perpetration of
                     international crimes, thus seeking to guarantee their non‑repetition in the
                     future. Quintus : The threshold of the gravity of the breaches of human
                     rights and of international humanitarian law removes any bar to jurisdic-
                     tion, in the quest for reparation to the victimized individuals. It is indeed
                     important that all mass atrocities are nowadays considered in the light of

                     192

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                     288 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     the threshold of gravity, irrespective of who committed them. Criminal
                     State policies and the ensuing perpetration of State atrocities are not to
                     be covered up by the shield of State immunity.
                         304. Sextus : Purported inter‑State waivers of rights inherent to the
                     human person are inadmissible ; they stand against the international ordre
                     public, and are to be deprived of any juridical effects. This is deeply-
                     engraved in human conscience, in the universal juridical conscience, the
                     ultimate material source of all law. Septimus : By the time of the Second
                     World War, deportation to forced labour (as a form of slave work) was
                     already prohibited by international law. Well before the Second World
                     War its wrongfulness was widely acknowledged, at normative level (in the
                     IV Hague Convention of 1907 and in the 1930 ILO Convention on
                     Forced Labour) ; there was recognition of that prohibition in works of
                     codification. That prohibition has, furthermore, met with judicial recog-
                     nition. Octavus : The right to war reparation claims was likewise recog-
                     nized well before the end of the Second World War (in the IV Hague
                     Convention of 1907).
                         305. Nonus : What jeopardizes or destabilizes the international legal
                     order, are the international crimes, and not the individual suits for repa-
                     ration in the search for justice. What troubles the international legal
                     order, are the cover‑up of such international crimes accompanied by the
                     impunity of the perpetrators, and not the victims’ search for justice ?
                     When a State pursues a criminal policy of murdering segments of its own
                     population, and of the population of other States, it cannot, later on,
                     place itself behind the shield of sovereign immunities, as these latter were
                     never conceived for that purpose.
                         306. Decimus : Grave breaches of human rights and of international
                     humanitarian law, amounting to international crimes, are anti-juridical
                     acts, are breaches of jus cogens, that cannot simply be removed or thrown
                     into oblivion by reliance on State immunity. Undecimus : International
                     crimes perpetrated by States are not acts jure gestionis, nor acts jure impe‑
                     rii ; they are crimes, delicta imperii, for which there is no immunity. That
                     traditional and eroded distinction is immaterial here.

                        307. Duodecimus : In case of grave violations of human rights and of
                     international humanitarian law, the direct access of the individuals con-
                     cerned to the international jurisdiction is thus fully justified, to vindicate
                     those rights, even against their own State. Tertius decimus : Individuals
                     are indeed subjects of international law (not merely “actors”), and when-
                     ever legal doctrine departed from this, the consequences and results were
                     catastrophic. Individuals are titulaires of rights and bearers of duties
                     which emanate directly from international law (the jus gentium). Converg-
                     ing developments, in recent decades, of the international law of human
                     rights, of international humanitarian law, and of the international law of
                     refugees, followed by those of international criminal law, give unequivo-
                     cal testimony of this.

                     193

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                     289 	jurisdictional immunities of the state (diss. op. cançado trindade)

                        308. Quartus decimus : It is not at all State immunity that cannot be
                     waived. There is no immunity for crimes against humanity. In cases of
                     international crimes, of delicta imperii, what cannot be waived is the indi-
                     vidual’s right of access to justice, encompassing the right to reparation for
                     the grave violations of the rights inherent to him as a human being. With-
                     out that right, there is no credible legal system at all, at national or inter-
                     national levels.
                        309. Quintus decimus : The finding of particularly grave violations of
                     human rights and of international humanitarian law provides a valuable
                     test for the removal of any bar to jurisdiction, in pursuance of the neces-
                     sary realization of justice. Sextus decimus : It is immaterial whether the
                     harmful act in grave breach of human rights was a governmental one, or
                     a private one with the acquiescence of the State, or whether it was com-
                     mitted entirely in the forum State or not (deportation to forced labour is
                     a trans‑frontier crime). State immunity does not stand in the domain of
                     redress for grave violations of the fundamental rights of the human per-
                     son.
                        310. Septimus decimus : The right of access to justice lato sensu comprises
                     not only the formal access to justice (the right to institute legal proceedings),
                     by means of an effective remedy, but also the guarantees of the due process
                     of law (with equality of arms, conforming the proces équitable), up to the
                     judgment (as the prestation juridictionnelle), with its faithful execution, with
                     the provision of the reparation due. The realization of justice is in itself a form
                     of reparation, granting satisfaction to the victim. In this way those victimized
                     by oppression have their right to the law (droit au Droit) duly vindicated.
                        311. Duodevicesimus : Even in the domain of State immunities proper,
                     there has been acknowledgment of the changes undergone by it, in
                     the sense of restricting or discarding such immunities in the occurrence of
                     those grave breaches, due to the advent of the international law of human
                     rights, with attention focused on the right of access to justice and interna-
                     tional accountability. Undevicesimus : The State’s duty to provide repara-
                     tion to individual victims of grave violations of human rights and of
                     international humanitarian law is a duty under customary international
                     law and pursuant to a fundamental general principle of law.

                       312. Vicesimus : There is nowadays a growing trend of opinion sustain-
                     ing the removal of immunity in cases of international crimes, for which
                     reparation is sought by the victims. In effect, to admit the removal of
                     State immunity in the realm of trade relations, or in respect of local per-
                     sonal tort (e.g., in traffic accidents), and at the same time to insist on
                     shielding States with immunity, in cases of international crimes — marked
                     by grave violations of human rights and of international humanitarian
                     law — in pursuance of State (criminal) policies, amounts to a juridical
                     absurdity.
                       313. Vicesimus primus : The right of access to justice lato sensu is to be
                     approached with attention focused on its essence as a fundamental right,
                     and not on permissible or implicit “limitations” to it. Vicesimus secundus :

                     194

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                     290 	jurisdictional immunities of the state (diss. op. cançado trindade)

                     Grave breaches of human rights and of international humanitarian law
                     amount to breaches of jus cogens, entailing State responsibility and the
                     right to reparation to the victims. This is in line with the idea of rectitude
                     (in conformity with the recta ratio of natural law), underlying the concep-
                     tion of law (in distinct legal systems — Recht/diritto/droit/direito/derecho/
                     right) as a whole.
                        314. Vicesimus tertius : It is groundless to claim that the regime of rep-
                     arations for grave breaches of human rights and of international human-
                     itarian law would exhaust itself at inter‑State level, to the detriment of the
                     individuals who suffered the consequences of war crimes and crimes
                     against humanity. It is clear from the records of the present case that
                     there are IMIs, victims of Nazi Germany’s grave violations of human
                     rights and of international humanitarian law, who have in fact been left
                     without reparation to date. Vicesimus quartus : These individual victims
                     of State atrocities cannot be left without any form of redress. State immu-
                     nity is not supposed to operate as a bar to jurisdiction in circumstances
                     such as those prevailing in the present case concerning the Jurisdictional
                     Immunities of the State. It is not to stand in the way of the realization of
                     justice. The pursuit of justice is to be preserved as the ultimate goal ;
                     securing justice to victims encompasses, inter alia, enabling them to seek
                     and obtain redress for the crimes they suffered.

                        315. Vicesimus quintus : One cannot embark on a wrongfully assumed
                     and formalist lack of conflict between “procedural” and “substantive”
                     rules, depriving jus cogens of its effects and legal consequences. The fact
                     remains that a conflict does exist, and the primacy is of jus cogens, which
                     resists to, and survives, such groundless attempt at its deconstruction.
                     There can be no prerogative or privilege of State immunity in cases of
                     international crimes, such as massacres of the civilian population, and
                     deportation of civilians and prisoners of war to subjection to slave labour :
                     these are grave breaches of absolute prohibitions of jus cogens, for which
                     there can be no immunities.

                        316. Vicesimus sextus : Jus cogens stands above the prerogative or priv-
                     ilege of State immunity, with all the consequences that ensue therefrom,
                     thus avoiding denial of justice and impunity. On the basis of all the afore-
                     said, my firm position is that there is no State immunity for international
                     crimes, for grave violations of human rights and of international human-
                     itarian law. In my understanding, this is what the International Court of
                     Justice should have decided in the present Judgment.

                                            (Signed) Antônio Augusto Cançado Trindade.

                     195

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