                         COUR INTERNATIONALE DE JUSTICE

                           RECUEIL DES ARRÊTS,
                    AVIS CONSULTATIFS ET ORDONNANCES

                   IMMUNITÉS JURIDICTIONNELLES
                            DE L’ÉTAT
                   (ALLEMAGNE c. ITALIE ; GRÈCE (intervenant))

                           ARRÊT DU 3 FÉVRIER 2012

                                 2012
                         INTERNATIONAL COURT OF JUSTICE

                         REPORTS OF JUDGMENTS,
                      ADVISORY OPINIONS AND ORDERS

                    JURISDICTIONAL IMMUNITIES
                           OF THE STATE
                    (GERMANY v. ITALY : GREECE intervening)

                        JUDGMENT OF 3 FEBRUARY 2012

6 CIJ1031.indb 1                                                 22/11/13 12:25

                                            Mode officiel de citation :
                            Immunités juridictionnelles de l’Etat (Allemagne c. Italie ;
                             Grèce (intervenant)), arrêt, C.I.J. Recueil 2012, p. 99

                                                 Official citation :
                            Jurisdictional Immunities of the State (Germany v. Italy :
                            Greece intervening), Judgment, I.C.J. Reports 2012, p. 99

                                                                                1031
                                                                  No de vente:
                   ISSN 0074-4441                                 Sales number
                   ISBN 978-92-1-071145-6

6 CIJ1031.indb 2                                                                           22/11/13 12:25

                                                        3 FÉVRIER 2012

                                                            ARRÊT

                       IMMUNITÉS JURIDICTIONNELLES
                                DE L’ÉTAT
                   (ALLEMAGNE c. ITALIE ; GRÈCE (intervenant))

                         JURISDICTIONAL IMMUNITIES
                                OF THE STATE
                    (GERMANY v. ITALY : GREECE intervening)

                                                      3 FEBRUARY 2012

                                                         JUDGMENT

6 CIJ1031.indb 3                                                         22/11/13 12:25

                                                                                99

                                             TABLE OF CONTENTS

                   				                                                         Paragraphs

                   Chronology of the Procedure                                             1-19
                      I. Historical and Factual Background                                20-36
                        1. The Peace Treaty of 1947                                          22
                        2. The Federal Compensation Law of 1953                              23
                        3. The 1961 Agreements                                            24-25
                        4. Law establishing the “Remembrance, Responsibility and
                           Future” Foundation                                                26
                        5. Proceedings before Italian courts                              27-36
                           A. Cases involving Italian nationals                           27-29
                           B. Cases involving Greek nationals                             30-36
                     II. The Subject-Matter of the Dispute and the Jurisdiction of
                         the Court                                                        37-51
                    III. Alleged Violation of Germany’s Jurisdictional Immunity
                         in the Proceedings Brought by the Italian Claimants             52-108

                        1. The issues before the Court                                    52-61
                        2. Italy’s first argument : the territorial tort principle        62-79

                        3. Italy’s second argument : the subject‑matter and circum-
                           stances of the claims in the Italian courts                   80-106
                           A. The gravity of the violations                             81-91
                           B. The relationship between jus cogens and the rule of State
                              immunity92-97
                           C. The “last resort” argument                               98-104
                           D. The combined effect of the circumstances relied upon by
                              Italy105-106
                        4. Conclusions                                                  107-108
                    IV. The Measures of Constraint Taken against Property
                        Belonging to Germany Located on Italian Territory               109-120
                     V. The Decisions of the Italian Courts Declaring Enforce-
                        able in Italy Decisions of Greek Courts Upholding Civil
                        Claims against Germany                                          121-133
                    VI. Germany’s Final Submissions and the Remedies Sought             134-138

                   Operative Clause                                                         139

                                                                                4

6 CIJ1031.indb 5                                                                                22/11/13 12:25

                                                                                100

                                  INTERNATIONAL COURT OF JUSTICE

                                                     YEAR 2012                                              2012
                                                                                3 February
                                                                                General List
                                                   3 February 2012                                         No. 143

                               JURISDICTIONAL IMMUNITIES
                                      OF THE STATE
                                (GERMANY v. ITALY : GREECE intervening)

                      Historical and factual background.
                      Peace Treaty of 1947 — Federal Compensation Law of 1953 — 1961 Agree‑
                   ments — 2000 Federal Law establishing the “Remembrance, Responsibility and
                   Future” Foundation — Proceedings before Italian courts — Cases involving Ital‑
                   ian nationals — Cases involving Greek nationals.

                                                           *
                      Subject‑matter of dispute and jurisdiction of the Court.
                      Subject-matter of dispute delimited by claims of Germany and Italy — No
                   objection to jurisdiction of the Court or admissibility of Application raised by
                   Italy — Article 1 of the European Convention for the Peaceful Settlement of Dis‑
                   putes as basis of jurisdiction — Limitation ratione temporis not applicable — The
                   Court has jurisdiction — The Court is not called upon to rule on questions of repa‑
                   ration — Relationship between duty of reparation and State immunity — No other
                   question with regard to the Court’s jurisdiction.

                                                           *
                      Alleged violation of Germany’s jurisdictional immunity in proceedings brought
                   by Italian claimants.
                      Issues before the Court — Origins of proceedings in Italian courts — Existence
                   of customary rule of international law conferring immunity on States — Sources
                   of State practice and opinio juris — State practice and opinio juris generally
                   recognize State immunity — Rule of State immunity derives from principle of sov‑
                   ereign equality of States — Need to distinguish between relevant acts of Germany
                   and those of Italy — Procedural nature of law of immunity — The Court must
                   examine and apply the law on State immunity as it existed at time of Italian pro‑
                   ceedings — Acta jure gestionis and acta jure imperii — Acts of armed forces of

                                                                                5

6 CIJ1031.indb 7                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                   101

                   German Reich were acta jure imperii — State immunity in respect of acta jure
                   imperii — Contention by Italy that Germany not entitled to immunity in respect of
                   cases before Italian courts.

                      Italy’s first argument : territorial tort principle — Acts committed on territory
                   of forum State by armed forces of a foreign State in conduct of armed conflict —
                   Article 11 of European Convention on State Immunity — Article 12 of United
                   Nations Convention on Jurisdictional Immunities of States and Their Property —
                   State practice : national legislation and judgments of national courts — State
                   immunity for acta jure imperii extends to civil proceedings for acts occasioning
                   death, personal injury or damage to property, committed by armed forces in con‑
                   duct of armed conflict — Opinio juris — Absence of contrary jurisprudence or
                   contrary statements by States — Decisions of Italian courts cannot be justified on
                   basis of territorial tort principle.

                      Italy’s second argument : subject‑matter and circumstances of claims in Italian
                   courts — Gravity of violations — Contention that international law does not
                   accord immunity to a State for serious violations of law of armed conflict —
                   National court is required to determine entitlement to immunity before it can hear
                   merits of case — No State practice to support proposition that a State is deprived
                   of immunity in cases of serious violations of international humanitarian law —
                   Neither has proposition been accepted by European Court of Human Rights —
                   State not deprived of immunity because it is accused of serious violations of inter‑
                   national humanitarian law.

                      Relationship between jus cogens and rule of State immunity — Alleged conflict
                   between jus cogens rules and immunity of Germany — No conflict exists between
                   jus cogens and immunity of a State — Argument about jus cogens displacing
                   State immunity has been rejected by national courts — State immunity not affected
                   by violation of jus cogens.
                      The “last resort” argument — Contention that Italian courts were justified in
                   denying Germany immunity because of failure of all other attempts to secure com‑
                   pensation — State immunity not dependent upon existence of effective alternative
                   means of redress — Italy’s argument rejected — Further negotiation between Ger‑
                   many and Italy.

                      Combined effect of circumstances relied upon by Italy — None of three strands
                   justify action of Italian courts — No effect if taken together — State practice —
                   Balancing different factors would disregard nature of State immunity — Immunity
                   cannot be dependent upon outcome of balancing exercise by national court.

                      Action of Italian courts in denying Germany immunity constitutes a breach of
                   obligations owed by Italy to Germany — No need to consider other questions
                   raised by the Parties.

                                                            *
                      Measures of constraint taken against property belonging to Germany located on
                   Italian territory.

                                                                                6

6 CIJ1031.indb 9                                                                                22/11/13 12:25

                               jurisdictional immunities of the state (judgment)                   102

                       Legal charge against Villa Vigoni — Charge in question suspended by Italy to
                    take account of proceedings before the Court — Distinction between rules of cus‑
                    tomary international law governing immunity from enforcement and those govern‑
                    ing jurisdictional immunity — No need to determine whether decisions of Greek
                    courts awarding pecuniary damages against Germany were in breach of that
                    State’s jurisdictional immunity — Article 19 of United Nations Convention on
                    Jurisdictional Immunities of States and Their Property — Property which was
                    subject of measure of constraint being used for non‑commercial governmental pur‑
                    poses — Germany not having expressly consented to taking of legal charge in
                    question or allocated Villa Vigoni for satisfaction of judicial claims against it —
                    Registration of legal charge on Villa Vigoni constitutes a violation by Italy of its
                    obligation to respect immunity owed to Germany.

                                                             *
                      Decisions of Italian courts declaring enforceable in Italy decisions of Greek
                    courts upholding civil claims against Germany.

                       Germany’s contention that its jurisdictional immunity was violated by these
                    decisions — Request for exequatur — Whether Italian courts respected Germa‑
                    ny’s immunity from jurisdiction in upholding request for exequatur — Purpose of
                    exequatur proceedings — Exequatur proceedings must be regarded as being
                    directed against State which was subject of foreign judgment — Question of immu‑
                    nity precedes consideration of request for exequatur — No need to rule on ques‑
                    tion whether Greek courts violated Germany’s immunity — Decisions of Florence
                    Court of Appeal constitute violation by Italy of its obligation to respect jurisdic‑
                    tional immunity of Germany.

                                                             *
                       Germany’s final submissions and the remedies sought.
                       Germany’s six requests presented to the Court — First three submissions
                    upheld — Violation by Italy of Germany’s jurisdictional immunity — Fourth sub‑
                    mission — Request for declaration that Italy’s international responsibility is
                    engaged — No need for express declaration — Responsibility automatically
                    inferred from finding that certain obligations have been violated — Fourth submis‑
                    sion not upheld — Fifth submission — Request that Italy be ordered to take, by
                    means of its own choosing, any and all steps to ensure that all decisions of its
                    courts and other judicial authorities infringing Germany’s sovereign immunity
                    cease to have effect — Fifth submission upheld — Result to be achieved by enact‑
                    ing appropriate legislation or by other methods having the same effect — Sixth
                    submission — Request that Italy be ordered to provide assurances of non‑repeti‑
                    tion — No reason to suppose that a State whose conduct has been declared wrong‑
                    ful by the Court will repeat that conduct in future — No circumstances justifying
                    assurances of non‑repetition — Sixth submission not upheld.

                                                                                7

6 CIJ1031.indb 11                                                                                22/11/13 12:25

                                jurisdictional immunities of the state (judgment)            103

                                                    JUDGMENT

                    Present : President Owada ; Vice‑President Tomka ; Judges Koroma, Simma,
                               Abraham, Keith, Sepúlveda‑Amor, Bennouna, Skotnikov, Cançado
                               Trindade, Yusuf, Greenwood, Xue, Donoghue ; Judge ad hoc
                               Gaja ; Registrar Couvreur.

                      In the case concerning jurisdictional immunities of the State,
                      between
                    the Federal Republic of Germany,
                    represented by
                      H.E. Ms Susanne Wasum‑Rainer, Ambassador, Director‑General for Legal
                         Affairs and Legal Adviser, Federal Foreign Office,
                      H.E. Mr. Heinz‑Peter Behr, Ambassador of the Federal Republic of Ger-
                         many to the Kingdom of the Netherlands,
                      Mr. Christian Tomuschat, former Member and Chairman of the Interna-
                         tional Law Commission, Professor emeritus of Public International Law at
                         the Humboldt University of Berlin,
                      as Agents ;
                      Mr. Andrea Gattini, Professor of Public International Law at the University
                         of Padua,
                      Mr. Robert Kolb, Professor of Public International Law at the University of
                         Geneva,
                      as Counsel and Advocates ;
                      Mr. Guido Hildner, Head of the Public International Law Division, Federal
                         Foreign Office,
                      Mr. Götz Schmidt‑Bremme, Head of the International Civil, Trade and Tax
                         Law Division, Federal Foreign Office,
                      Mr. Felix Neumann, Embassy of the Federal Republic of Germany in the
                         Kingdom of the Netherlands,
                      Mr. Gregor Schotten, Federal Foreign Office,
                      Mr. Klaus Keller, Embassy of the Federal Republic of Germany in the King-
                         dom of the Netherlands,
                      Ms Susanne Achilles, Embassy of the Federal Republic of Germany in the
                         Kingdom of the Netherlands,
                      Ms Donate Arz von Straussenburg, Embassy of the Federal Republic of Ger-
                         many in the Kingdom of the Netherlands,
                      as Advisers ;
                      Ms Fiona Kaltenborn,
                      as Assistant,
                      and
                    the Italian Republic,
                    represented by
                      H.E. Mr. Paolo Pucci di Benisichi, Ambassador and State Counsellor,

                                                                                8

6 CIJ1031.indb 13                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                104

                      as Agent ;
                      Mr. Giacomo Aiello, State Advocate,
                      H.E. Mr. Franco Giordano, Ambassador of the Italian Republic to the King-
                         dom of the Netherlands,
                      as Co‑Agents ;
                      Mr. Luigi Condorelli, Professor of International Law, University of Florence,

                      Mr. Pierre‑Marie Dupuy, Professor of International Law, Graduate Institute
                         of International and Development Studies, Geneva, and University of
                         Paris II (Panthéon‑Assas),
                      Mr. Paolo Palchetti, Associate Professor of International Law, University of
                         Macerata,
                      Mr. Salvatore Zappalà, Professor of International Law, University of
                         Catania, Legal Adviser, Permanent Mission of Italy to the United Nations,

                      as Counsel and Advocates ;
                      Mr. Giorgio Marrapodi, Minister Plenipotentiary, Head of the Service for
                         Legal Affairs, Ministry of Foreign Affairs,
                      Mr. Guido Cerboni, Minister Plenipotentiary, Co‑ordinator for the countries
                         of Central and Western Europe, Directorate‑General for the European
                         Union, Ministry of Foreign Affairs,
                      Mr. Roberto Bellelli, Legal Adviser, Embassy of Italy in the Kingdom of the
                         Netherlands,
                      Ms Sarah Negro, First Secretary, Embassy of Italy in the Kingdom of the
                         Netherlands,
                      Mr. Mel Marquis, Professor of Law, European University Institute, Flo
                         rence,
                      Ms Francesca De Vittor, International Law Researcher, University of Mace
                         rata,
                      as Advisers,
                      with, as State permitted to intervene in the case,
                    the Hellenic Republic,
                    represented by
                      Mr. Stelios Perrakis, Professor of International and European Institutions,
                         Panteion University of Athens,
                      as Agent ;
                      H.E. Mr. Ioannis Economides, Ambassador of the Hellenic Republic to the
                         Kingdom of the Netherlands,
                      as Deputy-Agent ;
                      Mr. Antonis Bredimas, Professor of International Law, National and Kapo-
                         distrian University of Athens,
                      as Counsel and Advocate ;
                      Ms Maria‑Daniella Marouda, Lecturer in International Law, Panteion Uni-
                         versity of Athens,
                      as Counsel,

                                                                                9

6 CIJ1031.indb 15                                                                                22/11/13 12:25

                               jurisdictional immunities of the state (judgment)                  105

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :
                       1. On 23 December 2008, the Federal Republic of Germany (hereinafter
                    “Germany”) filed in the Registry of the Court an Application instituting pro-
                    ceedings against the Italian Republic (hereinafter “Italy”) in respect of a dispute
                    originating in “violations of obligations under international law” allegedly com-
                    mitted by Italy through its judicial practice “in that it has failed to respect the
                    jurisdictional immunity which . . . Germany enjoys under international law”.

                       As a basis for the jurisdiction of the Court, Germany, in its Application,
                    invoked Article 1 of the European Convention for the Peaceful Settlement of
                    Disputes of 29 April 1957.
                       2. Under Article 40, paragraph 2, of the Statute, the Registrar immediately
                    communicated the Application to the Government of Italy ; and, pursuant to
                    paragraph 3 of that Article, all other States entitled to appear before the Court
                    were notified of the Application.
                       3. Since the Court included upon the Bench no judge of Italian nationality,
                    Italy exercised its right under Article 31, paragraph 2, of the Statute to choose a
                    judge ad hoc to sit in the case : it chose Mr. Giorgio Gaja.

                       4. By an Order of 29 April 2009, the Court fixed 23 June 2009 as the time‑limit
                    for the filing of the Memorial of Germany and 23 December 2009 as the
                    time‑limit for the filing of the Counter‑Memorial of Italy ; those pleadings were
                    duly filed within the time‑limits so prescribed. The Counter‑Memorial of Italy
                    included a counter‑claim “with respect to the question of the reparation owed to
                    Italian victims of grave violations of international humanitarian law committed
                    by forces of the German Reich”.
                       5. By an Order of 6 July 2010, the Court decided that the counter‑claim pre-
                    sented by Italy was inadmissible as such under Article 80, paragraph 1, of the
                    Rules of Court. By the same Order, the Court authorized Germany to submit a
                    Reply and Italy to submit a Rejoinder, and fixed 14 October 2010 and 14 Janu-
                    ary 2011 respectively as the time‑limits for the filing of those pleadings ; those
                    pleadings were duly filed within the time‑limits so prescribed.

                       6. On 13 January 2011, the Hellenic Republic (hereinafter “Greece”) filed in
                    the Registry an Application for permission to intervene in the case pursuant to
                    Article 62 of the Statute. In its Application, Greece indicated that it “[did] not
                    seek to become a party to the case”.
                       7. In accordance with Article 83, paragraph 1, of the Rules of Court, the
                    Registrar, by letters dated 13 January 2011, transmitted certified copies of the
                    Application for permission to intervene to the Government of Germany and the
                    Government of Italy, which were informed that the Court had fixed 1 April 2011
                    as the time‑limit for the submission of their written observations on that Appli-
                    cation. The Registrar also transmitted, under paragraph 2 of the same Article, a
                    copy of the Application to the Secretary‑General of the United Nations.
                       8. Germany and Italy each submitted written observations on Greece’s
                    Application for permission to intervene within the time‑limit thus fixed. The

                                                                                10

6 CIJ1031.indb 17                                                                                22/11/13 12:25

                               jurisdictional immunities of the state (judgment)                    106

                    Registry transmitted to each Party a copy of the other’s observations, and cop-
                    ies of the observations of both Parties to Greece.
                       9. In light of Article 84, paragraph 2, of the Rules of Court, and taking into
                    account the fact that neither Party filed an objection, the Court decided that it
                    was not necessary to hold hearings on the question whether Greece’s Applica-
                    tion for permission to intervene should be granted. The Court nevertheless
                    decided that Greece should be given an opportunity to comment on the observa-
                    tions of the Parties and that the latter should be allowed to submit additional
                    written observations on the question. The Court fixed 6 May 2011 as the
                    time‑limit for the submission by Greece of its own written observations on those
                    of the Parties, and 6 June 2011 as the time‑limit for the submission by the Par-
                    ties of additional observations on Greece’s written observations. The observa-
                    tions of Greece and the additional observations of the Parties were submitted
                    within the time‑limits thus fixed. The Registry duly transmitted to the Parties a
                    copy of the observations of Greece ; it transmitted to each of the Parties a copy
                    of the other’s additional observations and to Greece copies of the additional
                    observations of both Parties.
                       10. By an Order of 4 July 2011, the Court authorized Greece to intervene in the
                    case as a non‑party, in so far as this intervention was limited to the decisions of
                    Greek courts which were declared by Italian courts as enforceable in Italy. The
                    Court further fixed the following time‑limits for the filing of the written statement
                    and the written observations referred to in Article 85, paragraph 1, of the Rules of
                    Court : 5 August 2011 for the written statement of Greece and 5 September 2011
                    for the written observations of Germany and Italy on that statement.
                       11. The written statement of Greece and the written observations of Germany
                    were duly filed within the time‑limits so fixed. By a letter dated 1 September 2011,
                    the Agent of Italy indicated that the Italian Republic would not be presenting
                    observations on the written statement of Greece at that stage of the proceedings,
                    but reserved “its position and right to address certain points raised in the written
                    statement, as necessary, in the course of the oral proceedings”. The Registry duly
                    transmitted to the Parties a copy of the written statement of Greece ; it transmit-
                    ted to Italy and Greece a copy of the written observations of Germany.
                       12. Under Article 53, paragraph 2, of its Rules, the Court, after ascertaining
                    the views of the Parties, decided that copies of the pleadings and documents
                    annexed would be made available to the public at the opening of the oral pro-
                    ceedings. After consulting the Parties and Greece, the Court decided that the
                    same should apply to the written statement of the intervening State and the
                    written observations of Germany on that statement.
                       13. Public hearings were held from 12 to 16 September 2011, at which the
                    Court heard the oral arguments and replies of :
                    For Germany : Ms Susanne Wasum‑Rainer,
                                   Mr. Christian Tomuschat,
                                   Mr. Andrea Gattini,
                                   Mr. Robert Kolb.
                    For Italy :    Mr. Giacomo Aiello,
                                   Mr. Luigi Condorelli,
                                   Mr. Salvatore Zappalà,
                                   Mr. Paolo Palchetti,
                                   Mr. Pierre‑Marie Dupuy.
                    For Greece : Mr. Stelios Perrakis,
                                   Mr. Antonis Bredimas.

                                                                                11

6 CIJ1031.indb 19                                                                                22/11/13 12:25

                               jurisdictional immunities of the state (judgment)                   107

                       14. At the hearings, questions were put by Members of the Court to the Par-
                    ties and to Greece, as intervening State, to which replies were given in writing.
                    The Parties submitted written comments on those written replies.

                                                             *
                      15. In its Application, Germany made the following requests :
                             “Germany prays the Court to adjudge and declare that the Italian Repub-
                         lic :
                         (1) by allowing civil claims based on violations of international humani-
                             tarian law by the German Reich during World War II from September
                             1943 to May 1945, to be brought against the Federal Republic of Ger-
                             many, committed violations of obligations under international law in
                             that it has failed to respect the jurisdictional immunity which the Fed-
                             eral Republic of Germany enjoys under international law ;
                         (2) by taking measures of constraint against ‘Villa Vigoni’, German State
                             property used for government non‑commercial purposes, also commit-
                             ted violations of Germany’s jurisdictional immunity ;

                         (3) by declaring Greek judgments based on occurrences similar to those
                             defined above in request No. 1 enforceable in Italy, committed a further
                             breach of Germany’s jurisdictional immunity.

                           Accordingly, the Federal Republic of Germany prays the Court to
                         adjudge and declare that
                         (4) the Italian Republic’s international responsibility is engaged ;
                         (5) the Italian Republic must, by means of its own choosing, take any and
                             all steps to ensure that all the decisions of its courts and other judicial
                             authorities infringing Germany’s sovereign immunity become unenfor
                             ceable ;
                         (6) the Italian Republic must take any and all steps to ensure that in the
                             future Italian courts do not entertain legal actions against Germany
                             founded on the occurrences described in request No. 1 above.”

                      16. In the course of the written proceedings the following submissions were
                    presented by the Parties :
                      On behalf of the Government of Germany,
                      in the Memorial and in the Reply :
                             “Germany prays the Court to adjudge and declare that the Italian Repub-
                         lic :
                         (1) by allowing civil claims based on violations of international humani-
                             tarian law by the German Reich during World War II from September
                             1943 to May 1945, to be brought against the Federal Republic of Ger-
                             many, committed violations of obligations under international law in
                             that it has failed to respect the jurisdictional immunity which the Fed-
                             eral Republic of Germany enjoys under international law ;

                                                                                12

6 CIJ1031.indb 21                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                   108

                        (2) by taking measures of constraint against ‘Villa Vigoni’, German State
                            property used for government non‑commercial purposes, also commit-
                            ted violations of Germany’s jurisdictional immunity ;

                        (3) by declaring Greek judgments based on occurrences similar to those
                            defined above in request No. 1 enforceable in Italy, committed a further
                            breach of Germany’s jurisdictional immunity.

                          Accordingly, the Federal Republic of Germany prays the Court to adjudge
                        and declare that
                        (4) the Italian Republic’s international responsibility is engaged ;
                        (5) the Italian Republic must, by means of its own choosing, take any and
                            all steps to ensure that all the decisions of its courts and other judicial
                            authorities infringing Germany’s sovereign immunity become unenfor
                            ceable ;
                        (6) the Italian Republic must take any and all steps to ensure that in the
                            future Italian courts do not entertain legal actions against Germany
                            founded on the occurrences described in request No. 1 above.”

                    On behalf of the Government of Italy,
                    in the Counter‑Memorial and in the Rejoinder :
                          “On the basis of the facts and arguments set out [in Italy’s Counter‑
                        Memorial and Rejoinder], and reserving its right to supplement or amend
                        these Submissions, Italy respectfully requests that the Court adjudge and
                        declare that all the claims of Germany are rejected.”
                      17. At the oral proceedings, the following submissions were presented by the
                    Parties :
                    On behalf of the Government of Germany,
                          “Germany respectfully requests the Court to adjudge and declare that
                        the Italian Republic :
                        (1) by allowing civil claims based on violations of international humani-
                            tarian law by the German Reich during World War II between Septem-
                            ber 1943 and May 1945 to be brought against the Federal Republic of
                            Germany, committed violations of obligations under international law
                            in that it has failed to respect the jurisdictional immunity which the
                            Federal Republic of Germany enjoys under international law ;

                        (2) by taking measures of constraint against ‘Villa Vigoni’, German State
                            property used for government non‑commercial purposes, also commit-
                            ted violations of Germany’s jurisdictional immunity ;

                        (3) by declaring Greek judgments based on occurrences similar to those
                            defined above in request No. 1 enforceable in Italy, committed a further
                            breach of Germany’s jurisdictional immunity.

                          Accordingly, the Federal Republic of Germany respectfully requests the
                        Court to adjudge and declare that :

                                                                                13

6 CIJ1031.indb 23                                                                                22/11/13 12:25

                                 jurisdictional immunities of the state (judgment)                                                  109

                         (4) the Italian Republic’s international responsibility is engaged ;
                         (5) the Italian Republic must, by means of its own choosing, take any and
                             all steps to ensure that all the decisions of its courts and other judicial
                             authorities infringing Germany’s sovereign immunity become unen-
                             forceable ; and
                         (6) the Italian Republic must take any and all steps to ensure that in the
                             future Italian courts do not entertain legal actions against Germany
                             founded on the occurrences described in request No. 1 above.”
                    On behalf of the Government of Italy,
                            “[F]or the reasons given in [its] written and oral pleadings, [Italy requests]
                         that the Court adjudge and hold the claims of the Applicant to be unfoun-
                         ded. This request is subject to the qualification that . . . Italy has no objec-
                         tion to any decision by the Court obliging Italy to ensure that the mortgage
                         on Villa Vigoni inscribed at the land registry is cancelled.”

                                                                             *
                      18. At the end of the written statement submitted by it in accordance with
                    Article 85, paragraph 1, of the Rules of Court, Greece stated inter alia
                         “that the effect of the judgment that the ICJ will hand down in this case
                         concerning the jurisdictional immunity of the State will be of major impor-
                         tance to the Italian legal order and certainly to the Greek legal order.
                         .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
                            Further, an ICJ decision on the effects of the principle of jurisdictional
                         immunity of States when faced with a jus cogens rule of international
                         law — such as the prohibition on violation of fundamental rules of huma-
                         nitarian law — will guide the Greek courts in this regard. It will thus have
                         a significant effect on pending and potential lawsuits brought by indivi-
                         duals before those courts.”

                      19. At the end of the oral observations submitted by it with respect to the
                    subject‑matter of the intervention in accordance with Article 85, paragraph 3, of
                    the Rules of Court, Greece stated inter alia :
                            “A decision of the International Court of Justice on the effects of the
                         principle of jurisdictional immunity of States when faced with a jus cogens
                         rule of international law — such as the prohibition on violation of funda-
                         mental rules of humanitarian law — will guide the Greek courts . . . It will
                         thus have a significant effect on pending and potential lawsuits brought by
                         individuals before those courts.

                         .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
                            The Greek Government considers that the effect of the judgment that
                         [the] Court will hand down in this case concerning jurisdictional immunity
                         will be of major importance, primarily to the Italian legal order and cer-
                         tainly to the Greek legal order.”

                                                                             *
                                                                         *       *

                                                                                14

6 CIJ1031.indb 25                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              110

                                   I. Historical and Factual Background

                       20. The Court finds it useful at the outset to describe briefly the his-
                    torical and factual background of the case which is largely uncontested
                    between the Parties.
                       21. In June 1940, Italy entered the Second World War as an ally of the
                    German Reich. In September 1943, following the removal of Mussolini
                    from power, Italy surrendered to the Allies and, the following month,
                    declared war on Germany. German forces, however, occupied much of
                    Italian territory and, between October 1943 and the end of the War, per-
                    petrated many atrocities against the population of that territory, includ-
                    ing massacres of civilians and the deportation of large numbers of civilians
                    for use as forced labour. In addition, German forces took prisoner, both
                    inside Italy and elsewhere in Europe, several hundred thousand members
                    of the Italian armed forces. Most of these prisoners (hereinafter the “Ital-
                    ian military internees”) were denied the status of prisoner of war and
                    deported to Germany and German-occupied territories for use as forced
                    labour.

                                           1. The Peace Treaty of 1947
                       22. On 10 February 1947, in the aftermath of the Second World War,
                    the Allied Powers concluded a Peace Treaty with Italy, regulating, in par-
                    ticular, the legal and economic consequences of the war with Italy. Arti-
                    cle 77 of the Peace Treaty reads as follows :

                           “1. From the coming into force of the present Treaty property in
                        Germany of Italy and of Italian nationals shall no longer be treated
                        as enemy property and all restrictions based on such treatment shall
                        be removed.
                           2. Identifiable property of Italy and of Italian nationals removed
                        by force or duress from Italian territory to Germany by German
                        forces or authorities after September 3, 1943, shall be eligible for res-
                        titution.
                           3. The restoration and restitution of Italian property in Germany
                        shall be effected in accordance with measures which will be deter-
                        mined by the Powers in occupation of Germany.

                            4. Without prejudice to these and to any other dispositions in
                        favour of Italy and Italian nationals by the Powers occupying
                        Germany, Italy waives on its own behalf and on behalf of Italian
                         nationals all claims against Germany and German nationals out-
                         standing on May 8, 1945, except those arising out of contracts and
                         other obligations entered into, and rights acquired, before Septem-
                         ber 1, 1939. This waiver shall be deemed to include debts, all inter-
                         governmental claims in respect of arrangements entered into in the

                                                                                15

6 CIJ1031.indb 27                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)            111

                        course of the war, and all claims for loss or damage arising during
                        the war.”

                                   2. The Federal Compensation Law of 1953
                       23. In 1953, the Federal Republic of Germany adopted the Federal
                    Compensation Law concerning Victims of National Socialist Persecution
                    (Bundesentschädigungsgesetz (BEG)) in order to compensate certain cat
                    egories of victims of Nazi persecution. Many claims by Italian nationals
                    under the Federal Compensation Law were unsuccessful, either because
                    the claimants were not considered victims of national Socialist persecu-
                    tion within the definition of the Federal Compensation Law, or because
                    they had no domicile or permanent residence in Germany, as required by
                    that Law. The Federal Compensation Law was amended in 1965 to cover
                    claims by persons persecuted because of their nationality or their mem-
                    bership in a non‑German ethnic group, while requiring that the persons
                    in question had refugee status on 1 October 1953. Even after the Law was
                    amended in 1965, many Italian claimants still did not qualify for compen-
                    sation because they did not have refugee status on 1 October 1953.
                    Because of the specific terms of the Federal Compensation Law as origi-
                    nally adopted and as amended in 1965, claims brought by victims having
                    foreign nationality were generally dismissed by the German courts.

                                            3. The 1961 Agreements
                       24. On 2 June 1961, two Agreements were concluded between the Fed-
                    eral Republic of Germany and Italy. The first Agreement, which entered
                    into force on 16 September 1963, concerned the “settlement of certain
                    property‑related, economic and financial questions”. Under Article 1 of
                    that Agreement, Germany paid compensation to Italy for “outstanding
                    questions of an economic nature”. Article 2 of the Agreement provided as
                    follows :
                       “(1) The Italian Government declares all outstanding claims on the part
                            of the Italian Republic or Italian natural or legal persons against
                            the Federal Republic of Germany or German natural or legal per-
                            sons to be settled to the extent that they are based on rights and
                            circumstances which arose during the period from 1 September 1939
                            to 8 May 1945.

                        (2) The Italian Government shall indemnify the Federal Republic of
                            Germany and German natural or legal persons for any possible
                            judicial proceedings or other legal action by Italian natural or
                            legal persons in relation to the above-mentioned claims.”

                                                                                16

6 CIJ1031.indb 29                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)            112

                      25. The second Agreement, which entered into force on 31 July 1963,
                    concerned “compensation for Italian nationals subjected to National-
                    Socialist measures of persecution”. By virtue of this Agreement, the Fed-
                    eral Republic of Germany undertook to pay compensation to Italian
                    nationals affected by those measures. Under Article 1 of that Agreement,
                    Germany agreed to pay Italy forty million Deutsche marks

                        “for the benefit of Italian nationals who, on grounds of their race,
                        faith or ideology were subjected to National-Socialist measures of
                        persecution and who, as a result of those persecution measures, suf-
                        fered loss of liberty or damage to their health, and for the benefit of
                        the dependents of those who died in consequence of such measures”.

                      Article 3 of that Agreement provided as follows :
                           “Without prejudice to any rights of Italian nationals based on
                        German compensation legislation, the payment provided for in
                        Article 1 shall constitute final settlement between the Federal Repu-
                        blic of Germany and the Italian Republic of all questions governed
                        by the present Treaty.”

                             4. Law Establishing the “Remembrance, Responsibility
                                            and Future” Foundation

                       26. On 2 August 2000, a federal law was adopted in Germany, estab-
                    lishing a “Remembrance, Responsibility and Future” Foundation (here-
                    inafter the “2000 Federal Law”) to make funds available to individuals
                    who had been subjected to forced labour and “other injustices from the
                    National Socialist period” (Sec. 2, para. 1). The Foundation did not pro-
                    vide money directly to eligible individuals under the 2000 Federal Law
                    but instead to “partner organizations”, including the International Orga-
                    nization for Migration in Geneva. Article 11 of the 2000 Federal Law
                    placed certain limits on entitlement to compensation. One effect of this
                    provision was to exclude from the right to compensation those who had
                    had the status of prisoner of war, unless they had been detained in con-
                    centration camps or came within other specified categories. The reason
                    given in the official commentary to this provision, which accompanied the
                    draft law, was that prisoners of war “may, according to the rules of inter-
                    national law, be put to work by the detaining power” [translation by the
                    Registry] (Bundestagsdrucksache 14/3206, 13 April 2000).

                      Thousands of former Italian military internees, who, as noted above,
                    had been denied the status of prisoner of war by the German Reich (see
                    paragraph 21), applied for compensation under the 2000 Federal Law. In
                    2001, the German authorities took the view that, under the rules of inter-

                                                                                17

6 CIJ1031.indb 31                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              113

                    national law, the German Reich had not been able unilaterally to change
                    the status of the Italian military internees from prisoners of war to that of
                    civilian workers. Therefore, according to the German authorities, the
                    Italian military internees had never lost their prisoner‑of‑war status, with
                    the result that they were excluded from the benefits provided under the
                    2000 Federal Law. On this basis, an overwhelming majority of requests
                    for compensation lodged by Italian military internees was rejected.
                    Attempts by former Italian military internees to challenge that decision
                    and seek redress in the German courts were unsuccessful. In a number of
                    decisions, German courts ruled that the individuals in question were not
                    entitled to compensation under the 2000 Federal Law because they had
                    been prisoners of war. On 28 June 2004, a Chamber of the German Con-
                    stitutional Court (Bundesverfassungsgericht) held that Article 11, para-
                    graph 3, of the 2000 Federal Law, which excluded reparation for prisoners
                    of war, did not violate the right to equality before the law guaranteed by
                    the German Constitution, and that public international law did not estab-
                    lish an individual right to compensation for forced labour.
                       A group of former Italian military internees filed an application against
                    Germany before the European Court of Human Rights on 20 Decem-
                    ber 2004. On 4 September 2007, a Chamber of that Court declared that
                    the application was “incompatible ratione materiae” with the provisions
                    of the Convention on the Protection of Human Rights and Fundamental
                    Freedoms and its protocols and therefore was declared inadmissible
                    (Associazione Nazionale Reduci and 275 Others v. Germany, decision of
                    4 September 2007, application No. 45563/04).

                                       5. Proceedings before Italian Courts

                    A. Cases involving Italian nationals
                       27. On 23 September 1998, Mr. Luigi Ferrini, an Italian national who
                    had been arrested in August 1944 and deported to Germany, where he
                    was detained and forced to work in a munitions factory until the end of
                    the war, instituted proceedings against the Federal Republic of Germany
                    in the Court of Arezzo (Tribunale di Arezzo) in Italy. On 3 Novem-
                    ber 2000, the Court of Arezzo decided that Mr. Luigi Ferrini’s claim was
                    inadmissible because Germany, as a sovereign State, was protected by
                    jurisdictional immunity. By a judgment of 16 November 2001, registered
                    on 14 January 2002, the Court of Appeal of Florence (Corte di Appello di
                    Firenze) dismissed the appeal of the claimant on the same grounds. On
                    11 March 2004, the Italian Court of Cassation (Corte di Cassazione) held
                    that Italian courts had jurisdiction over the claims for compensation
                    brought against Germany by Mr. Luigi Ferrini on the ground that immu-
                    nity does not apply in circumstances in which the act complained of con-
                    stitutes an international crime (Ferrini v. Federal Republic of Germany,
                    decision No. 5044/2004 (Rivista di diritto internazionale, Vol. 87, 2004,
                    p. 539 ; International Law Reports (ILR), Vol. 128, p. 658)). The case was

                                                                                18

6 CIJ1031.indb 33                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)             114

                    then referred back to the Court of Arezzo, which held in a judgment
                    dated 12 April 2007 that, although it had jurisdiction to entertain the
                    case, the claim to reparation was time‑barred. The judgment of the Court
                    of Arezzo was reversed on appeal by the Court of Appeal of Florence,
                    which held in a judgment dated 17 February 2011 that Germany should
                    pay damages to Mr. Luigi Ferrini as well as his case‑related legal costs
                    incurred in the course of the judicial proceedings in Italy. In particular,
                    the Court of Appeal of Florence held that jurisdictional immunity is not
                    absolute and cannot be invoked by a State in the face of acts by that State
                    which constitute crimes under international law.
                       28. Following the Ferrini judgment of the Italian Court of Cassation
                    dated 11 March 2004, twelve claimants brought proceedings against Ger-
                    many in the Court of Turin (Tribunale di Torino) on 13 April 2004 in the
                    case concerning Giovanni Mantelli and Others. On 28 April 2004, Libe
                    rato Maietta filed a case against Germany before the Court of Sciacca
                    (Tribunale di Sciacca). In both cases, which relate to acts of deportation
                    to, and forced labour in, Germany which took place between 1943 and
                    1945, an interlocutory appeal requesting a declaration of lack of jurisdic-
                    tion (“regolamento preventivo di giurisdizione”) was filed by Germany
                    before the Italian Court of Cassation. By two orders of 29 May 2008
                    issued in the Giovanni Mantelli and Others and the Liberato Maietta cases
                    (order No. 14201 (Mantelli), Foro italiano, Vol. 134, 2009, I, p. 1568 ;
                    order No. 14209 (Maietta), Rivista di diritto internazionale, Vol. 91, 2008,
                    p. 896), the Italian Court of Cassation confirmed that the Italian courts
                    had jurisdiction over the claims against Germany. A number of similar
                    claims against Germany are currently pending before Italian courts.

                       29. The Italian Court of Cassation also confirmed the reasoning of the
                    Ferrini judgment in a different context in proceedings brought against
                    Mr. Max Josef Milde, a member of the “Hermann Göring” division of
                    the German armed forces, who was charged with participation in massa-
                    cres committed on 29 June 1944 in Civitella (Val di Chiana), Cornia and
                    San Pancrazio in Italy. The Military Court of La Spezia (Tribunale Mili‑
                    tare di La Spezia) sentenced Mr. Milde in absentia to life imprisonment
                    and ordered Mr. Milde and Germany, jointly and severally, to pay repa-
                    ration to the successors in title of the victims of the massacre who
                    appeared as civil parties in the proceedings (judgment of 10 October 2006
                    (registered on 2 February 2007)). Germany appealed to the Military
                    Court of Appeals in Rome (Corte Militare di Appello di Roma) against
                    that part of the decision, which condemned it. On 18 December 2007 the
                    Military Court of Appeals dismissed the appeal. In a judgment of
                    21 October 2008 (registered on 13 January 2009), the Italian Court of
                    Cassation rejected Germany’s argument of lack of jurisdiction and con-
                    firmed its reasoning in the Ferrini judgment that in cases of crimes under
                    international law, the jurisdictional immunity of States should be set
                    aside (Rivista di diritto internazionale, Vol. 92, 2009, p. 618).

                                                                                19

6 CIJ1031.indb 35                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)            115

                    B. Cases involving Greek nationals
                       30. On 10 June 1944, during the German occupation of Greece, Ger-
                    man armed forces committed a massacre in the Greek village of Distomo,
                    involving many civilians. In 1995, relatives of the victims of the massacre
                    who claimed compensation for loss of life and property commenced pro-
                    ceedings against Germany. The Greek Court of First Instance (Proto‑
                    dikeio) of Livadia rendered a judgment in default on 25 September 1997
                    (and read out in court on 30 October 1997) against Germany and awarded
                    damages to the successors in title of the victims of the massacre. Germa-
                    ny’s appeal of that judgment was dismissed by the Hellenic Supreme
                    Court (Areios Pagos) on 4 May 2000 (Prefecture of Voiotia v. Federal
                    Republic of Germany, case No. 11/2000 (ILR, Vol. 129, p. 513) (the Dis‑
                    tomo case)). Article 923 of the Greek Code of Civil Procedure requires
                    authorization from the Minister for Justice to enforce a judgment against
                    a foreign State in Greece. That authorization was requested by the claim-
                    ants in the Distomo case but was not granted. As a result, the judgments
                    against Germany have remained unexecuted in Greece.

                       31. The claimants in the Distomo case brought proceedings against
                    Greece and Germany before the European Court of Human Rights alleg-
                    ing that Germany and Greece had violated Article 6, paragraph 1, of the
                    Convention for the Protection of Human Rights and Fundamental Free-
                    doms and Article 1 of Protocol No. 1 to that Convention by refusing to
                    comply with the decision of the Court of First Instance of Livadia dated
                    25 September 1997 (as to Germany) and failing to permit execution of
                    that decision (as to Greece). In its decision of 12 December 2002, the
                    European Court of Human Rights, referring to the rule of State immu-
                    nity, held that the claimants’ application was inadmissible (Kalogeropou‑
                    lou and Others v. Greece and Germany, application No. 59021/00, decision
                    of 12 December 2002, ECHR Reports 2002‑X, p. 417 ; ILR, Vol. 129,
                    p. 537).

                       32. The Greek claimants brought proceedings before the German
                    courts in order to enforce in Germany the judgment rendered on 25 Sep-
                    tember 1997 by the Greek Court of First Instance of Livadia, as con-
                    firmed on 4 May 2000 by the Hellenic Supreme Court. In its judgment of
                    26 June 2003, the German Federal Supreme Court (Bundesgerichtshof)
                    held that those Greek judicial decisions could not be recognized within
                    the German legal order because they had been given in breach of Ger-
                    many’s entitlement to State immunity (Greek Citizens v. Federal Republic
                    of Germany, case No. III ZR 245/98, Neue Juristische Wochenschrift
                    (NJW), 2003, p. 3488 ; ILR, Vol. 129, p. 556).
                       33. The Greek claimants then sought to enforce the judgments of the
                    Greek courts in the Distomo case in Italy. The Court of Appeal of Flo
                    rence held in a decision dated 2 May 2005 (registered on 5 May 2005)
                    that the order contained in the judgment of the Hellenic Supreme Court,

                                                                                20

6 CIJ1031.indb 37                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)            116

                    imposing an obligation on Germany to reimburse the legal expenses for
                    the judicial proceedings before that Court, was enforceable in Italy. In a
                    decision dated 6 February 2007 (registered on 22 March 2007), the Court
                    of Appeal of Florence rejected the objection raised by Germany against
                    the decision of 2 May 2005 (Foro italiano, Vol. 133, 2008, I, p. 1308).
                    The Italian Court of Cassation, in a judgment dated 6 May 2008
                    (registered on 29 May 2008), confirmed the ruling of the Court of

                    Appeal of Florence (Rivista di diritto internazionale, Vol. 92, 2009,
                    p. 594).
                       34. Concerning the question of reparations to be paid to Greek claim-
                    ants by Germany, the Court of Appeal of Florence declared, by a decision
                    dated 13 June 2006 (registered on 16 June 2006), that the judgment of the
                    Court of First Instance of Livadia dated 25 September 1997 was enforce-
                    able in Italy. In a judgment dated 21 October 2008 (registered on 25 Novem-
                    ber 2008), the Court of Appeal of Florence rejected the objection by the
                    German Government against the decision of 13 June 2006. The Italian
                    Court of Cassation, in a judgment dated 12 January 2011 (registered on
                    20 May 2011), confirmed the ruling of the Court of Appeal of Florence.

                       35. On 7 June 2007, the Greek claimants, pursuant to the decision by
                    the Court of Appeal of Florence of 13 June 2006, registered with the Como
                    provincial office of the Italian Land Registry (Agenzia del Territorio) a
                    legal charge (ipoteca giudiziale) over Villa Vigoni, a property of the Ger-
                    man State near Lake Como. The State Legal Service for the District of
                    Milan (Avvocatura Distrettuale dello Stato di Milano), in a submission
                    dated 6 June 2008 and made before the Court of Como (Tribunale di
                    Como), maintained that the charge should be cancelled. Under Decree‑Law
                    No. 63 of 28 April 2010, Law No. 98 of 23 June 2010 and Decree‑Law
                    No. 216 of 29 December 2011, the legal charge was suspended pending the
                    decision of the International Court of Justice in the present case.

                       36. Following the institution of proceedings in the Distomo case in
                    1995, another case was brought against Germany by Greek nationals
                    before Greek courts — referred to as the Margellos case — involving
                    claims for compensation for acts committed by German forces in the
                    Greek village of Lidoriki in 1944. In 2001, the Hellenic Supreme Court
                    referred that case to the Special Supreme Court (Anotato Eidiko
                    Dikastirio), which, in accordance with Article 100 of the Constitution of
                    Greece, has jurisdiction in relation to “the settlement of controversies
                    regarding the determination of generally recognized rules of international
                    law” [translation by the Registry], requesting it to decide whether the
                    rules on State immunity covered acts referred to in the Margellos case. By
                    a decision of 17 September 2002, the Special Supreme Court found that,
                    in the present state of development of international law, Germany was
                    entitled to State immunity (Margellos v. Federal Republic of Germany,
                    case No. 6/2002, ILR, Vol. 129, p. 525).

                                                                                21

6 CIJ1031.indb 39                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              117

                                    II. The Subject-Matter of the Dispute
                                       and the Jurisdiction of the Court

                       37. The submissions presented to the Court by Germany have remained
                    unchanged throughout the proceedings (see paragraphs 15, 16 and 17 above).
                       Germany requests the Court, in substance, to find that Italy has failed
                    to respect the jurisdictional immunity which Germany enjoys under inter-
                    national law by allowing civil claims to be brought against it in the Italian
                    courts, seeking reparation for injuries caused by violations of interna-
                    tional humanitarian law committed by the German Reich during the Sec-
                    ond World War ; that Italy has also violated Germany’s immunity by
                    taking measures of constraint against Villa Vigoni, German State prop-
                    erty situated in Italian territory ; and that it has further breached Ger-
                    many’s jurisdictional immunity by declaring enforceable in Italy decisions
                    of Greek civil courts rendered against Germany on the basis of acts simi-
                    lar to those which gave rise to the claims brought before Italian courts.
                    Consequently, the Applicant requests the Court to declare that Italy’s
                    international responsibility is engaged and to order the Respondent to
                    take various steps by way of reparation.

                       38. Italy, for its part, requests the Court to adjudge Germany’s claims
                    to be unfounded and therefore to reject them, apart from the submission
                    regarding the measures of constraint taken against Villa Vigoni, on which
                    point the Respondent indicates to the Court that it would have no objec-
                    tion to the latter ordering it to bring the said measures to an end.

                       In its Counter‑Memorial, Italy submitted a counter‑claim “with respect
                    to the question of the reparation owed to Italian victims of grave viola-
                    tions of international humanitarian law committed by forces of the Ger-
                    man Reich” ; this claim was dismissed by the Court’s Order of 6 July 2010,
                    on the grounds that it did not fall within the jurisdiction of the Court and
                    was consequently inadmissible under Article 80, paragraph 1, of the Rules
                    of Court (see paragraph 5 above).

                                                         *
                       39. The subject‑matter of a dispute brought before the Court is delim-
                    ited by the claims submitted to it by the parties. In the present case, since
                    there is no longer any counter‑claim before the Court and Italy has
                    requested the Court to “adjudge Germany’s claims to be unfounded”, it
                    is those claims that delimit the subject‑matter of the dispute which the
                    Court is called upon to settle. It is in respect of those claims that the
                    Court must determine whether it has jurisdiction to entertain the case.

                      40. Italy has raised no objection of any kind regarding the jurisdiction
                    of the Court or the admissibility of the Application.

                                                                                22

6 CIJ1031.indb 41                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              118

                       Nevertheless, according to well‑established jurisprudence, the Court
                    “must . . . always be satisfied that it has jurisdiction, and must if neces-
                    sary go into the matter proprio motu” (Appeal relating to the Jurisdiction
                    of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
                    p. 52, para. 13).
                       41. Germany’s Application was filed on the basis of the jurisdiction
                    conferred on the Court by Article 1 of the European Convention for the
                    Peaceful Settlement of Disputes, under the terms of which :
                          “The High Contracting Parties shall submit to the judgement of
                        the International Court of Justice all international legal disputes
                        which may arise between them including, in particular, those concer-
                        ning :
                        (a) the interpretation of a treaty ;
                        (b) any question of international law ;
                        (c) the existence of any fact which, if established, would constitute a
                            breach of an international obligation ;
                        (d) the nature or extent of the reparation to be made for the breach
                            of an international obligation.”
                      42. Article 27, subparagraph (a), of the same Convention limits the
                    scope of that instrument ratione temporis by stating that it shall not apply
                    to “disputes relating to facts or situations prior to the entry into force of
                    this Convention as between the parties to the dispute”. The Convention
                    entered into force as between Germany and Italy on 18 April 1961.

                       43. The claims submitted to the Court by Germany certainly relate to
                    “international legal disputes” within the meaning of Article 1 as cited
                    above, between two States which, as has just been said, were both parties
                    to the Convention on the date when the Application was filed, and indeed
                    continue to be so.
                       44. The clause in the above‑mentioned Article 27 imposing a limitation
                    ratione temporis is not applicable to Germany’s claims : the dispute which
                    those claims concern does not “relat[e] to facts or situations prior to the
                    entry into force of th[e] Convention as between the parties to the dis-
                    pute”, i.e., prior to 18 April 1961. The “facts or situations” which have
                    given rise to the dispute before the Court are constituted by Italian judi-
                    cial decisions that denied Germany the jurisdictional immunity which it
                    claimed, and by measures of constraint applied to property belonging to
                    Germany. Those decisions and measures were adopted between 2004 and
                    2011, thus well after the European Convention for the Peaceful Settle-
                    ment of Disputes entered into force as between the Parties. It is true that
                    the subject‑matter of the disputes to which the judicial proceedings in
                    question relate is reparation for the injury caused by actions of the Ger-
                    man armed forces in 1943‑1945. Germany’s complaint before the Court,
                    however, is not about the treatment of that subject‑matter in the judg-
                    ments of the Italian courts ; its complaint is solely that its immunities
                    from jurisdiction and enforcement have been violated. Defined in such

                                                                                23

6 CIJ1031.indb 43                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               119

                    terms, the dispute undoubtedly relates to “facts or situations” occurring
                    entirely after the entry into force of the Convention as between the Par-
                    ties. Italy has thus rightly not sought to argue that the dispute brought
                    before the Court by Germany falls wholly or partly within the limitation
                    ratione temporis under the above‑mentioned Article 27. The Court has
                    jurisdiction to deal with the dispute.

                       45. The Parties, who have not disagreed on the analysis set out above,
                    have on the other hand debated the extent of the Court’s jurisdiction in a
                    quite different context, that of some of the arguments put forward by
                    Italy in its defence and relating to the alleged non‑performance by Ger-
                    many of its obligation to make reparation to the Italian and Greek vic-
                    tims of the crimes committed by the German Reich in 1943‑1945.

                      According to Italy, a link exists between the question of Germany’s
                    performance of its obligation to make reparation to the victims and that
                    of the jurisdictional immunity which Germany might rely on before the
                    foreign courts to which those victims apply, in the sense that a State
                    which fails to perform its obligation to make reparation to the victims of
                    grave violations of international humanitarian law, and which offers
                    those victims no effective means of claiming the reparation to which they
                    may be entitled, would be deprived of the right to invoke its jurisdictional
                    immunity before the courts of the State of the victims’ nationality.

                       46. Germany has contended that the Court could not rule on such an
                    argument, on the basis that it concerned the question of reparation
                    claims, which relate to facts prior to 18 April 1961. According to Ger-
                    many, “facts occurring before the date of the entry into force of the Euro-
                    pean Convention for the Peaceful Settlement of Disputes as between Italy
                    and Germany clearly lie outside the jurisdiction of the Court”, and “repa-
                    ration claims do not fall within the subject‑matter of the present dispute
                    and do not form part of the present proceedings”. Germany relies in this
                    respect on the Order whereby the Court dismissed Italy’s counter‑claim,
                    which precisely asked the Court to find that Germany had violated its
                    obligation of reparation owed to Italian victims of war crimes and crimes
                    against humanity committed by the German Reich (see paragraph 38).
                    Germany points out that this dismissal was based on the fact that the said
                    counter‑claim fell outside the jurisdiction of the Court, because of the
                    clause imposing a limitation ratione temporis in the above‑mentioned
                    Article 27 of the European Convention for the Peaceful Settlement of
                    Disputes, the question of reparation claims resulting directly from the
                    acts committed in 1943‑1945.

                       47. Italy has responded to this objection that, while the Order of
                    6 July 2010 certainly prevents it from pursuing its counter‑claim in the pres-
                    ent case, it does not on the other hand prevent it from using the arguments
                    on which it based that counter‑claim in its defence against Germany’s

                                                                                24

6 CIJ1031.indb 45                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              120

                    claims ; that the question of the lack of appropriate reparation is, in its
                    view, crucial for resolving the dispute over immunity ; and that the Court’s
                    jurisdiction to take cognizance of it incidentally is thus indisputable.

                       48. The Court notes that, since the dismissal of Italy’s counter‑claim, it
                    no longer has before it any submissions asking it to rule on the question
                    of whether Germany has a duty of reparation towards the Italian victims
                    of the crimes committed by the German Reich and whether it has com-
                    plied with that obligation in respect of all those victims, or only some of
                    them. The Court is therefore not called upon to rule on those questions.

                      49. However, in support of its submission that it has not violated Ger-
                    many’s jurisdictional immunity, Italy contends that Germany stands
                    deprived of the right to invoke that immunity in Italian courts before
                    which civil actions have been brought by some of the victims, because of
                    the fact that it has not fully complied with its duty of reparation.

                      50. The Court must determine whether, as Italy maintains, the failure
                    of a State to perform completely a duty of reparation which it allegedly
                    bears is capable of having an effect, in law, on the existence and scope of
                    that State’s jurisdictional immunity before foreign courts. This question is
                    one of law on which the Court must rule in order to determine the cus-
                    tomary international law applicable in respect of State immunity for the
                    purposes of the present case.

                       Should the preceding question be answered in the affirmative, the sec-
                    ond question would be whether, in the specific circumstances of the case,
                    taking account in particular of Germany’s conduct on the issue of repara-
                    tion, the Italian courts had sufficient grounds for setting aside Germany’s
                    immunity. It is not necessary for the Court to satisfy itself that it has
                    jurisdiction to respond to this second question until it has responded to
                    the first.
                       The Court considers that, at this stage, no other question arises with
                    regard to the existence or scope of its jurisdiction.

                                                         *
                       51. The Court will first address the issues raised by Germany’s first
                    submission, namely whether, by exercising jurisdiction over Germany
                    with regard to the claims brought before them by the various Italian
                    claimants, the Italian courts acted in breach of Italy’s obligation to accord
                    jurisdictional immunity to Germany. It will then turn, in Section IV, to
                    the measures of constraint adopted in respect of Villa Vigoni and, in Sec-
                    tion V, to the decisions of the Italian courts declaring enforceable in Italy
                    the judgments of the Greek courts.

                                                                                25

6 CIJ1031.indb 47                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)             121

                                    III. Alleged Violation of Germany’s
                            Jurisdictional Immunity in the Proceedings Brought
                                          by the Italian Claimants

                                          1. The Issues before the Court
                       52. The Court begins by observing that the proceedings in the Italian
                    courts have their origins in acts perpetrated by German armed forces and
                    other organs of the German Reich. Germany has fully acknowledged the
                    “untold suffering inflicted on Italian men and women in particular during
                    massacres, and on former Italian military internees” (Joint Declaration of
                    Germany and Italy, Trieste, 18 November 2008), accepts that these acts
                    were unlawful and stated before this Court that it “is fully aware of [its]
                    responsibility in this regard”. The Court considers that the acts in ques-
                    tion can only be described as displaying a complete disregard for the
                    “elementary considerations of humanity” (Corfu Channel (United King‑
                    dom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22 ; Military
                    and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                    States of America), Merits, Judgment, I.C.J. Reports 1986, p. 112). One
                    category of cases involved the large‑scale killing of civilians in occupied
                    territory as part of a policy of reprisals, exemplified by the massacres
                    committed on 29 June 1944 in Civitella (Val di Chiana), Cornia and San
                    Pancrazio by members of the “Hermann Göring” division of the German
                    armed forces involving the killing of 203 civilians taken as hostages after
                    resistance fighters had killed four German soldiers a few days earlier
                    (Max Josef Milde case, Military Court of La Spezia, judgment of 10 Octo-
                    ber 2006 (registered on 2 February 2007)). Another category involved
                    members of the civilian population who, like Mr. Luigi Ferrini, were
                    deported from Italy to what was in substance slave labour in Germany.
                    The third concerned members of the Italian armed forces who were
                    denied the status of prisoner of war, together with the protections which
                    that status entailed, to which they were entitled and who were similarly
                    used as forced labourers. The Court considers that there can be no doubt
                    that this conduct was a serious violation of the international law of armed
                    conflict applicable in 1943‑1945. Article 6 (b) of the Charter of the Inter-
                    national Military Tribunal, 8 August 1945 (United Nations, Treaty Series
                    (UNTS), Vol. 82, p. 279), convened at Nuremberg included as war crimes
                    “murder, ill‑treatment, or deportation to slave labour or for any other
                    purpose of civilian population of or in occupied territory”, as well as
                    “murder or ill‑treatment of prisoners of war”. The list of crimes against
                    humanity in Article 6 (c) of the Charter included “murder, extermina-
                    tion, enslavement, deportation, and other inhumane acts committed
                    against any civilian population, before or during the war”. The murder of
                    civilian hostages in Italy was one of the counts on which a number of war
                    crimes defendants were condemned in trials immediately after the Second
                    World War (e.g., Von Mackensen and Maelzer (1946), Annual Digest,
                    Vol. 13, p. 258 ; Kesselring (1947), Annual Digest, Vol. 13, p. 260 ; and

                                                                                26

6 CIJ1031.indb 49                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              122

                    Kappler (1948), Annual Digest, Vol. 15, p. 471). The principles of the
                    Nuremberg Charter were confirmed by the General Assembly of the
                    United Nations in resolution 95 (I) of 11 December 1946.

                       53. However, the Court is not called upon to decide whether these acts
                    were illegal, a point which is not contested. The question for the Court is
                    whether or not, in proceedings regarding claims for compensation arising
                    out of those acts, the Italian courts were obliged to accord Germany
                    immunity. In that context, the Court notes that there is a considerable
                    measure of agreement between the Parties regarding the applicable law.
                    In particular, both Parties agree that immunity is governed by interna-
                    tional law and is not a mere matter of comity.

                       54. As between Germany and Italy, any entitlement to immunity can
                    be derived only from customary international law, rather than treaty.
                    Although Germany is one of the eight States parties to the European
                    Convention on State Immunity of 16 May 1972 (Council of Europe, Euro‑
                    pean Treaty Series (ETS), No. 74 ; UNTS, Vol. 1495, p. 182) (hereinafter
                    the “European Convention”), Italy is not a party and the Convention is
                    accordingly not binding upon it. Neither State is party to the United
                    Nations Convention on Jurisdictional Immunities of States and Their
                    Property, adopted on 2 December 2004 (hereinafter the “United Nations
                    Convention”), which is not yet in force in any event. As of 1 Febru-
                    ary 2012, the United Nations Convention had been signed by twenty-
                    eight States and obtained thirteen instruments of ratification, acceptance,
                    approval or accession. Article 30 of the Convention provides that it will
                    enter into force on the thirtieth day after deposit of the thirtieth such
                    instrument. Neither Germany nor Italy has signed the Convention.

                       55. It follows that the Court must determine, in accordance with Arti-
                    cle 38 (1) (b) of its Statute, the existence of “international custom, as
                    evidence of a general practice accepted as law” conferring immunity on
                    States and, if so, what is the scope and extent of that immunity. To do so,
                    it must apply the criteria which it has repeatedly laid down for identifying
                    a rule of customary international law. In particular, as the Court made
                    clear in the North Sea Continental Shelf cases, the existence of a rule of
                    customary international law requires that there be “a settled practice”
                    together with opinio juris (North Sea Continental Shelf (Federal Republic
                    of Germany/Denmark ; Federal Republic of Germany/Netherlands), Judg‑
                    ment, I.C.J. Reports 1969, p. 44, para. 77). Moreover, as the Court has
                    also observed,
                        “[i]t is of course axiomatic that the material of customary international
                        law is to be looked for primarily in the actual practice and opinio juris

                                                                                27

6 CIJ1031.indb 51                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              123

                        of States, even though multilateral conventions may have an impor-
                        tant role to play in recording and defining rules deriving from custom,
                        or indeed in developing them” (Continental Shelf (Libyan Arab Jama‑
                        hiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 29‑30, para. 27).

                    In the present context, State practice of particular significance is to be
                    found in the judgments of national courts faced with the question whether
                    a foreign State is immune, the legislation of those States which have
                    enacted statutes dealing with immunity, the claims to immunity advanced
                    by States before foreign courts and the statements made by States, first in
                    the course of the extensive study of the subject by the International Law
                    Commission and then in the context of the adoption of the United
                    Nations Convention. Opinio juris in this context is reflected in particular
                    in the assertion by States claiming immunity that international law
                    accords them a right to such immunity from the jurisdiction of other
                    States ; in the acknowledgment, by States granting immunity, that inter-
                    national law imposes upon them an obligation to do so ; and, conversely,
                    in the assertion by States in other cases of a right to exercise jurisdiction
                    over foreign States. While it may be true that States sometimes decide to
                    accord an immunity more extensive than that required by international
                    law, for present purposes, the point is that the grant of immunity in such
                    a case is not accompanied by the requisite opinio juris and therefore sheds
                    no light upon the issue currently under consideration by the Court.

                       56. Although there has been much debate regarding the origins of
                    State immunity and the identification of the principles underlying that
                    immunity in the past, the International Law Commission concluded in
                    1980 that the rule of State immunity had been “adopted as a general rule
                    of customary international law solidly rooted in the current practice of
                    States” (Yearbook of the International Law Commission, 1980, Vol. II (2),
                    p. 147, para. 26). That conclusion was based upon an extensive survey of
                    State practice and, in the opinion of the Court, is confirmed by the record
                    of national legislation, judicial decisions, assertions of a right to immu-
                    nity and the comments of States on what became the United Nations
                    Convention. That practice shows that, whether in claiming immunity for
                    themselves or according it to others, States generally proceed on the basis
                    that there is a right to immunity under international law, together with a
                    corresponding obligation on the part of other States to respect and give
                    effect to that immunity.

                       57. The Court considers that the rule of State immunity occupies an
                    important place in international law and international relations. It derives
                    from the principle of sovereign equality of States, which, as Article 2,
                    paragraph 1, of the Charter of the United Nations makes clear, is one of
                    the fundamental principles of the international legal order. This principle
                    has to be viewed together with the principle that each State possesses sov-

                                                                                28

6 CIJ1031.indb 53                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                124

                    ereignty over its own territory and that there flows from that sovereignty
                    the jurisdiction of the State over events and persons within that territory.
                    Exceptions to the immunity of the State represent a departure from the
                    principle of sovereign equality. Immunity may represent a departure from
                    the principle of territorial sovereignty and the jurisdiction which flows
                    from it.

                       58. The Parties are thus in broad agreement regarding the validity and
                    importance of State immunity as a part of customary international law.
                    They differ, however, as to whether (as Germany contends) the law to be
                    applied is that which determined the scope and extent of State immunity
                    in 1943‑1945, i.e., at the time that the events giving rise to the proceedings
                    in the Italian courts took place, or (as Italy maintains) that which applied
                    at the time the proceedings themselves occurred. The Court observes that,
                    in accordance with the principle stated in Article 13 of the International
                    Law Commission Articles on Responsibility of States for Internationally
                    Wrongful Acts, the compatibility of an act with international law can be
                    determined only by reference to the law in force at the time when the act
                    occurred. In that context, it is important to distinguish between the rele-
                    vant acts of Germany and those of Italy. The relevant German acts —
                    which are described in paragraph 52 — occurred in 1943‑1945, and it is,
                    therefore, the international law of that time which is applicable to them.
                    The relevant Italian acts — the denial of immunity and exercise of juris-
                    diction by the Italian courts — did not occur until the proceedings in the
                    Italian courts took place. Since the claim before the Court concerns the
                    actions of the Italian courts, it is the international law in force at the time
                    of those proceedings which the Court has to apply. Moreover, as the
                    Court has stated (in the context of the personal immunities accorded by
                    international law to foreign ministers), the law of immunity is essentially
                    procedural in nature (Arrest Warrant of 1 April 2000 (Democratic Repub‑
                    lic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 25,
                    para. 60). It regulates the exercise of jurisdiction in respect of particular
                    conduct and is thus entirely distinct from the substantive law which deter-
                    mines whether that conduct is lawful or unlawful. For these reasons, the
                    Court considers that it must examine and apply the law on State immu-
                    nity as it existed at the time of the Italian proceedings, rather than that
                    which existed in 1943‑1945.

                      59. The Parties also differ as to the scope and extent of the rule of State
                    immunity. In that context, the Court notes that many States (including
                    both Germany and Italy) now distinguish between acta jure gestionis, in
                    respect of which they have limited the immunity which they claim for
                    themselves and which they accord to others, and acta jure imperii. That
                    approach has also been followed in the United Nations Convention and
                    the European Convention (see also the draft Inter‑American Convention
                    on Jurisdictional Immunity of States drawn up by the Inter‑American

                                                                                29

6 CIJ1031.indb 55                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               125

                    Juridical Committee of the Organization of American States in 1983
                    (ILM, Vol. 22, p. 292)).
                       60. The Court is not called upon to address the question of how inter-
                    national law treats the issue of State immunity in respect of acta jure
                    gestionis. The acts of the German armed forces and other State organs
                    which were the subject of the proceedings in the Italian courts clearly
                    constituted acta jure imperii. The Court notes that Italy, in response to a
                    question posed by a Member of the Court, recognized that those acts had
                    to be characterized as acta jure imperii, notwithstanding that they were
                    unlawful. The Court considers that the terms “jure imperii” and “jure ges‑
                    tionis” do not imply that the acts in question are lawful but refer rather to
                    whether the acts in question fall to be assessed by reference to the law
                    governing the exercise of sovereign power (jus imperii) or the law con-
                    cerning non‑sovereign activities of a State, especially private and com-
                    mercial activities (jus gestionis). To the extent that this distinction is
                    significant for determining whether or not a State is entitled to immunity
                    from the jurisdiction of another State’s courts in respect of a particular
                    act, it has to be applied before that jurisdiction can be exercised, whereas
                    the legality or illegality of the act is something which can be determined
                    only in the exercise of that jurisdiction. Although the present case is
                    unusual in that the illegality of the acts at issue has been admitted by
                    Germany at all stages of the proceedings, the Court considers that this
                    fact does not alter the characterization of those acts as acta jure imperii.

                       61. Both Parties agree that States are generally entitled to immunity in
                    respect of acta jure imperii. That is the approach taken in the United
                    Nations, European and draft Inter‑American Conventions, the national
                    legislation in those States which have adopted statutes on the subject and
                    the jurisprudence of national courts. It is against that background that
                    the Court must approach the question raised by the present proceedings,
                    namely whether that immunity is applicable to acts committed by the
                    armed forces of a State (and other organs of that State acting in co‑oper-
                    ation with the armed forces) in the course of conducting an armed con-
                    flict. Germany maintains that immunity is applicable and that there is no
                    relevant limitation on the immunity to which a State is entitled in respect
                    of acta jure imperii. Italy, in its pleadings before the Court, maintains that
                    Germany is not entitled to immunity in respect of the cases before the
                    Italian courts for two reasons : first, that immunity as to acta jure imperii
                    does not extend to torts or delicts occasioning death, personal injury or
                    damage to property committed on the territory of the forum State, and,
                    secondly, that, irrespective of where the relevant acts took place, Ger-
                    many was not entitled to immunity because those acts involved the most
                    serious violations of rules of international law of a peremptory character
                    for which no alternative means of redress was available. The Court will
                    consider each of Italy’s arguments in turn.

                                                                                30

6 CIJ1031.indb 57                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              126

                                            2. Italy’s First Argument :
                                           The Territorial Tort Principle
                       62. The essence of the first Italian argument is that customary interna-
                    tional law has developed to the point where a State is no longer entitled
                    to immunity in respect of acts occasioning death, personal injury or dam-
                    age to property on the territory of the forum State, even if the act in ques-
                    tion was performed jure imperii. Italy recognizes that this argument is
                    applicable only to those of the claims brought before the Italian courts
                    which concern acts that occurred in Italy and not to the cases of Italian
                    military internees taken prisoner outside Italy and transferred to Ger-
                    many or other territories outside Italy as forced labour. In support of its
                    argument, Italy points to the adoption of Article 11 of the European
                    Convention and Article 12 of the United Nations Convention and to the
                    fact that nine of the ten States it identified which have adopted legislation
                    specifically dealing with State immunity (the exception being Pakistan)
                    have enacted provisions similar to those in the two Conventions. Italy
                    acknowledges that the European Convention contains a provision to the
                    effect that the Convention is not applicable to the acts of foreign armed
                    forces (Art. 31) but maintains that this provision is merely a saving
                    clause aimed primarily at avoiding conflicts between the Convention and
                    instruments regulating the status of visiting forces present with the con-
                    sent of the territorial sovereign and that it does not show that States are
                    entitled to immunity in respect of the acts of their armed forces in another
                    State. Italy dismisses the significance of certain statements (discussed in
                    paragraph 69 below) made during the process of adoption of the United
                    Nations Convention suggesting that that Convention did not apply to the
                    acts of armed forces. Italy also notes that two of the national statutes
                    (those of the United Kingdom and Singapore) are not applicable to the
                    acts of foreign armed forces but argues that the other seven (those of
                    Argentina, Australia, Canada, Israel, Japan, South Africa and the United
                    States of America) amount to significant State practice asserting jurisdic-
                    tion over torts occasioned by foreign armed forces.

                       63. Germany maintains that, in so far as they deny a State immunity in
                    respect of acta jure imperii, neither Article 11 of the European Conven-
                    tion, nor Article 12 of the United Nations Convention reflects customary
                    international law. It contends that, in any event, they are irrelevant to the
                    present proceedings, because neither provision was intended to apply to
                    the acts of armed forces. Germany also points to the fact that, with the
                    exception of the Italian cases and the Distomo case in Greece, no national
                    court has ever held that a State was not entitled to immunity in respect of
                    acts of its armed forces, in the context of an armed conflict and that, by

                                                                                31

6 CIJ1031.indb 59                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                127

                    contrast, the courts in several States have expressly declined jurisdiction
                    in such cases on the ground that the respondent State was entitled to
                    immunity.

                                                          *
                       64. The Court begins by observing that the notion that State immunity
                    does not extend to civil proceedings in respect of acts committed on the
                    territory of the forum State causing death, personal injury or damage to
                    property originated in cases concerning road traffic accidents and other
                    “insurable risks”. The limitation of immunity recognized by some national
                    courts in such cases was treated as confined to acta jure gestionis (see, e.g.,
                    the judgment of the Supreme Court of Austria in Holubek v. Government
                    of the United States of America (Juristische Blätter (Vienna), Vol. 84, 1962,
                    p. 43 ; ILR, Vol. 40, p. 73)). The Court notes, however, that none of the
                    national legislation which provides for a “territorial tort exception” to
                    immunity expressly distinguishes between acta jure gestionis and acta jure
                    imperii. The Supreme Court of Canada expressly rejected the suggestion
                    that the exception in the Canadian legislation was subject to such a dis-
                    tinction (Schreiber v. Federal Republic of Germany and the Attorney Gen‑
                    eral of Canada, [2002] Supreme Court Reports (SCR), Vol. 3, p. 269,
                    paras. 33‑36). Nor is such a distinction featured in either Article 11 of the
                    European Convention or Article 12 of the United Nations Convention.
                    The International Law Commission’s commentary on the text of what
                    became Article 12 of the United Nations Convention makes clear that
                    this was a deliberate choice and that the provision was not intended to be
                    restricted to acta jure gestionis (Yearbook of the International Law Com‑
                    mission, 1991, Vol. II (2), p. 45, para. 8). Germany has not, however, been
                    alone in suggesting that, in so far as it was intended to apply to acta jure
                    imperii, Article 12 was not representative of customary international law.
                    In criticizing the International Law Commission’s draft of what became
                    Article 12, China commented in 1990 that “the article had gone even fur-
                    ther than the restrictive doctrine, for it made no distinction between sov-
                    ereign acts and private law acts” (United Nations doc. A/C.6/45/SR.25,
                    p. 2) and the United States, commenting in 2004 on the draft United
                    Nations Convention, stated that Article 12 “must be interpreted and
                    applied consistently with the time-honoured distinction between acts jure
                    imperii and acts jure gestionis” since to extend jurisdiction without regard
                    to that distinction “would be contrary to the existing principles of inter-
                    national law” (United Nations doc. A/C.6/59/SR.13, p. 10, para. 63).

                      65. The Court considers that it is not called upon in the present pro-
                    ceedings to resolve the question whether there is in customary interna-

                                                                                32

6 CIJ1031.indb 61                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              128

                    tional law a “tort exception” to State immunity applicable to acta jure
                    imperii in general. The issue before the Court is confined to acts commit-
                    ted on the territory of the forum State by the armed forces of a foreign
                    State, and other organs of State working in co‑operation with those
                    armed forces, in the course of conducting an armed conflict.
                       66. The Court will first consider whether the adoption of Article 11 of
                    the European Convention or Article 12 of the United Nations Conven-
                    tion affords any support to Italy’s contention that States are no longer
                    entitled to immunity in respect of the type of acts specified in the preced-
                    ing paragraph. As the Court has already explained (see paragraph 54
                    above), neither Convention is in force between the Parties to the present
                    case. The provisions of these Conventions are, therefore, relevant only in
                    so far as their provisions and the process of their adoption and implemen-
                    tation shed light on the content of customary international law.

                      67. Article 11 of the European Convention states the territorial tort
                    principle in broad terms,
                          “A Contracting State cannot claim immunity from the jurisdiction
                        of a court of another Contracting State in proceedings which relate to
                        redress for injury to the person or damage to tangible property, if the
                        facts which occasioned the injury or damage occurred in the territory
                        of the State of the forum, and if the author of the injury or damage
                        was present in that territory at the time when those facts occurred.”
                    That provision must, however, be read in the light of Article 31, which
                    provides,
                           “Nothing in this Convention shall affect any immunities or privile-
                        ges enjoyed by a Contracting State in respect of anything done or
                        omitted to be done by, or in relation to, its armed forces when on the
                        territory of another Contracting State.”

                    Although one of the concerns which Article 31 was intended to address
                    was the relationship between the Convention and the various agreements
                    on the status of visiting forces, the language of Article 31 makes clear that
                    it is not confined to that matter and excludes from the scope of the Con-
                    vention all proceedings relating to acts of foreign armed forces, irrespec-
                    tive of whether those forces are present in the territory of the forum with
                    the consent of the forum State and whether their acts take place in peace-
                    time or in conditions of armed conflict. The Explanatory Report on the
                    Convention, which contains a detailed commentary prepared as part of
                    the negotiating process, states in respect of Article 31,

                          “The Convention is not intended to govern situations which may
                        arise in the event of armed conflict ; nor can it be invoked to resolve

                                                                                33

6 CIJ1031.indb 63                                                                                22/11/13 12:25

                                jurisdictional immunities of the state (judgment)                                                  129

                        problems which may arise between allied States as a result of the
                        stationing of forces. These problems are generally dealt with by spe-
                        cial agreements (cf. Art. 33).
                        �����������������������������������������������������������������������������������������������������������������
                            [Article 31] prevents the Convention being interpreted as having
                        any influence upon these matters.” (Para. 116 ; emphasis added.)

                       68. The Court agrees with Italy that Article 31 takes effect as a “saving
                    clause”, with the result that the immunity of a State for the acts of its
                    armed forces falls entirely outside the Convention and has to be deter-
                    mined by reference to customary international law. The consequence,
                    however, is that the inclusion of the “territorial tort principle” in Arti-
                    cle 11 of the Convention cannot be treated as support for the argument
                    that a State is not entitled to immunity for torts committed by its armed
                    forces. As the Explanatory Report states, the effect of Article 31 is that
                    the Convention has no influence upon that question. Courts in Belgium
                    (judgment of the Court of First Instance of Ghent in Botelberghe v. Ger‑
                    man State, 18 February 2000), Ireland (judgment of the Supreme Court in
                    McElhinney v. Williams, 15 December 1995, [1995] 3 Irish Reports 382 ;
                    ILR, Vol. 104, p. 691), Slovenia (case No. Up‑13/99, Constitutional
                    Court, para. 13), Greece (Margellos v. Federal Republic of Germany, case
                    No. 6/2002, ILR, Vol. 129, p. 529) and Poland (judgment of the Supreme
                    Court of Poland, Natoniewski v. Federal Republic of Germany, Polish
                    Yearbook of International Law, Vol. XXX, 2010, p. 299) have concluded
                    that Article 31 means that the immunity of a State for torts committed by
                    its armed forces is unaffected by Article 11 of the Convention.

                      69. Article 12 of the United Nations Convention provides,
                           “Unless otherwise agreed between the States concerned, a State
                        cannot invoke immunity from jurisdiction before a court of another
                        State which is otherwise competent in a proceeding which relates to
                        pecuniary compensation for death or injury to the person, or damage
                        to or loss of tangible property, caused by an act or omission which is
                        alleged to be attributable to the State, if the act or omission occurred
                        in whole or in part in the territory of that other State and if the
                        author of the act or omission was present in that territory at the time
                        of the act or omission.”

                    Unlike the European Convention, the United Nations Convention con-
                    tains no express provision excluding the acts of armed forces from its
                    scope. However, the International Law Commission’s commentary on the
                    text of Article 12 states that that provision does not apply to “situations
                    involving armed conflicts” (Yearbook of the International Law Commis‑

                                                                                34

6 CIJ1031.indb 65                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                130

                    sion, 1991, Vol. II (2), p. 46, para. 10). Moreover, in presenting to the
                    Sixth Committee of the General Assembly the Report of the Ad Hoc
                    Committee on Jurisdictional Immunities of States and Their Property
                    (United Nations doc. A/59/22), the Chairman of the Ad Hoc Committee
                    stated that the draft Convention had been prepared on the basis of a gen-
                    eral understanding that military activities were not covered (United
                    Nations doc. A/C.6/59/SR.13, p. 6, para. 36).

                       No State questioned this interpretation. Moreover, the Court notes
                    that two of the States which have so far ratified the Convention, Norway
                    and Sweden, made declarations in identical terms stating their under-
                    standing that “the Convention does not apply to military activities,
                    including the activities of armed forces during an armed conflict, as those
                    terms are understood under international humanitarian law, and activi-
                    ties undertaken by military forces of a State in the exercise of their official
                    duties” (United Nations doc. C.N.280.2006.TREATIES‑2 and United
                    Nations doc. C.N.912.2009.TREATIES‑1). In the light of these various
                    statements, the Court concludes that the inclusion in the Convention of
                    Article 12 cannot be taken as affording any support to the contention
                    that customary international law denies State immunity in tort proceed-
                    ings relating to acts occasioning death, personal injury or damage to
                    property committed in the territory of the forum State by the armed
                    forces and associated organs of another State in the context of an armed
                    conflict.
                       70. Turning to State practice in the form of national legislation, the
                    Court notes that nine of the ten States referred to by the Parties which
                    have legislated specifically for the subject of State immunity have adopted
                    provisions to the effect that a State is not entitled to immunity in respect
                    of torts occasioning death, personal injury or damage to property occur-
                    ring on the territory of the forum State (United States of America For-
                    eign Sovereign Immunities Act 1976, 28 USC, Sect. 1605 (a) (5) ; United
                    Kingdom State Immunity Act 1978, Sect. 5 ; South Africa Foreign States
                    Immunities Act 1981, Sect. 6 ; Canada State Immunity Act 1985, Sect. 6 ;
                    Australia Foreign States Immunities Act 1985, Sect. 13 ; Singapore State
                    Immunity Act 1985, Sect. 7 ; Argentina Law No. 24.488 (Statute on
                    the Immunity of Foreign States before Argentine Tribunals) 1995,
                    Art. 2 (e) ; Israel Foreign State Immunity Law 2008, Sect. 5 ; and Japan,
                     Act on the Civil Jurisdiction of Japan with respect to a Foreign State,
                     2009, Art. 10). Only Pakistan’s State Immunity Ordinance 1981 contains
                     no comparable provision.

                      71. Two of these statutes (the United Kingdom State Immunity
                    Act 1978, Section 16 (2) and the Singapore State Immunity Act 1985, Sec-

                                                                                35

6 CIJ1031.indb 67                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                 131

                    tion 19 (2) (a)) contain provisions that exclude proceedings relating to
                    the acts of foreign armed forces from their application. The correspond-
                    ing provisions in the Canadian, Australian and Israeli statutes exclude
                    only the acts of visiting forces present with the consent of the host State
                    or matters covered by legislation regarding such visiting forces (Canada
                    State Immunity Act 1985, Section 16 ; Australia Foreign States Immuni-
                    ties Act 1985, Section 6 ; Israel Foreign State Immunity Law 2008, Sec-
                    tion 22). The legislation of South Africa, Argentina and Japan contains
                    no exclusion clause. However, the Japanese statute (in Article 3) states
                    that its provisions “shall not affect the privileges or immunities enjoyed
                    by a foreign State . . . based on treaties or the established international
                    law”.

                        The United States Foreign Sovereign Immunities Act 1976 contains no
                    provision specifically addressing claims relating to the acts of foreign
                    armed forces but its provision that there is no immunity in respect of
                    claims “in which money damages are sought against a foreign State for
                    personal injury or death, or damage to or loss of property, occurring in
                    the United States and caused by the tortious act or omission of that for-
                    eign State” (Sec. 1605 (a) (5)) is subject to an exception for “any claim
                    based upon the exercise or performance or the failure to exercise or
                    perform a discretionary function regardless of whether the discretion be
                     abused” (Sec. 1605 (a) (5) (A)). Interpreting this provision, which has no
                     counterpart in the legislation of other States, a court in the United States
                     has held that a foreign State whose agents committed an assassination
                     in the United States was not entitled to immunity (Letelier v. Republic of
                     Chile (1980), Federal Supplement (F. Supp.), Vol. 488, p. 665 ; ILR,
                     Vol. 63, p. 378 (United States District Court, District of Columbia)).
                     However, the Court is not aware of any case in the United States where
                     the courts have been called upon to apply this provision to acts performed
                     by the armed forces and associated organs of foreign States in the course
                     of an armed conflict.
                        Indeed, in none of the seven States in which the legislation contains no
                     general exclusion for the acts of armed forces, have the courts been called
                     upon to apply that legislation in a case involving the armed forces of a
                     foreign State, and associated organs of State, acting in the context of an
                     armed conflict.
                        72. The Court next turns to State practice in the form of the judgments
                     of national courts regarding State immunity in relation to the acts of
                     armed forces. The question whether a State is entitled to immunity in
                     proceedings concerning torts allegedly committed by its armed forces
                     when stationed on or visiting the territory of another State, with the con-
                     sent of the latter, has been considered by national courts on a number of
                     occasions. Decisions of the courts of Egypt (Bassionni Amrane v. John,
                     Gazette des Tribunaux mixtes d’Egypte, January 1934, p. 108 ; Annual
                     Digest, Vol. 7, p. 187), Belgium (S.A. Eau, gaz, électricité et applications v.

                                                                                36

6 CIJ1031.indb 69                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                 132

                    Office d’aide mutuelle, Cour d’appel, Brussels, Pasicrisie belge, 1957,
                    Vol. 144, 2nd Part, p. 88 ; ILR, Vol. 23, p. 205) and Germany (Immunity
                    of the United Kingdom, Court of Appeal of Schleswig, Jahrbuch für Inter‑
                    nationales Recht, 1957, Vol. 7, p. 400 ; ILR, Vol. 24, p. 207) are earlier
                    examples of national courts according immunity where the acts of foreign
                    armed forces were characterized as acta jure imperii. Since then, several
                    national courts have held that a State is immune with respect to damage
                    caused by warships (United States of America v. Eemshaven Port Author‑
                    ity, Supreme Court of the Netherlands, Nederlandse Jurisprudentie, 2001,
                    No. 567 ; ILR, Vol. 127, p. 225 ; Allianz Via Insurance v. United States of
                    America (1999), Cour d’appel, Aix‑en‑Provence, 2nd Chamber, judgment
                    of 3 September 1999, ILR, Vol. 127, p. 148) or military exercises
                    (FILT‑CGIL Trento v. United States of America, Italian Court of Cassa-
                    tion, Rivista di diritto internazionale, Vol. 83, 2000, p. 1155 ; ILR, Vol. 128,
                    p. 644). The United Kingdom courts have held that customary interna-
                    tional law required immunity in proceedings for torts committed by for-
                    eign armed forces on United Kingdom territory if the acts in question
                    were acta jure imperii (Littrell v. United States of America (No. 2), Court
                    of Appeal, [1995] 1 Weekly Law Reports (WLR) 82 ; ILR, Vol. 100,
                    p. 438 ; Holland v. Lampen‑Wolfe, House of Lords, [2000] 1 WLR 1573 ;
                    ILR, Vol. 119, p. 367).

                       The Supreme Court of Ireland held that international law required that
                    a foreign State be accorded immunity in respect of acts jure imperii car-
                    ried out by members of its armed forces even when on the territory of the
                    forum State without the forum State’s permission (McElhinney v. Wil‑
                    liams, [1995] 3 Irish Reports 382 ; ILR, Vol. 104, p. 691). The Grand
                    Chamber of the European Court of Human Rights later held that this
                    decision reflected a widely held view of international law so that the grant
                    of immunity could not be regarded as incompatible with the European
                    Convention on Human Rights (McElhinney v. Ireland [GC], application
                    No. 31253/96, judgment of 21 November 2001, ECHR Reports 2001‑XI,
                    p. 39 ; ILR, Vol. 123, p. 73, para. 38).

                       While not directly concerned with the specific issue which arises in the
                    present case, these judicial decisions, which do not appear to have been
                    contradicted in any other national court judgments, suggest that a State
                    is entitled to immunity in respect of acta jure imperii committed by its
                    armed forces on the territory of another State.

                       73. The Court considers, however, that for the purposes of the present
                    case the most pertinent State practice is to be found in those national
                    judicial decisions which concerned the question whether a State was enti-
                    tled to immunity in proceedings concerning acts allegedly committed by
                    its armed forces in the course of an armed conflict. All of those cases, the
                    facts of which are often very similar to those of the cases before the

                                                                                37

6 CIJ1031.indb 71                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)             133

                    Italian courts, concern the events of the Second World War. In this con-
                    text, the Cour de cassation in France has consistently held that Germany
                    was entitled to immunity in a series of cases brought by claimants who had
                    been deported from occupied French territory during the Second World
                    War (No. 02‑45961, 16 December 2003, Bull. civ., 2003, I, No. 258, p. 206
                    (the Bucheron case) ; No. 03‑41851, 2 June 2004, Bull. civ., 2004, I,
                    No. 158, p. 132 (the X case) and No. 04‑47504, 3 January 2006 (the Grosz
                    case)). The Court also notes that the European Court of Human Rights
                    held in Grosz v. France (application No. 14717/06, decision of
                    16 June 2009) that France had not contravened the European Convention
                    on Human Rights in the proceedings which were the subject of the 2006
                    Cour de cassation judgment (judgment No. 04‑47504), because the Cour
                    de cassation had given effect to an immunity required by international
                    law.
                        74. The highest courts in Slovenia and Poland have also held that Ger-
                    many was entitled to immunity in respect of unlawful acts perpetrated on
                    their territory by its armed forces during the Second World War. In 2001
                    the Constitutional Court of Slovenia ruled that Germany was entitled to
                    immunity in an action brought by a claimant who had been deported to
                    Germany during the German occupation and that the Supreme Court of
                    Slovenia had not acted arbitrarily in upholding that immunity (case
                    No. Up‑13/99, judgment of 8 March 2001). The Supreme Court of Poland
                    held, in Natoniewski v. Federal Republic of Germany (judgment of
                    29 October 2010, Polish Yearbook of International Law, Vol. XXX, 2010,
                    p. 299), that Germany was entitled to immunity in an action brought by
                    a claimant who in 1944 had suffered injuries when German forces burned
                    his village in occupied Poland and murdered several hundred of its inhab-
                    itants. The Supreme Court, after an extensive review of the decisions in
                    Ferrini, Distomo and Margellos, as well as the provisions of the European
                    Convention and the United Nations Convention and a range of other
                    materials, concluded that States remained entitled to immunity in respect
                    of torts allegedly committed by their armed forces in the course of an
                    armed conflict. Judgments by lower courts in Belgium (judgment of the
                    Court of First Instance of Ghent in 2000 in Botelberghe v. German State),
                    Serbia (judgment of the Court of First Instance of Leskovac, 1 Novem-
                    ber 2001) and Brazil (Barreto v. Federal Republic of Germany, Federal
                    Court, Rio de Janeiro, judgment of 9 July 2008 holding Germany immune
                    in proceedings regarding the sinking of a Brazilian fishing vessel by a
                    German submarine in Brazilian waters) have also held that Germany was
                    immune in actions for acts of war committed on their territory or in their
                    waters.

                       75. Finally, the Court notes that the German courts have also con-
                    cluded that the territorial tort principle did not remove a State’s entitle-

                                                                                38

6 CIJ1031.indb 73                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)            134

                    ment to immunity under international law in respect of acts committed by
                    its armed forces, even where those acts took place on the territory of the
                    forum State (judgment of the Federal Supreme Court of 26 June 2003
                    (Greek Citizens v. Federal Republic of Germany, case No. III ZR 245/98,
                    NJW, 2003, p. 3488 ; ILR, Vol. 129, p. 556), declining to give effect in
                    Germany to the Greek judgment in the Distomo case on the ground that
                    it had been given in breach of Germany’s entitlement to immunity).

                       76. The only State in which there is any judicial practice which appears
                    to support the Italian argument, apart from the judgments of the Italian
                    courts which are the subject of the present proceedings, is Greece. The
                    judgment of the Hellenic Supreme Court in the Distomo case in 2000 con-
                    tains an extensive discussion of the territorial tort principle without any
                    suggestion that it does not extend to the acts of armed forces during an
                    armed conflict. However, the Greek Special Supreme Court, in its judg-
                    ment in Margellos v. Federal Republic of Germany (case No. 6/2002,
                    ILR, Vol. 129, p. 525), repudiated the reasoning of the Supreme Court in
                    Distomo and held that Germany was entitled to immunity. In particular,
                    the Special Supreme Court held that the territorial tort principle was not
                    applicable to the acts of the armed forces of a State in the conduct of
                    armed conflict. While that judgment does not alter the outcome in the
                    Distomo case, a matter considered below, Greece has informed the Court
                    that courts and other bodies in Greece faced with the same issue of
                    whether immunity is applicable to torts allegedly committed by foreign
                    armed forces in Greece are required to follow the stance taken by the
                    Special Supreme Court in its decision in Margellos unless they consider
                    that customary international law has changed since the Margellos judg-
                    ment. Germany has pointed out that, since the judgment in Margellos
                    was given, no Greek court has denied immunity in proceedings brought
                    against Germany in respect of torts allegedly committed by German
                    armed forces during the Second World War and in a 2009 decision (deci-
                    sion No. 853/2009), the Supreme Court, although deciding the case on a
                    different ground, approved the reasoning in Margellos. In view of the
                    judgment in Margellos and the dictum in the 2009 case, as well as the
                    decision of the Greek Government not to permit enforcement of the Dis‑
                    tomo judgment in Greece itself and the Government’s defence of that
                    decision before the European Court of Human Rights in Kalogeropoulou
                    and Others v. Greece and Germany (application No. 59021/00, decision of
                    12 December 2002, ECHR Reports 2002‑X, p. 417 ; ILR, Vol. 129, p. 537),
                    the Court concludes that Greek State practice taken as a whole actually
                    contradicts, rather than supports, Italy’s argument.

                       77. In the Court’s opinion, State practice in the form of judicial deci-
                    sions supports the proposition that State immunity for acta jure imperii

                                                                                39

6 CIJ1031.indb 75                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              135

                    continues to extend to civil proceedings for acts occasioning death, per-
                    sonal injury or damage to property committed by the armed forces and
                    other organs of a State in the conduct of armed conflict, even if the rele-
                    vant acts take place on the territory of the forum State. That practice is
                    accompanied by opinio juris, as demonstrated by the positions taken by
                    States and the jurisprudence of a number of national courts which have
                    made clear that they considered that customary international law required
                    immunity. The almost complete absence of contrary jurisprudence is also
                    significant, as is the absence of any statements by States in connection
                    with the work of the International Law Commission regarding State
                    immunity and the adoption of the United Nations Convention or, so far
                    as the Court has been able to discover, in any other context asserting that
                    customary international law does not require immunity in such cases.

                       78. In light of the foregoing, the Court considers that customary inter-
                    national law continues to require that a State be accorded immunity in
                    proceedings for torts allegedly committed on the territory of another
                    State by its armed forces and other organs of State in the course of con-
                    ducting an armed conflict. That conclusion is confirmed by the judgments
                    of the European Court of Human Rights to which the Court has referred
                    (see paragraphs 72, 73 and 76).
                       79. The Court therefore concludes that, contrary to what had been
                    argued by Italy in the present proceedings, the decision of the Italian
                    courts to deny immunity to Germany cannot be justified on the basis of
                    the territorial tort principle.

                       3. Italy’s Second Argument : The Subject‑Matter and Circumstances
                                        of the Claims in the Italian Courts
                       80. Italy’s second argument, which, unlike its first argument, applies to
                    all of the claims brought before the Italian courts, is that the denial of
                    immunity was justified on account of the particular nature of the acts
                    forming the subject‑matter of the claims before the Italian courts and the
                    circumstances in which those claims were made. There are three strands
                    to this argument. First, Italy contends that the acts which gave rise to the
                    claims constituted serious violations of the principles of international law
                    applicable to the conduct of armed conflict, amounting to war crimes and
                    crimes against humanity. Secondly, Italy maintains that the rules of inter-
                    national law thus contravened were peremptory norms (jus cogens).
                    Thirdly, Italy argues that the claimants having been denied all other
                    forms of redress, the exercise of jurisdiction by the Italian courts was nec-
                    essary as a matter of last resort. The Court will consider each of these
                    strands in turn, while recognizing that, in the oral proceedings, Italy also
                    contended that its courts had been entitled to deny State immunity
                    because of the combined effect of these three strands.

                                                                                40

6 CIJ1031.indb 77                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               136

                    A. The gravity of the violations
                       81. The first strand is based upon the proposition that international
                    law does not accord immunity to a State, or at least restricts its right to
                    immunity, when that State has committed serious violations of the law of
                    armed conflict (international humanitarian law as it is more commonly
                    termed today, although the term was not used in 1943‑1945). In the pres-
                    ent case, the Court has already made clear (see paragraph 52 above) that
                    the actions of the German armed forces and other organs of the German
                    Reich giving rise to the proceedings before the Italian courts were serious
                    violations of the law of armed conflict which amounted to crimes under
                    international law. The question is whether that fact operates to deprive
                    Germany of an entitlement to immunity.
                       82. At the outset, however, the Court must observe that the proposition
                    that the availability of immunity will be to some extent dependent upon the
                    gravity of the unlawful act presents a logical problem. Immunity from
                    jurisdiction is an immunity not merely from being subjected to an adverse
                    judgment but from being subjected to the trial process. It is, therefore, nec-
                    essarily preliminary in nature. Consequently, a national court is required to
                    determine whether or not a foreign State is entitled to immunity as a matter
                    of international law before it can hear the merits of the case brought before
                    it and before the facts have been established. If immunity were to be depen-
                    dent upon the State actually having committed a serious violation of inter-
                    national human rights law or the law of armed conflict, then it would
                    become necessary for the national court to hold an enquiry into the merits
                    in order to determine whether it had jurisdiction. If, on the other hand, the
                    mere allegation that the State had committed such wrongful acts were to be
                    sufficient to deprive the State of its entitlement to immunity, immunity
                    could, in effect be negated simply by skilful construction of the claim.
                       83. That said, the Court must nevertheless inquire whether customary
                    international law has developed to the point where a State is not entitled
                    to immunity in the case of serious violations of human rights law or the
                    law of armed conflict. Apart from the decisions of the Italian courts
                    which are the subject of the present proceedings, there is almost no State
                    practice which might be considered to support the proposition that a
                    State is deprived of its entitlement to immunity in such a case. Although
                    the Hellenic Supreme Court in the Distomo case adopted a form of that
                    proposition, the Special Supreme Court in Margellos repudiated that
                    approach two years later. As the Court has noted in paragraph 76 above,
                    under Greek law it is the stance adopted in Margellos which must be fol-
                    lowed in later cases unless the Greek courts find that there has been a
                    change in customary international law since 2002, which they have not
                    done. As with the territorial tort principle, the Court considers that Greek
                    practice, taken as a whole, tends to deny that the proposition advanced
                    by Italy has become part of customary international law.

                                                                                41

6 CIJ1031.indb 79                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               137

                       84. In addition, there is a substantial body of State practice from other
                    countries which demonstrates that customary international law does not
                    treat a State’s entitlement to immunity as dependent upon the gravity of
                    the act of which it is accused or the peremptory nature of the rule which
                    it is alleged to have violated.
                       85. That practice is particularly evident in the judgments of national
                    courts. Arguments to the effect that international law no longer required
                    State immunity in cases of allegations of serious violations of interna-
                    tional human rights law, war crimes or crimes against humanity have
                    been rejected by the courts in Canada (Bouzari v. Islamic Republic of Iran,
                    Court of Appeal of Ontario, [2004] Dominion Law Reports (DLR),
                    4th Series, Vol. 243, p. 406 ; ILR, Vol. 128, p. 586 ; allegations of torture),
                    France (judgment of the Court of Appeal of Paris, 9 September 2002, and
                    Cour de cassation, No. 02‑45961, 16 December 2003, Bulletin civil de la
                    Cour de cassation (Bull. civ.), 2003, I, No. 258, p. 206 (the Bucheron
                    case) ; Cour de cassation, No. 03‑41851, 2 June 2004, Bull. civ., 2004, I,
                    No. 158, p. 132 (the X case) and Cour de cassation, No. 04‑47504, 3 Janu-
                    ary 2006 (the Grosz case) ; allegations of crimes against humanity), Slove-
                    nia (case No. Up‑13/99, Constitutional Court of Slovenia ; allegations of
                    war crimes and crimes against humanity), New Zealand (Fang v. Jiang,
                    High Court, [2007] New Zealand Administrative Reports (NZAR), p. 420 ;
                    ILR, Vol. 141, p. 702 ; allegations of torture), Poland (Natoniewski,
                    Supreme Court, 2010, Polish Yearbook of International Law, Vol. XXX,
                    2010, p. 299 ; allegations of war crimes and crimes against humanity)
                    and the United Kingdom (Jones v. Saudi Arabia, House of Lords, [2007]
                    1 Appeal Cases (AC) 270 ; ILR, Vol. 129, p. 629 ; allegations of torture).

                      86. The Court notes that, in its response to a question posed by a
                    Member of the Court, Italy itself appeared to demonstrate uncertainty
                    about this aspect of its case. Italy commented,
                            “Italy is aware of the view according to which war crimes and
                         crimes against humanity could not be considered to be sovereign acts
                         for which the State is entitled to invoke the defence of sovereign
                         immunity . . . While Italy acknowledges that in this area the law of
                         State immunity is undergoing a process of change, it also recognizes
                         that it is not clear at this stage whether this process will result in a
                         new general exception to immunity — namely a rule denying immu-
                         nity with respect to every claim for compensation arising out [of]
                         international crimes.”

                    A similar uncertainty is evident in the orders of the Italian Court of Cas-
                    sation in Mantelli and Maietta (orders of 29 May 2008).

                      87. The Court does not consider that the United Kingdom judgment in
                    Pinochet (No. 3) ([2000] 1 AC 147 ; ILR, Vol. 119, p. 136) is relevant,
                    notwithstanding the reliance placed on that judgment by the Italian Court

                                                                                42

6 CIJ1031.indb 81                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               138

                    of Cassation in Ferrini. Pinochet concerned the immunity of a former
                    Head of State from the criminal jurisdiction of another State, not the
                    immunity of the State itself in proceedings designed to establish its liabil-
                    ity to damages. The distinction between the immunity of the official in the
                    former type of case and that of the State in the latter case was emphasized
                    by several of the judges in Pinochet (Lord Hutton at pp. 254 and 264,
                    Lord Millett at p. 278 and Lord Phillips at pp. 280‑281). In its later judg-
                    ment in Jones v. Saudi Arabia ([2007] 1 AC 270 ; ILR, Vol. 129, p. 629),
                    the House of Lords further clarified this distinction, Lord Bingham
                    describing the distinction between criminal and civil proceedings as “fun-
                    damental to the decision” in Pinochet (para. 32). Moreover, the rationale
                    for the judgment in Pinochet was based upon the specific language of the
                    1984 United Nations Convention against Torture, which has no bearing
                    on the present case.

                       88. With reference to national legislation, Italy referred to an amend-
                    ment to the United States Foreign Sovereign Immunities Act, first
                    adopted in 1996. That amendment withdraws immunity for certain speci-
                    fied acts (for example, torture and extra‑judicial killings) if allegedly per-
                    formed by a State which the United States Government has “designated
                    as a State sponsor of terrorism” (28 USC 1605A). The Court notes that
                    this amendment has no counterpart in the legislation of other States.
                    None of the States which has enacted legislation on the subject of State
                    immunity has made provision for the limitation of immunity on the
                    grounds of the gravity of the acts alleged.
                       89. It is also noticeable that there is no limitation of State immunity by
                    reference to the gravity of the violation or the peremptory character of
                    the rule breached in the European Convention, the United Nations Con-
                    vention or the draft Inter‑American Convention. The absence of any such
                    provision from the United Nations Convention is particularly significant,
                    because the question whether such a provision was necessary was raised
                    at the time that the text of what became the Convention was under con-
                    sideration. In 1999 the International Law Commission established a
                    Working Group which considered certain developments in practice
                    regarding some issues of State immunity which had been identified by the
                    Sixth Committee of the General Assembly. In an appendix to its report,
                    the Working Group referred, as an additional matter, to developments
                    regarding claims “in the case of death or personal injury resulting from
                    acts of a State in violation of human rights norms having the character of
                    jus cogens” and stated that this issue was one which should not be ignored,
                    although it did not recommend any amendment to the text of the Inter-
                    national Law Commission Articles (Yearbook of the International Law
                    Commission, 1999, Vol. II (2), pp. 171‑172). The matter was then consid-
                    ered by the Working Group established by the Sixth Committee of the
                    General Assembly, which reported later in 1999 that it had decided not to
                    take up the matter as “it did not seem to be ripe enough for the Working

                                                                                43

6 CIJ1031.indb 83                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)                139

                    Group to engage in a codification exercise over it” and commented that it
                    was for the Sixth Committee to decide what course of action, if any,
                    should be taken (United Nations doc. A/C.6/54/L.12, p. 7, para. 13). Dur-
                    ing the subsequent debates in the Sixth Committee no State suggested
                    that a jus cogens limitation to immunity should be included in the Con-
                    vention. The Court considers that this history indicates that, at the time
                    of adoption of the United Nations Convention in 2004, States did not
                    consider that customary international law limited immunity in the man-
                    ner now suggested by Italy.

                      90. The European Court of Human Rights has not accepted the prop-
                    osition that States are no longer entitled to immunity in cases regarding
                    serious violations of international humanitarian law or human rights law.
                    In 2001, the Grand Chamber of that Court, by the admittedly narrow
                    majority of nine to eight, concluded that,

                            “Notwithstanding the special character of the prohibition of torture
                         in international law, the Court is unable to discern in the international
                         instruments, judicial authorities or other materials before it any firm
                         basis for concluding that, as a matter of international law, a State no
                         longer enjoys immunity from civil suit in the courts of another State
                         where acts of torture are alleged.” (Al‑Adsani v. United Kingdom
                         [GC], application No. 35763/97, judgment of 21 November 2001,
                         ECHR Reports 2001‑XI, p. 101, para. 61 ; ILR, Vol. 123, p. 24.)

                    The following year, in Kalogeropoulou and Others v. Greece and Germany,
                    the European Court of Human Rights rejected an application relating to
                    the refusal of the Greek Government to permit enforcement of the Dis‑
                    tomo judgment and said that,
                           “The Court does not find it established, however, that there is yet
                         acceptance in international law of the proposition that States are not
                         entitled to immunity in respect of civil claims for damages brought
                         against them in another State for crimes against humanity.” (Appli-
                         cation No. 59021/00, decision of 12 December 2002, ECHR Reports
                         2002‑X, p. 417 ; ILR, Vol. 129, p. 537.)
                      91. The Court concludes that, under customary international law as it
                    presently stands, a State is not deprived of immunity by reason of the fact
                    that it is accused of serious violations of international human rights law
                    or the international law of armed conflict. In reaching that conclusion,
                    the Court must emphasize that it is addressing only the immunity of the
                    State itself from the jurisdiction of the courts of other States ; the question
                    of whether, and if so to what extent, immunity might apply in criminal
                    proceedings against an official of the State is not in issue in the present
                    case.

                                                                                44

6 CIJ1031.indb 85                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)             140

                    B. The relationship between jus cogens and the rule of State immunity
                       92. The Court now turns to the second strand in Italy’s argument,
                    which emphasizes the jus cogens status of the rules which were violated by
                    Germany during the period 1943‑1945. This strand of the argument rests
                    on the premise that there is a conflict between jus cogens rules forming
                    part of the law of armed conflict and according immunity to Germany.
                    Since jus cogens rules always prevail over any inconsistent rule of interna-
                    tional law, whether contained in a treaty or in customary international
                    law, so the argument runs, and since the rule which accords one State
                    immunity before the courts of another does not have the status of jus
                    cogens, the rule of immunity must give way.
                       93. This argument therefore depends upon the existence of a conflict
                    between a rule, or rules, of jus cogens, and the rule of customary law
                    which requires one State to accord immunity to another. In the opinion
                    of the Court, however, no such conflict exists. Assuming for this purpose
                    that the rules of the law of armed conflict which prohibit 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 are
                    rules of jus cogens, there is no conflict between those rules and the rules
                    on State immunity. The two sets of rules address different matters. The
                    rules of State immunity are procedural in character and are confined to
                    determining whether or not the courts of one State may exercise jurisdic-
                    tion in respect of another State. They do not bear upon the question
                    whether or not the conduct in respect of which the proceedings are
                    brought was lawful or unlawful. That is why the application of the con-
                    temporary law of State immunity to proceedings concerning events which
                    occurred in 1943‑1945 does not infringe the principle that law should not
                    be applied retrospectively to determine matters of legality and responsi-
                    bility (as the Court has explained in paragraph 58 above). For the same
                    reason, recognizing the immunity of a foreign State in accordance with
                    customary international law does not amount to recognizing as lawful a
                    situation created by the breach of a jus cogens rule, or rendering aid and
                    assistance in maintaining that situation, and so cannot contravene the
                    principle in Article 41 of the International Law Commission’s Articles on
                    State Responsibility.

                       94. In the present case, the violation of the rules prohibiting murder,
                    deportation and slave labour took place in the period 1943‑1945. The
                    illegality of these acts is openly acknowledged by all concerned. The
                    application of rules of State immunity to determine whether or not the
                    Italian courts have jurisdiction to hear claims arising out of those viola-
                    tions cannot involve any conflict with the rules which were violated. Nor
                    is the argument strengthened by focusing upon the duty of the wrongdo-
                    ing State to make reparation, rather than upon the original wrongful act.
                    The duty to make reparation is a rule which exists independently of those
                    rules which concern the means by which it is to be effected. The law of

                                                                                45

6 CIJ1031.indb 87                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               141

                    State immunity concerns only the latter ; a decision that a foreign State is
                    immune no more conflicts with the duty to make reparation than it does
                    with the rule prohibiting the original wrongful act. Moreover, against the
                    background of a century of practice in which almost every peace treaty or
                    post‑war settlement has involved either a decision not to require the pay-
                    ment of reparations or the use of lump sum settlements and set‑offs, it is
                    difficult to see that international law contains a rule requiring the pay-
                    ment of full compensation to each and every individual victim as a rule
                    accepted by the international community of States as a whole as one from
                    which no derogation is permitted.
                       95. To the extent that it is argued that no rule which is not of the status
                    of jus cogens may be applied if to do so would hinder the enforcement of
                    a jus cogens rule, even in the absence of a direct conflict, the Court sees no
                    basis for such a proposition. A jus cogens rule is one from which no dero-
                    gation is permitted but the rules which determine the scope and extent of
                    jurisdiction and when that jurisdiction may be exercised do not derogate
                    from those substantive rules which possess jus cogens status, nor is there
                    anything inherent in the concept of jus cogens which would require their
                    modification or would displace their application. The Court has taken
                    that approach in two cases, notwithstanding that the effect was that a
                    means by which a jus cogens rule might be enforced was rendered unavail-
                    able. In Armed Activities, it held that the fact that a rule has the status of
                    jus cogens does not confer upon the Court a jurisdiction which it would
                    not otherwise possess (Armed Activities on the Territory of the Congo
                    (New Application : 2002) (Democratic Republic of the Congo v. Rwanda),
                    Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32,
                    para. 64, and p. 52, para. 125). In Arrest Warrant, the Court held, albeit
                    without express reference to the concept of jus cogens, that the fact that a
                    Minister for Foreign Affairs was accused of criminal violations of rules
                    which undoubtedly possess the character of jus cogens did not deprive the
                    Democratic Republic of the Congo of the entitlement which it possessed
                    as a matter of customary international law to demand immunity on his
                    behalf (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
                    v. Belgium), Judgment, I.C.J. Reports 2002, p. 24, para. 58, and p. 33,
                    para. 78). The Court considers that the same reasoning is applicable
                    to the application of the customary international law regarding the immu-
                    nity of one State from proceedings in the courts of another.

                       96. In addition, this argument about the effect of jus cogens displacing
                    the law of State immunity has been rejected by the national courts of the
                    United Kingdom (Jones v. Saudi Arabia, House of Lords, [2007] 1 AC
                    270 ; ILR, Vol. 129, p. 629), Canada (Bouzari v. Islamic Republic of Iran,
                    Court of Appeal of Ontario, DLR, 4th Series, Vol. 243, p. 406 ; ILR,
                    Vol. 128, p. 586), Poland (Natoniewski, Supreme Court, Polish Yearbook
                    of International Law, Vol. XXX, 2010, p. 299), Slovenia (case No. Up‑13/99,
                    Constitutional Court of Slovenia), New Zealand (Fang v. Jiang, High
                    Court, [2007] NZAR, p. 420 ; ILR, Vol. 141, p. 702) and Greece (Margel‑

                                                                                46

6 CIJ1031.indb 89                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)               142

                    los, Special Supreme Court, ILR, Vol. 129, p. 525), as well as by the
                    European Court of Human Rights in Al‑Adsani v. United Kingdom and
                    Kalogeropoulou and Others v. Greece and Germany (which are discussed in
                    paragraph 90 above), in each case after careful consideration. The Court
                    does not consider the judgment of the French Cour de cassation of
                    9 March 2011 in La Réunion aérienne v. Libyan Arab Jamahiriya (case
                    No. 09‑14743, 9 March 2011, Bull. civ., March 2011, No. 49, p. 49) as
                    supporting a different conclusion. The Cour de cassation in that case
                    stated only that, even if a jus cogens norm could constitute a legitimate
                    restriction on State immunity, such a restriction could not be justified on
                    the facts of that case. It follows, therefore, that the judgments of the Ital-
                    ian courts which are the subject of the present proceedings are the only
                    decisions of national courts to have accepted the reasoning on which this
                    part of Italy’s second argument is based. Moreover, none of the national
                    legislation on State immunity considered in paragraphs 70‑71 above, has
                    limited immunity in cases where violations of jus cogens are alleged.

                       97. Accordingly, the Court concludes that even on the assumption that
                    the proceedings in the Italian courts involved violations of jus cogens
                    rules, the applicability of the customary international law on State immu-
                    nity was not affected.

                    C. The “last resort” argument
                      98. The third and final strand of the Italian argument is that the Italian
                    courts were justified in denying Germany the immunity to which it would
                    otherwise have been entitled, because all other attempts to secure com-
                    pensation for the various groups of victims involved in the Italian pro-
                    ceedings had failed. Germany’s response is that in the aftermath of the
                    Second World War it made considerable financial and other sacrifices by
                    way of reparation in the context of a complex series of inter‑State arrange-
                    ments under which, reflecting the economic realities of the time, no Allied
                    State received compensation for the full extent of the losses which its
                    people had suffered. It also points to the payments which it made to Italy
                    under the terms of the two 1961 Agreements and to the payments made
                    more recently under the 2000 Federal Law to various Italians who had
                    been unlawfully deported to forced labour in Germany. Italy maintains,
                    however, that large numbers of Italian victims were nevertheless left with-
                    out any compensation.

                                                          *
                      99. The Court notes that Germany has taken significant steps to ensure

                                                                                47

6 CIJ1031.indb 91                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              143

                    that a measure of reparation was made to Italian victims of war crimes
                    and crimes against humanity. Nevertheless, Germany decided to exclude
                    from the scope of its national compensation scheme most of the claims by
                    Italian military internees on the ground that prisoners of war were not
                    entitled to compensation for forced labour (see paragraph 26 above). The
                    overwhelming majority of Italian military internees were, in fact, denied
                    treatment as prisoners of war by the Nazi authorities. Notwithstanding
                    that history, in 2001 the German Government determined that those
                    internees were ineligible for compensation because they had had a legal
                    entitlement to prisoner-of-war status. The Court considers that it is a
                    matter of surprise — and regret — that Germany decided to deny com-
                    pensation to a group of victims on the ground that they had been entitled
                    to a status which, at the relevant time, Germany had refused to recognize,
                    particularly since those victims had thereby been denied the legal protec-
                    tion to which that status entitled them.

                       100. Moreover, as the Court has said, albeit in the different context of
                    the immunity of State officials from criminal proceedings, the fact that
                    immunity may bar the exercise of jurisdiction in a particular case does not
                    alter the applicability of the substantive rules of international law (Arrest
                    Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
                    Judgment, I.C.J. Reports 2002, p. 25, para. 60 ; see also Certain Questions
                    of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment,
                    I.C.J. Reports 2008, p. 244, para. 196). In that context, the Court would
                    point out that whether a State is entitled to immunity before the courts of
                    another State is a question entirely separate from whether the interna-
                    tional responsibility of that State is engaged and whether it has an obliga-
                    tion to make reparation.
                       101. That notwithstanding, the Court cannot accept Italy’s contention
                    that the alleged shortcomings in Germany’s provisions for reparation to
                    Italian victims entitled the Italian courts to deprive Germany of jurisdic-
                    tional immunity. The Court can find no basis in the State practice from
                    which customary international law is derived that international law makes
                    the entitlement of a State to immunity dependent upon the existence of
                    effective alternative means of securing redress. Neither in the national leg-
                    islation on the subject, nor in the jurisprudence of the national courts
                    which have been faced with objections based on immunity, is there any
                    evidence that entitlement to immunity is subjected to such a precondition.
                    States also did not include any such condition in either the European
                    Convention or the United Nations Convention.

                       102. Moreover, the Court cannot fail to observe that the application of
                    any such condition, if it indeed existed, would be exceptionally difficult in
                    practice, particularly in a context such as that of the present case, when
                    claims have been the subject of extensive intergovernmental discussion. If
                    one follows the Italian argument, while such discussions were still ongoing

                                                                                48

6 CIJ1031.indb 93                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              144

                    and had a prospect of achieving a successful outcome, then it seems that
                    immunity would still prevail, whereas, again according to this argument,
                    immunity would presumably cease to apply at some point when prospects
                    for an inter‑State settlement were considered to have disappeared. Yet
                    national courts in one of the countries concerned are unlikely to be well
                    placed to determine when that point has been reached. Moreover, if a lump
                    sum settlement has been made — which has been the normal practice in the
                    aftermath of war, as Italy recognizes — then the determination of whether
                    a particular claimant continued to have an entitlement to compensation
                    would entail an investigation by the court of the details of that settlement
                    and the manner in which the State which had received funds (in this case
                    the State in which the court in question is located) has distributed those
                    funds. Where the State receiving funds as part of what was intended as a
                    comprehensive settlement in the aftermath of an armed conflict has elected
                    to use those funds to rebuild its national economy and infrastructure,
                    rather than distributing them to individual victims amongst its nationals, it
                    is difficult to see why the fact that those individuals had not received a
                    share in the money should be a reason for entitling them to claim against
                    the State that had transferred money to their State of nationality.
                       103. The Court therefore rejects Italy’s argument that Germany could
                    be refused immunity on this basis.
                       104. In coming to this conclusion, the Court is not unaware that the
                    immunity from jurisdiction of Germany in accordance with international
                    law may preclude judicial redress for the Italian nationals concerned.

                       It considers however that the claims arising from the treatment of the
                    Italian military internees referred to in paragraph 99, together with other
                    claims of Italian nationals which have allegedly not been settled — and
                    which formed the basis for the Italian proceedings — could be the subject
                    of further negotiation involving the two States concerned, with a view to
                    resolving the issue.

                    D. The combined effect of the circumstances relied upon by Italy
                       105. In the course of the oral proceedings, counsel for Italy maintained
                    that the three strands of Italy’s second argument had to be viewed
                    together ; it was because of the cumulative effect of the gravity of the vio-
                    lations, the status of the rules violated and the absence of alternative
                    means of redress that the Italian courts had been justified in refusing to
                    accord immunity to Germany.
                       106. The Court has already held that none of the three strands of the
                    second Italian argument would, of itself, justify the action of the Italian
                    courts. It is not persuaded that they would have that effect if taken
                    together. Nothing in the examination of State practice lends support to
                    the proposition that the concurrent presence of two, or even all three, of
                    these elements would justify the refusal by a national court to accord to a
                    respondent State the immunity to which it would otherwise be entitled.

                                                                                49

6 CIJ1031.indb 95                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              145

                       In so far as the argument based on the combined effect of the circum-
                    stances is to be understood as meaning that the national court should
                    balance the different factors, assessing the respective weight, on the one
                    hand, of the various circumstances that might justify the exercise of its
                    jurisdiction, and, on the other hand, of the interests attaching to the pro-
                    tection of immunity, such an approach would disregard the very nature
                    of State immunity. As explained in paragraph 56 above, according to
                    international law, State immunity, where it exists, is a right of the foreign
                    State. In addition, as explained in paragraph 82 of this Judgment, national
                    courts have to determine questions of immunity at the outset of the pro-
                    ceedings, before consideration of the merits. Immunity cannot, therefore,
                    be made dependent upon the outcome of a balancing exercise of the spe-
                    cific circumstances of each case to be conducted by the national court
                    before which immunity is claimed.

                                                  4. Conclusions
                       107. The Court therefore holds that the action of the Italian courts in
                    denying Germany the immunity to which the Court has held it was enti-
                    tled under customary international law constitutes a breach of the obliga-
                    tions owed by the Italian State to Germany.
                       108. It is, therefore, unnecessary for the Court to consider a number of
                    questions which were discussed at some length by the Parties. In particu-
                    lar, the Court need not rule on whether, as Italy contends, international
                    law confers upon the individual victim of a violation of the law of armed
                    conflict a directly enforceable right to claim compensation. Nor need it
                    rule on whether, as Germany maintains, Article 77, paragraph 4, of the
                    Treaty of Peace or the provisions of the 1961 Agreements amounted to a
                    binding waiver of the claims which are the subject of the Italian proceed-
                    ings. That is not to say, of course, that these are unimportant questions,
                    only that they are not ones which fall for decision within the limits of the
                    present case. The question whether Germany still has a responsibility
                    towards Italy, or individual Italians, in respect of war crimes and crimes
                    against humanity committed by it during the Second World War does not
                    affect Germany’s entitlement to immunity. Similarly, the Court’s ruling
                    on the issue of immunity can have no effect on whatever responsibility
                    Germany may have.

                         IV. The Measures of Constraint Taken against Property
                           Belonging to Germany Located on Italian Territory

                      109. On 7 June 2007, certain Greek claimants, in reliance on a decision
                    of the Florence Court of Appeal of 13 June 2006, declaring enforceable in

                                                                                50

6 CIJ1031.indb 97                                                                                22/11/13 12:25

                              jurisdictional immunities of the state (judgment)              146

                    Italy the judgment rendered by the Court of First Instance of Livadia, in
                    Greece, which had ordered Germany to pay them compensation, entered
                    in the Land Registry of the Province of Como a legal charge against Villa
                    Vigoni, a property of the German State located near Lake Como (see
                    above, paragraph 35).
                       110. Germany argued before the Court that such a measure of con-
                    straint violates the immunity from enforcement to which it is entitled
                    under international law. Italy has not sought to justify that measure ; on
                    the contrary, it indicated to the Court that it “has no objection to any
                    decision by the Court obliging Italy to ensure that the mortgage on Villa
                    Vigoni inscribed at the land registry is cancelled”.
                       111. As a result of Decree‑Law No. 63 of 28 April 2010, Law No. 98 of
                    23 June 2010 and Decree‑Law No. 216 of 29 December 2011, the charge in
                    question was suspended in order to take account of the pending proceedings
                    before the Court in the present case. It has not, however, been cancelled.
                       112. The Court considers that, notwithstanding the above‑mentioned
                    suspension, and the absence of any argument by Italy seeking to establish
                    the international legality of the measures of constraint in question, a dis-
                    pute still exists between the Parties on this issue, the subject of which has
                    not disappeared. Italy has not formally admitted that the legal charge on
                    Villa Vigoni constituted a measure contrary to its international obliga-
                    tions. Nor, as just stated, has it put an end to the effects of that measure,
                    but has merely suspended them. It has told the Court, through its Agent,
                    that the decisions of the Italian courts rendered against Germany have
                    been suspended by legislation pending the decision of this Court, and that
                    execution of those decisions “will only occur should the Court decide that
                    Italy has not committed the wrongful acts complained of by Germany”.
                    That implies that the charge on Villa Vigoni might be reactivated, should
                    the Court conclude that it is not contrary to international law. Without
                    asking the Court to reach such a conclusion, Italy does not exclude it, and
                    awaits the Court’s ruling before taking the appropriate action thereon.

                      It follows that the Court should rule, as both Parties wish it to do, on
                    the second of Germany’s submissions, which concerns the dispute over
                    the measure of constraint taken against Villa Vigoni.

                       113. Before considering whether the claims of the Applicant on this
                    point are well‑founded, the Court observes that the immunity from
                    enforcement enjoyed by States in regard to their property situated on for-
                    eign territory goes further than the jurisdictional immunity enjoyed by
                    those same States before foreign courts. Even if a judgment has been law-
                    fully rendered against a foreign State, in circumstances such that the lat-
                    ter could not claim immunity from jurisdiction, it does not follow ipso
                    facto that the State against which judgment has been given can be the
                    subject of measures of constraint on the territory of the forum State or on
                    that of a third State, with a view to enforcing the judgment in question.
                    Similarly, any waiver by a State of its jurisdictional immunity before a

                                                                                51

6 CIJ1031.indb 99                                                                                22/11/13 12:25

                           jurisdictional immunities of the state (judgment)              147

                 foreign court does not in itself mean that that State has waived its immu-
                 nity from enforcement as regards property belonging to it situated in for-
                 eign territory.
                    The rules of customary international law governing immunity from
                 enforcement and those governing jurisdictional immunity (understood
                 stricto sensu as the right of a State not to be the subject of judicial pro-
                 ceedings in the courts of another State) are distinct, and must be applied
                 separately.
                    114. In the present case, this means that the Court may rule on the
                 issue of whether the charge on Villa Vigoni constitutes a measure of con-
                 straint in violation of Germany’s immunity from enforcement, without
                 needing to determine whether the decisions of the Greek courts awarding
                 pecuniary damages against Germany, for purposes of whose enforcement
                 that measure was taken, were themselves in breach of that State’s jurisdic-
                 tional immunity.
                    Likewise, the issue of the international legality of the measure of con-
                 straint in question, in light of the rules applicable to immunity from
                 enforcement, is separate — and may therefore be considered separately —
                 from that of the international legality, under the rules applicable to juris-
                 dictional immunity, of the decisions of the Italian courts which declared
                 enforceable on Italian territory the Greek judgments against Germany.
                 This latter question, which is the subject of the third of the submissions
                 presented to the Court by Germany (see above paragraph 17), will be
                 addressed in the following section of this Judgment.
                    115. In support of its claim on the point under discussion here, Ger-
                 many cited the rules set out in Article 19 of the United Nations Conven-
                 tion. That Convention has not entered into force, but in Germany’s view
                 it codified, in relation to the issue of immunity from enforcement, the
                 existing rules under general international law. Its terms are therefore said
                 to be binding, inasmuch as they reflect customary law on the matter.

                   116. Article 19, entitled “State immunity from post‑judgment measures
                 of constraint”, reads as follows :
                       “No post‑judgment measures of constraint, such as attachment,
                     arrest or execution, against property of a State may be taken in con-
                     nection with a proceeding before a court of another State unless and
                     except to the extent that :
                     (a) the State has expressly consented to the taking of such measures
                         as indicated :
                           (i) by international agreement ;
                          (ii) by an arbitration agreement or in a written contract ; or
                         (iii) by a declaration before the court or by a written communi-
                               cation after a dispute between the parties has arisen ; or

                     (b) the State has allocated or earmarked property for the satisfaction
                         of the claim which is the object of that proceeding ; or

                                                                                52

6 CIJ1031.indb 101                                                                               22/11/13 12:25

                           jurisdictional immunities of the state (judgment)                148

                     (c) it has been established that the property is specifically in use or
                         intended for use by the State for other than government non‑com-
                         mercial purposes and is in the territory of the State of the
                         forum, provided that post‑judgment measures of constraint may
                         only be taken against property that has a connection with the
                         entity against which the proceeding was directed.”
                    117. When the United Nations Convention was being drafted, these
                 provisions gave rise to long and difficult discussions. The Court considers
                 that it is unnecessary for purposes of the present case for it to decide
                 whether all aspects of Article 19 reflect current customary international
                 law.
                    118. Indeed, it suffices for the Court to find that there is at least one
                 condition that has to be satisfied before any measure of constraint may be
                 taken against property belonging to a foreign State : that the property in
                 question must be in use for an activity not pursuing government non‑com-
                 mercial purposes, or that the State which owns the property has expressly
                 consented to the taking of a measure of constraint, or that that State has
                 allocated the property in question for the satisfaction of a judicial claim
                 (an illustration of this well‑established practice is provided by the deci
                 sion of the German Constitutional Court (Bundesverfassungsgericht) of
                 14 December 1977 (BVerfGE, Vol. 46, p. 342 ; ILR, Vol. 65, p. 146), by the
                 judgment of the Swiss Federal Tribunal of 30 April 1986 in Kingdom of
                 Spain v. Société X (Annuaire suisse de droit international, Vol. 43, 1987,
                 p. 158 ; ILR, Vol. 82, p. 44), as well as the judgment of the House of Lords
                 of 12 April 1984 in Alcom Ltd. v. Republic of Colombia ([1984] 1 AC 580 ;
                 ILR, Vol. 74, p. 170) and the judgment of the Spanish Constitutional
                 Court of 1 July 1992 in Abbott v. Republic of South Africa (Revista espa‑
                 ñola de derecho internacional, Vol. 44, 1992, p. 565 ; ILR, Vol. 113, p. 414)).
                    119. It is clear in the present case that the property which was the sub-
                 ject of the measure of constraint at issue is being used for governmental
                 purposes that are entirely non‑commercial, and hence for purposes falling
                 within Germany’s sovereign functions. Villa Vigoni is in fact the seat of a
                 cultural centre intended to promote cultural exchanges between Germany
                 and Italy. This cultural centre is organized and administered on the basis
                 of an agreement between the two Governments concluded in the form of
                 an exchange of notes dated 21 April 1986. Before the Court, Italy
                 described the activities in question as a “centre of excellence for the Ital-
                 ian‑German co‑operation in the fields of research, culture and educa-
                 tion”, and recognized that Italy was directly involved in “its peculiar
                 bi‑national . . . managing structure”. Nor has Germany in any way
                 expressly consented to the taking of a measure such as the legal charge in
                 question, or allocated Villa Vigoni for the satisfaction of the judicial
                 claims against it.
                    120. In these circumstances, the Court finds that the registration of a
                 legal charge on Villa Vigoni constitutes a violation by Italy of its obliga-
                 tion to respect the immunity owed to Germany.

                                                                                53

6 CIJ1031.indb 103                                                                                22/11/13 12:25

                           jurisdictional immunities of the state (judgment)            149

                     V. The Decisions of the Italian Courts Declaring Enforceable
                             in Italy Decisions of Greek Courts Upholding
                                      Civil Claims against Germany

                    121. In its third submission, Germany complains that its jurisdictional
                 immunity was also violated by decisions of the Italian courts declaring
                 enforceable in Italy judgments rendered by Greek courts against Ger-
                 many in proceedings arising out of the Distomo massacre. In 1995, suc-
                 cessors in title of the victims of that massacre, committed by the German
                 armed forces in a Greek village in June 1944, brought proceedings for
                 compensation against Germany before the Greek courts. By a judgment
                 of 25 September 1997, the Court of First Instance of Livadia, which had
                 territorial jurisdiction, ordered Germany to pay compensation to the
                 claimants. The appeal by Germany against that judgment was dismissed
                 by a decision of the Hellenic Supreme Court of 4 May 2000, which ren-
                 dered final the judgment of the Court of First Instance, and at the same
                 time ordered Germany to pay the costs of the appeal proceedings. The
                 successful Greek claimants under the first-instance and Supreme Court
                 judgments applied to the Italian courts for exequatur of those judgments,
                 so as to be able to have them enforced in Italy, since it was impossible to
                 enforce them in Greece or in Germany (see above, paragraphs 30 and 32).
                 It was on those applications that the Florence Court of Appeal ruled,
                 allowing them by a decision of 13 June 2006, which was confirmed, fol-
                 lowing an objection by Germany, on 21 October 2008 as regards the
                 pecuniary damages awarded by the Court of First Instance of Livadia,
                 and by a decision of 2 May 2005, confirmed, following an objection by
                 Germany, on 6 February 2007 as regards the award of costs made by the
                 Hellenic Supreme Court. This latter decision was confirmed by the Italian
                 Court of Cassation on 6 May 2008. As regards the decision confirming
                 the exequatur granted in respect of the judgment of the Court of First
                 Instance of Livadia, it has also been appealed to the Italian Court of Cas-
                 sation, which dismissed that appeal on 12 January 2011.

                    122. According to Germany, the decisions of the Florence Court of
                 Appeal declaring enforceable the judgments of the Livadia court and the
                 Hellenic Supreme Court constitute violations of its jurisdictional immu-
                 nity, since, for the same reasons as those invoked by Germany in relation
                 to the Italian proceedings concerning war crimes committed in Italy
                 between 1943 and 1945, the decisions of the Greek courts were themselves
                 rendered in violation of that jurisdictional immunity.
                    123. According to Italy, on the contrary, and for the same reasons as
                 those set out and discussed in Section III of the present Judgment, there
                 was no violation of Germany’s jurisdictional immunity, either by the
                 decisions of the Greek courts or by those of the Italian courts which
                 declared them enforceable in Italy.
                    124. It should first be noted that the claim in Germany’s third submis-
                 sion is entirely separate and distinct from that set out in the preceding

                                                                                54

6 CIJ1031.indb 105                                                                             22/11/13 12:25

                           jurisdictional immunities of the state (judgment)                 150

                 one, which has been discussed in Section IV above (paragraphs 109 to
                 120). The Court is no longer concerned here to determine whether a mea-
                 sure of constraint — such as the legal charge on Villa Vigoni — violated
                 Germany’s immunity from enforcement, but to decide whether the Italian
                 judgments declaring enforceable in Italy the pecuniary awards pro-
                 nounced in Greece did themselves — independently of any subsequent
                 measure of enforcement — constitute a violation of the Applicant’s
                 immunity from jurisdiction. While there is a link between these two
                 aspects — since the measure of constraint against Villa Vigoni could only
                 have been imposed on the basis of the judgment of the Florence Court of
                 Appeal according exequatur in respect of the judgment of the Greek court
                 in Livadia — the two issues nonetheless remain clearly distinct. That dis-
                 cussed in the preceding section related to immunity from enforcement ;
                 that which the Court will now consider addresses immunity from jurisdic-
                 tion. As recalled above, these two forms of immunity are governed by
                 different sets of rules.
                    125. The Court will then explain how it views the issue of jurisdictional
                 immunity in relation to a judgment which rules not on the merits of a
                 claim brought against a foreign State, but on an application to have a
                 judgment rendered by a foreign court against a third State declared
                 enforceable on the territory of the State of the court where that applica-
                 tion is brought (a request for exequatur). The difficulty arises from the
                 fact that, in such cases, the court is not being asked to give judgment
                 directly against a foreign State invoking jurisdictional immunity, but to
                 enforce a decision already rendered by a court of another State, which is
                 deemed to have itself examined and applied the rules governing the juris-
                 dictional immunity of the respondent State.
                    126. In the present case, the two Parties appear to have argued on the
                 basis that, in such a situation, the question whether the court seised of the
                 application for exequatur had respected the jurisdictional immunity of the
                 third State depended simply on whether that immunity had been respected
                 by the foreign court having rendered the judgment on the merits against
                 the third State. In other words, both Parties appeared to make the ques-
                 tion whether or not the Florence Court of Appeal had violated Germa-
                 ny’s jurisdictional immunity in declaring enforceable the Livadia and
                 Hellenic Supreme Court decisions dependent on whether those decisions
                 had themselves violated the jurisdictional immunity on which Germany
                 had relied in its defence against the proceedings brought against it in
                 Greece.
                    127. There is nothing to prevent national courts from ascertaining,
                 before granting exequatur, that the foreign judgment was not rendered in
                 breach of the immunity of the respondent State. However, for the purposes
                 of the present case, the Court considers that it must address the issue from
                 a significantly different viewpoint. In its view, it is unnecessary, in order to
                 determine whether the Florence Court of Appeal violated Germany’s juris-
                 dictional immunity, to rule on the question of whether the decisions of the
                 Greek courts did themselves violate that immunity — something, more-

                                                                                55

6 CIJ1031.indb 107                                                                                22/11/13 12:25

                           jurisdictional immunities of the state (judgment)                151

                 over, which it could not do, since that would be to rule on the rights and
                 obligations of a State, Greece, which does not have the status of party to
                 the present proceedings (see Monetary Gold Removed from Rome in 1943
                 (Italy v. France ; United Kingdom and United States of America), Prelimi‑
                 nary Question, Judgment, I.C.J. Reports 1954, p. 32 ; East Timor (Portu‑
                 gal v. Australia), Judgment, I.C.J. Reports 1995, p. 105, para. 34).
                    The relevant question, from the Court’s point of view and for the pur-
                 poses of the present case, is whether the Italian courts did themselves
                 respect Germany’s immunity from jurisdiction in allowing the application
                 for exequatur, and not whether the Greek court having rendered the judg-
                 ment of which exequatur is sought had respected Germany’s jurisdictional
                 immunity. In a situation of this kind, the replies to these two questions
                 may not necessarily be the same ; it is only the first question which the
                 Court needs to address here.
                    128. Where a court is seised, as in the present case, of an application
                 for exequatur of a foreign judgment against a third State, it is itself being
                 called upon to exercise its jurisdiction in respect of the third State in ques-
                 tion. It is true that the purpose of exequatur proceedings is not to decide
                 on the merits of a dispute, but simply to render an existing judgment
                 enforceable on the territory of a State other than that of the court which
                 ruled on the merits. It is thus not the role of the exequatur court to
                 re‑examine in all its aspects the substance of the case which has been
                 decided. The fact nonetheless remains that, in granting or refusing exe‑
                 quatur, the court exercises a jurisdictional power which results in the for-
                 eign judgment being given effects corresponding to those of a judgment
                 rendered on the merits in the requested State. The proceedings brought
                 before that court must therefore be regarded as being conducted against
                 the third State which was the subject of the foreign judgment.
                    129. In this regard, the Court notes that, under the terms of Article 6,
                 paragraph 2, of the United Nations Convention :
                       “A proceeding before a court of a State shall be considered to have
                     been instituted against another State if that other State :
                     (a) is named as a party to that proceeding ; or
                     (b) is not named as a party to the proceeding but the proceeding in
                         effect seeks to affect the property, rights, interests or activities of
                         that other State.”
                 When applied to exequatur proceedings, that definition means that such
                 proceedings must be regarded as being directed against the State which was
                 the subject of the foreign judgment. That is indeed why Germany was enti-
                 tled to object to the decisions of the Florence Court of Appeal granting
                 exequatur — although it did so without success — and to appeal to the Ital-
                 ian Court of Cassation against the judgments confirming those decisions.
                    130. It follows from the foregoing that the court seised of an application
                 for exequatur of a foreign judgment rendered against a third State has to
                 ask itself whether the respondent State enjoys immunity from jurisdic-
                 tion — having regard to the nature of the case in which that judgment was

                                                                                56

6 CIJ1031.indb 109                                                                                22/11/13 12:25

                          jurisdictional immunities of the state (judgment)               152

                given — before the courts of the State in which exequatur proceedings have
                been instituted. In other words, it has to ask itself whether, in the event
                that it had itself been seised of the merits of a dispute identical to that
                which was the subject of the foreign judgment, it would have been obliged
                under international law to accord immunity to the respondent State (see
                to this effect the judgment of the Supreme Court of Canada in Kuwait
                Airways Corp. v. Iraq ([2010] SCR, Vol. 2, p. 571), and the judgment of
                the United Kingdom Supreme Court in NML Capital Limited v. Republic
                of Argentina ([2011] UKSC 31).
                   131. In light of this reasoning, it follows that the Italian courts which
                declared enforceable in Italy the decisions of Greek courts rendered against
                Germany have violated the latter’s immunity. For the reasons set out in
                Section III above of the present Judgment, the Italian courts would have
                been obliged to grant immunity to Germany if they had been seised of the
                merits of a case identical to that which was the subject of the decisions of
                the Greek courts which it was sought to declare enforceable (namely, the
                case of the Distomo massacre). Accordingly, they could not grant exequa‑
                tur without thereby violating Germany’s jurisdictional immunity.

                   132. In order to reach such a decision, it is unnecessary to rule on the
                question whether the Greek courts did themselves violate Germany’s
                immunity, a question which is not before the Court, and on which, more-
                over, it cannot rule, for the reasons recalled earlier. The Court will con-
                fine itself to noting, in general terms, that it may perfectly well happen, in
                certain circumstances, that the judgment rendered on the merits did not
                violate the jurisdictional immunity of the respondent State, for example
                because the latter had waived its immunity before the courts hearing the
                case on the merits, but that the exequatur proceedings instituted in
                another State are barred by the respondent’s immunity. That is why the
                two issues are distinct, and why it is not for this Judgment to rule on the
                legality of the decisions of the Greek courts.
                   133. The Court accordingly concludes that the above-mentioned deci-
                sions of the Florence Court of Appeal constitute a violation by Italy of its
                obligation to respect the jurisdictional immunity of Germany.

                                    VI. Germany’s Final Submissions
                                        and the Remedies Sought

                  134. In its final submissions at the close of the oral proceedings, Ger-
                many presented six requests to the Court, of which the first three were
                declaratory and the final three sought to draw the consequences, in terms
                of reparation, of the established violations (see paragraph 17 above). It is
                on those requests that the Court is required to rule in the operative part
                of this Judgment.
                  135. For the reasons set out in Sections III, IV and V above, the Court
                will uphold Germany’s first three requests, which ask it to declare, in

                                                                                57

6 CIJ1031.indb 111                                                                               22/11/13 12:25

                          jurisdictional immunities of the state (judgment)               153

                turn, that Italy has violated the jurisdictional immunity which Germany
                enjoys under international law by allowing civil claims based on viola-
                tions of international humanitarian law by the German Reich between
                1943 and 1945 ; that Italy has also committed violations of the immunity
                owed to Germany by taking enforcement measures against Villa Vigoni ;
                and, lastly, that Italy has violated Germany’s immunity by declaring
                enforceable in Italy Greek judgments based on occurrences similar to
                those referred to above.

                   136. In its fourth submission, Germany asks the Court to adjudge and
                declare that, in view of the above, Italy’s international responsibility is
                engaged.
                   There is no doubt that the violation by Italy of certain of its interna-
                tional legal obligations entails its international responsibility and places
                upon it, by virtue of general international law, an obligation to make full
                reparation for the injury caused by the wrongful acts committed. The
                substance, in the present case, of that obligation to make reparation will
                be considered below, in connection with Germany’s fifth and sixth sub-
                missions. The Court’s ruling thereon will be set out in the operative
                clause. On the other hand, the Court does not consider it necessary to
                include an express declaration in the operative clause that Italy’s interna-
                tional responsibility is engaged ; to do so would be entirely redundant,
                since that responsibility is automatically inferred from the finding that
                certain obligations have been violated.
                   137. In its fifth submission, Germany asks the Court to order Italy to
                take, by means of its own choosing, any and all steps to ensure that all
                the decisions of its courts and other judicial authorities infringing Ger-
                many’s sovereign immunity become unenforceable. This is to be under-
                stood as implying that the relevant decisions should cease to have effect.

                   According to general international law on the responsibility of States
                for internationally wrongful acts, as expressed in this respect by Arti-
                cle 30 (a) of the International Law Commission’s Articles on the subject,
                the State responsible for an internationally wrongful act is under an obli-
                gation to cease that act, if it is continuing. Furthermore, even if the act in
                question has ended, the State responsible is under an obligation to
                re‑establish, by way of reparation, the situation which existed before the
                wrongful act was committed, provided that re‑establishment is not mate-
                rially impossible and that it does not involve a burden for that State out
                of all proportion to the benefit deriving from restitution instead of com-
                pensation. This rule is reflected in Article 35 of the International Law
                Commission’s Articles.
                   It follows accordingly that the Court must uphold Germany’s fifth sub-
                mission. The decisions and measures infringing Germany’s jurisdictional
                immunities which are still in force must cease to have effect, and the

                                                                                58

6 CIJ1031.indb 113                                                                               22/11/13 12:25

                            jurisdictional immunities of the state (judgment)              154

                 effects which have already been produced by those decisions and mea-
                 sures must be reversed, in such a way that the situation which existed
                 before the wrongful acts were committed is re‑established. It has not been
                 alleged or demonstrated that restitution would be materially impossible
                 in this case, or that it would involve a burden for Italy out of all propor-
                 tion to the benefit deriving from it. In particular, the fact that some of the
                 violations may have been committed by judicial organs, and some of the
                 legal decisions in question have become final in Italian domestic law, does
                 not lift the obligation incumbent upon Italy to make restitution. On the
                 other hand, the Respondent has the right to choose the means it considers
                 best suited to achieve the required result. Thus, the Respondent is under
                 an obligation to achieve this result by enacting appropriate legislation or
                 by resorting to other methods of its choosing having the same effect.

                    138. Finally, in its sixth submission, Germany asks the Court to order
                 Italy to take any and all steps to ensure that in the future Italian courts
                 do not entertain legal actions against Germany founded on the occur-
                 rences described in its first submission (namely violations of international
                 humanitarian law committed by the German Reich between 1943
                 and 1945).
                    As the Court has stated in previous cases (see, in particular, Dispute
                 regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
                 Judgment, I.C.J. Reports 2009, p. 267, para. 150), as a general rule, there
                 is no reason to suppose that a State whose act or conduct has been
                 declared wrongful by the Court will repeat that act or conduct in the
                 future, since its good faith must be presumed. Accordingly, while the
                 Court may order the State responsible for an internationally wrongful act
                 to offer assurances of non‑repetition to the injured State, or to take spe-
                 cific measures to ensure that the wrongful act is not repeated, it may only
                 do so when there are special circumstances which justify this, which the
                 Court must assess on a case‑by‑case basis.

                   In the present case, the Court has no reason to believe that such cir-
                 cumstances exist. Therefore, it will not uphold the last of Germany’s final
                 submissions.

                                                         *
                                                     *       *

                     139. For these reasons,
                     The Court,
                     (1) By twelve votes to three,
                   Finds that the Italian Republic has violated its obligation to respect the
                 immunity which the Federal Republic of Germany enjoys under interna-

                                                                                59

6 CIJ1031.indb 115                                                                                22/11/13 12:25

                             jurisdictional immunities of the state (judgment)             155

                 tional law by allowing civil claims to be brought against it based on viola-
                 tions of international humanitarian law committed by the German Reich
                 between 1943 and 1945 ;
                     in favour : President Owada ; Vice-President Tomka ; Judges Koroma, Simma,
                        Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Greenwood,
                        Xue, Donoghue ;
                     against : Judges Cançado Trindade, Yusuf ; Judge ad hoc Gaja ;
                     (2) By fourteen votes to one,
                    Finds that the Italian Republic has violated its obligation to respect the
                 immunity which the Federal Republic of Germany enjoys under interna-
                 tional law by taking measures of constraint against Villa Vigoni ;

                     in favour : President Owada ; Vice-President Tomka ; Judges Koroma,
                       Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf,
                       Greenwood, Xue, Donoghue ; Judge ad hoc Gaja ;
                     against : Judge Cançado Trindade ;
                     (3) By fourteen votes to one,
                    Finds that the Italian Republic has violated its obligation to respect the
                 immunity which the Federal Republic of Germany enjoys under interna-
                 tional law by declaring enforceable in Italy decisions of Greek courts
                 based on violations of international humanitarian law committed in
                 Greece by the German Reich ;
                     in favour : President Owada ; Vice-President Tomka ; Judges Koroma,
                       Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf,
                       Greenwood, Xue, Donoghue ; Judge ad hoc Gaja ;
                     against : Judge Cançado Trindade ;
                     (4) By fourteen votes to one,
                    Finds that the Italian Republic must, by enacting appropriate legisla-
                 tion, or by resorting to other methods of its choosing, ensure that the
                 decisions of its courts and those of other judicial authorities infringing the
                 immunity which the Federal Republic of Germany enjoys under interna-
                 tional law cease to have effect ;
                     in favour : President Owada ; Vice-President Tomka ; Judges Koroma,
                       Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf,
                       Greenwood, Xue, Donoghue ; Judge ad hoc Gaja ;
                     against : Judge Cançado Trindade ;
                     (5) Unanimously,
                  Rejects all other submissions made by the Federal Republic of Ger-
                 many.

                   Done in French and in English, the French text being authoritative, at
                 the Peace Palace, The Hague, this third day of February, two thousand

                                                                                60

6 CIJ1031.indb 117                                                                                22/11/13 12:25

                           jurisdictional immunities of the state (judgment)           156

                 and twelve, in four copies, one of which will be placed in the archives of
                 the Court and the others transmitted to the Government of the Federal
                 Republic of Germany, the Government of the Italian Republic and the
                 Government of the Hellenic Republic, respectively.

                                                            (Signed) Hisashi Owada,
                                                                        President.
                                                          (Signed) Philippe Couvreur,
                                                                        Registrar.

                   Judges Koroma, Keith and Bennouna append separate opinions to
                 the Judgment of the Court ; Judges Cançado Trindade and Yusuf
                 append dissenting opinions to the Judgment of the Court ; Judge ad hoc
                 Gaja appends a dissenting opinion to the Judgment of the Court.

                                                                       (Initialled) H.O.
                                                                       (Initialled) Ph.C.

                                                                                61

6 CIJ1031.indb 119                                                                            22/11/13 12:25