323

                     JOINT DECLARATION
               OF JUDGES KEITH AND GREENWOOD

   1. This case has its origins in atrocities and other inhumane acts com-
mitted by German armed forces and other parts of the Nazi Government
against Italian nationals, both civilian and military, between 3 September
1943, when Italy concluded an armistice with the Allied Powers, and the
unconditional surrender of Germany on 8 May 1945. The illegality of
those acts is beyond doubt and is not contested in these proceedings. The
only issue before the Court in the present phase of the proceedings is
whether the counter-claim which Italy seeks to bring is within the juris-
diction of the Court, as required by Article 80, paragraph 1, of the Rules
of Court. The only jurisdictional basis on which Italy might found its
case is the European Convention for the Peaceful Settlement of Disputes,
1957, (“the European Convention”). Article 27 (a) of the European
Convention, however, excludes from the acceptance of the jurisdiction of
the Court (contained in Article 1) “disputes relating to facts and situa-
tions” prior to the entry into force of the Convention. In its Judgment in
Certain Property (Liechtenstein v. Germany) the Court held that the test
is whether the source, or real cause, of the dispute, lies in facts or situa-
tions prior to the entry into force of the Convention (Preliminary Objec-
tions, Judgment, I.C.J. Reports 2005, p. 25, para. 44).

  2. Since the European Convention entered into force between Ger-
many and Italy on 18 April 1961, the question is whether Italy has shown
that the counter-claim concerns a dispute whose source, or real cause, is
to be found in facts and situations arising after that date. The Court has
held that it has not. We agree with that conclusion and, in general, with
the reasons given by the Court. In this declaration we address two matters
which we consider strengthen that reasoning.

   3. The first relates to the existence and definition of the dispute which
Italy wishes to submit in its counter-claim. According to Italy :

         “[T]he source or real cause of the disputes submitted to the Court
      in the present case is to be found in the reparation regime established
      by the two 1961 Agreements between Germany and Italy. An addi-
      tional source is constituted by events following the establishment in
      2000 of the ‘Remembrance, Responsibility and Future’ Founda-
      tion.” (Counter-Memorial, para. 7.4.)

17

324       JURISDICTIONAL IMMUNITIES OF THE STATE (JOINT DECL.)

Italy had earlier said this :
         “To use the Court’s words in the Certain Property case, the con-
      clusion of the 1961 Agreements created a ‘new situation’ between
      Italy and Germany with regard to the issue of reparation. It is the
      1961 Agreements — and more particularly the questions concerning
      their scope, as well as the scope of the waiver clause therein con-
      tained — which form the central point of the differences between
      Italy and Germany on the issue of reparation. The 1961 Agreements,
      and not the Peace Treaty, must therefore be regarded as constituting
      the source or real cause of the disputes submitted to the Court.”
      (Counter-Memorial, para. 3.18.)

   4. Beyond those broad assertions, Italy does not identify what those
disputes are in terms of the jurisdiction of the Court under the European
Convention (see also para. 3.19). What are the disagreements between
Italy and Germany relating to “the interpretation” and application of the
1961 Agreements or relating to the 2000 Foundation and amounting to
“international legal disputes” ? As we read in the Counter-Memorial, no
such legal disagreement or dispute is anywhere defined or demonstrated.
In Chapter II, entitled “The Facts”, Italy says that the 1961 Agreements :

      “are first and foremost a confirmation that Germany recognizes it
      is under an obligation to offer compensation to Italian victims of
      serious violations of IHL. However, Italy considers that these
      Agreements by their very provisions did not exhaust the range of
      reparatory measures, but should have simply represented a first
      step in a broader process of providing appropriate reparations to all
      Italian victims of serious IHL violations.” (Para. 2.15.)

  5. In the next section of “The Facts”, Italy contends that the 1953 and
2000 German legislation did not provide a mechanism for effective repa-
ration for a very large number of Italian victims (paras. 2.20-2.34). That
the Italian concern is with what it sees as the failure of the measures, so
far agreed with Germany and enacted by the German legislature, and of
the decisions of German Courts and authorities to provide compen-
sation for those Italian victims recurs at various points in the Counter-
Memorial (e.g., paras. 2.45, 5.58-5.65). Almost at the end of the chapter
on reparation it says this :

         “The 1961 Agreements represent a ‘new situation’ whereby Ger-
      many has (a) recognized the obligation towards Italian victims of
      serious violations of IHL ; (b) they contain some limited measures
      of reparation (covering pending economic claims as well as claims by
      victims of persecution on various specific grounds) ; but, at the same
      time, (c) they left several other situations uncovered. In this respect,

18

325       JURISDICTIONAL IMMUNITIES OF THE STATE (JOINT DECL.)

      after a long period of uncertainty and several unfulfilled promises,
      Italian victims were eventually excluded from the application of the
      2000 law, on rather unconvincing arguments.” (Counter-Memorial,
      para. 5.66.)

That passage immediately precedes this statement :
        “The situation described above created the legal background that
      prevented Italian judges from turning down reparation claims which
      had been unfulfilled for too long and forced them to reject the plea
      of immunity advanced by Germany.” (Para. 5.67.)

   6. The failure of the Counter-Memorial to identify the international
legal disputes relating to the 1961 Agreements and subsequent German
actions is reflected by the absence from the Counter-Memorial of any
diplomatic correspondence from Italy to Germany identifying any such
disputes.
   7. One further consideration remains to be mentioned in this regard.
Italy, in its Written Observations on the Preliminary Objections of Germany
regarding Italy’s counter-claim, contends that
      “Germany has indeed explicitly recognized the existence of a dispute
      between the Parties revolving around the meaning and the impact of
      the 1961 Agreements. Germany ‘does not deny’ and on the contrary
      explicitly affirms ‘that there exists in fact a certain divergence of
      opinions regarding the legal connotations of the two 1961 Agree-
      ments’.” (Para. 65.)
What Germany said in full was this :
         “Germany does not deny that there exists in fact a certain diver-
      gence of opinions regarding the legal connotation of the two 1961
      Agreements. While Germany is of the view that these two instru-
      ments are to be seen as a voluntary complement to the regime
      ushered in by the 1947 Peace Treaty, Italy contends that the two
      Agreements opened up again the issue of reparations. But the core
      of the Counter-Claim is epitomized by the contention that Germany
      has a continuing obligation to provide reparation for the violations of
      the IHL committed by the authorities of the Nazi regime during the
      time of the military occupation of Italy. Hence the real cause of the
      dispute is the occurrences of 1943 to 1945. The two Settlement Treaties
      as such are not in issue. Both sides agree that the conclusion of these
      Treaties was a positive step forward for the improvement of the
      mutual relationship between the two countries. As far as Italy’s
      claims are concerned, the 1961 Agreements provide no basis, neither
      factually nor legally. There is simply no dispute about the relevance
      of the Treaties with regard to the Counter-Claim.” (Written Obser-

19

326       JURISDICTIONAL IMMUNITIES OF THE STATE (JOINT DECL.)

      vations on the Preliminary Objections of Germany regarding Italy’s
      Counter-Claim, para. 35.)
   8. We do not see Germany’s statement as recognition that a dispute —
in the well-established legal sense of the term — existed regarding the
1961 Agreements. In any event, we consider these pleadings as irrelevant
to the Court’s power to “entertain a counter-claim” under Article 80 of
the Rules of the Court. They are subsequent to it ; further, Germany has
not had the opportunity to respond to this latest Italian argument, since
it was set out only in the Italian response to Germany’s objections to the
counter-claim and there have been neither further written proceedings
nor oral hearings subsequent to the filing of that response.

   9. We consider, therefore, that Italy has failed to establish the exist-
ence of a dispute between itself and Germany arising after 18 April 1961.
   10. The second matter to which we wish to draw attention is that, even
if (contrary to what we have just stated), Italy had satisfied us that there
was a dispute between the Parties relating to the 1961 Agreements or the
German reparations legislation, we are convinced that the source or real
cause of that dispute lay in facts prior to 18 April 1961, with the result
that the jurisdiction of the Court would be excluded by the limitation in
Article 27 (a) of the European Convention.

   11. As the Order records, the issue of claims by Italy and Italian
nationals arising out of the events of the Second World War was one of
the many subjects addressed by the Peace Treaty concluded in 1947
between the Allied Powers and Italy. Of particular relevance is Article 77,
paragraph 4, by which Italy agreed, on its own behalf and on behalf of all
Italian nationals to waive

      “all claims against Germany and German nationals outstanding
      on May 8, 1945, except those arising out of contracts and other obli-
      gations entered into, and rights acquired, before September 1, 1939”.

The precise scope and effect of this clause, and, in particular, whether it
covered claims for violations of humanitarian law has been the subject of
different views and is a matter on which we do not express an opinion.
We note, however, that the issue of whether Germany should pay repa-
rations in respect of violations of international humanitarian law com-
mitted in Italy and elsewhere during the Second World War was the
subject of discussion long before 1961. It was, for example, considered in
the context of the conclusion of the London Agreement on German
External Debts, 1953.

20

327       JURISDICTIONAL IMMUNITIES OF THE STATE (JOINT DECL.)

   12. The two 1961 Agreements have to be seen in that context. In those
Agreements, Germany undertook to make certain payments to Italy in
respect of events which occurred during the Second World War. Article
2, paragraph 1, of the first 1961 Agreement, namely, the Treaty between
the Federal Republic of Germany and the Italian Republic on the Settle-
ment of Certain Property-Related, Economic and Financial Questions,
provided that
         “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 persons to be settled to the extent that they are based on rights
      and circumstances which arose during the period from 1 Septem-
      ber 1939 to 8 May 1945.”

Article 3 of the second 1961 Agreement, namely, the Treaty between the
Federal Republic of Germany and the Italian Republic concerning Com-
pensation for Italian Nationals Subjected to National-Socialist Measures
of Persecution, provided that
      “[w]ithout prejudice to any rights of Italian nationals based on Ger-
      man compensation legislation, the payment provided for in Article 1
      shall constitute final settlement between the Federal Republic of
      Germany and the Italian Republic of all questions governed by the
      present Treaty”.
   13. Again, there is room for more than one view about the precise
scope and effect of these provisions. For present purposes, however, the
important point is that neither of the 1961 Agreements, in and of itself, is
capable of being interpreted as creating any obligation for Germany to
pay compensation to Italy or Italian nationals for violations of interna-
tional humanitarian law committed during the Second World War over
and above the sums expressly provided for in the two Agreements. Italy
has not suggested that Germany has not paid these sums. Instead, Italy
relies upon the two Agreements as constituting recognition on the part of
Germany that it could no longer rely upon the waiver in Article 77, para-
graph 4, of the Peace Treaty. To the extent that there may be said to be
a dispute between the Parties regarding that question, however, it is
inseparable from the régime established by the 1947 Peace Treaty and the
dealings between the two Governments which followed the adoption of
that Treaty. In particular, it is inextricably linked to an appreciation
of the scope and effect of the waiver contained in Article 77, paragraph 4,
of the 1947 Peace Treaty and the different views of the Parties thereon.

   14. Nor does the adoption by Germany of legislation concerning repa-
ration for certain categories of victims of violations of humanitarian law
committed during the Second World War or the fact that, under this legis-
lation, certain Italian victims were denied compensation, constitute facts

21

328       JURISDICTIONAL IMMUNITIES OF THE STATE (JOINT DECL.)

which can be separated from the régime created by the 1947 Peace Treaty.
The German national legislation and its application by the German
courts and authorities does not in itself give rise to an obligation
under international law to compensate any categories of claimants
excluded from the scope of the legislation. Once again, its relevance is
said to lie in its effect upon the ability of Germany to rely upon the pro-
visions of the 1947 Peace Treaty and it is, therefore, inextricably bound
up with that Treaty.

   15. We are therefore driven to the conclusion that the source or real
cause of any dispute which Italy seeks to bring before the Court by way
of a counter-claim is to be found in facts and situations which came into
existence long before 18 April 1961. Italy’s formulation of the counter-
claim in its Counter-Memorial effectively admits as much. In the first and
second substantive sentences of the chapter setting out the counter-claim,
Italy states :
         “As permitted by Article 80 of the Court’s Rules, Italy hereby
      submits a counter-claim with respect to the question of the repara-
      tion owed to Italian victims of grave violations of international
      humanitarian law committed by forces of the German Reich . . .

         The present Chapter sets forth Italy’s counter-claim in this case.
      Italy asks the Court to find that Germany has violated its obligation
      of reparation owed to Italian victims of the crimes committed by
      Nazi Germany during the Second World War and that, accordingly,
      Germany must cease its wrongful conduct and offer effective and
      appropriate reparation to these victims.” (Paras. 7.1-7.2.)

  The matter could not be stated with greater clarity.

                                        (Signed) Kenneth KEITH.
                                    (Signed) Christopher GREENWOOD.

22


498

DECLARATION OF JUDGE KOROMA

These are perhaps the most serious cases to come before the Court for
injunctive relief. Under Article 41 of the Statute of the Court, a request
for provisional measures should have as its purpose the preservation of
the respective rights of either party to a dispute pending the Court’s deci-
sion. Jurisprudentially, the granting of such relief is designed to prevent
violence, the use of force, to safeguard the peace, as well as serving as an
important part of the dispute settlement process under the Charter.
Where the risk of irreparable harm is said to exist or further action might
aggravate or extend a dispute, the granting of the relief becomes all the
more necessary. It is thus one of the most important functions of the
Court.

However, the indication of such relief by the Court can take place only
in accordance with the Statute. In this regard prima facie jurisdiction has
come to be regarded by the Court as the criteria for granting such relief,
and where, in the Court’s view, this is found not to exist, or other cir-
cumstances predominate, the Court according to its jurisprudence will
not indicate the requested relief.

On the other hand, the conclusion reached by the Court that the dis-
pute between Yugoslavia and some of the respondent States arose before
25 April 1999 and accordingly does not come within the scope of the
compulsory jurisdiction of the Court as accepted by Yugoslavia under
the terms of its declaration, does not appear to me to be correct, let alone
legally tenable. The correct legal position, in my view, is as reflected in
Draft Article 25 on State Responsibility of the Report of the Interna-
tional Law Commission. The Article states as follows:

“The breach of an international obligation, by an act of the State
composed of a series of actions or omissions in respect of separate
cases, occurs at the moment when that action or omission of the
series is accomplished which establishes the existence of the compos-
ite act. Nevertheless, the time of commission of the breach extends
over the entire period from the first of the actions or omissions con-
stituting the composite act not in conformity with the international
obligation and so long as such actions or omissions are repeated.”
(Yearbook of the International Law Commission, 1978, Vol. Il,
Part Two, Art. 25, p. 89.)

In other words, and as stated in the commentary on the Article, the time

21
499 LEGALITY OF USE OF FORCE (DECL. KOROMA)

of the Commission of this breach is not limited to the moment at which
the act begins, but extends over the whole period during which the act
takes place and continues contrary to the requirements of the interna-
tional obligation. Therefore, the Court’s finding that Yugoslavia had not
established the existence of a specific dispute, distinct from the preceding
one, which arose after 25 April 1999 does not appear to me tenable in
law.

Nevertheless, the Court, as the principal judicial organ of the United
Nations, whose primary raison d’étre remains the preservation of inter-
national peace and security, is under a positive obligation to contribute
to the maintenance of international peace and security and to provide a
judicial framework for the resolution of a legal dispute, especially one
which not only threatens international peace and security but also involves
enormous human suffering and continuing loss of life as well as the dis-
integration of normal society. Given the prevalence of these circum-
stances in this dispute, the Court has decided, rightly in my view, not to
remain silent. I have therefore joined with other Members of the Court in
calling for the peaceful resolution of this conflict pursuant to Article 33
of the Charter, and in urging the Parties not to aggravate or extend the
dispute and to respect international law, including humanitarian law and
the human rights of all the citizens of Yugoslavia.

(Signed) Abdul G. KoromMa.

22