No Reparation for the Victims of Nazi War Crimes – The Judgement by the International Court of Justice (ICJ) in Germany v. Italy, Greece Intervening
by Miša Zgonec-Rozej
There seems to be a general consensus amongst scholars that the recent ICJ decision on the Reparation case was the “right” or “correct” decision. This assessment, of course, depends on the commentator’s point of view. In my opinion, the judgement is disappointing as it adopts a conservative and restrictive interpretation of the rules of customary international law on state immunity in disregard of the well-established right of victims to remedies for serious violations of international humanitarian law and other crimes under international law.
On the positive side, the judgement is generally helpful to States as it provides clarification of the law on State immunity, thereby introducing a degree of certainty into this field of law. On this point see the blog on EJIL: Talk by Prof. Andreas Bianchi: On Certainty. On the negative side, the judgement leaves victims of war crimes without remedies even in situations where the victims are unable to bring a claim for reparation within the court of the responsible State, a regional court or any other compensation mechanism.
Ultima ratio: Departure from the Arrest Warrant
One of Italy’s main arguments was that Germany was not entitled to immunity because the acts which gave rise to the claims involved the most serious violations of rules of international law of a peremptory character, for which no alternative means of redress was available (para. 61). The restriction recognised by Italy thus only applies to the claims relating to international crimes and only when no other alternative avenues of redress are available. In this case, the Italian and Greek victims of Nazi war crimes brought claims in Italian courts against Germany or sought to enforce foreign judgements after being unable to obtain reparation in proceedings in Germany as well as in the European Court of Human Rights (see Counter-Memorial of Italy, paras. 2.20-2.21).
In Italy, the Supreme Court (Corte di Cassazione) in its judgment of 11 March 2004 in the case Ferrini v. Germany held that Italian courts have jurisdiction over compensation claims of persons deported during the Second World War to perform forced labour in Germany on the ground that immunity does not apply for acts constituting international crimes. After this judgement, numerous other proceedings were instituted against Germany before Italian courts by prisoners of war who were coerced into forced labour and victims of massacres perpetrated by German forces during the last months of the Second World War.
In Greece, the request for reparation against Germany was submitted by the relatives of the victims of the massacre in the Greek village of Distomo where, on 10 June 1994, German forces killed hundreds of civilians, including women and children. In 2000 the Hellenic Supreme Court confirmed a judgement rendered in 1997 by the Greek court of first instance, in which the court rejected Germany’s claim of jurisdictional immunity and awarded damages to relatives of the victims. The Greek Minister of Justice, however, had not granted the authorization required in order to enforce a judgement against a foreign State so it was not possible to enforce the two judgements.
The claimants in the Distomo case had subsequently brought proceedings against Greece and Germany before the European Court of Human Rights which had held in 2002, referring to the rule of State immunity, that the claimants’ application was inadmissible. The Greek claimants had then sought to enforce the judgments of the Greek courts in Italy and the Italian Court of Appeal had ruled that the first Greek judgment delivered in 1997 was enforceable in Italy. The Italian Supreme Court confirmed this ruling.
Germany refused to provide reparations that had been awarded by the Italian courts to Italian and Greek victims. Consequently, measures of constraint were taken against German assets in Italy. Greek claimants, pursuant to a decision by the Italian Court of Appeal, registered a legal charge (“ipoteca giudiziale”) in the land register over Villa Vigoni, the German-Italian centre of cultural encounters. Germany expected that other such measures might be taken against real estate that served German public purposes in Italy.
Amnesty International (AI) has argued in its position paper that the restriction advocated by Italy is consistent with established state practice because “[it] is narrowly defined, manageable, and rooted in established principles of international law.” AI argued that the restriction reflects the well-established fundamental right of the victims of the most serious crimes under international law to reparation. It concerns the conduct that – as recognized in the Pinochet judgment – cannot be considered a State function and therefore falls outside the authority of a State under the international legal system. Importantly, the restriction is only provided as an option of last resort: when a victim is not able to bring claims for reparation within the courts of the responsible State, before a regional court, or pursuant to any other compensation mechanisms. Moreover, the restriction “does not interfere with the core purpose of sovereign immunity: to ensure the effective orderly conduct of international relations.” (paras. 10-15)
The ICJ rejected the Italian argument relating to the “gravity of the violations” and held 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.” The Court emphasised that its conclusion on the independence of the gravity of the violations or the peremptory character of the rule breached was only reached with regard to State immunity and not with regard to immunity of State officials in criminal proceedings which was not in issue in the case.
The ICJ also rejected Italy’s argument that the rules of the law of armed conflict violated by Germany constituted jus cogens which prevails over the rules on State immunity. The ICJ held that assuming that the rules violated by German forces were rules of jus cogens, there is no conflict between these rules and the rules on State immunity because 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 jurisdiction in respect of another State” (para. 93).
ICJ dismissed Italy’s “last resort” argument by holding that “[it] 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.” (para. 101). In the Court’s view, the application of any such condition would be exceptionally difficult in practice particularly when claims have been the subject of extensive intergovernmental discussion (para. 102).
Interestingly, by ruling that immunity does not depend on the availability of an alternative avenue of redress the ICJ departed from its previous reasoning in the Arrest Warrant case where the “availability of avenues” argument was referred to in support of the Court’s determination. In that case the ICJ upheld the immunity of an incumbent Minister of Foreign Affairs from criminal prosecution by a foreign State, but only after noting that other avenues for criminal prosecution existed. On that basis the ICJ concluded immunity from jurisdiction is not equivalent to impunity (paras. 60-61).
In this case, the ICJ confirmed Germany’s jurisdictional immunity despite the fact that such recognition leaves the victims without any other avenues to seek reparation. The ICJ’s approach to immunities, therefore, appears to be unfortunately selective and inconsistent. No one denies the difference between criminal and civil proceedings, highlighted by the ICJ in its judgement (paras. 87, 91). However, the Court has never explained the difference or the rationale behind making the distinction. Both proceedings arguably serve the same purpose: to hold those who are responsible for crimes under international law accountable and to give the victims access to justice and reparation.
On this point, in their joint dissenting opinion in Al-Adsani v. The United Kingdom, six judges of the European Court for Human Rights convincingly criticised the distinction between criminal proceedings (where jus cogens might potentially override the rules of sovereign immunity) and civil proceedings as being not consonant with the very essence of the operation of jus cogens rules. In their view the criminal or civil nature of the domestic proceedings is immaterial: “[i]t is not the nature of the proceedings which determines the effect that a jus cogens rule has upon another rule of international law, but the character of the rule as a peremptory norm and its interaction with a hierarchically lower rule.” (para. 4).
The right of the victims to reparation: a missed opportunity
Italy’s attempt to have the ICJ decide on the question of reparation owed to Italian victims was unsuccessful. Italy submitted a counter claim in which it requested the Court to adjudge and declare that Germany had violated its obligation of reparation owed to the victims in questions, that Germany’s international responsibility is engaged for this conduct, and that Germany must cease its wrongful conduct and offer appropriate and effective reparation to the victims. The ICJ dismissed this claim in its 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(1) of the Rules of the Court.
On the merits, seeing its competence to settle inter-state claims in contentious cases as a purely inter-State court, the ICJ avoided addressing the question of whether individual victims have a directly enforceable right to claim compensation for war crimes. After having ruled that Italy breached its obligations owed to Germany, because Italian courts denied Germany the immunity to which it was entitled under customary international law, the Court saw it unnecessary to discuss the question whether international law confers upon the individual victim of a violation of the law of armed conflict such a right (para. 108). The only determination the ICJ made in the context of the right to reparation was to say that there is no peremptory rule under international law requiring the payment of full compensation to each and every individual victim (para. 94).
The lack of adequate analysis of the obligation to make reparation for violations of international humanitarian law was picked up by Judge Yusuf in his dissenting opinion. He found it regrettable that the Court had not considered it necessary to examine, at least in a general manner, the obligation to make reparation for violations of international humanitarian law in international law (Yusuf’s dissenting opinion, para. 12). Judge Yusuf observed that the right to reparation has evolved since the Second World War and “[it] does not exclude the right of individuals to make claims for compensation for damages arising from breaches of international humanitarian law”. (paras. 13-19). The right to reparation has also been examined in the AI’s position paper (para. 12).
The right to reparation is recognised in a number of treaties and other international instruments, including Article 3 of the Hague Convention Respecting the Law and Customs of War on Land, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian law (Van Boven-Bassiouni Principles), Article 91 of the Protocol I to the Geneva Conventions of 1949, Article 75 of the Rome Statute of the International Criminal Court, UN Fact-Finding Mission on the Gaza Conflict (U.N. Doc. A/HRC/12/48), Article 2(3) of the ICCPR, Human Rights Committee (General Comment No. 31), Principles 5 and 8 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Doc. A/RES/40/34), Updated set of principles for the protection and promotion of human rights through action to combat impunity (Joinet-Orentlicher Principles), Article 41 of the European Convention on Human Rights, Article 63(1) of the American Convention on Human Rights, Article 27 of the African Charter on Human and Peoples’ Rights, UN Security Council Resolution 687 (1991) (para. 16) which established the UN Compensation Commission for Iraq, Agreement between Ethiopia and Eritrea establishing the Claims Commission (Article 5), etc. The ICJ has also confirmed the victims’ right to reparation in its Advisory Opinion on in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004 I.C.J. Reports 136, para. 153).
Noting that international legal systems evolved over the past century from “a State-centred legal system to one which also protects the rights of human beings vis-à-vis the State” Judge Yusuf argued that the rationale behind restrictions to State immunity, such as the tort exception, has been conceived for the protection of individual rights against States. In his view, the use of State immunity to obstruct the right of access to justice and the right to an effective remedy may be seen as a misuse of such immunity. The assessment whether the immunity should be granted has to include the application of the right to an effective remedy, the right to compensation for damages suffered as a result of breaches of international humanitarian law, and the right to protection from denial of justice. (Yusuf’s dissenting opinion, paras. 21, 22, 28, 30). Judge Yusuf concluded:
“[The Court] […] could have clarified the law in the sense in which it is already evolving of a limited and workable exception to jurisdictional immunity in those circumstances where the victims have no other means of redress. Such an exception would bring immunity in line with the growing normative weight attached by the international community to the protection of human rights and humanitarian law, and the realization of the right to effective remedy for victims of international crimes, without unjustifiably indenting the jurisdictional immunity of States” (para. 58).
Judge Cançado Trindade extensively discussed the victims’ right to justice and reparation in his dissenting opinion. He argued that the tension between State immunity and the victims’ right to access to justice and reparation should be resolved in favour of the latter, particularly in cases of international crimes. He stated that “[i]t is nowadays generally acknowledged that criminal State policies and the ensuing perpetration of State atrocities cannot at all be covered up by the shield of State immunity” (Trindade dissenting opinion, para. 52). He also argued that victims have an individual right to reparation and consequently, a State cannot waive claims of reparation on behalf of the victims (paras. 70-71, 250).
Judge Trindade concluded that “the individual victims of State atrocities cannot be left without any form of redress. State immunity is not supposed to operate as a bar to jurisdiction in circumstances such as those prevailing in the present case…. It is not to stand in the way of the realization of justice. The pursuit of justice is to be preserved as the ultimate goal; securing justice to victims encompasses, inter alia, enabling them to seek and obtain redress for the crimes they suffered. Jus cogens stands above the prerogative or privilege of State immunity, with all the consequences that ensue therefrom, thus avoiding denial of justice and impunity” (para. 299).
Deterring effect of the judgement on the evolving State practice
Amnesty International’s position paper points out that under international law States have continued to retain for more than a century considerable discretion to determine in legislation and jurisprudence when other states may bar a civil claim on the basis of an assertion of state immunity. The practice shows that since the late 19th century, States have been limiting the scope of jurisdictional immunity granted to other States before their national courts without interfering with the core purpose of sovereign immunity (see AI’s position paper, paras. 5-9, 43).
This raises the question whether the ICJ’s judgement might deter further evolution of such State practice? Prof. Damrosch argued convincingly in her recent article that “[n]ational courts have not shied away from taking the initiative to change state practice to meet the needs of justice” and “[n]ational legislatures have likewise moved the law forward in response to demands for change.” She concluded with the hope that the ICJ would not “block national institutions from moving the international law of sovereign immunity in a direction that is responsive to contemporary demands for remedies due to wrongs committed by States.”
In her blog The International Court of Justice’s Judgement in Germany v. Italy: Chilling Effect? Philippa Webb takes the view that the judgement by the Court “essentially closed off” further acceptance by other national jurisdictions of the exception to State immunity for jus cogens violations which has been developed by certain Italian and Greek courts. What about other restrictions or so-called exemptions that have been developed in the practice of States?
For example, the US Foreign Sovereign Immunities Act (FSIA) provides for a unique restriction on sovereign immunity when the defendant is a government-designated “state sponsor of terrorism” provided that the victims or a claimant is a US citizen and the personal injury or death was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act. (28 U.S.A. § 1605A).
The ICJ limited its determination to proceedings for torts allegedly committed in the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict (para. 78). The ICJ did not provide any guidance as to whether there are any lawful restrictions to State immunity under international law in situations not involving conduct of armed forces during an armed conflict and what the permitted scope of such exceptions is. The Court merely held that it was not called upon to address the question of how international law treats the issue of State immunity in respect of acta jure gestionis (para. 60). Likewise, the Court did not see it necessary to resolve the question whether there is in customary international law a “tort exception” to State immunity applicable to acta jure imperii in general (para. 65). Although the distinction between acta jure gestionis and acta jure imperii served as a basis for the Court’s decision, the ICJ has not fully explained the criteria for differentiating between the two terms.
What impact will the judgement have on the cases before the U.S. courts which involve the question of the scope and limitations of immunity of foreign States before the U.S. domestic courts?
At the BIICL rapid response seminar, Lady Fox argued that a State which is refused immunity in the U.S. courts on the basis of the innovative exceptions developed in the U.S. practice could make a representation that its rights are violated. Chimène Keitner, on the other hand, assesses in her blog at EJIL: Talk that the ICJ judgement does not have much impact on legal proceedings in U.S. courts. As regards the FSIA “terrorist state” exception the ICJ noted that it has no counterpart in the legislation of other States (para. 88) which implies that it is not supported by State practice and it is therefore arguably inconsistent with customary international law (see also ASIL Insight by Chimène Keitner).
After arguing that States and their domestic courts do not uniformly and consistently interpret and apply the rules on State immunity, Judge Yusuf made the following observation:
“It is not therefore very persuasive to characterise some of the exceptions to immunity as part of customary international law, despite the continued existence of conflicting domestic judicial decisions on their application, while interpreting other exceptions, similarly based on divergent domestic courts’ decisions, as supporting the non-existence of customary norms. This may give the impression of cherry-picking, particularly where the number of cases invoked is rather limited on both sides of the equation” (Yusuf’s dissenting opinion, para. 23).
The Court adopted the judgement in full awareness of its negative consequences for the victims’ right to access to justice and reparation. The Court explicitly admitted in para. 104 that “[i]n 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.” In Judge Yusuf’s view, the Court should have drawn some legal conclusions from this statement, particularly with regard to the legality or illegality of the decisions of the Italian courts (Yusuf’s dissenting opinion, para. 11).
Interestingly, the Court expressed surprise and regret over the fact that Germany decided to refuse compensation to internees that were denied their status of prisoners of war and were used for forced labour (para. 99). The Court then suggested a diplomatic approach stating that the unsettled claims of Italian victims, which formed the basis for the Italian proceedings, “could be the subject of further negotiation” between Germany and Italy “with a view to resolving the issue” (para. 104).
Unfortunately this statement is nothing more than a moral view which has no legal effects in international law. In the absence of the legal determination by the ICJ of the issue of reparation, we can only hope that Germany will give weight to the Court’s considerations and fulfil its obligations vis-à-vis the victims who have been left out of the existing reparation schemes. The Court, however, by adopting the above statement has not discharged its duty to give due consideration to the right of the victims to reparation.
As pointed out by Al-Adsani’s counsel, John Macdonald Q.C., at BIICL rapid response seminar “it is not intellectually acceptable that States should be allowed to claim immunity from jurisdiction when they are responsible for torture”. If the restrictions of State immunity may apply for commercial transactions, certain employment contracts, torts on the territory of the forum State and other situations then it is surely all the more compelling to allow States not to recognise State immunity for crimes under international law, at least where victims have no other avenues available to seek reparation.
The result of the ICJ judgement is thus that victims are left with no access to reparation for war crimes committed by forces of Nazi Germany and Germany cannot be held accountable for these atrocities. It should be noted that the judgement has detrimental consequences not only for victims of crimes committed during the Second World War but also for other victims of crimes under international law who are left without any reparation. Although practically challenging, the judgement should not be seen as closing the door altogether for the progressive development of international law through State practice. If that happens, the ICJ judgment may soon be seen to be out of step with the spirit of the times, with its urgent focus on international criminal justice and concern for victims of international crimes.