Jurisdictional immunity of states and the judgement of the international court of justice in the case Germany vs. Italy, 2012

Abstract

The article analyzes the problem of jurisdictional immunity of states which was considered by the International Court of Justice in 2012 in the case Germany vs. Italy. This case is based on the examination by the Italian courts of a number of claims for compensation of damage which was caused by the German armed forces during the Second World War. As a general rule, foreign states enjoy immunity before foreign courts. However, in 2004 one of the highest Italian courts ruled that such immunity shall not be applied to the state which committed an international crime. The Government of Germany appealed against this judgement to the International Court of Justice, requesting that such actions of the Italian courts be classified as a violation of Italy’s international obligations. The article considers arguments put forward by the parties to support their positions, their assessment by the International Court of Justice, as well as the judgement itself which was in the favor of Germany. The author also points out that an absolute jurisdictional immunity of the state contradicts modern ideas about justice because it prevents many victims of armed conflicts from receiving compensation. As a way to resolve this contradiction, the author recommends the soonest entry into force of the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 and application of its provisions to armed conflicts. 

Keywords:

international law, International Court of Justice, jurisdictional immunity, international responsibility, international crimes