Peaceful Solutions to International Disputes The Role of the International Court of Justice

Selected Questions and Answers in International Law

Question 1. What does Germany invoke as the basis for the jurisdiction of the International Court of Justice in Questions of jurisdictional immunities of the State and measures of constraint against State-owned property?

a. Issue:

The application to the International Court of Justice (ICJ) submitted by Germany on April 29, 2022, maintained that Italy violated German’s sovereign immunity when it allowed victims from Italy to file claims against Germany in Italian courts for violations of international humanitarian law that were committed against the Italian victims and/or their relatives at some point during World War II. In support of its claims, the application by Germany states in part that:

“(1) Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, including, but not limited to, in 25 proceedings, listed in Annex 6 [to the Application], instituted against Germany since the judgment of the Italian Constitutional Court of 22 October 2014.

(2) Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy, including against the [German Archaeological Institute Rome], the [German Cultural Institute Rome], the [German Historical Institute Rome], and the [German School Rome]. (Germany institutes proceedings against Italy, 2022, pp. 1-2)

b. Rule:

In this situation, Article 41 of the International Court of Justice's Statute stipulates that, “In situations of gravity and urgency, the ICJ can indicate or order provisional measures of protection, pursuant to Article 4 of its Statute, so as to prevent or avoid irreparable harm. Such provisional measures, thus endowed with a preventive dimension, have a binding character” (Statute of the International Court of Justice, p. 11).

c. Application:

At some point in time, claims that originated in wars that were fought long ago must be regarded as res judicata, even if no relevant statute of limitations is applicable; otherwise, individuals could claim damages from wars that date to antiquity. In this regard, the ICC ultimately held, in part, that Italy did in fact violate Germany’s sovereign immunity under international law in this case by allowing civil claims to be filed against it by Italy.

d. Conclusion.

Germany was correct to invoke the jurisdiction of the International Court of

Justice in this case and should prevail given the nearly 80-year time period that has elapsed since the violations alleged by Italy occurred.

In your view, will the ICJ declare itself competent to hear this case?

In a previous related case, Germany relied on Article 1 of the European Convention for the Peaceful Settlement of Disputes dated April 29, 1957 and subsequently ratified by Germany on April 18, 1961 and Italy on January 29, 1960 as the basis for invoking the ICJ’s jurisdiction in the instant case (Jurisdictional Immunities of the State [Germany v. Italy: Greece intervening], 2009). The provisions of Article 1 state in part that, “Disputes shall be brought before the Special Conciliation Commission by means of an application addressed to the President by the two parties acting in agreement or, in default thereof, by one or other of the parties” (p. 1). Likewise, Article 38 of the ICJ Statute also stipulates that:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations.

Therefore, the ICJ will likely accept jurisdiction in this case as well.

Question 2. Could Italy bring a claim to the International Court of Justice on behalf of one of its nationals who has been the victim of an internationally wrongful act committed by

Germany? If so, based on what theory of international law? Explain.

a. Issue:

Can victims of an internationally wrongful act in one country that are committed by another country bring a claim to the ICJ and, if so, what theory of international law is controlling?

b. Rule:

A report by the International Law Commission (ILC) emphasizes that, “Every internationally wrongful act of a State entails the international responsibility of that State” (p. 32). In support, the ILC report cites Article 1 which sets forth the fundamental legal principle that, “An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, first, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such an act” (p. 32). In this context, the term “international responsibility” includes international law issues that arise due to the wrongful act or acts by a state (Responsibility of States for Internationally Wrongful Acts, 2001).

c. Application:

The ICJ is the court of competent jurisdiction for international cases of this nature.

d. Conclusion:

Based on the above-described rule, Italy could bring a claim to the ICJ on behalf of one of its nationals who has been the victim of an internationally wrongful act committed by

Germany, but it remains uncertain whether Italy would prevail under these circumstances.

Question 3. In order to enforce the judgments awarding damages to victims of international humanitarian law violations by the German Third Reich during World War II, Italy tried to seize several German-owned properties in Rome. Frustrated by Italy's attempts at seizing German property and observing the failure of the international legal system to put an end to what it regards as the violation of its sovereignty, Germany decides to invade Italy.

a) In the scenario presented above, would Germany have the right to invade

Italy?

b) If Italy finds out that Germany’s intends to attack it, would Italy have a right

to attack Germany before any attack has taken place?

a. Issue:

What conditions, if any, empower one country to invade another and, in the alternative, what circumstances must exist in order to justify the preemptive invasion of one country by another.

b. Rule:

With respect to part A above, the United Nations Charter and the principles of international law both maintain that nations should not invade each other (Hannum, 2022). Indeed, the UN Charter specifically states that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This admonition indicates that irrespective of its frustration with the slow pace of the rule of law, Germany would not be justified in invading Italy in response to Italy’s attempted seizure of any German-owned resources that were located in Italy.

With respect to part B above, the rules concerning preemptive invasions by one country against another are more nebulous, but generally include the right to preemptively invade if certain conditions exist. The general legal principles that relate to this issue include those established by the so-called “Caroline case” in 1837 which identified two key conditions that must exist in order to justify a preemptive invasion as follows:

1. The need to use force in anticipatory self-defense must first rise to the level of being a necessity, and one that is instant, overwhelming, and leaving no choice of means and no moment for deliberation; and,

2. The action taken must be proportionate to the threat and not be excessive (Preemptive War and International Law, 2009, para. 3).

c. Application: The controlling provisions of the UN Charter and the relevant principles of international law preclude Germany from invading Italy in response to its seizure of German-owned property located in Rome or elsewhere in Italy. In the event Germany elected to invade Italy anyway and made clear-cut preparations to mount such an offensive (i.e., mobilizing its armed forces and staging them along the Italian border), Italy would be justified in staging a preemptive invasion of Germany to protect its citizens and other national interests.

d. Conclusion:

The rule of international law generally prohibits the invasion of one country by another, but just as in the schoolyard, it is permissible for states to “hit someone back first” if they pose a clear and present threat of inflicting harm. Therefore, although Germany would not have the right, under the UN Charter and relevant international law, Italy would have the right to defend its sovereignty by invading Germany in the event that Germany was clearly poised to invade Italy first.

Question 4. Unfortunately, and despite the international community's efforts at avoiding escalation, an international armed conflict breaks out in late 2022 between Germany and Italy on the territory of Italy. Both sides argue that war crimes were committed by the armed forces of the opposite state during the conflict. Could any individuals who allegedly committed war crimes be indicted before the International Criminal Court? What conditions would have to be met for this to occur?

a. Issue:

Can war crimes be prosecuted by the International Criminal Court (ICC) and, if so, what conditions would be required to be met first?

b. Rule:

Although the ICC has original jurisdiction to prosecute war crimes. In this regard, the ICC points out that, “War crimes are grave breaches of the Geneva conventions in the context of armed conflict and include the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes” (How the Court Works, 2022, para. 4). In the hypothetical case of Italy and Germany committing war crimes against each other described above, both countries are party to the Rome Statute and therefore voluntarily accept the conditions of this status, meaning that the ICC could prosecute war crimes committed by both countries.

An important caveat, however, is the overarching condition that Germany and Italy would accept the ICC’s jurisdiction in these circumstances. In the event one or both countries refused to accept the ICC’s jurisdiction or comply with any of the Court’s decisions, there is virtually little or nothing the ICC itself can do to compel them to do so. In this regard, the ICC emphasizes that, “As a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention center in The Hague, freezing suspects’ assets, and enforcing sentences” (How the Court Works, 2022, para. 6).

It is important to note, however, that the ICC can seek to enlist the support of the UN Security Council for enforcement purposes. For example, the ICC also points out that, “While not a United Nations organization, the Court has a cooperation agreement with the United Nations. When a situation is not within the Court’s jurisdiction, the United Nations Security Council can refer the situation to the ICC granting it jurisdiction” (How the Court Works, 2022, para. 9).

c. Application:

Any war crimes that are committed during an unlikely war between NATO members Germany and Italy could be prosecuted by the ICC, but this Court lacks any enforcement authority for its decisions in war crime cases.

d. Conclusion:

The ICC is a valuable resource in which the international community can resolve matters that involve criminal offenses committed by one state against the citizens of another. Although the ICC is the court of competent jurisdiction for these types of cases, it lacks the ability to enforce its decisions meaning that both Italy and Germany would have to voluntarily comply with any decision or the matter would have to be referred to the UN Security Council for further deliberations and possible enforcement action.

Question 5. Germany recently withdrew some of the demands it initially formulated in its application to the International Court of Justice. If the parties get to a settlement out of court, it is possible that the case will later be removed from the ICJ's docket. What role do you think the initiation of the proceedings played in bringing the two states to the table and finding an agreement to their legal dispute? Is this, in your view, an essential role played by this court? What other role(s) does it play in the international system?

a. Issue: What role, if any, did Germany’s legal action against Italy in the ICJ play in prompting the parties to arbitrate in order to facilitate a resolution to this issue?

b. Rule: An important part of the mission of the ICJ is the pacific settlement of international disputes (ICC History, 2022).

c. Application: Throughout Europe and dating to the Middle Ages, arbitration has been an integral part of resolving international legal issues in a peaceful fashion (Wilske et al., 2021). Indeed, the Permanent Court of Arbitration, a predecessor body to the ICJ, was created in 1900 pursuant to the provisions of the 1899 Hague Peace Conference with that specific mission mandated by the signatories to the Convention on the Pacific Settlement of International Disputes (History of the ICJ, 2022). In this regard, the ICJ reports that, “The system thus established was permanent, and the Convention ‘institutionalized’ the law and practice of arbitration, placing it on a more definite and more generally accepted footing. The Permanent Court of Arbitration was established in 1900 and began operating in 1902” (History of the ICJ, 2022, para. 7).