Germany v. Italy at the ICJ: Sovereign Immunity & War Crimes

Germany's Basis for ICJ Jurisdiction Over Sovereign Immunity

Issue: Germany's application to the International Court of Justice (ICJ), filed on April 29, 2022, maintained that Italy violated Germany's sovereign immunity when it allowed Italian victims to file claims against Germany in Italian courts for violations of international humanitarian law committed against those victims and/or their relatives during World War II. In support of its claims, the application states in part:

"(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)

Rule: Article 41 of the ICJ 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).

Application: At some point, claims that originated in wars 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 dating to antiquity. In this regard, the ICJ ultimately held, in part, that Italy did in fact violate Germany's sovereign immunity under international law by allowing civil claims to be filed against it.

Conclusion: Germany was correct to invoke the jurisdiction of the ICJ in this case and should prevail, given the nearly 80-year period that has elapsed since the violations alleged by Italy occurred.

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 (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 stipulates that 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; and the general principles of law recognized by civilized nations. Therefore, the ICJ will likely accept jurisdiction in this case as well.

Italy's Right to Bring Claims for Internationally Wrongful Acts

Issue: Can victims of an internationally wrongful act committed by one country against another country's nationals bring a claim to the ICJ, and if so, what theory of international law is controlling?

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" encompasses international law issues that arise due to the wrongful act or acts of a state (Responsibility of States for Internationally Wrongful Acts, 2001).

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

Conclusion: Based on the rule described above, 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.

Invasion Rights, Preemptive Force, and the UN Charter

This question addresses two scenarios: (a) whether Germany would have the right to invade Italy in response to Italy's seizure of German-owned property, and (b) whether Italy would have the right to attack Germany before any attack has taken place if it learned of Germany's intention to invade.

Issue: What conditions, if any, empower one country to invade another, and what circumstances must exist to justify the preemptive invasion of one country by another?

Rule: With respect to part (a), the United Nations Charter and the principles of international law both maintain that nations should not invade one another (Hannum, 2022). 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 German-owned resources located in Italy.

With respect to part (b), the rules concerning preemptive invasions are more nebulous, but generally include the right to preemptively invade if certain conditions exist. The general legal principles relating to this issue include those established by the so-called "Caroline case" of 1837, which identified two key conditions that must exist to justify a preemptive invasion:

1. The need to use force in anticipatory self-defense must first rise to the level of being a necessity — one that is instant, overwhelming, and leaves 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).

Application: The controlling provisions of the UN Charter and the relevant principles of international law preclude Germany from invading Italy in response to Italy's seizure of German-owned property in Rome or elsewhere. In the event Germany elected to invade Italy anyway and made clear-cut preparations to mount such an offensive — such as 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 national interests.

Conclusion: The rule of international law generally prohibits the invasion of one country by another. However, just as in the schoolyard, it is permissible for states to act first if another state poses a clear and present threat of inflicting harm. Therefore, although Germany would not have the right under the UN Charter and relevant international law to invade Italy, Italy would have the right to defend its sovereignty by invading Germany if Germany were clearly poised to attack first.

References

Article 1 of the European Convention for the Peaceful Settlement of Disputes. (1957). Council of Europe. European Treaty Series No. 23.

Article 38 of the Statute of the International Court of Justice. (n.d.). International Court of Justice. Retrieved from

Germany institutes proceedings against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State. (2022, April 29). International Court of Justice. Retrieved from

Hannum, H. (2022, February 25). International law says Putin's war against Ukraine is illegal. Does that matter? U.S. News & World Report. Retrieved from

How the Court Works. (2022). International Criminal Court. Retrieved from

ICC History. (2022). International Court of Justice. Retrieved from

Jurisdictional Immunities of the State [Germany v. Italy: Greece intervening]. (2009, December 23). International Court of Justice. Retrieved from

Preemptive War and International Law. (2009, December 5). Project on Government Oversight. Retrieved from

Responsibility of States for Internationally Wrongful Acts. (2001). International Law Commission. Retrieved from

Wilske, S., Ebert, B. P., Rohner, T., le Lindholm, M., Beisteiner, L., Horne, L., & Edworthy, C. (2021). The view from Europe: What's new in European arbitration? Dispute Resolution Journal, 75(3), 167–186.