International Law on State Immunity: The Critical Analysis of the International Court of Justice Case Germany Versus Italy and Greek Intervention

Abstract

This research paper describes and analyses a recent ICJ judgment on State immunity. The case of Germany versus Italy involved an unprecedented judicial practice which needed to be settled. The research gives historical and legal facts belonging to the post-war period of WW II, regarding the reparation remedies against Germany for damages and injuries to the Italian and Greek individuals.

The research is organised in four chapters. The first chapter gives the concept of State Immunity as a fundamental principle of the PIL. It briefly describes the doctrine of sovereign immunity and the different approaches that exist in different countries, noting the absolute and the restrictive State immunity doctrines. Adding, it gives the most significant Conventions on State immunity at international level facing the FSIA approach for State immunity. Two main Conventions are introduced, such as the European Convention on State Immunity 1972, and the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004.

The second chapter briefly describes the historical background of Germany and Italy back to the WW II related to the crimes committed by the German Reich under its Nazi leadership in Italy. It also gives the inter-State agreements afterwards for arranging the disputes concerning the damages and injuries of the armed conflict.

Whereas, the third chapter shows the circumstances in which the judicial conflict between Germany and Italy developed. It gives the Italian court decisions against Germany waiving its immunity as a State. It gives the Ferrini judgment of the Italian High Court and the decision of the enforcement of the Greek Distomo judgment. These were the main grounds that obliged Germany to claim before the ICJ stating that its immunity as a State was violated by the Italian courts. At the end of this chapter are given the essential points of the ICJ ruling to the issue of the dispute.

Last chapter, thoroughly, analyses the facts considering State immunity as a matter determined by international law on one side, and the Italian Court’s domestic approach for it on the other. It gives the reasons why the ICJ did rule in favour of Germany and defined the obligation of Italy to cease the enforceability of all its court decisions, which definitely were against the customary international law.

The conclusion provides a summative evaluation on the ICJ judgment in the case Germany versus Italy, determining once again that the restriction of the immunity of a State as a result of civil claims is an infringement of international law.