disenting opinion of judge in germany vs italy

7/25/2019 Disenting Opinion of Judge in Germany vs Italy

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Dissenting Opinion of Judge Canado Trindade in the case of jurisdictionalimmunities of the state brought by Germany before the ICJ: "Jus cogens standsaboe the prerogatie or priilege of !tate immunity #ith all the conse$uences thatensue therefrom thus aoiding denial of justice and impunity"

T%&'( O) CO*T(*T!

I+ ,rolegomena

II+ ,reliminary Issue: The Inter-Temporal Dimension in the Consideration of !tateImmunity

III+ !tate Immunities and .ar /eparation Claims: %n Ineluctable /elationship in the,resent Case

I0+ Germany1s /ecognition of !tate /esponsibility in the Cas d1(sp2ce

0+ )undamental 3uman 0alues: /escuing !ome )orgotten Doctrinal Deelopments

0I+ The Collegial Doctrinal .or4 of 'earned Institutions of International 'a#

0II+ The Threshold of the Graity of the &reaches of 3uman /ights and ofInternational 3umanitarian 'a#

0III+ The 5uestion of .aier of Claims in /espect of the /ight of %ccess to Justice inthe ,leadings before the Court: %ssessment

I6+ The Inadmissibility of Inter-!tate .aier of the /ights of the Indiiduals 0ictimsof Grae 0iolations of International 'a#


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6+ ,ositions of the Contending ,arties as to the /ight of %ccess to Justice

6I+ Clari7cations from the Contending ,arties and from Greece in /esponse to5uestions )rom the &ench

8+ 5uestions ,ut to the Contending ,arties and to Greece

9+ )irst /ound of %ns#ers

a; Germany1s and Italy1s %ns#ers

b; Greece1s %ns#er


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6I0+ !tate Immunity ersus The /ight of %ccess to Justice

8+ The ,reailing Tension in the Case-'a# of the (uropean Court of 3uman /ights

a; The %l-%dsani Case 9>>8;

b; The ?c(lhinney Case 9>>8;

c; The )ogarty Case 9>>8;

d; The @alogeropoulou and Others Case 9>>9;

9+ The ,reailing Tension in the Case-'a# of *ational Courts


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a; The ?assacre of Distomo

b; The ?assacre of Ciitella

9+ Deportation and !ubjection to )orced 'abour in .ar Industry

66+ The ,realence of the Indiidual1s /ight of %ccess to Justice: The Contending,arties1 Inocation of the Case Goiburu et %lii I%Ct3/ 9>>A;

66I+ The Indiidual1s /ight of %ccess to Justice: The (oling Case-'a# To#ards JusCogens

66II+ Out of 'a#lessness: The Indiidual 0ictim1s /ight to the 'a# droit au Droit;

66III+ To#ards the ,rimacy of the *eer-0anishing /ecta /atio

66I0+ The Indiiduals1 /ight to /eparation as 0ictims of Grae 0iolations of 3uman/ights and of International 3umanitarian 'a#

8+ The !tate1s Duty to ,roide /eparation to Indiidual 0ictims

9+ The Categories of 0ictims in the Cas d1(sp2ce


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8+ The /ealiBation of Justice as a )orm of /eparation

9+ /eparation as the /eaction of 'a# to Grae 0iolations

660I+ The ,rimacy of Jus Cogens: % /ebuttal of Its Deconstruction

660II+ % /ecapitulation: Concluding Obserations

I+ ,rolegomena

8+ I regret not to be able to accompany the Court1s majority in the decision #hichthe Court has just adopted today < )ebruary 9>89 in the case concerning the

Jurisdictional Immunities of the !tate Germany ersus Italy Greece interening;+?y dissenting position pertains to the decision as a #hole encompassing theadopted methodology the approach pursued the #hole reasoning in its treatmentof issues of substance as #ell as the conclusions of the Judgment+ This being so Icare to leae on the records the foundations of my dissenting position gien theconsiderable importance that I attach to the issues raised by Germany and Italy as#ell as by Greece in the course of the proceedings in the cas d1esp2ce and bearingin mind the settlement of the dispute at issue ineluctably lin4ed to the imperatie ofthe realiBation of justice as I perceie it+

9+ I thus present #ith the utmost care the foundations of my entirely dissentingposition on the #hole matter dealt #ith by the Court in the Judgment #hich it has

just adopted out of respect for and Beal in the eercise of the international judicialfunction guided aboe all by the ultimate goal precisely of the realiBation of justice+

To this eect I shall d#ell upon all the aspects concerning the dispute broughtbefore the Court #hich forms the object of its present Judgment in the hope of thuscontributing to the clari7cation of the issues raised and to the progressiedeelopment of international la# in particular in the international adjudication bythis Court of cases of the 4ind on the basis of fundamental considerations ofhumanity #heneer grae breaches of human rights and of internationalhumanitarian la# lie at their factual origins as in the cas d1esp2ce+


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Germany of !tate responsibility in the present case+ I shall then see4 to rescuesome doctrinal deelopments forgotten in our days ac4no#ledging fundamentalhuman alues and to recall the pertinent collegial doctrinal #or4 on the subject-matter at issue of learned institutions in international la#+ I shall net turn to thethreshold of the graity of the breaches of human rights and of international

humanitarian la#+

=+ This #ill lead me into the consideration of the $uestion of #aier of claims inrespect of the right of access to justice in the pleadings before the Court and intothe position upholding the inadmissibility of inter-!tate #aier of the rights of theindiiduals ictims of grae iolations of international la#+ I shall then reie# thearguments of the contending parties as to the right of access to justice+ %ttention#ill then be dra#n to the clari7cations from the contending parties Germany andItaly and from the interening !tate Greece in response to a series of $uestions I

put to them in the oral hearings before the Court on 8A+>E+9>88+

F+ I shall net consider the prohibition of forced labour at the time of the II #orld#ar and the prohibitions of jus cogens and the remoal of immunity+ This #ill leadme to reie# the tension in international case-la# bet#een !tate immunity andthe right of access to justice as #ell as to assess the contentions of the parties inthe present case as to acts jure imperii and acts jure gestionis+ ?y net line ofconsiderations #ill focus on the human person and !tate immunities singling outthe shortsightedness of the strict inter-!tate outloo4 particularly #hen facing the

imperatie of justice and stressing the need to oercome that distorted inter-!tateoutloo4+ This #ill lead me to sustain the position that there are no !tate immunitiesfor delicta imperii #ith the prealence of the indiidual1s right of access to justicein the domain of jus cogens+

A+ In se$uence I shall d#ell upon the con7guration of the indiidual ictim1s right tothe 'a# droit au Droit; bearing #itness of the primacy of the neer-anishing rectaratio+ ?y follo#ing line of reasoning #ill concentrate on the indiiduals1 right toreparation as ictims of grae iolations of human rights and of international

humanitarian la# and on the imperatie of the !tate1s duty to proide reparation tothose ictims+ This #ill lead me to uphold the primacy of jus cogens #ith a rebuttalof its deconstruction+ The path #ill then be paed last but not least for thepresentation of my concluding obserations+


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II+ ,reliminary Issue: The Inter-Temporal Dimension in the Consideration of !tateImmunity

+ The consideration of the issue of the application of !tate immunity calls foraddressing an ineluctable preliminary $uestion namely the inter-temporal

dimension in that consideration+ This raises the preliminary issue as to #hether!tate immunity should be considered in the present case opposing Germany to Italyas it #as understood at the time of the commission of acts for #hich immunity isclaimed in the 8E=>s; or as it stands #hen the Court #as lately seiBed of thepresent dispute+

H+ Germany claims in this respect that at the time #hen German forces #erepresent in Italy in 8E== on#ards that hae asserted jurisdiction is-LM-is Germanyhae applied correctly the modern-day understanding of the principle of !tateimmunity =+ It further claims that immunity is a procedural rule and as such itmust be assessed on the basis of the la# in force at the time that a Court is seiBed FM it adds that courts hae generally applied the la# in eistence at the "moment ofthe judicial action and not of the original injurious facts" A+

8>+ Inter-temporal considerations for the application or other#ise of !tate immunitycall into $uestion t#o issues namely: 7rst #hether !tate immunity has changed oreoled in the past decadesM and secondly #hether !tate immunity should beapplied in the present case as it is understood today the time #hen the Court isseiBed of the dispute+ %s to the 7rst $uestion the la# of !tate immunity has clearlydeeloped and eoledM it has not remained static+ Deelopments in the domains ofinternational human rights la# of contemporary international criminal la# and ofinternational humanitarian la# cannot be said to hae had no inNuence on theeoling la# of !tate immunity+

88+ %s to the second $uestion there is a case for focusing on !tate immunity as itstands #hen the Court is seiBed of the dispute+ %fter all it #ould not ma4e sense to


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consider the matter at issue as it #as understood at the time of the II #orld #ar inrelation to Italian courts1 judgments rendered from 9>>= on#ards setting aside!tate immunity and a#arding reparations to the indiidual ictims+ The formationand deelopment of international la# as #ell as its interpretation and applicationcan hardly be dissociated from the inter-temporal dimension+ The "inter-temporal

la#" issue came to the fore in the arbitral a#ard of >=+>=+8E9H on the Island of,almas case *etherlands ersus nited !tates; #herein arbitrator ?a 3uberpondered that:

"%s regards the $uestion #hich of dierent legal systems preailing at successieperiods is to be applied in a particular case the so-called intertemporal la#; adistinction must be made bet#een the creation of rights and the eistence of rights+

The same principle #hich subjects the act creatie of a right to the la# in force atthe time the right arises demands that the eistence of the right in other #ords its

continued manifestation shall follo# the conditions re$uired by the eolution ofla#" +

89+ In modern times it has been clearly rec4oned that there are no "immutable"rules of international la# as erroneously assumed in times long past+ The Institut deDroit International coered the topic of "inter-temporal la#" in its !essions of /ome8E


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static" but "by de7nition eolutionary"M and it added that its interpretation of thematter could not fail to ta4e into account the transformation occurred along thefollo#ing 7fty years and the considerable eolution of the corpus juris gentium intime+ In the #ords of the Court "an international instrument has to be interpretedand applied #ithin the frame#or4 of the entire legal system preailing at the time of

the interpretation" 89+

8F+ In respect of the present case opposing Germany to Italy the fact remains thateen after Court1s Order of A July 9>8> 8


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III+ !tate Immunities and .ar /eparation Claims: %n Ineluctable /elationship in the,resent Case

8H+ It should not pass unnoticed that after the Court1s Order of A July 9>8>summarily dismissing the Italian counter-claim references to the facts underlying

the dispute bet#een the ,arties and conforming its historical bac4groundcontinued to be made by the contending ,arties Germany and Italy;+ It is in factstri4ing to note that een after the Court1s Order of >A+>+9>8> both ,arties - andmore signi7cantly Germany - hae 4ept on referring to the factual and historicalbac4ground of the present case+ ?ore speci7cally as to the $uestion of reparationsGermany has dedicated part of its #ritten and oral pleadings to this topic+

8E+ In fact after the Court1s Order of >A+>+9>8> concerning Italy1s counter-claimGermany submitted its /eply of >F+8>+9>8>; #here it dedicates its section III

paras+ 89-


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describe the mechanism of reparation that #as put in place after the II #orld #arstating that:

"-%t the beginning of the 8EA>s the )ederal /epublic of Germany paid D?88F million

to Greece for ictims of racial and religious persecution+ Germany li4e#iseconcluded the t#o treaties #ith Italy referred to in our ?emorials under #hich alump sum of D?H> million #as paid to Italy+

-/oughly > Italian ciilians #ere compensated for their forced labour by the)oundation 1/emembrance /esponsibility )uture1+ The total amount of fundsa#arded to Italian indiiduals by this )oundation #as close to R9 million+

-)urthermore roughly 8>>> Italian military internees #ere a#arded compensation

for forced labour under the )oundation scheme+

-In addition numerous Italian and Gree4 indiiduals receied payments under theGerman post-#ar compensation legislation" 8E+

99+ The $uestion is addressed again in the pleadings of counsel for Germany#herein it is claimed that Italy1s stance that Germany has failed to proidereparation collectiely "re$uires an eplanation of the entire system of reparations

as it #as conceied by the community of !tates" 9>+ The argument goes on toeplain the foundations of the system of reparations "conceied by the communityof !tates haing declared #ar on Germany + + + #hichK #ere laid do#n at ,otsdam afe# months after Germany1s surrender" 98+ Thus counsel for Germany presented"the political historical and legal contet of the #aier clause #hich must not beseen as a 4ind of accident a derailing proision #hich does not 7t into the system ofinternational responsibility" 99+

9A July9>8> #hereby the Court decided ho#eer to dismiss the Italian counter-claimmuch to my regret+ !hortly after that Order the contending parties themselesGermany and Italy; 4ept on relating their #ritten and oral; submissions on the


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issue of !tate immunities to the factual bac4ground of #ar reparations claims+ Itcould not hae been other#ise as one and the other are ineluctably interrelated+

I0+ Germany1s /ecognition of !tate /esponsibility in the Cas d1(sp2ce

9=+ 3aing established the ineluctable interrelatedness bet#een the claims of !tateimmunities and of #ar reparations in the cas d1esp2ce supra; I no# moe on to thenet point namely Germany1s recognition of !tate responsibility for the #rongfulacts #hich lie in the factual origin of the present case+ This comes to reeal theuni$ueness of the present case concerning the Jurisdictional Immunities of the!tate a ery rare one in the inter-!tate contentieu before The 3ague Court and anunprecedented one in that the complainant !tate recogniBes its o#n responsibilityfor the harmful acts lying in the origins and forming the factual bac4ground of thepresent case+

9F+ Throughout the proceedings before this Court in the present case concerningthe Jurisdictional Immunities of the !tate in the #ritten and oral phases Germanytoo4 the commendable initiatie of repeatedly recogniBing !tate responsibility forthe #rongful acts lying in the factual origins of the cas d1esp2ce i+e+ for the crimescommitted by the Third /eich during the II #orld #ar 9>H ceremony held in thememorial site "'a /isiera di !an !abba" close to Trieste #hich had been used as a


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concentration camp during the German occupation in the II #orld #ar; #hereGermany fully ac4no#ledged

"the untold suering inNicted on Italian men and #omen in particular during

massacres and on former Italian military internees" 9F+

9+ One of the conclusions of the meeting of German and Italian authorities duringthe ceremony in the memorial site near Trieste on 8H+88+9>>H; #as the decision tocreate a joint commission of German and Italian historians:

"#ith the mandate to loo4 into the common history of both countries during theperiod #hen they #ere both goerned by totalitarian regimes giing specialattention to those #ho suered from #ar crimes including those Italian soldiers

#hom the authorities of the Third /eich abusiely used as forced labourers 1militaryinternees1;+ In fact the 7rst conference of that joint commission #hich comprises7e eminent scholars from each side #as held on 9H ?arch 9>>E in 0illa 0igoni theprominent centre for cultural encounters in German-Italian relations" 9A+

9H+ Germany added that it "does not challenge the assertion that indeed eryserious iolations een crimes #ere committed by its occupation forces in Italy" 9+ It added that "tKhe unla#ful actions of the armed forces of the Third /eich too4place bet#een 8E=< and 8E=F+ !ince that time no injurious ne# element #asadded to the damage originally caused" 9H+ In its /eply Germany again referred to"tKhe horrendous eents of .orld .ar II #hen German occupation forces

perpetrated indeed serious iolations of the la#s of #ar" 9E #hich it soughtho#eer to separate from the issue of !tate immunity submitted to the jurisdictionof the Court;+

9E+ 'i4e#ise in the course of the oral proceedings in the public sitting of89+>E+9>88 before the Court counsel for Germany stated that

"The democratic Germany #hich emerged after the end of the *aBi dictatorship hasconsistently epressed its deepest regret oer the egregious iolations ofinternational humanitarian la# perpetrated by German forces and fullyac4no#ledges the suering inNicted on the Italian people during the period from!eptember 8E=< until the liberation of Italy in ?ay 8E=F+ In this contet theGerman Goernment has in co-operation #ith the Italian Goernment made anumber of gestures to reach out to the ictims and their families+ S;+


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S?Kost horrendous crimes #ere committed by Germans during .orld .ar II+Germany is fully a#are of her responsibility in this regard+ Those crimes #ereuni$ue as #ere the instruments and mechanisms for compensation and reparation +7nancially politically and other#ise + set up and implemented by Germany since theend of the #ar+ .e cannot undo history+ If ictims or descendants of ictims feel that

these mechanisms #ere not suPcient #e do regret this" +

+ !hortly after#ards in the public sitting of 8F+88+9>88 before the Court counselfor Germany reiterated that:

"#e are #ell a#are that the comple legal nature of these proceedings on !tateimmunity cannot do justice at all to the human dimension of the terrible #artimeeents for #hich Germany has accepted full responsibility+ I #ould li4e to ta4e this

opportunity to emphasiBe our deepest respect for the ictims not only here in thecourtroom" +>A+8E== cf+ para+ 8HH infra;+


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thus turn my attention to some #ritings #hich I regard as particularly releant tothe consideration of the cas d1esp2ce+


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international $ue de leurs libertVs particuli2res rVunies sous une epressionnouelle $ui est celle de souerainetV"


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; =F+ %+ UlareB further obseredthat as a result of the "dynamism" of the eoling international la#

"es a menudo difZcil hacer en este Derecho la distinci[n tradicional entre la 1le lata1y la 1le ferenda1+ %l lado de un Derecho Internacional formado hay siempre unDerecho Internacional en formaci[n" "it is rather often diPcult to ma4e in this 'a#the traditional distinction bet#een 1le lata1 and 1le ferenda1+ &eside a formedInternational 'a# there is al#ays an International 'a# in the process of formation"K=A+

=>+ This brief surey of doctrinal deelopments centred on fundamental humanalues discloses that some of the most distinguished jurists of a generation #hich#itnessed the horrors of t#o #orld #ars in the 66th century did not at all pursue a

!tate-centric approach to our discipline+ On the contrary they adanced an entirelydistinct approach centred on the human person+ They #ere in my understandingfaithful to the historical origins of the droit des gens as one ought to be no#adaysas #ell+ (en a domain so heaily mar4ed by the !tate-centric approach - #hich didnot help at all to aoid the horrors of the #orld #ars - such as that of !tateimmunities has no#adays to be reassessed in the light of fundamental humanalues+ !tate immunities are after all a prerogatie or a priilege and they cannot4eep on ma4ing abstraction of the eolution of international la# ta4ing placeno#adays at last in the light of fundamental human alues+

0I+ The Collegial Doctrinal .or4 of 'earned Institutions of International 'a#

=8+ The #or4 of learned institutions in the domain of international la# can beino4ed in this connection+ The subject of the jurisdictional immunities of the !tatecentral in the cas d1esp2ce has attracted the attention of succeeding generations oflegal scholars as #ell as of learned institutions such as the Institut de DroitInternational IDI; and the International 'a# %ssociation I'%;+ The Institut de DroitInternational since its early days in the late 6I6th century up to the present timehas occupied itself of the theme+ %s early as in its 3ambourg !ession of 8HE8 its,rojet de r2glement international sur la compVtence des tribunau dans les proc2scontre les (tats souerains ou chefs d1(tat Vtrangers Drafting Committee and '+on &ar J+ .estla4e and %+ 3artmann; stated in %rticle =A; that :

"'es seules actions receables contre un (tat Vtranger sont: S;


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- 'es actions en dommages-intVrWts nVes d1un dVlit ou d1un $uasi-dVlit commis surle territoire"+

=9+ Oer half-a-century later its conclusions on '1immunitV de juridiction et

d1eVcution forcVes des (tats Vtrangers !ession of %i-en-,roence 8EF= -rapporteur (+ 'Vmonon; held in %rticle >8 the resolution of the IDIon 'es immunitVs de juridiction et d1eVcution du chef d1(tat et de gouernementen droit international rapporteur J+ 0erhoeen; stated in %rticle


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d1actes $u1il a accomplis dans l1eercice de ses fonctions oPciellesM dans ce derniercas il ne jouit pas de l1immunitV si la demande est reconentionnelle+ Toutefoisaucun acte liV L l1eercice de la fonction juridictionnelle ne peut Wtre accompli L sonendroit lors$u1il se troue sur le territoire de cet (tat dans l1eercice de sesfonctions oPcielles"+

=F+ )our years later in the @ra4o# !ession of 9>>F the Institut in its conclusions onniersal Criminal Jurisdiction #ith /egard to the Crime of Genocide Crimes against3umanity and .ar Crimes rapporteur C+ Tomuschat; #as of the ie# %rticle >H the Institut #as of theie# %rticles II9; and >E of the IDI signi7cantly added%rticle III8; and


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- The aboe proisions are #ithout prejudice to:

- the responsibility under international la# of a person referred to in the precedingparagraphsM

- the attribution to a !tate of the act of any such person constituting aninternational crime" =+

%rticle I0 of the same resolution adds that the aboe proisions "are #ithoutprejudice to the issue #hether and #hen a !tate enjoys immunity from jurisdictionbefore the national courts of another !tate in ciil proceedings relating to an

international crime committed by an agent of the former !tate"+

=H+ It is clear from the aboe that from the start the IDI approached !tateimmunities as eoling in time certainly not static nor immutable and hainglimitations or eceptions !essions of 3ambourg of 8HE8 of %i-en-,roence of8EF= and of &asel of 8EE8;+ The same may be said of immunities of 3eads of !tate!ession of 0ancouer of 9>>8;+ ?ore recently !ession of @ra4o# of 9>>F; the IDIupheld uniersal jurisdiction oer international crimes grae iolations of humanrights and of international humanitarian la#;+ %nd in its most recent #or4 on the

subject !ession of *aples of 9>>E; the IDI held precisely that no !tate immunityapplies #ith regard to international crimes %rticle III8;;M the resolution #as adoptedby =< otes to none #ith 8= abstentions+

=E+ In the debates of that confr2rie #hich preceded the adoption of theaforementioned resolution of *aples of 9>>E the follo#ing ie#s #ere inter aliaepressed: a; !tate-planned and !tate-perpetrated crimes engaging !tateresponsibility remoed any bar to jurisdiction at national and international leelsso as to aoid impunity interentions by %+%+ Canado Trindade;M b; !tateimmunity from jurisdiction cannot be understood as immunity from criminaliBationinterentions by G+ %bi-!aab;M c; emphasis is to be laid on the need to aoidleaing the ictims #ithout any remedy interention by G+ &urdeau;M d; there isneed to ta4e such progressie approach interention by /+ 'ee; =H+

F>+ The other learned institution aforementioned the International 'a# %ssociationI'%; d#elt upon the matter as #ell+ In its 7nal report on The (ercise of niersal


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Jurisdiction in /espect of Gross 3uman /ights Oences Conference of 'ondon of9>>>; the I'% Committee on International 'a# and ,ractice employed the term"gross human rights oences" as shorthand for "serious iolations of internationalhumanitarian la# and international human rights la# that $ualify as crimes underinternational la# and that are of such graity as to set them out as desering

special attention inter alia through their being subjected to uniersal jurisdiction"p+ 8>; the I'% Committee on /eparation for 0ictims of%rmed ConNict !ubstantie Issues; obsered in the commentary on %rticle A of itsDraft Declaration of International 'a# ,rinciples on /eparation for 0ictims of %rmedConNict !ubstantie Issues; that the duty to ma4e reparation has "its roots ingeneral principles of !tate responsibility" as epressed by the ,CIJ in the ChorB[#)actory case 8E9H; in %rticle < of the I0 3ague Conention of 8E> and in %rticleE8 of the I %dditional ,rotocol of 8E to the four Genea Conentions of 8E=E p+


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F+ It goes #ithout saying that criminal practices of !tates entail conse$uences forthe determination of reparations to indiidual ictims each and all of them - eenmore cogently from the contemporary outloo4 - #hich I adance - of an internationalla# for the human person for human4ind F8+

F=+ In this line of reasoning it is important to d#ell upon the needed con7guration

of the threshold of the graity of the breaches of human rights #ith ineluctablelegal conse$uences for the remoal of any bar to jurisdiction and for the $uestion ofreparations to the ictims+ It is indeed important to consider no#adays all massatrocities in the light of the threshold of graity irrespectie of #ho committedthemM this may sound eident but there subsist in practice regrettable attempts toeempt !tates from any 4ind of responsibility+ )rom time to time there hae beenattempts to construe the threshold of the graity of breaches of human rightsM thisconcern has been epressed at times e+g+ in the #or4 of the +*+ International 'a#Commission I'C; albeit #ithout concrete results to date+

FF+ In 8EA in its consideration of the Draft %rticles on !tate /esponsibilityrapporteur /oberto %go; the I'C admitted that there #ere some international#rongs that #ere "more serious than others" that amounted to "internationalcrimes" as they #ere in breach of fundamental principles such as those of the +*+Charter; "deeply rooted in the conscience of man4ind" as #ell as of the foundationsof "the legal order of international society" F9+ In ac4no#ledging the need ofrecogniBing such "eceptionally serious #rongs" the I'C ino4ing the "the terriblememory of the unprecedented raages of the II #orld #arK" pondered still in 8EA:

"The feeling of horror left by the systematic massacres of millions of human beingsperpetrated by the *aBi rVgime and the outrage felt at utterly brutal assaults onhuman life and dignity hae both pointed to the need to ensure that not only theinternal la# of !tates but aboe all the la# of the international community itselfshould lay do#n peremptory rules guaranteeing that the fundamental rights ofpeoples and of the human person #ill be safeguarded and respectedM all this has


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prompted the most igorous aPrmation of the prohibition of crimes such asgenocide apartheid and other inhuman practices of that 4ind" F de7nes as"serious breach" of an obligation under "a peremptory norm of general internationalla#" that #hich inoles "a gross or systematic failure by the responsible !tate" toful7ll the obligation+ %rticle =8 again refers to "serious breach"+ The commentary tothose proisions underlines the "systematic gross or egregious nature" of the

breaches at issue F+ Those breaches engage !tate responsibility #hich is noteaced by the international indiidual criminal responsibility FH+ !tateresponsibility in case of grae breaches subsists in general international la#+ !tateand indiidual responsibility complement each other as deelopments inInternational 3uman /ights 'a# and in International Criminal 'a# indicateno#adays+

FH+ ?oreoer in cases of grae breaches of human rights the !tates concernedincur into responsibility for grae harm done ultimately to indiiduals to human

beings and not to other !tates+ The I'C itself so admitted in its 9>>8 7nal /eportcontaining the commentaries on the %rticles it had just adopted+ The I'C concededthat:

"a !tate1s responsibility for the breach of an obligation under a treaty concerningthe protection of human rights may eist to#ards all the other parties to the treaty


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but the indiiduals concerned should be regarded as the ultimate bene7ciaries andin that sense as the holders of the releant rights" FE+

FE+ In sum the titulaires of the right to reparation are the indiiduals concerned theictimiBed human beings+ In the perpetration of grae breaches of human rights and

of international humanitarian la# the criminality of indiidual eecutioners acting inthe name of !tates is ineluctably lin4ed to the criminality of the responsible !tatesthemseles+ %fter all #ar crimes crimes against peace and crimes againsthumanity are committed in a plani7ed and organiBed #ay disclosing a collectiecriminality A>+ They count on resources of the !tate they are true crimes of !tate+

There is thus need to ta4e into account jointly the international responsibility of the!tate and the international criminal responsibility of the indiidual complementaryto each other as they are A8+

A>+ %t normatie leel the threshold of graity of breaches of the fundamentalrights of the human person comes to the fore time and time again een thoughinsuPciently deeloped to date+ There are historical moments #hen it has attractedparticular attention e+g+ shortly after the adoption of %dditional ,rotocol I of 8E%rticle HF; to the four Genea Conentions on International 3umanitarian 'a# of8E=E; A9+ The regime of grae breaches set forth in the four Genea Conentionsof 8E=E I Conention %rticles =E-F>M II Conention %rticles F>-F8M III Conention%rticles 89E-8M I0 Conention %rticles 8=A-8=; is no#adays regarded as formingpart of customary international la# A>=+9>>=; of the ?assacre of ?apirip]n ersus Colombia of 8F+>E+9>>F; of the?assacres of Ituango ersus Colombia of >8+>+9>>A; of Goiburu et %lii ersus,araguay of 99+>E+9>>A - cf+ infra; of %lmonacid %rellano ersus Chile of


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9A+>E+9>>A; of the ,rison of Castro-Castro ersus ,eru of 9F+88+9>>A; of 'aCantuta ersus ,eru of 9E+88+9>>A;+ There is here space for fostering a

jurisprudential conergence bet#een the International 'a# of 3uman /ights andcontemporary International Criminal 'a#+ %nother area of conergence lies in theparticipation of the ictims themseles - their locus standi in judicio - in the

respectie procedures bet#een international human rights tribunals andinternational criminal tribunals+

0III+ The 5uestion of .aier of Claims in /espect of the /ight of %ccess to Justice inthe ,leadings before the Court: %ssessment

A+ If the argument of Italy #ereto be accepted - Germany #ent on - the #hole structure of the scheme ofreparations built after the II #orld #ar #ould be destroyed as massie claims couldbe raised both by and against Germany for iolations of the la#s of #ar by Germanyand %llied )orces 8+ Germany at last claimed that the system of reparationcreated #as comprehensie and tried to balance the interests of the ictim !tatesand those of Germany 9+

A=+ Italy retorted that the #aier clause of %rticle =; of the 8E= ,eace Treatydoes not coer iolations of international humanitarian la#+ Ta4ing issue #ith theGerman argument it reiterated the position that claims of reparation for graebreaches of international humanitarian la# hae not been #aied by Italy as they#ere beyond the scope of the proision of %rticle =; of the 8E= ,eace Treaty+Italy thus claimed that the only interpretation of that proision of the 8E= Treaty isthat it does not #aie reparations for iolations of international humanitarian la#


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"/emembrance /esponsibility and )uture" because they #ere prisoners of #ar#hereas *aBi Germany had depried them of this status and had used them asforced labourers F+ Italy added that the claims of the ictims of massacres cannotbe considered as #aied because at the time of the alleged #aier either in the8E= ,eace Treaty or in the 8EA8 %greements; the crimes had not yet been

establishedM moreoer the recognition of such a #aier #ould lead to the absurdsituation of the perpetrators of these crimes being criminally responsible but notciilly liable+ !uch a solution #ould also be contrary to all modern deelopments ofinternational criminal la# #hich recogniBes that criminal responsibility and ciilliability are connected A+

AA+ Greece for its part contended that Gree4 courts hae accepted the eistence ofan indiidual right to reparation for grae iolations of international humanitarianla# based on %rticle < of the 8E> I0 3ague Conention %rticle E8 of the 8E

%dditional ,rotocol I H /ule 8F> of the IC/C International 3umanitarian 'a#Codi7cation E of customary international la# cf+ supra; %rticle nor in 8E; as to therecognition of !tate responsibility for breaches of the 8E> /egulations and theensuing duty of the !tate concerned to proide indemniBation to the indiidualictims H9+ To this eect in my aforementioned Dissenting Opinion in the Court1sOrder of >A+>+9>8> I pondered that:


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"In the days of the historical II ,eace Conference held here at The 3ague theparticipating !tates decided to set forth a general obligation incumbent on allparties to an armed conNict to ma4e reparations not only on the part of thedefeated !tates in faour of the ictorious po#ers as #as the case in preious !tatepractice;+ This #as done on the basis of a German proposal #hich resulted in %rticle

< of the I0 3ague Conention I0 H clari7ed that it #asintended to confer rights directly upon indiiduals HF human beings rather than!tates+

This legacy of the II 3ague ,eace Conference of 8E> projects itself to our days HA+The time projection of the suering of those subjected to deportation and sent toforced labour in the II .orld .ar period 8E=


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of the indiiduals from their o#n !tate in the indication of the rights inherent tothem H+

8+ %lso in my Dissenting Opinion in the Court1s Order of >A+>+9>8> in the present

case of the Jurisdictional Immunities of the !tate I furthermore set forth thefoundations of my position that a !tate can #aie only claims on its o#n behalf butnot claims on behalf of human beings pertaining to their o#n rights as ictims ofgrae iolations of international la#+ The rights of ictims of grae iolations ofhuman rights and of international humanitarian la# subsist their indication cannotbe #aied by their !tates or by !tates inter se on their behalf paras+ 88=-88F;+%ny purported #aier to that eect #ould be depried of any juridical eects paras+8F8 and 8F


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9+ 3ere once again one ought to go beyond the strict inter-!tate leel+ !till in myearlier Dissenting Opinion in the Court1s Order of >A+>+9>8> counter-claim; in thepresent case I further pointed out that my o#n conception of international la# -$uite distinct from that of the Court1s majority

"goes #ell beyond the strict inter-!tate outloo4 so as to reach the ultimate bearerstitulaires; of rights the human beings confronted #ith #aier of their claims ofreparation of serious breaches of their rights by !tates supposed to protect ratherthan to oppress them+

!tates may if they so #ish #aie claims as to their o#n rights+ &ut they cannot#aie claims for reparation of serious breaches of rights that are not theirs rightsthat are inherent to the human person+ %ny purported #aier to this eect runsagainst the international ordre public is in breach of jus cogens+ This broader

outloo4 in a higher scale of alues is in line #ith the ision of the so-called1founding fathers1 of the la# of nations the droit des gens the jus gentium; and#ith #hat I regard as the most lucid trend of contemporary international legalthin4ing+

One cannot build and try to maintain; an international legal order oer the sueringof human beings oer the silence of the innocent destined to obliion+ %t the timeof mass deportation of ciilians sent to forced labour along the t#o .orld .ars in8E8A-8E8H and in 8E=


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of satisfaction of the complaining partyM it epands the right of access to justice tothe outcome of the case and it argues that an aggrieed party E> that has noother aenue ought to be allo#ed to see4 an eectie remedy before its nationalcourts een against a foreign !tate and that in such case immunity has to be liftedin order to aoid a denial of justice E8+

=+ Germany construes the right of access to justice ery narro#ly and argues thatit is limited to the access to the judicial system of the forum !tate #ithoutdiscrimination and #ith full procedural rights+ In this sense Italian citiBens hae hadfull access to judicial remedies under German la# up to the )ederal ConstitutionalCourt E9M #hile Gree4 citiBens had eactly the same opportunity E 3ague Conentionand the 8E=E Genea Conentions is in the sense that they do not create anindiidual right to compensation EA+ It also notes that more recent deelopments

such as the +*+ General %ssembly resolution A>8= 9>>F; or the draft I'% /eport9>8>; on reparation of ictims of armed conNict that refer to such an indiidualright are not based on an eisting customary or conentional rule of internationalla# but rather propose the introduction of ne# rules E+ Thus the decisions ofGerman courts in these cases are not a denial of justice but a recognition that theItalian nationals do not hae the substantie rights they claim+

A+ (en if such a right of action and to reparation #ere to be recogniBed Germanyargues that it has not iolated it+ )ull access to all leels of the German judicial

system #as granted to all claimants and there has been no accusation of a iolationof the procedural rights of Italian or Gree4 citiBensM nor #as there any discriminationagainst them due to their nationality EH+ Germany at last argues that if the right ofaccess to justice #ere to be interpreted as allo#ing an indiidual #ho has not beensuccessful in hisher claims before the Courts of the !tate that allegedly iolatedhisher rights; to sue such !tate before Courts of a foreign !tate and maybe beforeCourts of more than one !tate successiely or simultaneously; then a serious caseof "forum shopping" could emerge EE+


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+ )or its part and $uite distinctly Italy argues that an indiidual right toreparation and a parallel cause of action for #ar damages eist+ In its ie# theorigin of this right lies in the post II #orld #ar arrangements of the Treaty of

0ersailles %rticle =; and the creation of the ?ied %rbitral TribunalsM it recogniBesho#eer that this path #as not follo#ed after the II #orld #ar 8>>+ *eerthelessit argues that #ith the eception of the eistence of an alternatie internationalprocedure access to domestic remedies cannot be barred 8>8+ In fact Italiancourts hae allo#ed la#suits against Italy despite the ,eace Treaty and the inter-!tate mechanism for compensation it proides for 8>9+ Italy goes further andpresents the right to access to justice as understood by the dierent regional andglobal systems for the protection of human rights and based on a decision of theI%Ct3/ case Goiburu et alii cf+ section 60II infra; it argues that the right to accessto justice is a peremptory right if the substantie right iolated is of the same status8>=+ Thus #hen Italian citiBens such as ?r+ )errini and others before andafter him #ere not successful before German courts and administratie authorities 8>F they 7led la#suits against Germany before the Italian Courts as their onlyaailable legal aenue 8>A+ )urthermore the lifting of the immunity of the German!tate before the Italian Courts in such cases #here the ictims are depried of anyother means of redress is necessary for the eectie eercise of their right of

access to justice 8>+

E+ These are the basic and opposing positions sustained by Germany and Italy onthe right of access to justice+ &efore embar4ing on an assessment of them byd#elling further upon the matter cf+ section 6II infra; I deem it appropriate netto reie# their further clari7cations of their arguments in response to $uestions#hich I deemed it 7t to pose to both of them as #ell as to Greece as interenor inthe course of the oral hearings before the Court+ Once such clari7cations arereie#ed I shall then proceed to the eamination of the remaining aspects of the

present case in logical se$uence+

6I+ Clari7cations from the Contending ,arties and from Greece in /esponse to5uestions )rom the &ench


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8+ 5uestions ,ut to the Contending ,arties and to Greece

H>+ %t the end of the oral hearings before the Court on 8A+>E+9>88 I deemed it 7tto put a series of $uestions to the contending parties Germany and Italy as #ell as

to the interening !tate Greece in order to see4 clari7cation on the respectiesubmissions they had presented to the Court+ The $uestions I as4ed on thatoccasion #ere the follo#ing:

",our garder l1V$uilibre linguisti$ue de la Cour je poserai mes $uestions en anglais+Trois $uestions L l1%llemagne et L l1Italie et une $uestion L la Gr2ce+

?y 7rst $uestion to Germany and Italy is the follo#ing: In relation to your argumentsin these public sittings before the Court and bearing in mind the !ettlement

%greements of 8EA8 bet#een Germany and Italy #hat is the precise scope of the#aier clauses contained therein and of the #aier clause of %rticle =; of the,eace Treaty of 8E=Q Can the issue of reparation be considered as entirely closedtodayQ Or has any of its aspects remained open to dateQ

?y second $uestion to both Germany and Italy is the follo#ing: Is the delictseceptio territorial torts; limited to acts jure gestionisQ Can it beQ %re acts jureimperii understood to contain also a delicts eceptioQ 3o# can #ar crimes beconsidered as acts jure - I repeat jure - imperiiQ

?y third $uestion to both Germany and Italy is the follo#ing: 3ae the speci7cItalian ictims to #hom the /espondent refers eectiely receied reparationQ Ifnot are they entitled to it and ho# can they eectiely receie it if not throughnational proceedingsQ Can the regime of reparations for grae breaches of humanrights and of international humanitarian la# still be regarded as ehausting itself atinter-!tate leelQ Is the right to reparation related to the right of access to justicelato sensuQ %nd #hat is the relationship of such right of access to justice #ith juscogensQ

%nd 7nally my $uestion to Greece is the follo#ing: .ithin the Gree4 legal system#hat are the legal eects of the Gree4 !pecial !upreme Court decision in the?argelos case upon the %reios ,agos decision in the Distomo ?assacre caseQ Is the%reios ,agos decision in the Distomo ?assacre case still pending of eecution #ithinand beyond the Gree4 legal systemQ" 8>H+


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9+ )irst /ound of %ns#ers

H8+ )or the sa4e of clarity I proceed to reise and summariBe the ans#ers proidedby Germany Italy and Greece to the $uestions I put to them at the close of the oralhearings before the Court last 8A !eptember 9>88+ I shall proceed 7rst to a reie#of the ans#ers of Germany and Italy as contending parties and then of Greece asthe interening !tate+

a; Germany1s and Italy1s %ns#ers

H9+ In the relation to the 7rst $uestion I put to the contending parties 8>E

Germany submitted that the Court1s Order of >A+>+9>8> in particular paras+ 9-9H;determines the releance of the 8E= ,eace Treaty and of the t#o 8EA8 %greementsfor the current proceedings+ Germany reiterated its position that the $uestion#hether reparations related to the II #orld #ar are still due is not the subject of thepresent proceedings+ Italy retorted that the t#o 8EA8 %greements #ere the result ofa process #hich demonstrated that there #ere dierences of opinion bet#een theparties as to the scope of the #aier clause of the 8E= ,eace Treaty and thatGermany had to ta4e some measures to address them+ Italy thus argued that the%greements #ere on the one hand a measure of reparation for some pendingeconomic $uestions the "!ettlement %greement"; and on the other anindemni7cation for ictims of persecution the "Indemnity %greement";+

HGermany submitted that the delicts eceptio does not apply to military actiities


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and that the cases subject to the proceedings before the Court concern acts haingoccurred during an armed conNict+ It further contended that the $uali7cation of anact of a !tate is based on the nature of the act and is independent of the legality ofsuch act+ In this sense Germany argued that soereign acts may also inoleserious breaches of international la# and that international la# counts on

substantie rules on !tate responsibility and international criminal responsibilitythat do not repeal or derogate from !tate immunity+

HF+ )or its part Italy argued that the issue of reparations is not closed as there areseeral categories of ictims that hae neer been ta4en into account for thepurpose of a#arding reparations including those categories referred to in the casesunderlying the present dispute+ Italy submitted that the delicts eceptio applies toboth acts jure gestionis and jure imperii 888 and added that there is no obligationto accord immunity for acts jure imperii in cases in #hich the delicts eceptio

applies+ Italy further submitted that "tKhere is nothing inherent in the notion of actsjure imperii #hich dictates the conclusion that the tort eception does not coer thiscategory of acts+ The justi7cation of this eception to immunity is based on theassertion of local control or jurisdiction oer torts committed #ithin the territory ofthe forum !tate"+ Italy thus contended that on the basis of this justi7cation theeception applies to all acts of a foreign !tate that too4 place on the territory of theforum !tate #hether they #ere performed jure imperii or jure gestionis+

HA+ Italy added that #hile it #as a#are of the ie# that crimes against humanity

and #ar crimes cannot be considered soereign acts for #hich a !tate is entitled toino4e the defence of soereign immunity it ac4no#ledged that this area of the la#of !tate immunity is undergoing a process of change+ Thus under the uni$ue andspeci7c circumstances of the cases submitted to Italian courts Italy contended thatits case before this Court is based on other arguments: the tort eception and theeistence of an irreconcilable conNict bet#een immunity and the eectieenforcement of peremptory rules #hich support its position that Italy had noobligation to accord immunity to Germany+

H+ In respect of the third $uestion I as4ed the contending parties 889 Germanyagain referred to the Court1s Order of >A+>+9>8> arguing that the $uestion#hether reparations related to the II #orld #ar are still due is not in its ie# thesubject of the present proceedingsM it considered the reparation scheme for the II#orld #ar to be a classic inter-!tate and comprehensie scheme+ It further arguedthat those ictims #ho consider to hae a claim against Germany can instituteproceedings in German courts #hich abide by %rticle A8; of the (uropeanConention of 3uman /ights that guarantees the right of access to justice+


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HH+ Italy retorted that none of the categories of ictims referred to in the casesunderlying the present dispute has receied reparationM it added that somecategories of ictims #ere neer able to claim compensation because no

mechanism #as put in place #hile others hae been trying to obtain compensationfor a decade #ithout any success+ Italy further argued that there does not seem tobe any #illingness on Germany1s part to conclude an agreement aimed at ma4ingreparation to these categories of ictims+ It also submitted that at the momentthere is no other alternatie than national proceedings for these categories ofictims to receie reparation+ Italy argues that had domestic judges not remoedimmunity no other aenue #ould hae remained open for #ar crime ictims toobtain reparation considering for eample the strong reluctance of Germanauthorities to enter into an agreement proiding for reparation for the "Italian?ilitary Internees"+

HE+ Italy claimed that the regime of reparations for grae breaches of human rightsand international humanitarian la# does not ehaust itself at the inter-!tate leeland that indiidual ictims can address their claims in domestic courts+ It alsosubmitted that the remoal of immunity is justi7ed #hen resort to domestic courtsrepresents the only and last means aailable to obtain some form of redress+ Italyfurther argues that "uKnder certain circumstances the denial of access to justicebecause of the immunity granted to a foreign !tate may imply a denial of eectiereparation"+ It net submitted that the concept of jus cogens does not con7ne itselfto the realm of primary rules but also relates to the remedies aailable in cases of

grae breaches of obligations prescribed by norms haing such character+ In Italy1ssubmission #hen there is a conNict bet#een rules that preent indiiduals fromhaing access to justice and the eectie enforcement of jus cogens rules if thereis no other aenue open to obtain eectie enforcement of jus cogens "prioritymust be gien to jus cogens by remoing immunity thereby allo#ing access to

justice to indiidual ictims"+

b; Greece1s %ns#er

E>+ In ans#er to the $uestion I put to the interening !tate 88


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international la# "in the present deelopment of international la#"+ In this area ofits functions the !pecial !upreme Court judgments - it continued - hae limitedeects and in practice a judgment by the !pecial !upreme Court is binding onlyon the courts #hich hae posed to it the speci7c $uestion+ Greece further submittedthat judgments of the !pecial !upreme Court do not hae the force of res judicata

erga omnesM it is for the ordinary courts or the !pecial !upreme Court to determinesubse$uently #hether there has been any change in the assertion that a customarynorm eists+

E8+ Greece added that a judgment of the !pecial !upreme Court "al#ays reNectsthe considerations of an opinio juris epressed 1at the same temporal stage ofdeelopment of international la# and its generally accepted rules1"+ It argued thatthe judgment in the ?argellos and Others case "has no eect #hateer" or legalimplications on the judgment of the %reios ,agos in the Distomo ?assacre case

#hich #as rendered prior to the ?argellos judgment and concerned a dierent case+In this sense Greece claimed that the %reios ,agos judgment "is 7nal andirreocable+ It is in force and produces legal eects #ithin the Gree4 legal orderremaining pending of eecution"+ Greece at last contended that the fact that the?inister of Justice has not authoriBed the enforcement of the %reios ,agos judgmentyet does not signify that it is "emptied of meaning and unenforceable"M the Distomo

judgment "remains open"+

8; of the Gree4 Constitution%rticle F=8; of Gree4 'a# no+ >9 in the ?argellos andOthers case "no Gree4 Court has issued a judgment disregarding Germany1s state


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immunity for acts jure imperii during #orld #ar II and no measures of eecution inthe Distomo case hae been ta4en"+ Germany then referred to t#o judgments of the%reios ,agos in 9>> and in 9>>E; that follo#ed the jurisprudence of the !pecial!upreme Court "according to #hich the rule of jurisdictional immunity standsunaected een in cases the subject matter of #hich are allegations of serious

iolations of international humanitarian la#"+

b; Italy1s Comments

E=+ In turn Italy commented on some parts of Germany1s responses to the$uestions I posed supra;+ In relation to my 7rst $uestion contrary to #hat Germanycontended Italy argued that the conclusion by the Court in the paragraphs of theOrder of >A+>+9>8> cited by Germany #as strictly limited to the issue of the

admissibility of Italy1s counter-claim and it did not aect the solution of the $uestionraised by Germany1s main claim+ Italy contended that it remains for the Court toeamine Italy1s arguments on the merits of Germany1s main claim and in particularthe argument #hereby the obligation to ma4e reparation for #ar crimes has somespeci7c implications for !tate immunity+

EF+ %s to Germany1s response to my third $uestion Italy too4 issue #ith Germany1sstatement that the reparation regime set up for the II #orld #ar #as"comprehensie"+ Italy argued that Germany itself both in its #ritten and oral

submissions admitted that reparations made in relation to Italian ictims of #arcrimes #ere only "partial"+ Italy further contended that the 8EA8 %greementproided only for reparations for ictims of persecution+ Thus Italy added that thecharacteriBation of the reparation scheme as "comprehensie" cannot be accuratein particular concerning Italian ictims of #ar crimes+ It further claimed thatGermany1s arguments ma4e it clear that no reparation has been made to numerousItalian ictims of #ar crimes 88=+

EA+ Italy at last contended that Germany1s argument that Italian ictims of #ar

crimes did not receie compensation because Italy had been an ally of Germanyuntil >H+>E+8E=< "is Na#ed because it confuses the regime of responsibility foriolations of jus ad bellum #ith the conse$uences of iolations of the proisions of

jus in bello and in particular it ignores the special regime of responsibility forserious breaches of international humanitarian la#"+ %lso in relation to my third$uestion Italy claimed that "tKhe fact that Italian ictims had access to Germancourts does not mean that they #ere gien an eectie legal aenue to obtain


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reparation"+ It argued that German la#s imposed a number of "unduly restrictiere$uirements" for Italian ictims to receie reparation 88F+

6II+ The ,rohibition of )orced 'abour at the Time of the II .orld .ar

8+ *ormatie ,rohibition

E+ The legal regulation of forced labour at the time of II #orld #ar #as based onthe 8E I'O Conention n+ 9E; on )orced 'abour #hich came into force on>8+>F+8E+9>8> in the case of the Jurisdictional Immunities of the !tateGermany ersus Italy counter-claim; their underlying principles informing andconforming the abolition of forced labour in general international la# belongno#adays to the domain of jus cogens 88+

EE+ )urthermore in the domain of international humanitarian la# the treatment ofprisoners of #ar or ciilian populations during armed conNict #as goerned at thetime of the II #orld #ar by the 8E> I0 3ague Conention and by the 8E9E Genea

Conention on ,risoners of .arM the 8E9E Genea Conention added the prohibitionof forced labour that #as unhealthy or dangerous for the prisoners of #ar %rticles9H-


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8>>+ The /egulations concerning the 'a#s and Customs of .ar on 'and anneed tothe aforementioned 8E> I0 3ague Conention prohibited #ith regard to forcedlabour of inhabitants of occupied territories to inole those inhabitants in the #or4

of "military operations against their o#n country" %rticle F9;+ Germany signed the8E> I0 3ague Conention on 8H+8>+8E> and rati7ed it on 9+88+8E>E+ In additionit should be noted that Germany rati7ed the 8E I'O Conention n+ 9E; on )orced'abour only on 8A+8EFA+ &e that as it may een if this later rati7cation remoed

jurisdiction on the basis of this Conention before mid-8EFA the responsibility of*aBi Germany subsisted+ *o one #ould dare to deny the #rongfulness of forcedlabour already at the time of the II #orld #ar+

8>8+ The forced labour regime as organised by *aBi Germany could be e$uated to

"enslaement" gien the presence of the elements constitutie of this crimenamely the subjection of a part of a population of an occupied territory in order toseer forced or compulsory labour meant to be permanent and underta4en inconditions similar to slaery under the heel of priate persons 88H+ It #as thepolicy of *aBi German authorities to let ehausted forced labourers dieM sometimesthey actiely 4illed forced labourers #hen they could no longer #or4+ !uchcircumstances could ma4e their policy fall under the "enslaement" de7nition 88E+

9+ Judicial /ecognition of the ,rohibition+

8>9+ That !tate policy of *aBi Germany #as to hae repercussions in the #or4 and7ndings of the International ?ilitary Tribunal of *uremberg shortly after the II #orld#ar+ The 8E=F Charter of the *uremberg Tribunal listed among #ar crimes the"deportation to slae labour or for any other purpose of ciilian population of or inoccupied territory" %rticle A b;;M and among crimes against humanity the"enslaement deportation and other inhumane acts committed against any ciilianpopulation before or during the #ar" %rticle A c;;+ The prohibition of forced labourand enslaement #as already established as indicated aboe in the corpus jurisgentium in international instruments of the I'O as #ell as of internationalhumanitarian la#+

8>8+8>+8E=A; recalled that %rticle Ab; its Charter 89> proides that


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the "ill-treatment or deportation to slae labour or for any other purpose of ciilianpopulation of or in occupied territory shall be a #ar crime"+ The Tribunal furtherreminded that "tKhe la#s relating to forced labour by the inhabitants of occupiedterritories are found in %rticle F9 of the 3ague Conention" of 8E> 898+

8>=+ In this regard the *uremberg Tribunal concluded that "tKhe policy of theGerman occupation authorities #as in Nagrant iolation of the terms of the 3agueConention of 8E>K" and that an "idea of this policy may be gathered from thestatement made by 3itler in a speech on Eth *oember 8E=8" asserting that "theGerman occupation authorities did succeed in forcing many of the inhabitants of theoccupied territories to #or4 for the German #ar eort and in deporting at leastF>>>>>> persons to Germany to sere German industry and agriculture"+ It alsonoted that "iKnhabitants of the occupied countries #ere conscripted and compelledto #or4 in local occupations to assist the German #ar economy" and that "iKn

many cases they #ere forced to #or4 on German forti7cations and militaryinstallations" 899+

8>F+ )rom the aboe statement by 3itler singled out by the *uremberg Tribunalitself there can be no doubt #hatsoeer that #idespread forced labour ofinhabitants of the occupied territories in the German #ar industry during the II #orld#ar #as a !tate policy of *aBi Germany+ !uch !tate policy #as in Nagrant iolationof International 'a# both conentional and customary+

8>A+ In fact the *uremberg Tribunal further obsered that a igorous propagandacampaign #as set up to induce #or4ers to olunteer to #or4 in Germany and insome instances labourers and their families #ere threatened by the police in casethey refused to go to Germany 89


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"%rticle A of the Charter proides:

1b; .ar Crimes: namely iolations of the la#s or customs of #ar+ !uch iolationsshall include but not be limited to murder ill-treatment or deportation to slaelabour or for any other purpose of ciilian population of or in occupied territory

murder or ill-treatment of prisoners of #ar or persons on the seas 4illing ofhostages plunder of public or priate property #anton destruction of cities to#nsor illages or deastation not justi7ed by military necessityM

c; Crimes against 3umanity: namely murder etermination enslaementdeportation and other inhumane acts committed against any ciilian populationbefore or during the #ar or persecutions on political racial or religious grounds ineecution of or in connection #ith any crime #ithin the jurisdiction of the Tribunal#hether or not in iolation of the domestic la# of the country #here perpetrated1++ + +;

The Tribunal is of course bound by the *urembergK Charter in the de7nition #hichit gies both of .ar Crimes and Crimes %gainst 3umanity+ .ith respect to .arCrimes ho#eer as has already been pointed out the crimes de7ned by %rticle Asection b; of the *urembergK Charter #ere already recogniBed as .ar Crimesunder International 'a#+ They #ere coered by %rticles =A F> F9 and FA of The3ague Conention of 8E> and %rticles 9


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8>E+ )or its part the International ?ilitary Tribunal for the )ar (ast the To4yoTribunal; in its Judgment of 89+88+8E=H also epressed concern #ith regards to theuse of forced labour the method of recruitment the con7nation of labourers incampsM the To4yo Tribunal #as also concerned #ith the little or no distinction made"bet#een these conscripted laborers on the one hand and prisoners of #ar and

ciilian internees on the other hand" all being regarded as "slae laborers" 89+

88>+ In our days in its recent adjudication of the case @onono ersus 'atia 9>>H-9>8>; lodged #ith the (uropean Court of 3uman /ights (Ct3/; by a surior ofthe II #orld #ar the (Ct3/ )ormer III !ection Judgment of 9=+>+9>>H; sa# it 7t tounderta4e an eamination of the eolution of International 3umanitarian 'a# fromthe I and II 3ague ,eace Conferences 8HEE and 8E>; to the aftermath of the II#orld #ar the *uremberg and To4yo Tribunals trials and the 8E=E GeneaConentions; to determine that the subjugation and the ill-treatment of ciilians

#as already prohibited #ell before the II #orld #ar paras+ FF->;+

888+ In the same line of reasoning the (Ct3/ in its subse$uent Judgment GrandChamber of 8+>F+9>8>; in the @onono ersus 'atia case deemed it 7t tounderta4e to an eer greater depth such eamination of the eolution ofInternational 3umanitarian 'a# this time from the earlier codi7cations of the 6I6thcentury to the aftermath of the II #orld #ar paras+ 9>A-98; to 7nd that "the ill-treatment #ounding and 4illing" of illagers in any case hors de combat;constituted already by the time of the 8E> 3ague /egulations "a #ar crime"

para+ 98A;+ The Court pondered inter alia that:

".hile the notion of #ar crimes can be traced bac4 centuries the mid-6I6th centurysa# a period of solid codi7cation of the acts constituting a #ar crime and for #hichan indiidual could be held criminally liable+ The 'ieber Code ofK 8HA< the Oford?anual of 8HH> + + + ;K and in particular the 8H=K Draft &russels Declaration + + +; inspired The 3ague Conention and /egulations ofK 8E>+ These latterinstruments #ere the most inNuential of the earlier codi7cations and #ere in 8E>declaratory of the la#s and customs of #ar: they de7ned inter alia releant 4ey

notions combatants leVe en masse hors de combat; they listed detailed oencesagainst the la#s and customs of #ar and they proided a residual protectionthrough the ?artens Clause to inhabitants and belligerents for cases not coeredby the speci7c proisions of The 3ague Conention and /egulations ofK 8E>+/esponsibility therein #as on !tates #hich had to issue consistent instructions totheir armed forces and pay compensation if their armed forces iolated those rules"para+ 9>;+


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889+ %fter reie#ing the "3ague" and the "Genea" branches of humanitarian la#"the latter supplementing the former" in the course of the second half of the 6I6thcentury and the 7rst half of the 66th century the (uropean Court further recalledthat the Charter of the *uremberg Tribunal proided a "non-ehaustie de7nition of#ar crimes" and its judgment opined that the humanitarian rules enshrined into the

8E> 3ague Conention and /egulations #ere generally recogniBed as being

"1declaratory of the la#s and customs of #ar1 by 8E


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0I b;;M and it li4e#ise included among "crimes against humanity" the"enslaement deportation and other inhuman acts done against any ciilianpopulation" ,rinciple 0I c;; 8+ Codi7ed in 8EF> those principles #ere alreadydeeply-engraed in the uniersal juridical conscience for a long time+ Those crimes#ere already prohibited by international la# li4e#ise for a long time+

88A+ The fact remains that the prohibition of forced labour as a form of slaery soonmar4ed its presence in endeaours of codi7cation not only of the I'C in the mid-66th century but also of the International Committee of the /ed Cross IC/C; in themiddle of last decade+ In fact in accordance #ith a study underta4en by the IC/C onCustomary International 3umanitarian 'a# published in 9>>F uncompensated andabusie forced labour is prohibitedM the study asserts that such prohibition of forcedlabour attained the status of "a norm of customary international la# applicable inboth international and non-international armed conNicts" 8contained in its preamble the cVl2bre ?artens clause cf+ infra; ino4ing for casesnot included in the adopted /egulations anneed to it "the principles of humanity"and "the dictates of the public conscience" para+ H;+ Due attention had been ta4ennot to leae anyone outside the protection granted by the corpus juris gentium - by

conentional and customary international la# - against forced and slae #or4 inarmaments industry+ !uch protection #as etended by the jus gentium to humanbeings #ell before the sinister nightmare and the horrors of the Third /eich+

88E+ In this line of thin4ing in my preious Dissenting Opinion paras+ 8==-8=A; inthe Court1s Order of >A+>+9>8> in the present case of the Jurisdictional Immunities


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of the !tate Germany ersus Italy counter-claim; I dre# attention in the light ofthe submissions of the contending parties themseles in the present case notnecessarily dierging herein; to the incidence of jus cogens in the absoluteprohibition of forced and slae #or4 in the #ar industry+ In this respect I ponderedtherein:

"In fact #e can go bac4 - een before the II 3ague ,eace Conference 8E>; - tothe time of the I 3ague ,eace Conference 8HEE; + + + ;+ &y the end of the 6I6thcentury in the days the I 3ague ,eace Conference there #as a sense that !tatescould incur into delictual responsibility for mistreatment of persons e+g+ fortransfer of ciilians for forced labour;M this heralded the subse$uent age of criminalresponsibility of the indiidual !tate oPcials #ith the typi7cation of #ar crimes andcrimes against humanity+

The gradual a#a4ening of human conscience led to the eolution from theconceptualiBation of the delicta juris gentium to that of the iolations ofinternational humanitarian la# in the form of #ar crimes and crimes againsthumanity; - the *uremberg legacy - and from these latter to that of the graeiolations of international humanitarian la# #ith the four Genea Conentions onInternational 3umanitarian 'a# of 8E=E and their I %dditional ,rotocol of 8E; 8


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deportation and forced labour in #ar industry+ I hae already considered this point inthe present Dissenting Opinion cf+ item 0II supra;+ In a logical se$uence I deem itno# appropriate to turn attention to the oral pleadings of the contending partiesand the interening !tate on jus cogens and remoal of immunity and net to theproblem of the opposition of !tate immunity to the indiiduals1 right of access to

justice+

6III+ Oral ,leadings of the ,arties and the Interening !tate on Jus Cogens and/emoal of Immunity: %ssessment

898+ %s to jus cogens and !tate immunity Germany contends that reference is heremade to primary rules of international la# and not secondary rules such as theconse$uences of iolations; 8


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89=+ Germany retorted that a decision to set aside immunity #ould destabiliBepeace settlements and the principle of pacta sunt seranda itself as all peacetreaties #ould be undermined by indiidual suits for compensation and een Italyitself could face such suits; 8=9+ It also claimed that the common good ought notto be undermined for the indiidual good - and thus human rights cannot be

recogniBed to be able to jeopardiBe the structure of the international society+

89F+ Italy replied that #hat is re$uested from the Court is to eamine the legality ofcertain decisions of Italian courts based on a ery speci7c factual bac4ground#hich ma4es the present case uni$ue+ Thus the decision of the Court cannot beconsidered to hae the catastrophic conse$uences that Germany claims that it mayhae on the #hole international legal system 8=


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proceedings+ )urthermore it argues that since the Gree4 courts had not recogniBedimmunity to Germany based on the same justi7cations and on similar circumstancesas those of the )errini case Italy had no duty to accord immunity to Germany 8F>+

89E+ In my understanding #hat jeopardiBes or destabiliBes the international legalorder are the international crimes and not the indiidual suits for reparation in thesearch for justice+ In my perception #hat troubles the international legal order arethe coer-up of such international crimes accompanied by the impunity of theperpetrators and not the ictims1 search for justice+ .hen a !tate pursues acriminal policy of murdering segments of its o#n population and of the populationof other !tates it cannot later on place itself behind the shield of soereignimmunities as these latter #ere neer conceied for that purpose+ Grae breachesof human rights and of international humanitarian la# amounting to internationalcrimes are not at all acts jure imperii+ They are anti-juridical acts they are breaches

of jus cogens that cannot simply be remoed or thro#n into obliion by reliance on!tate immunity+ This #ould bloc4 the access to justice and impose impunity+ It is infact the opposite should ta4e place: breaches of jus cogens bring about the remoalof claims of !tate immunity so that justice can be done+

6I0+ !tate Immunity ersus The /ight of %ccess to Justice

8+ The ,reailing Tension in the Case-'a# of the (uropean Court of 3uman /ights+

a; The %l-%dsani Case 9>>8;

8+ The tension bet#een the right of access to justice and !tate immunity hasbeen present in the recent case-la# of the (uropean Court of 3uman /ights(Ct3/;+ The leading case of %l-%dsani ersus nited @ingdom 9>>8; concerned theclaim of a dual &ritish@u#aiti national against the nited @ingdom #herein heargued that &ritish courts had failed in breach of %rticles A and 8< of the (uropeanConention of 3uman /ights (C3/; to protect his right of access to a court by

granting !tate immunity to @u#ait against #hich he had brought a ciil suit fortorture suered #hile he #as detained by the authorities in @u#ait+

8>8 the (Ct3/ Grand Chamber; #hile acceptingthat the prohibition of torture has ac$uired the status of a norm of jus cogens ininternational la# neertheless found itself unable to discern any 7rm basis for the


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conclusion that a !tate "no longer enjoys immunity from ciil suit in the courts ofanother !tate #here acts of torture are alleged" 8F8+ This decision of the (Ct3/Grand Chamber; #as ta4en by E otes to H 8F9+ The shortcomings of themajority1s reasoning are #ell formulated in the Joint Dissenting Opinion of Judges/oBa4is and CaNisch joined by Judges .ildhaber Costa Cabral &arreto and 0ajicM

they rightly concluded that #hen there is a conNict bet#een a jus cogens norm andany other rule of international la# the former preails #ith the conse$uence thatthe conNicting rule does not hae legal eects #hich contradict the content of theperemptory rule 8F


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norms and the responsibility of Germany for these iolations is not contested+ Thusin the line of the right reasoning of the Dissenting Judges in the case of %l-%dsanibefore the (Ct3/ the conse$uence is that Germany cannot hide behind rules of!tate immunity to aoid proceedings relating to reparations for iolations of juscogens norms before a foreign jurisdiction Italy;+ In this regard it should not pass

unnoticed that unli4e in the %l-%dsani case #here the complained conduct did notta4e place in the forum !tate but rather in @u#ait; some of the claims lodged #ithItalian courts pertained to crimes committed in #hole or in part on the territory ofItaly itself 8FE+

b; The ?c(lhinney Case 9>>8;

8>8; concerned a claim for damagespertaining to a legal action lodged in Ireland against both the &ritish soldier #ho

shot the claimant and the !ecretary of !tate for *orthern Ireland+ The domesticcourts rejected his claim on the basis of the plea of immunity submitted by thenited @ingdom+ The (Ct3/ Grand Chamber; in its Judgment of 98+88+9>>8 heldthat #hile there appeared to be "a trend in international and comparatie la#to#ards limiting !tate immunity" for personal injury caused by an act or omissioncommitted in the territory of the forum !tate the practice #as "by no meansuniersal" para+ ;+

8


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in the present case; as under %rticle 89 of the +*+ Conention on the JurisdictionalImmunity of !tates and their ,roperty there #as at present "no international dutyon the part of !tates to grant immunity to other !tates in matters of torts causedby the latter1s agents"+ They further pondered that

"The principle of !tate immunity has long ceased to be a blan4et rule eempting!tates from the jurisdiction of courts of la#+ + + + ; TKhe edi7ce of absoluteimmunity of jurisdiction and een of eecution; began to crumble in the 7rst$uarter of the 66th century #ith the adent of !tate trading + + + ;+

+ + + ; (Kceptions to absolute immunity hae gradually come to be recogniBed bynational legislators and courts initially in continental .estern (urope and muchlater in common la# countries + + + ;

The eceptions in $uestion hae also found their #ay into the international la# on!tate immunity especially the tort eception" paras+ 9-=;+

8+

c; The )ogarty Case 9>>8;

8>8; concerned anemployment-related dispute an allegation of ictimiBation and discrimination by aformer employee of the +!+ (mbassy in 'ondon;+ The (Ct3/ obsered in this casethat there #as a trend in international and comparatie la# to#ards limiting !tateimmunity #ith respect to employment-related disputes+ It further noted that the I'Cdid not intend to eclude the application of !tate immunity #hen the subject of theproceedings #as recruitment including recruitment to a diplomatic mission+

8=>+ The (Ct3/ concluded that !tate practice concerning employment of indiidualsby an (mbassy of a foreign !tate is not uniform+ The (Ct3/ obsered that the


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limitations applied to the right of access to court must "not restrict or reduce theaccess left to the indiidual in such a #ay or to such an etent that the eryessence of the right is impaired" para+ 9;

8=8+ 'ast but not least the case of @alogeropoulou and Others 9>>9; #as broughtby applicants #ho #ere relaties of the ictims of the Distomo massacre+ Theapplicants raised complaints under %rticle A of the (C3/ and %rticle 8 of ,rotocol n+8 to the (C3/+ The (Ct3/1s Chamber seiBed of the case declared it inadmissible

Decision of 89+89+9>>9; een though unli4e the case of %l-%dsani this case of@alogeropoulou and Others pertained to crimes against humanity committed in theterritory of the forum !tate i+e+ Greece;+ *ot#ithstanding the Court1s Chamber1sdecision rested on the premise that the right of access to court may be subject tolimitations proportionate to the aim pursued;+ !uch limitations ho#eer in myunderstanding cannot impair the ery essence of the right of access to court+

8=9+ The conclusion reached by the Court1s Chamber #as that some restrictions onaccess to court ought to be regarded as an inherent to fair trial and it referred to!tate immunityM but it added that this "does not preclude a deelopment incustomary international la# in the future" p+ E;+ This statement seems to go slightlyfurther than the 7nding in the %l-%dsani and the ?c(lhinney precedents #hich didnot epressly articulate this "open door" for future deelopments+ (en if such an"open door" for future deelopments may not appear an entirely suPcient 7nding ofthe (Ct3/1s Chamber it thus at least rec4oned one decade ago in 9>>9; that thela# on the matter at issue #as undergoing a process of transition 8A9+

9+ The ,reailing Tension in the Case-'a# of *ational Courts

8=>=;+ Germany claimed that the Corte di CassaBionedecided to substitute itself for the legislator and introduce a ne# rule #hich has notyet gained international support in !tate practice and judicial decisions of other


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!tates 8A>=; #as just one

of the releant decisions of the national courts ino4ed by the contending partiesGermany and Italy; and the interening !tate Greece; in the course of theproceedings of the present case on the Jurisdictional Immunities of the !tate beforethis Court+ In the course of the proceedings the contending parties as #ell as theinterening !tate referred to other pertinent decisions of national courts in order tosubstantiate their arguments on the matter at issue+ Thus in so far as the practiceof national courts pertaining to !tate immunity is concerned for eample Germanyreferred in support of its claims to a recent summary decision of the Israeli DistrictCourt of Tel %i-^afo 8AE to a decision of the )ederal Court in /io de Janeiro 8>and to another decision of the ,olish !upreme Court 88+

8=A+ Italy for its part countered the claimant1s argument by contending that "#henconfronted #ith claims arising from breaches of jus cogens rules domestic courtshae ta4en dierent ie#s as regards the $uestion of the immunity enjoyed by the#rongdoing !tate" 89+ In support of this contention Italy cites in addition to theaforementioned judgments of the Gree4 %reios ,agos in the Distomo ?assacre caseand of the Italian Corte di CassaBione in the )errini case t#o other recent


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judgments respectiely from the !uperior Court of 5uebec 8


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alues and the underlying idea of the needed limitation of po#er+ One of suchprinciples is that of e$uality of all before the la#+

8F>+ The concept of rule of la# moes a#ay from the shortsightedness of legal

positiism #ith its characteristic subserience to the established po#er; andcomes closer to the idea of an "objectie" justice at national and internationalleels in line #ith jusnaturalist legal thin4ing+ .ithin the realm of this latter it isattentie to the protection of human rights anterior and superior to the !tate+ *otsurprisingly the concept of rule of la# has mar4ed its presence also in the moderndomain of the la# of international organiBations #ithin #hich it has gained currencyin recent years+

8F8+ .e #itness no#adays #ithin the frame#or4 of the general phenomenon of

our age that of the jurisdictionaliBation of the international legal order itself #iththe epansion of international jurisdiction as eidenced by the creation and co-eistence of multiple contemporary international tribunals; 8E the reassuringenlargement of the access to justice - at international leel - to a gro#ing number of

justiciables 8H>+ *ot surprisingly the theme of the rule of la# preVminence dudroit; at national and international leels has lately become one of the items of the+*+ General %ssembly itself from 9>>A on#ards; #herein it has been attractinggro#ing attention to date 8H8+

8F9+ I hae dra#n attention to this deelopment in my Dissenting Opinion paras+FF and 8>8; in the case concerning 5uestions /elating to the Obligation to,rosecute or to (tradite &elgium ersus !enegal Order of 9H+>F+9>>E;+ %nimpulse to this deelopment in the +*+ General %ssembly #as gien by the 9>>Fprogress reie# in the implementation of the 9>>> ?illenium Declaration and the?illenium Deelopment Goals+ %ttention #as dra#n then to a core group ofmultilateral treaties 8H9 concerned ultimately and to a large etent #ith therights of the human person+

8F>F recogniBed theneeded adherence to and implementation of the rule of la# at national andinternational leels+ The main traits of that memorable eercise may thus be singledout: 7rst the aforementioned focus on multilateral treatiesM secondly the search forthe primacy of the rule of la#M thirdly the assertion of that primacy at both nationaland international leelsM and fourthly the oercoming of the purely inter-!tateoutloo4 of the matter+


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8F=+ This in my ie# has an incidence in distinct areas of contemporaryinternational la#+ In so far as !tate immunities are concerned for eample the8E9 (uropean Conention on !tate Immunity %rticle 88; and the 9>>= +*+

Conention on Jurisdictional Immunities of !tates and Their ,roperty %rticle 89;proide for the personal injury tort; eception+ &oth Conentions thus ac4no#ledgethat their subject-matter does not ehaust itself in purely inter-!tate relations+

8FF+ It goes in fact beyond them in encompassing the #ay !tates treat humanbeings under their respectie jurisdictions+ !tate immunities hae not been deisedto allo# !tates that committed atrocities delicta imperii; to shield themselesbehind them+ &efore turning to this point I shall address in the follo#ingparagraphs the old dichotomy bet#een acts jure imperii and acts jure gestionis as

considered in the present case; and the treatment of the human person in face of!tate immunities disclosing the shortsightedness and the oercoming of the strictinter-!tate outloo4+

60+ The Contentions of the ,arties as to %cts Jure Imperii and %cts Jure Gestionis

8FA+ In the present case before the Court opposing Germany to Italy thecontending parties put for#ard distinct lines of arguments concerning the distinction

bet#een acta jure imperii and acta jure gestionis for the purpose of the applicationof soereign immunity and more broadly on the $uestion of the eolution fromabsolute to relatie immunity+ Germany essentially argued that at the time ofGerman presence on Italian soil from 8E=


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priate-acts eception to immunity and argued that Italian case-la# since the 6I6thcentury "has been consistent in distinguishing the !tate as a political entityeercising soereign po#ers and entitled to immunity and the !tate as a legalperson not entitled to immunity" 8HF+

8FH+ Italy added that "&elgian and Italian case la# did not long remain isolated"and there #ere also repercussions in the same sense in legal doctrine as from theend of the 6I6th century 8HA+ Italy thus submitted that the turning point of thedistinction bet#een acta jure imperii and jure gestionis #as not as Germanyclaimed represented by the nited !tates Tate 'etter of 8EF9 as "#ell before the II#orld #ar the denial of !tate immunity before municipal courts #as not consideredprejudicial to the dignity or soereignty of a foreign !tate" and "the eolutionto#ards restrictie immunity has its ratio in the necessity of protecting priatepersons"+ It then added that "eceptions to immunity are not limited to acta jure

gestionis" 8H+

8FE+ In the course of the oral pleadings before the Court turning to the personalinjury tort; eception - as proided for in %rticle 89 of the 9>>= +*+ Conention on

Jurisdictional Immunities of !tates and Their ,roperty - Germany claimed that thatproision does not codify customary la# and does not apply to the actions of armedforces and that international !tate practice ecludes armed forces from anyeception to immunity 8HH+ Italy for its part argued that the tort eceptionproides for the lift of immunity if the tortuous act too4 place in #hole or in part

#ithin the forum !tate as it happened in the present case 8HE+ It further claimedthat %rticle 89 of the 9>>= +*+ Conention does not ma4e any distinction bet#eenacts jure imperii and acts jure gestionis+ %nd it added that the speci7c torts thatGerman forces committed in Italy #ere

disenting opinion of judge in germany vs italy

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