The eternal dispute between jurisdictional immunities of the State and the counter-limits doctrine: Germany v. Italy case

On 29 April 2022, Germany has once again filed a lawsuit with the International Court of Justice (ICJ) against Italy because the latter has allegedly failed to respect Germany’s State immunity as it has entertained a considerable number of civil claims, seeking reparation for injuries caused by serious violations of international law committed during the Nazi occupation of Italy in 1943-1945. The issue is not new for the ICJ as it had already arisen ten years ago in the 2012 Germany v. Italy (Greece intervening) case, where the Court held that “the action of the Italian courts in denying Germany the immunity to which the Court has held it was entitled under customary international law constitutes a breach of the obligations owed by the Italian State to Germany”. That being so, in its application of the 29 April, Germany has recalled the 2012 judgment asserting that Italy failed to comply with the decision of the ICJ, thus violating international law. It argued that “at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts (…) have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II”. Hence, Germany asked the Court to adjudge that Italy has violated its obligations to respect Germany’s sovereign immunity (again) and that it is required not only to make full reparation for the injuries caused but also to assure Germany that such violations will not be repeated.

In order to understand the reasons why Italy has continued to allow compensation claims against Germany, despite the 2012 ruling of the ICJ, it is crucial to analyse the dispute from its origin. In order to do so, we can distinguish three main stages: the first one begins with Germany instituting proceedings against Italy in 2008 and culminates with the 2012 ICJ judgment; the second stage is dominated by judgment No. 238/2014 of the Italian Constitutional Court and the oscillating Italian jurisprudence that followed; finally, the third stage bring us to the pending case before the ICJ.

THE FIRST STAGE (2008-2013)

On 22 December 2008, Germany instituted proceedings before the ICJ asking the Court to declare that Italy violated the principle of sovereign immunity which prevents private parties from bringing suits against another State before the courts of the forum State. The starting point was represented by the judgment of the Court of Cassation of 11 March 2004 (Ferrini case) where it declared that it held jurisdiction with regards to the civil claim brought by a person who had been deported to Germany during the WWII and forced to hard labour. The Court of Cassation stated that State immunity should be lifted when it comes to violations of fundamental human rights as they are protected by ius cogens norms, thus lying at the top of the hierarchy of norms in the international legal order.  In 2008, Germany claimed before the ICJ that, after this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts, claiming compensation for the war crimes. Among the requests to the Court, it was asked to adjudge that Italy had breached Germany’s jurisdictional immunity by taking measures of constraint against Villa Vigoni, located in Italy and owned by the German State.
In its judgment of 3 February 2012, the Court found that Italy had breached its obligations under international law by denying German immunity. It observed that there is no conflict between jus cogens rule and the customary rule which accords immunity to States, “the two sets of rules address[ing] different matters. The rules of State immunity are procedural in character and (…) do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful”. Hence, “recognizing the immunity of a foreign State in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule”.  The Court acknowledged that States’ immunity from civil jurisdiction for jure imperii acts has an absolute character. Hence, the ICJ required Italy to make sure that the decisions of the Italian courts infringing the German immunity ceased to have effect.
Following this decision, considering its binding character, the domestic courts stopped ongoing proceedings against Germany initiated by the victims (or their descendants) of the Nazi crimes. The Italian government stepped in and urged the Parliament to adopt a specific provision to oblige the courts to comply with the 2012 ICJ judgment. Consequently, Article 3 of Law n. 5/2013 (Accession of the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and their Property) came into force, according to which Italian judges must decline their jurisdiction in any proceedings against foreign States whenever the ICJ has excluded Italy’s jurisdiction over these cases. It has to be said that, since the beginning of the dispute, the Italian government had taken the side of Germany in domestic proceedings, in particular, the Italian Legal Counsel of State pleaded with the Italian courts to comply with the immunity rule in the ongoing proceedings.

THE SECOND STAGE (2014-2020)

Everything seemed solved when, in 2014, the debate reopened once again with the Tribunal of Florence that asked the Constitutional Court whether Italy’s compliance with 2012 ICJ judgment was in contrast with the Italian Constitution (in particular with Articles 2 and 24). On 22 October 2014, the Italian Constitutional Court delivered its famous judgment no. 238/2014, where it stated that it is unconstitutional to deny jurisdiction in Ferrini-like cases, namely concerning compensation for damages caused by war crimes and crimes against human rights. The Court based its reasoning on the doctrine of counter-limits, according to which there are some limits even to the application of international law and these are the “qualifying essential principles of the State constitutional order” (in the said case, Article 2 and Article 24). Hence, even though the customary international rule is ranked equivalent to constitutional provisions by virtue of Article 10 of the Constitution, “insofar it conflicts with the aforementioned fundamental principles [of the Constitution], it has not entered the Italian legal order and, therefore, does not have any effect therein”. The customary rule on State immunity cannot override Articles 2 and 24 of the Constitution. Especially with reference to Article 24, the Court found that recognising immunity of jurisdiction to the German State meant an absolute sacrifice to the right to judicial protection when it denied the jurisdiction of domestic courts to decide on compensation claims brought by those who suffered gross violations of human rights. The Court declared the unconstitutionality of Article 3 of Law No. 5/2013 as well as Article 1 of Law No. 848/1957 (Execution of the United Nations Charter), to the extent it concerned the execution of Article 94 of the United Nations Charter, exclusively in the part where it obliges the Italian judge to comply with the judgment of the ICJ of 3 February 2012.  Judgment No. 238/2014 seems plainly consistent with judgments No. 348 and 349 of 2007 of the Constitutional Court (“the twin judgments”), where it asserted that the Italian legal order is open to international law, except for those “counter-limits” that arise from the need to preserve the fundamental principles of the Constitution.

The direct consequence of judgment no. 238 has been that many legal proceedings against Germany have been resumed and the judgment has been considered, in the international scenario, an act of disobedience against the ICJ. Clearly the Tribunal of Florence resumed the proceedings suspended in the waiting for the decision, even though Germany kept objecting to its lack of jurisdiction under international law. That is why the Tribunal of Florence tried to resolve the issue, in the subsequent proceedings, through the procedure on conciliation set forth in Article 185 of Code of Civil Procedure. For example, in the case Alessi and others v. Germany, the Court submitted to the parties a proposal of conciliation. However, in two further judgments of 6 July 2015 (Bergamini v. Germany and Simoncioni v. Germany), it assessed that the conciliation procedure had been unsuccessful in many proceedings and once again it affirmed its jurisdiction on the grounds of the same arguments of judgment No. 238/2014, thus condemning to pay compensation.
The Italian jurisprudence, after the judgment of the Constitutional Court, has assumed a very oscillating attitude: for example, the Court of Cassation, after having previously complied with the 2012 ICJ judgment, in the 2016 Gamba judgment affirmed the jurisdiction of the Italian courts to decide the claims for damage in the light of judgment No. 238/2014; another example is the more recent Toldo judgment No. 20442 of 2020, where the Court of Cassation repealed the judgment of the Court of Appeal of Florence, which was in contrast with judgment No. 238/2014. The Court of Appeal (with judgment No. 2945/2018) had confirmed the decision of first instance which recognised the immunity of Germany (in 2012, prior to the judgment No. 238) on the basis of the 2012 ICJ judgment. The Court of Appeal had not complied with the decision of the Constitutional Court of 2014 because the same Court of Cassation previously had complied with the 2012 ICJ judgment. However, the Court of Cassation recognized that it had been compelled to do so by Article 3 of Law No. 5/2013, but it had then changed its attitude in light of the judgment No. 238.

Judgment No. 238/2013 has brought along uncertainties concerning State immunity from measures of constraint. In 2018 the Court of Cassation upheld the customary rule on immunity of foreign States from measures of constraint against German property located in Italy (Villa Vigoni), without any issue of “counter-limit” arising (Regione Sterea Ellada case). The argument was based upon the fact that the immovable was used for governmental functions (the same immunity was not recognised to those properties that do not have this purpose). Surprisingly, it also mentioned judgment No. 238 but only for what concerns immunity from jurisdiction. Nonetheless, the same section of the Court completely devaluated the customary rule and the 2012 ICJ judgment in its judgment No. 21995 of 3 September 2019 (Deutsche Bahn ag v. Regione Sterea Ellada and Federal Republic of Germany, Rete Ferroviaria Italiana Spa, Trenitalia Spa). The Court stated that the Italian courts have an “institutional duty” not to recognise any immunity from civil jurisdiction both in jurisdiction proceedings and those engaged in execution since foreign States have a “prerogative” not a right to immunity. However, the Court did not explain the reasons why judgment No. 238 applies also to execution proceedings.

THE THIRD STAGE (2020-2022)

Given this complex background, Germany decided to file again a case against Italy before the ICJ. In its application of 29 April 2022, it complained not only of the breach of sovereign immunity, but also that “the Court of Rome is currently taking measures of constraint against German properties situated in Italy, and is threatening to take further measures” in order to enforce earlier judgments (Giorgio v. Germany and Cavallina v. Germany). Specifically, in order to satisfy the judgment Giorgio v. Germany, four German State-owned properties (such as the German Cultural Institute) located in Rome were seized and attached on 23 November 2020, thus Germany being deprived of any right of disposal over the properties. Furthermore, the Court reported that on 12 July 2021, the Court of Rome appointed a judicial custodian, who then engaged in regular visits to the four properties. Subsequently, the Court of Rome authorized the German property to be subjected to a forced sale by way of public auction. Since December 2020 Germany has tried to obtain the removal of the measures of constraint as the properties were used for governmental purposes, and it was backed up by the Italian government, which firmly affirmed the non-commercial status of the German properties. Notwithstanding, the Court of Rome proceeded with the enforcement process.
That being considered, Germany requested provisional measures from the ICJ in its application of 29 April 2022.  However, the public hearings on the request for indication of provisional measures, due to take place on 9 and 10 May, were cancelled because Germany withdrew its request (on 5 May), “ following recent judicial developments in Italy and discussions between the representatives of the two Parties between 2 and 4 May 2022”. Specifically, the agent referred to the adoption of Decree No. 36/2022 which requires “(…) Italian courts to lift [the] measures of enforcement previously taken, and that no further measures of constraint [would] be taken by Italian courts against German property used for governmental non-commercial purposes located on Italian territory”. It seems that the Italian government once again supported Germany in the dispute and the principle of sovereign immunity from civil jurisdiction of foreign States. There are strong contradictions within the Italian legal system, since the Government’s requests have so far been disregarded by the Italian courts.
In addition, even though Germany has withdrawn its requests for provisional measures, the question whether Italy “has violated, and continues to violate, its obligation” is still pending before the ICJ. On 10th June, the ICJ fixed the time-limits for the filing of the first round of written pleadings, that is 12 months as requested by both parties (12 June 2023 for the Memorial of the Federal Republic of Germany; 12 June 2024 for the Counter-Memorial of the Italian Republic). It’s just a matter of time before the ICJ renders its decision where it will assess whether there has been a repeated violation of international law by the Italian courts, as believed by the international community. In this case, it remains to be seen how the ICJ will deal with the counter-limits doctrine and what steps, if any, it will take to enforce the principle of State immunity.