Paul Stephan on ICJ
Decision in Jurisdictional Immunities of the State (Germany v. Italy)
Paul Stephan, the John
C. Jeffries, Jr. Distinguished Professor of Law at the University of
Virginia and a former counselor on international law in the U.S.
Department of State, has the following analysis of the International Court of
Justice’s decision Friday in Jurisdictional Immunities
of the State (Germany v. Italy):
On Friday, the
International Court of Justice (ICJ) handed a victory to traditional
conceptions of international law and a setback to an effort to privilege
international human rights over other aspects of the international legal
system. Its decision in Jurisdictional
Immunities of the State rejected
Italy’s attempt to create an exception to sovereign immunity in civil cases based on claims of grave human rights abuses. The decision not only rebukes Italian and
Greek courts, which earlier in this decade had opened themselves to claims
based on Germany’s World War II atrocities, but also may cast a shadow
over some aspects of human rights litigation in the United States. One can find
in the decision, and particularly in the concurring
opinion of Judge Keith (New Zealand), support for the argument that the exercise of universal civil
jurisdiction, which most U.S. human rights litigation does, violates international law.
A Greek court first opened the door to war crimes civil
suits, although a special constitutional court there later repudiated the
notion that an exception to sovereign immunity exists for human rights cases. Italy’s
courts, including its Supreme Court, later embraced this exception to
sovereign immunity. After successful plaintiffs attached a villa in Italy
belonging to Germany to enforce their judgment, and the Italian courts also
recognized a Greek judgment as enforceable by their courts, Germany invoked
the ICJ’s jurisdiction. Italy has neither a statute nor any treaty
obligation regarding sovereign immunity, but its courts purport to apply
customary international law in this area. Italy consented to the ICJ’s
jurisdiction but sought to add a counterclaim for reparations, in spite of
a peace treaty that waived all such claims against Germany. In 2010 the ICJ
determined that it lacked jurisdiction to decide the counterclaim, over
a dissent by Judge Cançado Trindade (Brazil). On Friday the court issued a
decision in favor of Germany. President Owada wrote the opinion, in which
eleven other judges joined. Judges Cançado Trindade, Yusuf (Somalia) and Gaja
(an ad hoc judge from Italy) dissented, although only Cançado
Trindade asserted that international law generally privileges human rights
claims over rules based on the underlying state structure of international law.
For the majority, sovereign immunity from civil suits rests firmly on
the concept of sovereign equality of states, which it described as “one
of the fundamental principles of the international legal order.” Another
fundamental principle, however, is that “each State possesses sovereignty over
its own territory and that there flows from that sovereignty the jurisdiction
of the State over events and persons within that territory.” Vindication of
sovereign equality through immunity thus impairs a sovereign’s jurisdiction
over events on its territory, such as the war crimes that Germany committed on
Greek and Italian soil. The court depicted the evolving law of sovereign
immunity as balancing these principles, with the norm one of immunity and the
exceptions reflecting circumstances where a state’s sovereign character was
not seriously impaired. (DO- seems to refer to restrictive theory) Although many states and a few treaties
have recognized such an exception for torts occurring on the territory of the
state seeking to assert jurisdiction, none
had extended this exception to military acts occurring during an armed conflict.
The majority regarded military operations as being at the core of sovereign
character, and violations of the laws of war as subject to punishment by the
international system, not by national courts imposing tort
liability on foreign states. (DO- Foreign Sovereign Immunities Act (FSIA))
The majority also rejected
the argument that violations of the so-called peremptory norms (jus
cogens) of international law demanded a different result. First, it
observed that the assertion of jurisdiction, and hence the infringement of
foreign sovereignty, occurs at the outset of a proceeding, before any attempt
to assess the merits of the claim. Recognition of a jus cogens exception
would mean that immunity could “in effect be negated simply by skillful
construction of the claim.” Moreover, the question of wrongfulness under international
law, even as to severe breaches of fundamental human rights, is independent of
the question of how to redress that wrong. A rule of sovereign immunity, it
asserted, does “not derogate from those substantive rules which possess jus
cogens status.” After a careful survey of existing treaties, domestic
legislation, and judicial practice, the ICJ determined that Italy stood alone
in claiming a judicial power to vindicate core human rights against a foreign
state through civil litigation, and in doing so it violated the customary
international law of sovereign immunity.
Judge Cançado
Trindade’s dissent is
interesting for its methodology as much as its conclusion. He defended a jus
cogens exception to sovereign immunity not on the basis of any
official acts of governmental authorities that might be seen as indicating the
acceptance of such an exception. Rather, he asserted that the advancing
progressive nature of international law, as expressed by reputable scholars and
other jurists, demanded such a rule, regardless of state consent. His argument
in effect removes nations, or at least the governments that represent them,
from international law. (DO- Judge
Cancado seemed to fail provide evidence of state practice)
Because the case
concerned sovereign immunity and not the right of a sovereign to entertain
civil suits for misconduct by aliens on foreign territory, the principle of
universal civil jurisdiction was not at issue. But some have argued
(including amici filing briefs in the pending Supreme Court
case, Kiobel v. Royal DutchPetroleum Co.), and Judge Keith in
his concurrence agreed, that sovereign immunity and a
general prohibition of extraterritorial jurisdiction both rest on the
fundamental principle of sovereign equality. Purporting to prescribe rules for
conduct in a foreign country that neither involves the regulating sovereign’s
subjects nor produces a significant impact on its economy, the argument goes,
intrudes on the sovereignty of a territorial state every bit as much as
subjecting that sovereign to judicial jurisdiction. Absent the territorial sovereign’s consent,
such regulation violates international law. By indicating that there exists
no jus cogens exception to immunity from judicial
jurisdiction, the Jurisdictional Immunities judgment may imply
that there also exists no such exception to immunity from prescriptive
jurisdiction. If so, much of what U.S. human rights litigation does violates
international law.
(DO –
“the regulating
subject” – territorial, nationality, and passive; a significant impact –
protective
The author argues much
of US human rights litigation violates international law because there exists
no jus cogens exception to immunity from judicial jurisdiction.
What about the Grave
Breaches regime or genocide that is widely believed to constitute CIL? The alleged
perpetrator who is not a national of a state party cannot be brought to court? criminal
v. civil suit ; arm of government or non-state actor)
The Supreme Court granted certiorari in Kiobel to
consider a separate question, namely the liability of corporations under the
federal common law that derives from the so-called Alien Tort Statute. But the
extraterritoriality issue lurks in the case, as the dispute involves conduct in
Nigeria harming Nigerians by the Nigerian subsidiary of an Anglo-Dutch family
of companies. Other cases coming out of the lower courts and awaiting the
resolution of Kiobel, including Sarei v. Rio Tinto in
the Ninth Circuit, also raise the issue. At some point the Court will have
decide whether, as the Jurisdictional Immunities judgment
indicates, vindication of human rights must give way to the core principles of
sovereign equality, or whether the United States, like
Italy, should go its own way in spite of the international system.
= == = = = == = = = = = == = = =
ICJ Issues Jurisdictional Immunities Judgment
by Ingrid Wuerth
[Ingrid Wuerth is Professor of
Law at Vanderbilt Law School and Director of Vanderbilt's International Legal
Studies Program.]
The International
Court of Justice has issued its judgment in Jurisdictional Immunities of the State
(Germany v. Italy: Greece Intervening). Germany won, as most
observers had predicted. The dispute arose out of a series of decisions by
Italian national courts denying immunity to Germany for conduct that took place
at the end of World War II. They include the well-known Ferrinicase
as well as cases brought in Italy to enforce judgments from Greek courts that
similarly denied immunity to Germany for events related to the 1944 Distomo massacre.
Italy argued for an exception to immunity on the grounds that (1) some of the conduct took place on the territory of the forum
state and because (2) the
conduct constituted serious violations
international law including jus cogens norms.
The Court rejected the first argument, concluding that
State immunity protects acta jure imperii by organs of a State
in the conduct of armed conflict, even if the relevant acts take place on the
territory of the forum State. The Court also rejected the second
argument, relying on conventions (¶ 89) and domestic legislation, judgments of
national courts (including Greek cases after the initial Distomodecision)
(¶¶ 83-85, 96) and the ECHR (¶ 91), distinguishing Pinochet as relating to
criminal cases against individuals (¶ 87), and noting Italy’s own statements in
domestic litigation that this area of law is unsettled and undergoing change (¶
86). Over at Lawfare, Professor Paul Stephan
provides an excellent summary of the judgment, including Judge Trindade’s
dissent, and a discussion of the possible impact of this judgment on U.S. human
rights litigation.
Germany was widely
expected to win this case because state practice generally supports the
immunity of states (even for violations of international humanitarian law and jus
cogens norms), as the judgment details. Rather than further describing
the Court’s reasoning, I want to consider the effect of judgment on two other
issues.
First, to what extent does the Court leave the door open to progressive
development of immunity law by national courts? One might accept the
Court’s conclusions about the law today, but still hope to see national courts
developing new exceptions to the state law of immunity, as they did in the
commercial activity context. The Court’s reasoning has made that somewhat
more difficult by rejecting a case-by-case balancing approach to immunity that
might encourage courts to deny immunity based on the underlying conduct or the
failure of the state to make adequate reparations. (¶¶ 106, 56, 82). This
aspect of the Court’s reasoning was criticized in the separate opinion of Judge
Bennouna and the dissenting opinion of Judge Yusuf. On the other hand, the
costs that this Judgment will ultimately impose on Italy are unclear. The Court
does require Italy to reverse the effects produced by the opinions of its
national courts (¶ 137), but it also indicates its surprise and “regret” that
Germany has denied compensation to the Italian victims bringing these claims (¶
99). Further negotiations on both fronts seem likely. If the costs of denying
state immunity do not appear very high, perhaps in the future national courts
will again deny state immunity under different factual circumstances,
especially where their own executive branches do not clearly support the
immunity of the state that has been sued.
A second question is what effect this judgment will have on the
much more controversial question of the functional immunity (ratione
materiae) of individual government officials who are not entitled
to status-based immunity (ratione personae).
(DO- this is on the
same setting of Filartiga case)
Some commentators
argue that some individuals accused of international crimes are not entitled to
(DO- functional) immunity ratione materiae before foreign
national courts, as in the Pinochet case. This issue was the subject of controversial
dicta in the Arrest Warrant case; the Italy v.
Germany Judgment is very explicit that it does not address this question (¶ 91).
A few aspects of the
Court’s reasoning might bear on the question of individual immunityratione
materiae, however.
First, the Court is
clear that immunity is not a matter of mere comity but
instead is a principle of international law that reflects the sovereign
equality of states (¶¶ 53-57). If individual immunity is a function of state
immunity, this makes it more difficult to argue that such immunity is a matter
of comity, not law.
Second, the court
characterizes immunity as “essentially procedural in nature” and
as “entirely distinct from the substantive law which determines whether that
conduct is lawful or unlawful (¶ ¶ 58, 93). Some have argued that individual
immunity is an aspect of substantive law, a conclusion that is arguably in
tension with the Court’s reasoning here.
Third, the Court relies
very heavily on the judgments of national courts, (¶¶ 73-76, 85, 96)
concluding in effect that Italian national courts were virtually alone in
denying immunity to German for the reasons that they did (¶¶ 77, 96). This
may bode well for claims that individuals are not entitled to functional
immunity for international crimes, as the practice is at least somewhat more
mixed. (DO- Pinochet and ATS cases) On the other hand, the Court notes in one
context that national courts gave the state immunity question “careful
consideration;” some national court decisions that are referred to show the
erosion of immunity for individuals do not explicitly consider immunity at all.
As well, the Judgment leaves open entirely the question of how much state
practice/how many national court decision it would take to show that
international law recognizes an exception to immunity.
