Case Watch: Access to Justice Thwarted in The Hague

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The International Court of Justice (ICJ) has released a decision—Jurisdictional Immunities of the State (Germany v Italy)—that reinforces the primacy of state sovereignty, and its corollary sovereign immunity, over the protection of human rights and the provision of redress for violations.

In a judgment published on February 3, the court held that Italy had violated its obligation to respect Germany’s sovereign immunity under international law by allowing civil claims based on World War II era violations of international humanitarian law to proceed in Italian courts. While Germany’s victory was widely predicted, the court’s prizing of Germany’s sovereign immunity over the ability of Italian victims of Nazi war crimes to seek reparations worryingly suggests that human rights has taken a “back seat to sovereignty”.

The case originated in a 2008 decision of the highest Italian court—Ferrini v Germany—which held that an Italian national was entitled to compensation for his deportation to Germany in 1944 to work as a slave laborer in the armaments industry. The Italian court held that Germany could not invoke immunity for acts which constitute crimes under international law. In the aftermath of Ferrini, many civil cases were launched against Germany in Italian courts. Legal proceedings were also brought in Italy to enforce similar judgments from Greek courts that denied immunity to Germany.

Germany filed a case before the ICJ, claiming that the Italian judiciary had “repeatedly disregarded the jurisdictional immunities of Germany as a sovereign state” by allowing civil claims to proceed and by taking measures of constraint against a German property on Italian soil. Germany was likely motivated by a concern that Ferrini and its progeny cast doubt on the post-war reparations scheme that had already seen it pay billions of dollars in compensation. However, Germany had excluded Italian internees from the scope of its reparations schemes on the basis that they had been entitled to prisoner of war status and thus not entitled to compensation for forced labor, even though Germany had refused to recognize this status at the relevant time. Greece successfully requested permission to intervene on the ground that its legal interests could be affected by the ICJ’s decision.

By a clear majority (12 votes to 3), the ICJ concluded that Italy had violated Germany’s immunity from being sued in its courts. (The ICJ also held, by 14 votes to 1, that Italy had violated its international obligations by taking measures against the German-owned property, and by enforcing Greek decisions against Germany in its courts.) To implement the decision, the court held that the Italian judicial decisions infringing Germany’s immunity must “cease to have effect.”

Arguably the most significant aspect of the judgment is the discussion of the relationship between immunity and jus cogens norms (fundamental principles of international law from which no entity or person is exempt). Before the ICJ, Italy argued for an exception to Germany’s immunity largely on the basis that Germany’s conduct violated such jus cogens norms, in particular the prohibition on slave labor. For the majority of the court's judges, immunity did not have to give way where jus cogens norms were at stake because they addressed different matters. In other words, the procedural immunity rules which determine when “jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status.” Given that many Italian victims of war crimes had been excluded from Germany’s reparations schemes, a point that the court noted with “surprise – and regret”, the court acknowledged that Germany’s immunity might preclude judicial redress for the Italian nationals concerned.

While the decision of the majority was likely correct as a matter of customary international law, it is contestable whether fundamental international law norms should be isolated from, and effectively made subsidiary to, procedural rules. The access to justice concerns arising in the case are clear. Amnesty International described the decision as “a big step backwards on human rights, [turning] the right to compensation for war crimes into a right without a remedy.” In a passionate dissenting opinion motivated by the “realization of justice”, Judge Cancado Trindade argued that the tension between state immunity and the right of access to justice should be resolved in favour of the latter, particularly in the case of international crimes. Similarly, Judge Yusuf’s dissent argued: “The assertion of jurisdiction by domestic courts in those exceptional circumstances where there is a failure to make reparations, and where the responsible state has admitted  to the commission of serious violations of humanitarian law, without providing a contextual remedy for the victims does not … upset the harmonious relations between states, but contributes to a better observance of international human rights.”

The International Court’s decision, privileging immunity over fundamental human rights norms, will make it easier for states to refuse to provide redress with impunity.  Indeed, it has the potential to exert a chilling effect on the progressive development of international law. On one reading, it also has problematic implications for the exercise of universal civil jurisdiction in US Alien Tort Statute litigation, such as the high-profile Kiobel v Royal Dutch Petroleum case before the Supreme Court later this month. A question remains as to the effective implementation of the right of access to justice. Columbia University law professor Lori Damrosch argues that there remains scope for innovative lawsuits prompting national courts to re-examine theories of immunity, “taking the initiative to change state practice to meet the needs of justice.” Although this case did not deal with the point, the recent prompting of the African Union might land the ICJ with the vexing issue of the immunities of state officials at international law. Until then, its Jurisdictional Immunities of the State ruling reinforces the pervasive significance of state sovereignty in the international legal order and the formidable hurdle that sovereign immunity poses for victims of human rights abuses.