R (Freedom and Justice Party) v SS Foreign & Commonwealth Affairs: How Should International Law Inform the Common Law
In R (Freedom and Justice Party) v Secretary of State for Foreign & Commonwealth Affairs,…
In Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), the International Court of Justice confirmed that state immunity protects a state for the actions of its armed forces, even if they commit war crimes and even if their victims have no other remedy. In doing so, it condemned the Italian courts’ activist approach in assisting victims of World War 2 atrocities left out of Germany’s official compensation schemes.
After Italy declared war on Germany in 1943, much of Italy was occupied by German forces who committed numerous war crimes, including forced labour, deportations, and massacres. After the war, Germany reached various agreements to provide some of their victims with compensation. However, these agreements were not comprehensive and thousands were left out, receiving nothing.
To alleviate this injustice, the Italian courts let individuals sue Germany directly, holding that Germany could not argue state immunity to avoid redress for such serious crimes. These cases include Ferrini v Germany (Case No 5044/2004; International Law Reports (ILR), Vol. 128, p. 658), Germany v Mantelli (Case No 14201/2008; (2008) Riv Dir Int 896), and Germany v Milde (Case No 1072/2009; (2009) 92 Riv Dir Int 618).
In addition, the Italian courts also allowed Greek claimants to enforce judgment against Germany concerning the notorious Distomo Massacre, when the Waffen-SS killed 214 civilians in the Greek village of Distomo. Judgment against Germany had been obtained in the Greek courts, but the Greek government would not give permission to enforce this in Greece. The claimants therefore asked the Italian courts to help, who placed a legal charge on property Germany owned in Italy.
Though it did not dispute the facts, Germany complained that the Italian courts, in hearing these claims, had breached the principle of state immunity, and thus had violated Italy’s obligations under international law. It therefore filed an application for proceedings before the ICJ in December 2008, which had jurisdiction for such a dispute under Article 1 of the European Convention for the Peaceful Settlement of Disputes.
‘State immunity’ is the principle that the courts of one country cannot exercise jurisdiction over another state. In other words, acts done by a state in the exercise of their sovereign power (so-called acta jure imperii) are immune from proceedings in another state’s courts. This is an important doctrine of public international law, based on the principle of sovereign equality between states.
Italy argued that state immunity could not apply to such serious crimes. These acts were violations of jus cogens, i.e. the fundamental norms of international law that prevail over any other inconsistent principle that might stand in its way (such as state immunity here). Furthermore, Italy argued that state immunity does not apply to torts committed by a state on another state’s territory.
First, the court considered whether Germany was protected by state immunity in respect of torts committed by its armed forces on another state’s territory. In a thorough analysis of both state practice and treaties such as the European Convention on State Immunity or the UN Convention on Jurisdictional Immunities, the court found no support for this. In the face of this evidence, the court could not create such a principle, and so it dismissed this argument.
Secondly, the court dealt with the clash between state immunity and the requirements of jus cogens. Italy advanced this argument in three strands:
First, Italy argued that state immunity does not extend to violations as grave as Germany’s crimes. While all agreed that these were of a serious nature, the court could find little evidence in domestic decisions or state practice that state immunity does not cover grave breaches of international law (para 83). Conversely, it could find plenty of evidence to the contrary (paras 84-90).
The court also noted that such a principle would defeat the purpose of state immunity. If this immunity only covered mild breaches of international law, and fell away for more serious violations, the courts would always have to examine a case’s merits to determine if state immunity could apply (para 82). However, the whole point of state immunity is to avoid states being a party to domestic proceedings at all. In other words, if this principle existed, skilful claimants could construct their claim in a way that alleges a serious breach of international law, and so always force a state before the court to argue the merits of its actions. This would neuter the doctrine of state immunity.
Therefore, the court again dismissed this strand of Italy’s argument.
Italy then advanced that, since Germany had breached jus cogens rules concerning the law of armed conflict, and since jus cogens prevails over any other conflicting principle of law (such as state immunity), state immunity cannot be used to protect Germany for these breaches.
The court, however, rejected that there was a conflict between state immunity and jus cogens (para 93). State immunity is concerned with a procedural matter – whether a state can be brought before domestic courts. By contrast, the rules of jus cogens are to do with substantive matters of what is, and is not, lawful. Therefore, one does not bear on the other; just because a state cannot be sued in a domestic court does not mean that its violations of jus cogens are no longer unlawful. The court made clear that this view was grounded both in its previous decisions (para 95) and state practice (96).
Finally, Italy argued that its courts were justified in assisting those who had suffered under the Nazi regime, since these victims had nowhere left to turn for compensation.
Again, the court could find no basis in existing international law for this principle. The court also noted that the success of such a principle would rest on showing that there was no further prospect of a diplomatic settlement that could compensate these victims, which would be almost impossible, in practical terms, to prove (para 102).
Overall, the ICJ rejected every one of Italy’s arguments. Therefore, it clearly felt unable, under international law as it stood, to give redress to these victims of Germany’s crimes. It declared that Italy must, through legislation or some other means, ensure that those decisions of its national courts at issue in this case ceased to have effect.
The court did express regret that many of the victims of the German armed forces had been left out of existing compensation schemes (para 99). It also stressed that, just because Germany benefited from state immunity, this did not mean it had not severely breached international law. All the ICJ felt able to do, however, was kick the issue to the diplomats:
[The court] considers however that the claims arising from the treatment of the Italian military internees…together with other claims of Italian nationals which have allegedly not been settled…could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue. (para 104)
In passing this judgment, the ICJ took an orthodox, doctrinaire approach to state immunity. At each stage it took pains to show that its decision was based on the current state of international law, including both treaties and state practice. Arguably, it is bound to stay within these parameters by Article 38(1) of the ICJ Statute, so this can hardly be a surprise. The court did, however, also try to show that there was normative justification for most of its findings.
Yet such a decision cannot fail to leave the observer a little uncomfortable. As mentioned, the court stressed that Germany’s immunity did not mean it had not committed grave violations of international law. However, the victims of those wrongs are now denied legal redress, and must resort to diplomatic or political means to gain compensation, a process fraught with difficulties.
Of course, it is always open for customary international law to develop, and national courts may yet take the step of limiting state immunity when crimes of this severity are alleged. For example, this has already occurred with regards to individual immunity from criminal prosecution of a former head of state, in the well-known Pinochet case (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3)  1 AC 147).
This case highlights the perennial problem of the development of customary international law, which goes beyond issues of state immunity. The ICJ’s process is to observe and record the state of international law, and then form a decision that sits within those confines. Yet, in doing so, it lays down an authority from which national courts or authorities are then reluctant to deviate.
In this process, therefore, not only is the ICJ behind those at the forefront of international law’s development, but it is actively holding them back. This is a problem for those who would see international law as a means by which to foster progressive values that may not yet have widespread support. Each time the ICJ passes judgment on an area of international law, it risks crystallising it.
Yet what could the ICJ do, given its constraints? Perhaps it could provide some acknowledgement in its judgments that international law is in a state of flux, or even offer encouragement to domestic courts not to be afraid to develop the law. This could easily become absurd, however. It could amount to the ICJ inviting states to ignore its authority where they wish. This would clearly be anathema to the fundamental aims of public international law, to create a stable and orderly rules-based international community, with everyone working from the same playbook.
The conundrum is real, and difficult to solve. Of course, one other option remains open to develop international law. Instead of the piecemeal development of customary international law, states could organise treaties to formally and consciously develop international law in new ways. The treaty process is long and fraught, however, with no guarantee of success or nimble problem-solving.
Overall, the ICJ has prioritised the principle of state immunity, and the doctrine of sovereign equality on which it rests, over the individual concerns of the victims of a state’s crimes. Some may feel this is the ‘right’ outcome, but others may be nervous that it could empower transgressing states to be confident of their immunity when violating international law. Whatever one’s view, this judgment makes it difficult, given the ICJ’s status, for others to develop international law in this area in new, creative, or progressive ways.