Lest we, in our enthusiasm for EU law, lose sight of the fact that the Member States are still sovereign entities with their own responsibilities under international law, the ICJ’s decision in theJurisdictional Immunities of the State case should prove a good reminder.
The case, brought by Germany against Italy in December 2008 (with Greece intervening), involves a series of civil judgments under Italian law finding Germany liable for damages as a result of serious human rights violations that took place during WWII. These judgments were spurred by the Italian Corte di Cassazione’s decision in the 2004 Ferrini case, which held that Italian courts could hear such claims despite Germany’s assertion of state sovereign immunity. Additionally, Italian courts found that Italy could enforce a Greek judgment involving atrocities committed in the village of Distomo by German troops in 1940 that had been held unenforceable on the grounds of State immunity by both Greek Courts and the European Court of Human Rights.
The ICJ today found against Italy, holding that Germany has State immunity from such suits. The fact that violations of jus cogens norms occurred in the past does not entail a conflict with nor permit a state to set aside the rules of immunity. As the Court explained in paragraph 91:
[U]nder customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.