Smooth runs the water where the brook is deep: The obscured complexities of Germany v Italy

Abstract

On 3 February 2012, the International Court of Justice (ICJ) handed down its much awaited decision in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening).1 The dispute arose because Italian courts had (1) allowed civil claims based on violations of international humanitarian law by the German Third Reich during the Second World War to be brought against Germany; (2) declared Greek judgments holding Germany liable for damages in civil suits arising out of similar violations of humanitarian law to be enforceable in Italy; and (3) taken consequential measures of constraint against German state property used for government and non–commercial purposes. Germany claimed that Italy had violated its obligation to respect the immunity that Germany enjoys under international law, and Italy argued that international law had developed relevant exceptions to immunity. The Court found in favour of Germany on all counts, and by a clear majority. The decision was widely anticipated, and on first read the conclusions and reasoning of the Court appear