The Law of State Immunity in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)

Abstract

AbstractThis article considers the jurisdictional immunity of States in respect of proceedings before the forum State’s court in which a foreign State claims immunity for actions of its armed forces. In Jurisdictional Immunities of the State (Germany v. Italy) the International Court of Justice held that Germany is entitled to immunity before Italian courts for acts of its armed forces committed during the Second World War, even though it considered the German acts as displaying a complete disregard for the “elementary considerations of humanity”. The World Court decided that a breach of jus cogens rules does not amount to a denial of immunity. State immunity is procedural in nature and therefore it is not in conflict with peremptory rules of international law, since the two sets of rules operate at different levels. The thesis advanced in this article is that State immunity protects substantive principles of international law and therefore it cannot be regarded only as a procedural rule. The paper focuses also on other aspects of Jurisdictional Immunities of the State, including the tort exception to State immunity and a right to individual compensation under Article 3 of the Hague Regulations.