Court Watch verdicts in a series of decisions in 2008.
In its opinion, the Italian Court of Cassation ob- served that the international law principle of state immunity has been weakened over-time and that the deportation of civilians during armed conflict as well as the subjection to forced labor of prisoners constitutes violations of generally recognized rules of international law. These rules, whose purpose is the protection of fundamental human rights, shall prevail over all others rules, whether conventional or customary. Therefore these violations also pre- vail over rules related to immunity.
The Court recognizes “the existence of a customary rule of international law which imposes on States the obligation to refrain from exercising jurisdiction over foreign countries. However, this rule, initially intended to have an absolute character, has been and is gradually shrinking.
The Court takes the view that the foreign state defendant could not benefit from immunity when crimes against humanity occur which is precisely what happened during the Nazi operations against Italian Resistance movement in the Italian Cam- paign of World War II.
At this point, since repeated appeals to the Italian government had no result, Germany decided to file an application to the ICJ to put an end to what it be- lieves to be unlawful practice of the Italian tribunals. In the opinion of the German Government, Italy is in infringement of its obligations towards Germany under international law as the principle of sover- eign immunity imposes that private parties cannot bring suits against another State before the courts of the forum State. Thus, Italy committed a breach of Germany’s jurisdictional immunity by allowing a) civil claims based on acts of war perpetrated by the Third Reich, b) by taking measures of constraint against German assets located in Italy, c) by declar- ing Greek judgments enforceable in Italy.
Italy requests the ICJ to hold the claims of Ger- many to be unfounded. In fact, considering the existence under international law of an obligation
ILSA Quarterly » volume 20 » issue 3 » February 2012
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