Did Italy make a mistake in its pleadings before the International Court of Justice? Could we still save human rights from state immunity? I suggest that we might be able to do so through the application of the institute of countermeasures. Let us first learn what we are talking about and then I will discuss the suggestion more.
On February 3, 2012 the International Court of Justice delivered its judgment in the Jurisdictional Immunities case between Germany and Italy. Germany asked the Court to declare that Italy violated international law by denying Germany immunity. Italy denied Germany immunity most famously in the Ferrini case, where victims of Second World War claimed compensation from Germany for forced labor during the war. While one state cannot be sued in the courts of another state according to the doctrine of foreign sovereign immunity, the Italian Court in Ferrini decided that this doctrine was not applicable either as a matter of customary international law or as a matter of immunity ceding to the hierarchically higher jus cogens prohibition of forced labor. Whatever the reasons there, the ICJ rejected them in its Jurisdictional Immunities judgment. It stated that foreign sovereign immunity had to be applied, there were no exceptions for it for grave violations of human rights. The judgment implies that Italy should revert its decision in Ferrini and other similar cases. Ironically, apparently the protection of victims of international crimes from denial of justice constituted a violation of international law.
But is this final? Does it have to be so? I suggest that Italy might have pleaded an alternative ground for denying immunity which they failed to plead in the Court. This ground is countermeasures.
First, Italy would concede that it violated international law by denying immunity to Germany. If this concession happens, Italy automatically has committed an internationally wrongful act. But, then Italy can invoke Article 22 of the Draft Articles on the Responsability of States for Internationally Wrongful Acts:
Article 22 Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.
This means that denying immunity could be not wrongful if it is taken as a countermeasure. Let’s see what the part mentioned in the article says:
Article 49 Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two.
2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
What then is the wrongful act that Italy could have reacted to? Well, the denying of compensation to victims of war. While the ICJ in its Immunities judgment expressed some doubt as to whether an individual right to compensation exists, it did not exclude the possibility of such a right. Moreover, Article 3 of the Hague Convention of 1907 provides for reparations for crimes of war and while there is a discussion whether this right applies to individuals, for example, in the Wall Advisory Opinion the ICJ itself stated at paragraph 152:
152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, irzter aliu, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to al1 the natural or legal persons concerned.
The Court also quotes at the same paragraph the Chorzów Factory case where the Permanent Court of International Justice states that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”.
Therefore, at least in the doctrine, there seems to be a duty of the State to pay reparations. The Security Council also seemed to award reparations to individuals for similar violations in Resolution 471, for example and there is further doctrinal support that a right to reparation is inherent for “the purpose of a right to be realized.” Since Germany failed to comply with this duty to pay individual reparations, Italy denied Germany’s immunity by way of countermeasures. That could be an argument.
However, there are a couple of problems to such an argument that I will discuss.
First, the duty to inform about the taking of countermeasures. This flows from Article 52 of the Draft Articles which provides:
Article 52 Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) Call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;
(b) Notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.
This might cause some problems because it Italy did not seem to regard the denying of immunity as countermeasures and did not so avert Germany. Moreover, it might be hard to argue as under paragraph 2 that the denying of immunity was urgent. However, these are procedural requirements and perhaps it could be asserted that the compliance with these requirements does not necessarily derogate from the right to take countermeasures (just like the duty to report self-defense to the Security Council is not always complied with without strong prejudice to the legality of such self-defense). Admittedly, though, this is made harder by the fact that the ILC, in its commentary, cites the Gabcikovo-Nagymaros Project and the Air Service Agreement arbitration and claims that these requirements “reflect a general practice”.
Alternatively, Italy could argue that it did comply with the requirement of notification because Germany was well aware of the fact that it had not paid compensation to the victims and that proceedings were initiated, thus it had time to comply with its obligations. Perhaps Italy could also find a communication between the States urging Germany to pay reparations (although it is a bit unlikely given the political position of Italy). It is quite a stretch, though, thus the Court would have to look lenient to this requirement in order for a claim to succeed. I am positive it could do some, given certain conditions.
Second, there was a problem about the fact that Italy had waived all claims to reparation on behalf of its citizens in a Peace Treaty after the war. On the other hand, Italy had some arguments about the scope of this waiver. Provided that these fail, however, the situation becomes more complicated. Moreover, Italy could hardly rely on the conflict with jus cogens argument to invalidate such waiver of claims because since the ICJ has decided that jus cogens does not beat state immunity, it presumably does not beat the waiver of claims either. After all, the jus cogens norm only prohibits forced labor, it does not address compensation per se (unless compensation can be proclaimed to be inherent in the right, but that begs a philosophical discussion). Therefore, unless the philosophical discussion succeeds, the waiver poses a problem to the claim of countermeasures.
However, perhaps this problem is not one that Italy could not beat by countermeasures too: it could say, that it denied Germany the benefit of the waiver of claims by way of a countermeasure because Germany did not fulfill its obligation to pay compensation to the victims of war. You see, the waiver of claims actually waives the right to claim compensation but it does not, strictly speaking, claim the right to compensation itself. Italy could argue that even though it had waived all claims, Germany still had an outstanding obligation to pay compensation, which was not waived, and as a consequence Italy could deny both its obligations under the waiver of claims to waive claims and under customary international law to award foreign sovereign immunity as denied by way of lawful countermeasures.
Could this doctrine be still applied by Italy? Could it, moreover, be applied in the future to save human rights from the hands of foreign sovereign immunity? Could countermeasures be extended from the sphere of what states do to what Courts in particular states can do too? While currently the institute of countermeasures is not exactly fit for these purposes, I would think, with the ICJ having denied the jus cogens exception, Courts and legal scholars might have to resort to alternative measures of resolution of the question of foreign sovereign immunity and countermeasures could indeed come into play.