6 July 2010

 

General List No. 143

 
     

international Court of Justice

     
 

Jurisdictional Immunities of the State

 
     

Germany

 

v. 

Italy

     
     
 

Order

 
     
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BEFORE: President: Owada
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2010.07.06_jurisdictional_immunities.htm
   
Citation: Jurisdictional Immunities of the State (Germany v. Italy), 2010 I.C.J. (Order of July 6)
 
     
 
 
     
 

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court and to Articles 31, 44, 45 and 80 of the Rules of Court,

Makes the following Order:

1. Whereas, on 23 December 2008, the Government of the Federal Republic of Germany (hereinafter “Germany”) filed in the Registry of the Court an Application instituting proceedings against the Government of the Italian Republic (hereinafter “Italy”) alleging that “[t]hrough its judicial practice . . . Italy has infringed and continues to infringe its obligations towards Germany under international law”; whereas, in its Application, Germany based the jurisdiction of the Court on Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957 (hereinafter the “European Convention”); and whereas at the end of its Application, it set out its claims as follows:

“Germany prays the Court to adjudge and declare that the Italian Republic:

1. by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
2. by taking measures of constraint against ‘Villa Vigoni’, German State property used for government non-commercial purposes, also committed violations of Germany’s jurisdictional immunity;
3. by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity.

Accordingly the Federal Republic of Germany prays the Court to adjudge and declare that:

4. the Italian Republic’s international responsibility is engaged;
5. the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany’s sovereign immunity become unenforceable;
6. the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above”;

2. Whereas, on 23 June 2009, within the time-limits fixed by the Court in its Order of 29 April 2009, Germany filed its Memorial, at the end of which it presented its submissions in the same form as the claims set out in the Application;

3. Whereas, on 23 December 2009, within the time-limits fixed by the Court in its Order of 29 April 2009, Italy filed its Counter-Memorial; whereas, in Chapter VII of the Counter-Memorial, Italy, making reference to Article 80 of the Rules of Court, submitted a counter-claim “with respect to the question of the reparation owed to Italian victims of grave violations of international humanitarian law committed by forces of the German Reich”; whereas it based the Court’s jurisdiction over the counter-claim on Article 1 of the European Convention, taken together with Article 36, paragraph 1, of the Statute of the Court; whereas it asserted that there exists a “direct connection between the facts and law upon which Italy relies in rebutting Germany’s claim and the facts and law upon which Italy relies to support its counter-claim”; and whereas at the end of the Counter-Memorial, it presented its submissions as follows:

“On the basis of the facts and arguments set out above, and reserving its right to supplement or amend these Submissions, Italy respectfully requests that the Court adjudge and declare that all the claims of Germany are rejected.

With respect to its counter-claim, and in accordance with Article 80 of the Rules of the Court, Italy asks respectfully the Court to adjudge and declare that, considering the existence under international law of an obligation of reparation owed to the victims of war crimes and crimes against humanity perpetrated by the III° Reich:

1. Germany has violated this obligation with regard to Italian victims of such crimes by denying them effective reparation.
2. Germany’s international responsibility is engaged for this conduct.
3. Germany must cease its wrongful conduct and offer appropriate and effective reparation to these victims, by means of its own choosing, as well as through the conclusion of agreements with Italy”;

4. Whereas, on 27 January 2010, at a meeting held by the President of the Court with the Agents of the Parties, the Agent of Germany indicated that his Government did not consider the counter-claim submitted by Italy to be in accordance with Article 80, paragraph 1, of the Rules of Court and that it intended to raise objections to the Italian counter-claim; whereas the Court decided that the German Government should specify in writing, by 26 March 2010 at the latest, the legal grounds on which it relied in maintaining that the Respondent’s counter-claim did not fall within the provisions of Article 80, paragraph 1, of the Rules of Court, and that the Government of Italy would in turn be invited to present its views in writing on the question by 26 May 2010 at the latest; and whereas by letters dated 5 February 2010, the Registrar informed the Parties accordingly;

5. Whereas, on 24 March 2010, Germany submitted its written observations entitled “Preliminary objections of the Federal Republic of Germany regarding Italy’s counter-claim”, in which it set out the legal grounds on which it argues that the counter-claim does not meet the requirements of Article 80, paragraph 1, of the Rules of Court; and whereas a copy of those observations was transmitted to the other Party on the same day;

6. Whereas, by a communication from its Agent dated 25 May 2010 and received in the Registry on the same day, Italy submitted to the Court its written observations entitled “Observations of Italy on the preliminary objections of the Federal Republic of Germany regarding Italy’s counter-claim”; and whereas, by a letter dated 25 May 2010, the Registrar communicated a copy of those observations to the German Government;

7. Whereas, having received full and detailed written observations from each of the Parties, the Court is sufficiently well informed of the positions they hold as to whether the Court may entertain the claim presented as a counter-claim by Italy in its Counter-Memorial; and whereas, accordingly, the Court does not consider it necessary to hear the Parties further on the subject;

8. Whereas the Court finds it useful at the outset briefly to describe the factual background of the case which is not contested between the Parties; whereas between 1943 and 1945 war crimes and crimes against humanity were committed by the Third Reich against Italian citizens; whereas on 10 February 1947, the Allied Powers concluded a Peace Treaty with Italy, regulating, in particular, the legal and economic consequences of the war with Italy; whereas paragraphs 1 to 4 of Article 77 of the Peace Treaty read as follows:

“1. From the coming into force of the present Treaty property in Germany of Italy and of Italian nationals shall no longer be treated as enemy property and all restrictions based on such treatment shall be removed.
2. Identifiable property of Italy and of Italian nationals removed by force or duress from Italian territory to Germany by German forces or authorities after September 3, 1943 shall be eligible for restitution.
3. The restoration and restitution of Italian property in Germany shall be effected in accordance with measures which will be determined by the Powers in occupation of Germany.
4. Without prejudice to these and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war”;

9. Whereas on 2 June 1961, two Agreements were concluded between the Parties; whereas the first Agreement concerned the “Settlement of certain property-related, economic and financial questions” (entered into force on 16 September 1963); whereas by virtue of this Agreement, Germany paid compensation to Italy for “outstanding questions of an economic nature” (Article 1); whereas the Italian Government, under Article 2 of that Agreement, declared

“all outstanding claims on the part of the Italian Republic or Italian natural or legal persons against the Federal Republic of Germany or German natural or legal persons to be settled to the extent that they are based on rights and circumstances which arose during the period from 1 September 1939 to 8 May 1945”;

whereas by the second Agreement, concerning “Compensation for Italian nationals subjected to National-Socialist measures of persecution” (entered into force on 31 July 1963), Germany undertook to pay compensation to Italian nationals affected by those measures; whereas Article 3 of that Agreement provided that “[w]ithout prejudice to any rights of Italian nationals based on German compensation legislation, the payment provided for in Article 1 shall constitute final settlement between the Federal Republic of Germany and the Italian Republic of all questions governed by the present Treaty”;

10. Whereas, after the Second World War, Germany, from 1953 to 2000, enacted legislation on the compensation of victims of the Nazi régime; whereas, under this legislation, including the most recent German Federal Law of 2 August 2000 for the establishment of a “Remembrance, Responsibility and Future” Foundation, not all Italian victims were entitled to obtain compensation; whereas from that date on, a number of judicial decisions in Germany found that certain categories of victims, including certain Italian nationals, were not entitled to compensation under the legislation in force;

11. Whereas on 11 March 2004 the Italian Corte di Cassazione held that Italian courts had jurisdiction over the claims for compensation brought against Germany by Mr. Luigi Ferrini, an Italian national who had been arrested in August 1944 and deported to Germany, where he was detained and compelled to work in a munitions factory until the end of the war; whereas the Corte di Cassazione, by two Orders of 29 May 2008 issued, respectively, in the case concerning Giovanni Mantelli and Others and in the case concerning Liberato Maietta, confirmed that the Italian courts had jurisdiction over claims of the same nature brought against Germany; and whereas a number of similar claims are currently pending before the Italian courts;

12. Whereas the Court now turns to the question whether the claim presented as a counter-claim by Italy in its Counter-Memorial complies with the requirements of Article 80 of the Rules of Court; and whereas that Article reads as follows:

“1. The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party.
2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counter-claim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.
3. Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties”;

13. Whereas Germany does not dispute that the Italian claim is not presented as a defence on the merits, but as a “counter-claim” within the meaning of Article 80 of the Rules of Court, that is to say, a counter-claim constituting “an autonomous legal act the object of which is to submit a new claim to the Court” and, at the same time, “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to it” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27); nor is it disputed that the claim has been “made in the Counter-Memorial and [appears] as part of the submissions contained therein”, in accordance with Article 80, paragraph 2, of the Rules of Court;

14. Whereas under Article 80, paragraph 1, of the Rules of Court two requirements must be met for the Court to be able to entertain a counter-claim at the same time as the principal claim; whereas in earlier pronouncements the Court has characterized these requirements as requirements on the “admissibility of a counter-claim as such” (Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35); whereas “admissibility” in this context must be understood broadly to encompass both the jurisdictional requirement and the direct-connection requirement; and whereas the Court will employ the term in that sense herein as well;

15. Whereas the Court has already had occasion to state the reasons why the admissibility of a counter-claim as such is contingent on those two requirements in the following terms:

“Whereas the Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; and whereas the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice; and whereas it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counter-claim ‘comes within the jurisdiction of the Court’ and ‘that it is directly connected with the subject-matter of the claim of the other party’.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, pp. 257-258, para. 31);

16. Whereas Germany reserved its position on the question whether the requirement of direct connection is met in this case; whereas, however, Germany denies expressly that the counter-claim meets the requirement of jurisdiction contained in Article 80, paragraph 1, of the Rules of Court; and whereas it is to that issue that the Court will now turn;

17. Whereas Article 1 of the European Convention, on which Italy bases the Court’s jurisdiction on its counter-claim in the present proceedings, provides that:

“The High Contracting Parties shall submit to the judgement of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:

(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation”;

whereas Article 27 (a) of the European Convention reads as follows:

“The provisions of this Convention shall not apply to:
(a) disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”;

and whereas the European Convention came into force as between the Parties on 18 April 1961;

18. Whereas in its Judgment of 10 February 2005 in the case concerning Certain Property (Liechtenstein v. Germany), in relation to the temporal limitation contained in the same Article 27 (a) of the European Convention, the Court stated that “the critical issue is not the date when the dispute arose, but the date of the facts or situations in relation to which the dispute arose” (Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 25, para. 48);

19. Whereas the Court must first identify the subject-matter of the dispute that Italy intends to bring before the Court by way of its counter-claim in order to determine whether the facts or situations to which the dispute relates fall within the temporal scope of the European Convention;

20. Whereas Germany contends that the dispute that Italy intends to submit by way of its counter-claim relates to “violations of international law that were committed by the armed forces and the occupation authorities of Nazi Germany when they held sway over Italy and Italian nationals” between September 1943 and May 1945 and an alleged failure by Germany to comply with its duties of reparation arising from those violations;

21. Whereas, for its part, Italy contends that the subject-matter of the dispute that it intends to bring before the Court is “twofold”; whereas, on the one hand, the dispute concerns the question of the existence, at the present time, “of a right of reparation in favour of Italy”; and whereas, on the other hand, the Parties also disagree as to whether Germany, following the establishment in 2000 of the “Remembrance, Responsibility and Future” Foundation, failed to comply with its obligations concerning reparation for the Italian victims of crimes committed by the German Reich;

22. Whereas the Parties do not dispute the fact that Italian nationals were victims of serious violations of international humanitarian law committed by Nazi Germany between 1943 and 1945; whereas the Parties however hold opposing views as to whether and to what extent Germany is under an obligation to make reparation to those victims; and whereas the existence and scope of this obligation to make reparation is the subject-matter of the dispute that Italy intends to bring before the Court by way of its counter-claim;

23. Whereas the Court will now examine whether it has jurisdiction ratione temporis under the European Convention; whereas in accordance with the Court’s earlier case law, the facts and situations it must take into consideration are those with regard to which the dispute has arisen or, in other words, only those which must be considered as being the source of the dispute, those which are its “real cause” rather than those which are the source of the claimed rights (Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 35); whereas, in the present case, the Court thus has to determine whether the dispute that Italy intends to submit by way of its counter-claim, as defined in paragraph 22 above, relates to facts or situations occurring prior to the entry into force of the European Convention as between the Parties on 18 April 1961, namely, events which took place from 1943 to 1945 and the Peace Treaty of 1947 between the Allied Powers and Italy, or whether it relates to “new situations” resulting from the 1961 Agreements (which entered into force in 1963; see paragraph 9 above) and from decisions taken by German authorities after the entry into force of the European Convention as between the Parties; and whereas, in other words, the Court has, in the case at hand, to establish which of those facts and situations are the source or real cause of the dispute concerning the obligation of Germany to make reparation to certain Italian victims of serious violations of humanitarian law committed by Nazi Germany between 1943 and 1945;

24. Whereas Germany argues that the facts and situations to which the dispute that Italy intends to submit by way of its counter-claim relates are the occupation of Italian territory from September 1943 to May 1945 and the ensuing consequences for Italian civilians and captured members of the Italian armed forces; whereas Germany states that the German Government, when concluding the 1961 Agreements, was of the view that by virtue of the waiver clause contained in Article 77, paragraph 4, of the Peace Treaty of 1947 no further claims for reparation could be made and therefore considered those Agreements as “a gesture of goodwill designed to put an end to legal fights about compensation due in individual cases”; whereas Germany asserts that the real cause of the dispute that Italy intends to submit by way of its counter-claim lies only in the serious violations of international humanitarian law committed during the Second World War by the German Reich; whereas Germany denies that the two Agreements concluded between the Parties in 1961 are the real cause of the dispute; whereas Germany points out that Italy does not identify any dispute between the Parties relating to the 1961 Agreements and stresses that these Agreements have no relevance with regard to the counter-claim, in particular because they did not bring about a new situation with a new critical date; whereas Germany also denies that the German Law of 2 August 2000 could be deemed the real cause of the dispute; whereas, according to Germany, Italy does not contend that, by not including the captured members of the Italian armed forces in the scope of the Law ratione materiae, Germany committed a violation of its duties towards Italy; whereas Germany asserts that the facts and situations to which the dispute that Italy intends to bring before the Court by way of its counter-claim relates, fall within the temporal limitation contained in Article 27 (a) of the European Convention; and whereas Germany thus concludes the Court has no jurisdiction over that dispute under Article 1 of the European Convention;

25. Whereas Italy submits that the dispute that it intends to bring before the Court by way of its counter-claim originates from the reparation régime set in place by the 1961 Agreements as well as the events following the establishment of the “Remembrance, Responsibility and Future” Foundation (see paragraph 10 above) ⎯ which together constitute the source or real cause of the dispute; whereas Italy considers that the two Agreements concluded between the Parties on 2 June 1961 providing, inter alia, for compensation to be paid by the German Government, created a “new situation” between Italy and Germany on the issue of reparation because Germany, by concluding these Agreements, renounced its right to invoke the 1947 Peace Treaty waiver clause and acknowledged the existence of an ongoing obligation to provide reparation to Italy and Italian nationals; whereas, additionally, Italy states that the decisions by the German authorities from 2000 onwards, rejecting the claims for reparation put forward by Italian nationals, also constitute a “new situation”; whereas Italy contends that the dispute that it intends to submit by way of its counter-claim originates from these two “new situations”, which do not fall within the temporal limitation of Article 27 (a) of the European Convention; and whereas Italy thus concludes that the Court has jurisdiction over that dispute under Article 1 of the European Convention;

26. Whereas the Court notes that the dispute that Italy intends to submit to the Court by way of its counter-claim relates to the existence and the scope of the obligation of Germany to make reparation to certain Italian victims of serious violations of humanitarian law committed by Nazi Germany between 1943 and 1945 (see paragraph 22 above), rather than to the violations themselves; whereas, the Court observes that while those violations are the source of the alleged rights of Italy or its citizens, they are not the source or “real cause” of the dispute; whereas those violations are not therefore the facts or situations to which the dispute in question relates;

27. Whereas, in 1947, the Allied Powers concluded a Peace Treaty with Italy which formed part of a legal régime designed to settle various property and other claims arising out of the events of the Second World War; whereas that Treaty determined the status of Italian property in Germany and dealt with the restoration and restitution of property of Italy and its nationals (Article 77, paragraphs 1 to 3) (see paragraph 8 above); whereas, by the same Peace Treaty, Italy, “without prejudice to [paragraphs 1 to 3 of Article 77] and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany”, agreed, with certain exceptions, to waive “on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945” (Article 77, paragraph 4) (see paragraph 8 above);

28. Whereas, under the 1961 Agreements on compensation to be paid by Germany to the Italian Government (see paragraph 9 above), Germany made certain specific and limited commitments with regard to Italy; whereas, while the 1961 Agreements provided to Italy, for certain of its nationals, forms of compensation extending beyond the régime established in the aftermath of the Second World War, they did not affect or change the legal situation of the Italian nationals at issue in the present case; and whereas, moreover, the legal situation of those Italian nationals is inextricably linked to an appreciation of the scope and effect of the waiver contained in Article 77, paragraph 4, of the 1947 Peace Treaty and the different views of the Parties as to the ability of Germany to rely upon that provision ;

29. Whereas, between 1953 and 2000, Germany enacted legislation concerning reparation for certain categories of victims of serious violations of humanitarian law committed by the Third Reich; whereas the Court cannot consider either the legislation itself, including the 2000 Law on the “Remembrance, Responsibility and Future” Foundation, or the fact that under this legislation certain Italian victims did not receive compensation, as constituting “new situations” with regard to any obligation of Germany under international law to pay compensation to the Italian nationals at issue in the present case and did not give rise to any new dispute in that regard;

30. Whereas, in view of the foregoing, the Court finds that the dispute that Italy intends to bring before the Court by way of its counter-claim relates to facts and situations existing prior to the entry into force of the European Convention as between the Parties; and whereas the said dispute accordingly falls outside the temporal scope of this Convention;

31. Whereas the Court accordingly concludes that the counter-claim presented by Italy does not come within its jurisdiction as required by Article 80, paragraph 1, of the Rules of Court;

32. Whereas, the Court, having concluded that the counter-claim submitted by Italy does not fall within its jurisdiction, need not address the question whether that counter-claim is directly connected with the subject-matter of the claims presented by Germany;

33. Whereas, in the light of all the foregoing, the Court finds that the counter-claim presented by Italy is inadmissible under Article 80, paragraph 1, of the Rules of Court;

34. Whereas the proceedings relating to the claims brought by Germany continue; whereas, at a meeting held on 27 January 2010 by the President of the Court with the Agents of the Parties, the Agent of Germany proposed that the Court authorize a second round of written pleadings on the merits, and considered that time-limits of three months for the preparation of a Reply and a Rejoinder, respectively, would be sufficient; and whereas the Agent of Italy did not object to this proposal;

35. For these reasons,

THE COURT,

(A) By thirteen votes to one,
Finds that the counter-claim presented by Italy in its Counter-Memorial is inadmissible as such and does not form part of the current proceedings;
IN FAVOUR: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Greenwood; Judge ad hoc Gaja;
AGAINST: Judge Cançado Trindade;
(B) Unanimously,
Authorizes Germany to submit a Reply and Italy to submit a Rejoinder and fixes the following dates as time-limits for the filing of these pleadings:
For the Reply of Germany, 14 October 2010;
For the Rejoinder of Italy, 14 January 2011; and
Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this sixth day of July, two thousand and ten, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Germany and the Government of the Italian Republic, respectively.


(Signed) Hisashi OWADA,

President.

(Signed) Philippe COUVREUR,

Registrar.

Judges KEITH and GREENWOOD append a joint declaration to the Order of the Court; Judge CANÇADO TRINDADE appends a dissenting opinion to the Order of the Court; Judge ad hoc GAJA appends a declaration to the Order of the Court.

(Initialled) H. O.

(Initialled) Ph. C.



JOINT DECLARATION OF JUDGES KEITH AND GREENWOOD

1. This case has its origins in atrocities and other inhumane acts committed by German armed forces and other parts of the Nazi Government against Italian nationals, both civilian and military, between 3 September 1943, when Italy concluded an armistice with the Allied Powers, and the unconditional surrender of Germany on 8 May 1945. The illegality of those acts is beyond doubt and is not contested in these proceedings. The only issue before the Court in the present phase of the proceedings is whether the counter-claim which Italy seeks to bring is within the jurisdiction of the Court, as required by Article 80, paragraph 1, of the Rules of Court. The only jurisdictional basis on which Italy might found its case is the European Convention for the Peaceful Settlement of Disputes, 1957, (“the European Convention”). Article 27 (a) of the European Convention, however, excludes from the acceptance of the jurisdiction of the Court (contained in Article 1) “disputes relating to facts and situations” prior to the entry into force of the Convention. In its Judgment in Certain Property (Liechtenstein v. Germany) the Court held that the test is whether the source, or real cause, of the dispute, lies in facts or situations prior to the entry into force of the Convention (Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 24, para. 44).

2. Since the European Convention entered into force between Germany and Italy on 18 April 1961, the question is whether Italy has shown that the counter-claim concerns a dispute whose source, or real cause, is to be found in facts and situations arising after that date. The Court has held that it has not. We agree with that conclusion and, in general, with the reasons given by the Court. In this Declaration we address two matters which we consider strengthen that reasoning.

3. The first relates to the existence and definition of the dispute which Italy wishes to submit in its counter-claim. According to Italy:

“[T]he source or real cause of the disputes submitted to the Court in the present case is to be found in the reparation regime established by the two 1961 Agreements between Germany and Italy. An additional source is constituted by events following the establishment in 2000 of the ‘Remembrance, Responsibility and Future’ Foundation.” (Counter-Memorial, para. 7.4.)

Italy had earlier said this:

“To use the Court’s words in the Certain Property case, the conclusion of the 1961 Agreements created a ‘new situation’ between Italy and Germany with regard to the issue of reparation. It is the 1961 Agreements ⎯ and more particularly the questions concerning their scope, as well as the scope of the waiver clause therein contained ⎯ which form the central point of the differences between Italy and Germany on the issue of reparation. The 1961 Agreements, and not the Peace Treaty, must therefore be regarded as constituting the source or real cause of the disputes submitted to the Court.” (Counter-Memorial, para. 3.18.)

4. Beyond those broad assertions, Italy does not identify what those disputes are in terms of the jurisdiction of the Court under the European Convention (see also para. 3.19). What are the disagreements between Italy and Germany relating to “the interpretation” and application of the 1961 Agreements or relating to the 2000 Foundation and amounting to “international legal disputes”? As we read the Counter-Memorial, no such legal disagreement or dispute is anywhere defined or demonstrated. In Chapter II, entitled “The Facts”, Italy says that the 1961 Agreements:

“are first and foremost a confirmation that Germany recognizes it is under an obligation to offer compensation to Italian victims of serious violations of IHL. However, Italy considers that these Agreements by their very provisions did not exhaust the range of reparatory measures, but should have simply represented a first step in a broader process of providing appropriate reparations to all Italian victims of serious IHL violations.” (Para. 2.15.)

5. In the next section of “The Facts”, Italy contends that the 1953 and 2000 German legislation did not provide a mechanism for effective reparation for a very large number of Italian victims (paras. 2.20-2.34). That the Italian concern is with what it sees as the failure of the measures, so far agreed with Germany and enacted by the German legislature, and of the decisions of German Courts and authorities to provide compensation for those Italian victims recurs at various points in the Counter-Memorial (e.g., paras. 2.45, 5.58-5.65). Almost at the end of the Chapter on Reparation it says this:

“The 1961 Agreements represent a ‘new situation’ whereby Germany has (a) recognized the obligation towards Italian victims of serious violations of IHL; (b) they contain some limited measures of reparation (covering pending economic claims as well as claims by victims of persecution on various specific grounds); but, at the same time, (c) they left several other situations uncovered. In this respect, after a long period of uncertainty and several unfulfilled promises, Italian victims were eventually excluded from the application of the 2000 Law, on rather unconvincing arguments.” (Para. 5.66.)

That passage immediately precedes this statement:

“The situation described above created the legal background that prevented Italian judges from turning down reparation claims which had been unfulfilled for too long and forced them to reject the plea of immunity advanced by Germany.” (Para. 5.67.)

6. The failure of the Counter-Memorial to identify the international legal disputes relating to the 1961 Agreements and subsequent German actions is reflected by the absence from the Counter-Memorial of any diplomatic correspondence from Italy to Germany identifying any such disputes.

7. One further consideration remains to be mentioned in this regard. Italy, in its Written Observations on the Preliminary Objections of Germany regarding Italy’s counter-claim, contends that

“Germany has indeed explicitly recognized the existence of a dispute between the Parties revolving around the meaning and the impact of the 1961 Agreements. Germany ‘does not deny’ and on the contrary explicitly affirms ‘that there exists in fact a certain divergence of opinions regarding the legal connotations of the two 1961 Agreements’.” (Para. 65.)

What Germany said in full was this:

“Germany does not deny that there exists in fact a certain divergence of opinions regarding the legal connotation of the two 1961 Agreements. While Germany is of the view that these two instruments are to be seen as a voluntary complement to the regime ushered in by the 1947 Peace Treaty, Italy contends that the two Agreements opened up again the issue of reparations. But the core of the Counter-Claim is epitomized by the contention that Germany has a continuing obligation to provide reparation for the violations of the IHL committed by the authorities of the Nazi regime during the time of the military occupation of Italy. Hence the real cause of the dispute is the occurrences of 1943 to 1945. The two Settlement Treaties as such are not in issue. Both sides agree that the conclusion of these Treaties was a positive step forward for the improvement of the mutual relationship between the two countries. As far as Italy’s claims are concerned, the 1961 Agreements provide no basis, neither factually nor legally. There is simply no dispute about the relevance of the Treaties with regard to the Counter-Claim.” (Preliminary Objections of Germany regarding Italy’s counter-claim, para. 35.)

8. We do not see Germany’s statement as recognition that a dispute ⎯ in the well-established legal sense of the term ⎯ existed regarding the 1961 Agreements. In any event, we consider these pleadings as irrelevant to the Court’s power to “entertain a counter-claim” under Article 80 of the Rules of the Court. They are subsequent to it; further, Germany has not had the opportunity to respond to this latest Italian argument, since it was set out only in the Italian response to Germany’s objections to the counter-claim and there have been neither further written proceedings nor oral hearings subsequent to the filing of that response

9. We consider, therefore, that Italy has failed to establish the existence of a dispute between itself and Germany arising after 18 April 1961.

10. The second matter to which we wish to draw attention is that, even if (contrary to what we have just stated) Italy had satisfied us that there was a dispute between the Parties relating to the 1961 Agreements or the German reparations legislation, we are convinced that the source or real cause of that dispute lay in facts prior to 18 April 1961, with the result that the jurisdiction of the Court would be excluded by the limitation in Article 27 (a) of the European Convention.

11. As the Order records, the issue of claims by Italy and Italian nationals arising out of the events of the Second World War was one of the many subjects addressed by the Peace Treaty concluded in 1947 between the Allied Powers and Italy. Of particular relevance is Article 77, paragraph 4, by which Italy agreed, on its own behalf and on behalf of all Italian nationals, to waive “all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939”. The precise scope and effect of this clause, and, in particular, whether it covered claims for violations of humanitarian law has been the subject of different views and is a matter on which we do not express an opinion. We note, however, that the issue of whether Germany should pay reparations in respect of violations of international humanitarian law committed in Italy and elsewhere during the Second World War was the subject of discussion long before 1961. It was, for example, considered in the context of the conclusion of the London Agreement on German External Debts, 1953.

12. The two 1961 Agreements have to be seen in that context. In those Agreements, Germany undertook to make certain payments to Italy in respect of events which occurred during the Second World War. Article 2, paragraph 1, of the first 1961 Agreement, namely, the Treaty between the Federal Republic of Germany and the Italian Republic on the Settlement of Certain Property-related, Economic and Financial Questions, provided that

“The Italian Government declares all outstanding claims on the part of the Italian Republic or Italian natural or legal persons against the Federal Republic of Germany or German natural or legal persons to be settled to the extent that they are based on rights and circumstances which arose during the period from 1 September 1939 to 8 May 1945.”

Article 3 of the second 1961 Agreement, namely, the Treaty between the Federal Republic of Germany and the Italian Republic concerning Compensation for Italian Nationals subjected to National-Socialist Measures of Persecution, provided that “[w]ithout prejudice to any rights of Italian nationals based on German compensation legislation, the payment provided for in Article 1 shall constitute final settlement between the Federal Republic of Germany and the Italian Republic of all questions governed by the present Treaty”.

13. Again, there is room for more than one view about the precise scope and effect of these provisions. For present purposes, however, the important point is that neither of the 1961 Agreements, in and of itself, is capable of being interpreted as creating any obligation for Germany to pay compensation to Italy or Italian nationals for violations of international humanitarian law committed during the Second World War over and above the sums expressly provided for in the two Agreements. Italy has not suggested that Germany has not paid these sums. Instead, Italy relies upon the two Agreements as constituting recognition on the part of Germany that it could no longer rely upon the waiver in Article 77, paragraph 4, of the Peace Treaty. To the extent that there may be said to be a dispute between the Parties regarding that question, however, it is inseparable from the régime established by the 1947 Peace Treaty and the dealings between the two Governments which followed the adoption of that Treaty. In particular, it is inextricably linked to an appreciation of the scope and effect of the waiver contained in Article 77, paragraph 4, of the 1947 Peace Treaty and the different views of the Parties thereon.

14. Nor does the adoption by Germany of legislation concerning reparation for certain categories of victims of violations of humanitarian law committed during the second World War or the fact that, under this legislation, certain Italian victims were denied compensation, constitute facts which can be separated from the régime created by the 1947 Peace Treaty. The German national legislation and its application by the German courts and authorities does not in itself give rise to an obligation under international law to compensate any categories of claimants excluded from the scope of the legislation. Once again, its relevance is said to lie in its effect upon the ability of Germany to rely upon the provisions of the 1947 Peace Treaty and it is, therefore, inextricably bound up with that Treaty.

15. We are therefore driven to the conclusion that the source or real cause of any dispute which Italy seeks to bring before the Court by way of a counter-claim is to be found in facts and situations which came into existence long before 18 April 1961. Italy’s formulation of the counter-claim in its Counter-Memorial effectively admits as much. In the first and second substantive sentences of the chapter setting out the counter-claim, Italy states:

“As permitted by Article 80 of the Court’s Rules, Italy hereby submits a counter-claim with respect to the question of the reparation owed to Italian victims of grave violations of international humanitarian law committed by forces of the German Reich.” (Para. 7.1.)

“The present Chapter sets forth Italy’s counter-claim in this case. Italy asks the Court to find that Germany has violated its obligation of reparation owed to Italian victims of the crimes committed by Nazi Germany during the Second World War and that, accordingly, Germany must cease its wrongful conduct and offer effective and appropriate reparation to these victims.” (Para. 7.2.)

The matter could not be stated with greater clarity.

(Signed) Kenneth KEITH.

(Signed) Christopher GREENWOOD.



DISSENTING OPINION OF JUDGE A. A. CANÇADO TRINDADE

I. PROLEGOMENA

1. I regret not to be able to follow the Court’s majority in the decision which the Court has just adopted in the present Order, in the case concerning Jurisdictional Immunities of the State (Germany versus Italy, original claim and counter-claim). I care to leave on the records the foundations of my dissenting position, in view of the considerable importance that I attach to the issues raised by both Italy and Germany in the cas d’espèce, bearing in mind not only the settlement of the dispute at issue (in respect of the counter-claim), but also the need to clarify a matter (in order to say what the Law is - juris dictio) which I regard as of the utmost importance for the present state as well as the progressive development of the law of nations (the jus gentium). I thus present with all care the foundations of my dissenting position on the matter dealt with by the Court in the Order which it has just adopted, out of respect for, and zeal in, the exercise of the international judicial function, guided above all by the ultimate goal of the realization of justice.

2. To that effect, I shall dwell on all the aspects concerning the issue brought before the Court which forms the object of the present Order of the Court. My first line of considerations concerns the emergence and rationale of counter-claims in international legal procedure, including their prerequisites, other characteristics and effects. I shall next turn to the question of the admissibility of counter-claims in the case-law of the International Court of Justice (ICJ), and the question of the admissibility of the Italian counter-claim in the present case. After examining, in sequence, the factual complex of the present case and the arguments submitted by Germany and Italy, I shall turn to my following line of considerations, concerning the notion of a “continuing situation”: its origins in international legal doctrine, its configuration in international litigation and case-law (in Public International Law and in International Law of Human Rights), as well as in international legal conceptualization at normative level.

3. The way will thus be paved for a consideration of that notion in the present case, as well as of the scope of the present dispute lodged with the Court. Next, I shall turn to my remaining line of considerations, on the following points: a) the true bearers (titulaires) of the originally violated rights and the pitfalls of State voluntarism (the identification of the “real cause” of the present dispute, the inconsistencies of State practice, and the need to avoid paying lip service to State voluntarism); b) the incidence of jus cogens: waiver of vindication of rights inherent to the human person being devoid of juridical effects. I shall consider this last point in the light of both conventional international law (International Humanitarian Law, International Labour Conventions, and the International Law of Human Rights) and general international Law, and assess the incidence of jus cogens in the light of the submissions of the contending parties. The way will then be paved, last but not least, for the presentation of my conclusions.

II. THE EMERGENCE OF COUNTER-CLAIMS IN INTERNATIONAL LEGAL PROCEDURE

4. Counter-claims are a juridical institute historically transposed from domestic procedural law into international procedural law. Another example of a transposition of the kind is afforded by provisional measures of protection. [FN1] But unlike these latter, counter-claims have not received sufficient attention from expert writing to date. Although counter-claims were never set forth in the Statute of The Hague Court (PCIJ and ICJ), they were promptly provided for in the first Rules of Court (of 1922, of the old Permanent Court of International Justice [PCIJ], Article 40), and remained unchanged in the revised Rules of 1926 and 1931.

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[FN1] As I pointed out in my Dissenting Opinion in the case concerning the Obligation to Prosecute or to Extradite (Belgium versus Senegal), Order of 28.05.2009, paras. 1-105.
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5. In the early days of the PCIJ, the institute of counter-claims appeared to be surrounded by hesitations and uncertainties, [FN2] which began to dissipate gradually with the Court’s practice on the matter. In the Chorzów Factory case (Germany versus Poland, 1928), for example, the PCIJ had the occasion to pronounce such counter-claims, stressing their needed “rapport de connexité juridique” (p. 38) with the original claim. In the years that followed, the Hague Court showed increasing preparedness to dwell further onto the matter.

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[FN2] Cf., e.g., the account by G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice - Interprétation et pratique, Paris, Pédone, 1973, pp. 372-377.
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6. The next revised Rules of Court, of 1936, looked in fact closer into counter-claims, which became regulated by new Article 63. Emphasis was put on the requisites that a counter-claim was to fall under the jurisdiction of the PCIJ, and was to be presented in the counter-memorial, guarding a “direct connection” with the subject of the original claim. Such early developments were regarded as having been influenced, e.g., by an article by Judge Dionisio Anzilotti, of the PCIJ, on “La riconvenzione nella procedura internazionale”, published in the late twenties. [FN3] In 1930 he republished it in French (one of the two official languages of the Court), shedding some light into the rationale of counter-claims (cf. infra).

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[FN3] Originally in Scritti della Facoltà Giuridica di Roma in Onore di A. Salandra (1928), pp. 341ff., and in Rivista di Diritto Internazionale, 1929, vol. 21, pp. 309ff..
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7. The next steps were taken by the International Court of Justice (ICJ), which slightly amended the phrasing of Article 63 of the Rules of Court in 1946, and, four years later, pronounced on the matter in the Right of Asylum case (Colombia versus Peru, 1950), drawing attention to the requirement of “connexité directe” (pp. 279-280) between the counter-claim and the original claim (cf. infra). In the 1978 revised Rules of Court, the provision on counter-claims was renumbered as Article 80, under “Proceedings in Contentious Cases – Incidental Proceedings”. [FN4]

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[FN4] Part III, section D; and no longer presented solely in “Incidental Proceedings” instituted only by unilateral applications.
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8. That provision, as amended on 05.12.2000, and in force as from 01.02.2001, reads today as follows:

“1. The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party.
2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counter-claim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45(2) of these Rules, concerning the filing of further written pleadings.
3. Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties”.

9. Both in its present (2000) version and in its prior (1978) drafting, the ICJ had the occasion to apply Article 80 in a few cases (cf. infra), - notably in the case concerning the Application of the Convention against Genocide (Bosnia and Herzegovina versus Yugoslavia, Order of 17.12.1997), in the case of the Oil Platforms (Iran versus United States, Order of 10.03.1998), in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon versus Nigeria, Order of 30.06.1999), and in the case of Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda, Order of 29.11.2001). And the ICJ has now, one decade later, another occasion to apply Article 80 (on counter-claims) of its Rules, in the current and pending case concerning Jurisdictional Immunities of the State (Germany versus Italy).

III. THE RATIONALE OF COUNTER-CLAIMS IN INTERNATIONAL LEGAL PROCEDURE

10. Yet, well before this jurisprudential construction or development, the rationale of counter-claims was gradually identified and clarified by international legal doctrine. Thus, in his aforementioned article, D. Anzilotti pondered that

“(…) une fois admis le système de la requête unilatérale, qui permet au demandeur d’établir, selon ses propres convenances, les limites de la contestation, il était naturel que l’on accordât au défendeur le moyen de demander, dans la même instance, ce qui lui est dû par le demandeur pour un motif connexe avec la controverse déjà pendante”. [FN5]

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[FN5] D. Anzilotti, “La demande reconventionnelle en procédure internationale”, 57 Journal du Droit international – Clunet (1930) p. 870.
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11. Underlying this outlook was the concern to ensure that the contending parties shared identity in the process. As pointed out by Raoul Genet still in the thirties, “le défendeur au procès commencé se mue en demandeur”: reus in excipiendo fit actor, “le demandeur initial descend au rôle de défendeur reconventionnel”. A new front of litigation is opened before the same jurisdiction, “avec une parfaite identité dans les comparants”. These latter conduct an enlarged debate before the same tribunal, which is to settle the dispute opposing the same adversaries “sur un problème quasi-unitaire”. [FN6] And R. Genet considered that it was particularly necessary

“que la demande reconventionnelle ait le caractère d’une action réfléchie, c’est-à-dire: 1) qu’elle serve de défense contre l’action principale; 2) qu’elle tende à neutraliser, soit la demande elle-même, soit les mobiles juridiques sur lesquelles elle repose. Ces deux traits, nous les trouvons également traduits dans les préoccupations de la Cour”. [FN7]

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[FN6] R. Genet, “Les demandes reconventionnelles et la procédure de la Cour Permanente de Justice Internationale”, 19 Revue de Droit international et de législation comparée (1938) p. 148.
[FN7] Ibid., p. 175.
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1. Prerequisites

12. Once identified the raison d’être of the counter-claim, attention was turned to its prerequisites and other characteristics. As to the former, it was beyond doubt that the first requirement had to do with jurisdiction itself: the counter-claim had to come within the jurisdiction of the Court concerned. And, secondly, there was the requirement of direct connection, both in fact and in law: the counter-claim had to be directly connected with the original claim of the contending party.

13. In an article published in 1975, Adolfo Miaja de la Muela observed that the counter-claim was based upon “constitutive facts” somewhat distinct from those alleged by the complainant, almost always not raised by this latter; yet, there was “the degree of connection” between them required by the procedural system at issue. The counter-claim was endowed with autonomy, though related to the original claim. Although the qualification of the “connection” should be direct, it could not be undertaken, - he warned, - on the basis of “aprioristic criteria”. [FN8]

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[FN8] A. Miaja de la Muela, “La Reconvención ante el Tribunal Internacional de Justicia”, 8 Boletín Mexicano de Derecho Comparado (1975) n. 24, p. 757, and cf. pp. 751-753 and 760.
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14. The Court should thus examine the circumstances of the cas d’espèce, and the final qualification was at the discretion of the Court. The “direct connection” between the original claim and the counter-claim was thus to be assessed, both in fact and in law, with the needed flexibility, in the light of the circumstances of each case. This requisite did not appear as one of mechanical application. [FN9] Counter-claims, going much further than defences, aimed at establishing, - just like the original claims, and in the same process, - State responsibility.

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[FN9] As early as in 1930, on his part, D. Anzilotti pointed out, in relation to the admissibility of counter-claims, that “la compétence de la Cour est une condition de récevabilité, mais d’autres conditions sont nécessaires, sans doute, et (…) elles doivent être établies par voie d’interprétation”; D. Anzilotti, op. cit. supra n. (5), p. 868.
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2. Other Characteristics and Effects

15. In addition to the aforementioned prerequisites, international legal doctrine was soon to identify also certain characteristics and effects of counter-claims. The counter-claim in a way enlarged the object of the contentious case at issue, lodged with the Court by the original claim. It thus widened the overview of the Court, as to both claims (the original and the counter-claim), enabling it to decide them more consistently. The counter-claim came thus to be regarded as a means of achieving more consistency in the Court’s decision.

16. The counter-claim, - in the observation of Charles de Visscher in the mid-sixties, - enabled the Court to

“statuer, au cours d’une même instance, sur les démandes réciproques, ce qui permet au juge de saisir dans une vue d’ensemble les positions de droit respectives des parties”. [FN10]

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[FN10] Ch. de Visscher, Aspects récents du Droit procédural de la Cour Internationale de Justice, Paris, Pédone, 1966, p. 114. - In the same line of thinking, the report of Georges Scelle for the [ILC’s] Model Rules on Arbitral Procedure (adopted in 1958) stated that the counter-claim “émane de la partie contre laquelle est dirigée la demande principale et tend à obtenir quelque chose de plus que le simple rejet des conclusions du demandeur” (U.N. doc. A/CN.4/18, n. 78), cit. in: Union Académique Internationale, Dictionnaire de la terminologie du droit international, Paris, Sirey, 1960, p. 199. The ILC’s Model Rules on Arbitral Procedure are also mentioned, in connection specifically with counter-claims, in: J. Salmon (dir.), Dictionnaire de Droit international public, Bruxelles, Bruylant, 2001, p. 316.
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This is what happened, inter alia, as early as in the case of the Diversion of the Waters from the Meuse (The Netherlands versus Belgium, 1937), wherein the PCIJ applied the requisite of the “direct connection” (cf. supra) between the original claim and the counter-claim. In the perception of Raoul Genet in the mid-thirties,

“les demandes reconventionnelles (…) tendent, par leur nature même, à neutraliser l’action principale et (…) elles supposent, chez le défendeur, un titre équivalent et de sens contraire à celui dont peut se targuer le demandeur”. [FN11]

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[FN11] R. Genet, op. cit. supra n. (6), p. 155, and cf. p. 165.
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17. Directly connected as they are, each of them maintains its identity. The counter-claim has an autonomous nature, as opposed to defences. The ICJ itself differentiated a counter-claim from a defence, in the Hostages (U.S. Diplomatic and Consular Staff in Tehran) case (United States versus Iran, Order of 15.12.1979, para. 24). Rather than a defence, a counter-claim appears as a counter-attack. The counter-claim is independent from the original claim (though directly connected with it), it has an autonomous character. In S. Rosenne’s view, while it is true that the counter-claim, by means of the “direct connection” with the original claim, has to rely on arguments related to the factual complex, it is also certain that

“the counter-claim is a purely self-standing institution following its own logic, its own procedure, and its own rules”. [FN12]

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[FN12] S. Rosenne, “Counter-Claims in the International Court of Justice Revisited”, in Liber Amicorum `In Memoriam’ of Judge J.M. Ruda (eds. C.A. Armas Barea, J.A. Barberis et alii), The Hague, Kluwer, 2000, p. 476.
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18. This led to yet another characteristic of counter-claims, namely, they constitute a means of achieving essentially procedural economy, in enabling the Court to have “an overview of the respective claims” of the contending parties, and thereby to decide them “more consistently”. [FN13] In this respect, once again D. Anzilotti anticipated, with foresight, in the early stage of operation of the PCIJ, that

“Du principe de l’autonomie de la demande reconventionnelle dérive également que le demandeur principal doit avoir, à son égard, les mêmes avantages qui appartiennent au défendeur à l’égard de la demande principale”. [FN14]

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[FN13] Cf. ibid., p. 470.
[FN14] D. Anzilotti, op. cit. supra n. (5), p. 876.
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19. Having considered the rationale of counter-claims in international legal procedure, and having identified its characteristics and effects, the way is now paved for me to move on the consideration of their admissibility in the case-law of the ICJ. Before doing so, I allow myself to sum up what I have examined so far. If I were to single out the major concern of jurists of the past with the juridical institute of counter-claims in international legal procedure, I would surely elect the underlying and most commendable preoccupation to secure the realization of justice at international level.

IV. THE QUESTION OF THE ADMISSIBILITY OF COUNTER-CLAIMS IN THE CASE-LAW OF THE ICJ

20. Turning now to the issue of the admissibility of counter-claims in the case-law of the ICJ, I shall concentrate in the Court’s decisions under Article 80 of its Rules, both under its 1978 version and under its revised 2000 version (in force as from 2001). Four Orders of the Court had been issued thereunder, before the Court’s present Order in the pending case concerning Jurisdictional Immunities of the State (Germany versus Italy).

In the first of those four Orders (and probably the most elaborate one), on the case concerning the Application of the Convention against Genocide (Bosnia and Herzegovina versus Yugoslavia, Order of 17.12.1997), the ICJ began by conceptualizing the counter-claim.

21. In the Court’s view, a counter-claim has a “dual character” in relation to the original claim; it is both “independent of the principal claim”, it is “an autonomous legal act”, while, at the same time, it is “linked” to the original claim. The “thrust” of a counter-claim is thus “to widen the original subject-matter of the dispute by pursuing objectives other than the mere dismissal of the claim of the Applicant in the main proceedings”. Filed against the applicant, the counter-claim is thus “distinguishable from a defence on the merits” (para. 27). Moving on to the criteria of admissibility, the Court added:

“Whereas, (…) a claim should normally be made before the Court by means of an application instituting proceedings; whereas, although it is permitted for certain types of claim to be set out as incidental proceedings, that is to say, within the context of a case which is already in progress, this is merely in order to ensure better administration of justice, given the specific nature of the claims in question; whereas, as far as counter-claims are concerned, the idea is essentially to achieve a procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently; and whereas the admissibility of the counter-claims must necessarily relate to the aims thus pursued and be subject to conditions designed to prevent abuse;

Whereas the Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; and whereas the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice; and whereas it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counter-claim `comes within the jurisdiction of the Court’ and that `it is directly connected with the subject-matter of the claim of the other party’; (…)

Whereas the Rules of Court do not define what is meant by `directly connected’; whereas it is for the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and in law” (paras. 30-31 and 33).

22. Thus, it was clarified by the Court, in its aforementioned Order in the case concerning the Application of the Convention against Genocide (1997), that, pursuant to its own analytical framework, in order to rule on the admissibility of a counter-claim, it was incumbent upon it, first of all, to determine whether the submissions presented by the respondent State constituted a true counter-claim; in the affirmative, the Court was to ascertain whether the counter-claim fell under its own jurisdiction, already established for the adjudication of the contentious case at issue. And, in the affirmative, the Court was further to ascertain whether the counter-claim was “directly connected” with the subject-matter of the original claim, submitted by the applicant State. The Court was to proceed to this assessment in the exercise of its own discretion, as a general rule on the basis of “fact and law”; in order to determine whether the claims are directly connected in fact and law.

23. In its following Order concerning counter-claims (of 10.03.1998), in the case concerning Oil Platforms (Iran versus United States), the Court saw it fit to dwell upon the exercise of determining whether the counter-claim was “directly connected” with the original claim, since the Rules of Court did not define what was meant by that requirement (para. 13). In order to determine whether the counter-claim was “directly connected”, on the basis of fact and law, with the subject-matter of the original claim, the Court was to ascertain, first, whether the claim and the counter-claim rested on “facts of the same nature”, i.e., whether they formed part of “the same factual complex” (para. 37); and, secondly, whether the claim and counter-claim pursued “the same legal aim”, namely, the establishment of legal responsibility (para. 38).

24. The ICJ added that a decision on the admissibility of a counter-claim, under Article 80 of the Rules of Court, “in no way prejudges any question which the Court will be called upon to hear during the remainder of the proceedings” (para. 41), - a point which, by the way, also applies to provisional measures of protection. In that case, the ICJ concluded, as to the admissibility of the counter-claim, that the contending parties’ submissions rested on “facts of the same nature”, and formed “part of the same factual complex” (para. 38).

25. Over a year later, in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Order of 30.06.1999), the ICJ again found that the counter-claims of Nigeria met the requirement of jurisdiction set out in Article 80 of the Rules of Court, as they rested on “facts of the same nature” as those in the corresponding claims of Cameroon, and both parties pursued “the same legal aim, namely the establishment of legal responsibility and the determination of the reparation due on this account”. The counter-claims were thus “directly connected” with the subject-matter of the claims of the other party, and were therefore found admissible (pp. 985-986) by the Court.

26. Subsequently, in its Order (of 29.11.2001) in the case of the Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda), the ICJ, stressing the requirement of “direct connection” (cf. supra) as a condition of admissibility of a counter-claim (paras. 35-36), decided that the first two of Uganda’s counter-claims (but not the third one) and the respective original claims of Congo related to “facts of the same nature” and concerned “a conflict in existence between the two neighbouring States” since 1994, and were thus “directly connected”, pursuing “the same legal aims”, being thus admissible (paras. 38-45). [FN15] The Court pondered, in support of its decision of admissibility, that, in view of the circumstances of the case,

“the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter-claims and the principal claims” (para. 44).

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[FN15] Which was not the case with Uganda’s third counter-claim.
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27. Thus, in those four precedents of the Court’s present Order in the pending case concerning Jurisdictional Immunities of the State (Germany versus Italy), the Court found in favour of the admissibility of the counter-claims, as above reported, and without prejudice to the subsequent decisions on the merits of the respective cases. While in the present case of Jurisdictional Immunities of the State Germany has challenged the jurisdiction of the ICJ over Italy’s counter-claim, in the four preceding cases concerning counter-claims, the Court’s jurisdiction had either not been contested by the applicant States, or else the Court had had the opportunity to establish its own jurisdiction in an incidental phase, previous to the filing of the counter-claims. [FN16] In any case, their significance as precedents cannot be separated from their procedural history.

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[FN16] May it be recalled, first, that the case of the Application of the Convention against Genocide was lodged with the ICJ in 1993, jurisdiction having been based on a compromissory clause (Article IX of the Convention against Genocide). There were two requests for provisional measures. The first set of provisional measures proceedings which took place in 1993 culminated in an Order (of 03.04.1993) whereby the Court indicated three sets of measures, later confirmed by another Order (of 13.09.1993). In its Judgment of 1996 in the preliminary objections phase, the ICJ confirmed its previous finding on jurisdiction and rejected Yugoslavia’s objections (the Court decided that it had jurisdiction to adjudicate upon the dispute on the basis of Article IX of the Genocide Convention). Yugoslavia included counter-claims in its counter-memorial, and Bosnia and Herzegovina did not challenge the Court’s jurisdiction over the counter-claims; it only challenged the connection with the subject-matter of the initial proceedings. Bosnia and Herzegovina argued that the counter-claim at issue should not be joined to the principal claim; it suggested that Yugoslavia could always submit to the ICJ an application instituting proceedings through the normal channels. By an Order of 17.12.1997, the ICJ found that Yugoslavia’s counter-claims were “directly connected” with the subject-matter of the applicant’s claims and were thus admissible (para. 37). By later on Yugoslavia, in 2001, withdrew the counter-claims submitted in its Counter-Memorial, and informed the Court that it intended to submit an application for revision of the Judgment of 11.07.1996. It did so later on, on 24.04. 2001, when requested the Court to revise the Judgment on Preliminary Objections delivered on 11.07.1996. By an Order of 10.09.2001, the Court’s President placed on record the withdrawal by Yugoslavia of the counter-claims submitted in its Counter-Memorial. Secondly, in the Oil Platforms case (Iran versus United States), the United States raised a preliminary objection to the jurisdiction of the Court pursuant to Article 79(1) of the Rules of Court. In a Judgment of 12.12.1996, the ICJ dismissed the preliminary objection and found that it had jurisdiction to entertain the main claim interposed by Iran. The United States filed its Counter-Memorial, which included a counter-claim, challenged by Iran for allegedly failing to meet the requirements (of jurisdiction and of direct connection) set out by Article 80 of the Rules of Court. By an Order of 10.03.1998, the ICJ found that it had jurisdiction to entertain the counter-claim; the procedural difference with the present case was that, in the Oil Platforms case, the ICJ had already stated its jurisdiction with regard to the subject which became later an issue of a counter-claim. Yet, in the present and pending case of Jurisdictional Immunities of States (Germany versus Italy), the Court’s jurisdiction had not been formally established. The Court had established its jurisdiction in a Judgment rendered on 12.12.1996 (para. 55 (2)), and the parties raised certain questions as to the precise significance or scope of that Judgment. In its Judgment on the merits of 06.11.2003 [cf.], the ICJ was faced with new objections by Iran to its jurisdiction to entertain the counter-claim (or to its admissibility) at the merits phase of the case; such objections were different from those addressed by the Court’s Order of 10.03.1998. The Court pointed out that, in its previous Order of 10.03.1998, it did “not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules” (para. 105 of the Judgment). At last, the Court found, at that stage, that the counter-claims of the United States could not be upheld. And thirdly, in case of the Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda, 2001), Congo did not deny that Uganda’s claims fulfilled the “jurisdictional” requirement of Article 80(1) of the Rules of Court, and the ICJ referred mainly to the “direct connection” between the original claims and the counter-claims (cf. supra).
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V. THE QUESTION OF THE ADMISSIBILITY OF THE COUNTER-CLAIM IN THE PRESENT CASE

28. Such history shows that the Court’s practice in relation to counter-claims is still in the making. The decision that the Court has just taken in present case of Jurisdictional Immunities of the State in no way contributes to the evolution of its own case-law on the subject. It is, quite on the contrary, an involution, a step backwards, as it surrounds the handling of counter-claims with greater uncertainties. In my understanding, the Court should have decided for the admissibility of Italy’s counter-claim in the present Order, and should have left for its subsequent decision on merits the determination as to whether the counter-claim was well-founded or not, - as it did in a couple of precedents [FN17] of the present Order.

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[FN17] E.g., those concerning the case of the Oil Platforms (1998) and the case of the Land and Maritime Boundary between Cameroon and Nigeria (1999), supra.
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29. This feature of the previous practice of the Court in the handling of counter-claims had been favourably acknowledged in expert-writing, for having thereby treated the counter-claims together with the main claims, duly enlarging the object of the dispute and enabling the ICJ to have a better knowledge of the dispute it had been called upon to adjudicate. [FN18] Without Italy’s counter-claim of reparations for damages arising of war crimes, the Court will now have a much narrower horizon to pronounce on Germany’s (original) claim of State immunity. The present decision of the Court made tabula rasa of its own previous reasonings, and of 70 years of the more enlightened legal doctrine on the matter, to the effect that counter-claims do assist in achieving the sound administration of justice (la bonne administration de la justice) and in securing the needed equilibrium between the procedural rights of the contending parties.

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[FN18] S. Torres Bernárdez, “La modification des articles du Règlement de la Cour Internationale de Justice relatifs aux exceptions préliminaires et aux demandes reconventionnelles”, 49 Annuaire français de Droit international (2003) pp. 229, 233-234, 241 and 247.
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30. In any case, as the Court’s majority decided summarily to discard the counter-claim as “inadmissible as such”, - with my firm dissent, - it should at least have instructed itself properly by holding, first, public hearings to obtain further clarifications from the contending parties. It should not have taken the present decision without first having heard the contending parties in a public sitting, for five reasons, namely: a) first, as a basic requirement ensuing from the principle of international procedural law of the sound administration of justice (la bonne administration de la justice); b) secondly, because counter-claims are ontologically endowed with autonomy, and ought to be treated on the same footing as the original claims, that they intend to neutralize (supra); c) thirdly, claims and counter-claims, “directly connected” as they ought to be, require a strict observance of the principe du contradictoire in their handling altogether; [FN19] d) fourthly, only with the faithful observance of the principe du contradictoire can the procedural equality of the parties (applicant and respondent, rendered respondent and applicant by the counter-claim) be secured; and fifthly, and e) last but not least, the issues raised by the original claim and the counter-claim before the Court are far too important - for the settlement of the case as well as for the present and the future of International Law, - to have been dealt with by the Court in the way it did, summarily rejecting the counter-claim.

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[FN19] 19Cf. F. Salerno, “La demande reconventionnelle dans la procédure de la Cour Internationale de Justice”, 103 Revue générale de Droit international public (1999) pp. 371-374.
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VI. THE FACTUAL COMPLEX OF THE PRESENT CASE AND THE ARGUMENTS OF THE CONTENDING PARTIES

31. Turning now to the consideration of the factual complex of the present case concerning Jurisdictional Immunities of the State, opposing Italy to Germany in so far as the counter-claim submitted to the Court is concerned, I shall at first consider and assess the 2008 Joint Declaration of Italy and Germany. Secondly, I shall review the arguments of the contending parties on the counter-claim, focusing on: a) the scope of the dispute; b) the substance of the dispute; and c) the debate of the contending parties on the notion of “continuing situation”.

1. The 2008 Joint Declaration of Italy and Germany

32. On 18 November 2008, Italy and Germany adopted a significant Joint Declaration, in the memorial site “La Risiera di San Sabba” close to Trieste, included in the documentary Annexes of both contending parties filed with this Court.[FN20] In that

“Italy and Germany share the ideals of reconciliation, solidarity and integration, which form the basis of the European construction that both countries have contributed to with conviction, will continue to contribute to and drive forward.
In this spirit of cooperation they also jointly address the painful experiences of World War II; together with Italy, Germany fully acknowledges the untold suffering inflicted on Italian men and women in particular during massacres and on former Italian military internees, and keeps alive the memory of these terrible events.
With this in mind, Deputy Chancellor and Federal Minister for Foreign Affairs Frank-Walter Steinmeier, accompanied by Foreign Minister Franco Frattini, visited the Risiera di San Sabba in what can be considered a gesture of great moral and humanitarian value to pay tribute to the Italian military internees who were kept in this transit camp before being deported to Germany, as well as to all the victims for whom this place stands.
Italy respects Germany’s decision to apply to the International Court of Justice for a ruling on the principle of State immunity. Italy, like Germany, is a State Party to the European Convention of 1957 for the Peaceful Settlement of Disputes and considers international law to be a guiding principle for its actions. Italy is thus of the view that the ICJ’s ruling on State immunity will help to clarify this complex issue”.

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[FN20] ICJ, Annexes to the Memorial of the Federal Republic of Germany , vol. I, of 12.06.2009, Annex 2; and ICJ, Annexes to the Counter-Memorial of Italy, of 14.12.2009, Annex I.
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33. Italy and Germany have seen it fit, very significantly, to issue this Joint Declaration of 18 November 2008, near Trieste, to which I attach much importance. It is highly commendable, of Germany and Italy, to have honoured the memory of some of the victims, subjected to deportation and forced labour, in World War II. The past lies within us in the present, and we can hardly face the future if we overlook it. It is hardly surprising that, in the history of human thinking, to live within the passing of time has, along centuries, proven to be one of the greatest enigmas of human existence (as acknowledged in the writings, e.g., of Plato, Aristotle, Augustin, Seneca, B. Pascal, I. Kant, H. Bergson, P. Ricoeur, among others).

34. The triggering point of the present case opposing the two contending parties lies in the two 1961 Agreements between Germany and Italy (respectively, the Agreement on the Settlement of Certain Property-Related, Economic and Financial Questions, and the Agreement on Indemnity in Favour of Italian Nationals Affected by National-Socialist Measures of Persecution). This point should not be taken as a blindfold, so as to prevent or avoid the Court looking into the past, into one of the darkest periods in contemporary history. Not at all. The past is ineluctably within each one of us. By their Joint Declaration of 18 November 2008, Italy and Germany have clearly demonstrated that they both remain prepared to look into the past, and to honour the memory of those victimized by human cruelty, by the horrors of the Third Reich. From much less than a Joint Declaration of the kind, legal consequences have been extracted, that States have felt themselves bound to bear.[FN21] Facing the past renders the present understandable and bearable, and the future viable, if not promising.

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[FN21] Such is the case of certain unilateral acts of States in international law; cf., e.g., Erik Suy, Les actes juridiques unilatéraux en droit international public, Paris, LGDJ, 1962, p. 44, and cf. pp. 1-290; G. Venturini, “La portée et les effets juridiques des attitudes et des actes unilatéraux des États”, 112 Recueil des Cours de l’Académie de Droit International de La Haye (1964) pp. 387-388, 391 and 400-401; A. Miaja de la Muela, “Los Actos Unilaterales en las Relaciones Internationales”, 20 Revista Española de Derecho Internacional (1967) pp. 456-459.
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35. The weight of grave injustice does not dissipate nor lighten with the passing of time; instead, it gets heavier and unbearable. To live well within time, one has to reckon, and abide by, the imperatives of justice. Great injustices, atrocities, grave violations of human rights and international humanitarian law, do not fade away. They can hardly be forgotten. Even if one meets with forgiveness, this latter is not a synonym of forgetfulness. [FN22] However overlooked it has been by historians to date, forced labour in the II World War [FN23] is alive not only in the memory of the surviving victims in our days, but also in collective or inter-generational human memory, in human conscience, - and the present case before this World Court bears witness of that.

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[FN22] On this specific point, cf. A.A. Cançado Trindade, “Responsabilidad, Perdón y Justicia como Manifestaciones de la Conciencia Jurídica Universal”, 8 Revista de Estudios Socio-Jurídicos - Universidad del Rosario de Bogotá (2006) pp. 15-36.
[FN23] Cf., generally, as to the II World War, e.g., W. Gruner, Jewish Forced Labour under the Nazis, Cambridge, University Press, 2008, pp. 3-295; C.R. Browning, Politique nazie, travailleurs juifs, bourreaux allemands, Paris, Ed. Tallandier, 2009, pp. 11-267. And cf., generally, as to the I World War, e.g., F. Passelecq, Déportation et travail forcé des ouvriers et de la population civile de la Belgique occupée (1916-1918), Paris/New Haven, P.U.F./Yale University Press, 1928, pp. 1-404; [Various Authors,] Captivity, Forced Labour and Forced Migration in Europe during the First World War (ed. M. Stibbe), London/N.Y., Routledge, 2009, pp. 1-81.
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2. The Parties’ Arguments on the Counter-Claim

a) The Scope of the Dispute

36. It is beyond the purposes of the present Dissenting Opinion to examine all the arguments of the contending parties on the cas d’espèce, as developed by them in the Memorial and Counter-Memorial. Instead, at the present stage of consideration of the present case, I shall concentrate the examination that follows on the parties’ arguments specifically devoted to the counter-claim, which forms the object of the present Order of the Court. Yet, a brief preliminary remark is called for, concerning the distinct understanding of the contending parties as to the “real scope” of their dispute.

37. In fact, Germany attributes to it a narrower, and Italy a broader, scope. Germany describes the dispute, in its Memorial, as one relating to a judgment rendered (on 11.03.2004) by Italy’s Corte di Cassazione in the case Ferrini versus F.R. Germany, whereby that Italian Court allegedly breached violating its rights by denying it immunity in proceedings instituted by Italian citizens who had been subjected to forced labour in the armaments industries on German territory from 1943 to 1945. While Germany recognizes that the Third Reich’s action towards the so-called “military internees” [FN24] was unlawful and criminal, it is of the opinion that such past atrocities do not justify the breach of the immunity that States enjoy under general international law.

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[FN24] As Germany points out, there are actually three categories of claimants, namely: a) civilians abducted in Italy and taken to Germany to perform forced labour; b) prisoners of war of Italian nationality who were factually deprived of their status under the Hague Conventions and then subjected to forced labour (the “military internees”, whom the parties frequently refer to); and c) victims of massacres perpetrated by German officials. Cf. ICJ, Memorial of the F.R. Germany, of 12.06.2009, pp. 12-13, para. 13.
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38. To that, Germany adds that war reparations are to be agreed upon on the international level, and, more precisely, on an “inter-State level”, [FN25] as they have in fact been, through three international agreements, namely: a) the Peace Agreement that Italy celebrated with the Allied Powers in 1947; b) the 1961 Treaty on the Settlement of Certain Property-Related, Economic and Financial Questions between Germany and Italy; and c) the 1961 Treaty on Indemnity in Favour of Italian Nationals Subjected to National-Socialist Measures of Prosecution, also between Germany and Italy. Accordingly, in Germany’s view, the scope of the present dispute is limited to the aforementioned denial of its immunity.

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[FN25] Cf. ibid., pp. 9-12, paras. 10-12.
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39. On its part, Italy invites the ICJ to identify the “real cause of the dispute” not in the judgment of its Corte di Cassazione in the Ferrini case (2004), but rather in “the issue of reparation owed by Germany to the Italian victims of the crimes committed by Nazi authorities”.[FN26] Italy contends that Germany has failed to provide Italian “military internees” with the appropriate compensation, by inter alia excluding them from reparation schemes established under German law [FN27] (cf. infra). Accordingly, Italy submits that for the purposes of determining the “real cause of the dispute”, its courts’ decisions with regard to the issue of the immunity of the German State “have to be regarded as being a consequence of the legal and factual situation created by Germany’s refusal to compensate Italian victims”. [FN28] It is on the basis of this broader view of the scope of the present dispute that Italy introduced a counter-claim.

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[FN26] ICJ, Counter-Memorial of Italy, of 22.12.2009, p. 35, para. 3.11.
[FN27] Cf. ibid., pp. 16-18, paras. 2.9-2.19.
[FN28] Ibid., p. 36, para. 3.11.
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40. As to the “direct connection” requirement for the interposition of counter-claims (cf. supra), Italy advances the view that there is a manifest connection between the facts and the law that it referred, to the effect of responding to Germany’s claim, and the facts and the law that substantiate the present counter-claim. Italy argues that “a State responsible for violations of fundamental rules is not entitled to immunity” if this would exonerate it from “bearing the consequences of its unlawful conduct”; in order to analyse this defense to Germany’s original claim, it submits that the Court will have to deal with “many of the same factual and legal issues” that serve as a basis for the counter-claim. [FN29]

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[FN29] Ibid., p. 130, para. 7.6.
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41. On this point, Italy concludes with two remarks. First, it points out that the fact that the counter-claim widens the object of the dispute in no way affects its admissibility, as confirmed by the Court in its Order in the case of the Application of the Convention against Genocide case (1997, supra).[FN30] And secondly, Italy asserts that, Germany having been “well aware of the strict link existing in the present case between immunity and reparation”, it is undeniable that the reparation issue is part of the “complex issue” to which the Joint Declaration adopted by the Parties in 2008 alludes. [FN31]

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[FN30] Ibid., p. 130, para. 7.7.
[FN31] Ibid., pp. 130-131, para. 7.8.
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42. On its turn, Germany “deliberately refrains” from taking a stance on “the inter-relatedness of the claim brought by it against the Respondent and the counter-claim”, although it does indicate that there is, in its view, “a significant disparity” between both claims. [FN32] First, as to the lack it sustains of direct connection in law, whereas its own claim refers to the judicial practice of Italian courts in denying immunity of jurisdiction, Italy’s counter-claim relates to violations of international law committed by German troops during the II World War. And second, in so far as the alleged lack of direct connection in facts is concerned, the events Germany wishes the Court to rule upon have taken place from 2004 onwards, while those Italy wants the Court to examine took place in 1943-1945. Germany takes the position, however, that the direct connection issue is not relevant for the Court’s decision on admissibility of the counter-claim, since “the lack of jurisdiction ratione temporis as well as ratione materiae is evident”. [FN33]

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[FN32] ICJ, Preliminary Objections of F.R. Germany…, op. cit. infra n. (44), p. , para. 3.
[FN33] Ibid., p. 4, para. 3.
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b) The Substance of the Dispute

43. In the last chapter of its Counter-Memorial, [FN34] Italy introduces a Counter-Claim whereby it asks the ICJ to adjudge and declare that “Germany has violated its obligation of reparation owed to Italian victims of the crimes committed by Nazi Germany during the Second World War and that, accordingly, Germany must cease its wrongful conduct and offer effective and appropriate reparation to these victims”. [FN35] Italy then concentrates on the prerequisites of admissibility of counter-claims, under Article 80 of the Rules of Court (cf. supra). It begins by arguing that “the dispute on immunity brought by Germany and the dispute on reparation brought by Italy originate out of the same facts”. [FN36]

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[FN34] Chap. VII, in ibid., pp. 128-133, paras. 7.1-7.14.
[FN35] Ibid., p. 128, para. 7.2.
[FN36] Ibid., p. 129, para. 7.4.
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44. Its counter-claim, in its view, thus shares with the original claim the same jurisdictional ground. In particular, Italy sustains that the Court has jurisdiction ratione temporis in the present case, because the events that constitute the “real cause of the dispute” - i.e., “the reparation regime established by the two 1961 Agreements between Germany and Italy” and the exclusion of Italian victims from the reparation scheme instituted by the Foundation “Remembrance, Responsibility and Future” set up in 2000, - took place after the entry into force of the 1957 European Convention for the Peaceful Settlement of Disputes [FN37] (which provides the jurisdictional basis for the adjudication of the present case).

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[FN37] Cf. ibid., p. 129, para. 7.4, and cf. also pp. 33-37, paras. 3.6-3.13.
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45. Italy considers the “more recent decisions of German authorities regarding the claims of reparation put forward” by Italian victims (especially under the auspices of the “Remembrance, Responsibility and Future” Foundation in 2000) [FN38] to be additional “new situations” to the end of establishing jurisdiction ratione temporis over the present counter-claim. Since such decisions were taken upon the view that “individuals who are victims of grave violations of international humanitarian law would not be entitled to an individual right of reparation because the issue of reparation in such cases has to be dealt with exclusively at the inter-State level”, they would constitute an autonomous source of the Parties’ dispute in relation to the issue of reparations. [FN39]

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[FN38] Ibid., pp. 38 and 40, paras. 3.16 and 3.19.
[FN39] Ibid., p. 40, para. 3.19.
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46. Furthermore, Italy states that it “disagrees with Germany about the scope of the waiver clauses” contained in the two Agreements of 1961. [FN40] Accordingly, Italy denies that the “real cause of the dispute” would lie in the atrocities committed by Nazi Germany during the II World War (between 1943 and 1945), as the contending parties are already “in clear agreement concerning the occurrence and the legal qualification of facts which gave rise to the claims of reparation”, namely, the “grave violations of international humanitarian law committed by Nazi Germany”. [FN41]

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[FN40] Ibid., p. 39, para. 3.17.
[FN41] Ibid., pp. 37-38, para. 3.15.
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47. The reason why the dispute does not originate in the 1947 Peace Treaty either (although Article 77(4) of which, containing the waiver clause, calls for interpretation), is that, by celebrating the two 1961 Treaties (cit. supra), Germany allegedly renounced to invoke the waiver clause of Article 77(4) of the former Peace Treaty, thus giving rise to a “new situation” between the parties with regard to “the issue of reparation”. [FN42] For these reasons, Italy concludes that the dispute can only arise from the interpretation of the two 1961 Treaties. In its own words,

“(…) [T]he Court has jurisdiction to deal with the dispute on immunity brought by Germany as well as with the dispute on reparation brought by Italy. There is no relevant temporal limitation on the Court’s jurisdiction since both disputes relate to facts and situations - the conclusion of the 1961 Compensation Agreements between Italy and Germany and Germany’s refusal to address the claims for reparation by IMIs - which took place after the entry into force of the European Convention as between the parties to the disputes”. [FN43]

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[FN42] Ibid., p. 39, para. 3.18.
[FN43] Ibid., pp. 40-41, para. 3.20.
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48. On its part, in its “preliminary objections” to Italy’s counter-claim, Germany argues that the Court has neither jurisdiction ratione materiae, nor jurisdiction ratione temporis, to entertain it. In its view, neither its declaration of 30 April 2008 (accepting the compulsory jurisdiction of the ICJ), [FN44] nor the German-Italian Joint Declaration of 18 November 2008 (reproduced supra) could have had the effect of expressing its consent on the exercise of jurisdiction by the Court over the Italian Counter-Claim.[FN45] Germany expresses the view that the temporal criterion established by Article 27 of the European Convention for the Peaceful Settlement of Disputes [FN46] pertains not to the date the dispute arises, but instead to the date of “the facts or situations that entailed the dispute”. [FN47] These facts and situations, - Germany adds, - are “the unlawful acts and activities committed by Germany by the German forces and other authorities during the 20 months when Italy was placed under occupation and Italian armed forces were treated as enemy forces”. [FN48]

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[FN44] ICJ, Preliminary Objections of F.R. Germany regarding Italy’s Counter-Claim, of 10.03.2010, pp. 4-5, paras. 5-6. Germany points out that the declaration accepting the compulsory jurisdiction of the ICJ applies only to disputes arising after the date of its issuing, and, in any case, excludes disputes relating to the activity of armed forces abroad.
[FN45] As to the 2008 Joint Declaration, Germany points out that it consists in a “political document” issued for the purpose of reassuring the international community that the institution of proceedings against Italy did not adversely affect the good relations between the Parties. Moreover, the declaration mentions the European Convention of 1957 is seen by Germany as proof that the Parties agreed that the Convention “was the only legal foundation of the forthcoming proceedings before the Court”; cf. ibid., p. 9, para. 12.
[FN46] Art. 27: “The provisions of this Convention shall not apply to: (…) 1. disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute. (…)”.
[FN47] ICJ, Preliminary Objections of F.R. Germany (…), cit. supra n. (44), pp. 9-10, para. 14.
[FN48] Ibid., p. 10, para. 15.
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49. As to Italy’s contention that the dispute arises from the interpretation of the waiver clauses of the two 1961 Agreements, Germany sees the two 1961 Agreements as a “gesture of good will”, as “steps in a process of inner-European normalization, intended to consolidate even further the good partnership between Germany and Italy”; [FN49] Germany denies to have been required by international law to celebrate the 1961 Agreements, which, it adjoins, “were validly concluded” and “do not negatively affect Italian rights”. [FN50] Moreover, - Germany adds, - Italy has never “alleged defect, inconsistency or other failure of the two 1961 Agreements”, so that there is “simply no dispute about the relevance of the Treaties with regard to the Counter-Claim”. [FN51]

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[FN49] Ibid., pp. 20-21, paras. 32-33.
[FN50] Ibid., pp. 14-15, para. 33.
[FN51] Ibid., p. 15, paras. 34-35.
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50. Lastly, Germany briefly dismisses Italy’s argument that the exclusion of Italian victims from the reparation scheme of the Foundation “Remembrance, Responsibility and Future” (2000) constitutes a new source of dispute. It points out that Italy admitted, in its Counter-Memorial, that “the enactment of the law was not dictated by an existing obligation under international law between two countries”; [FN52] accordingly, it submits that the events related to the enactment and execution of the statute are not relevant for the present case.

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[FN52] Ibid., p. 16, para. 37.
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51. In turn, in its “Observations on the Preliminary Objections” of Germany, Italy reiterates that Germany has failed to distinguish between the “source of the rights alleged to have been breached” and the “[real] source of the dispute” that the Court is being called to adjudicate upon. Although the source of the rights to receive reparation lies on grave violations of international humanitarian law committed during the II World War, it submits that the dispute in reality concerns the interpretation of the two 1961 Agreements, thus falling within the jurisdiction ratione temporis of the Court. According to Italy, what the Court is asked to decide is: a) “whether or not Italy, by concluding the two 1961 Settlement Agreements, waived all its claims for reparation, including the claims relating to the grave violations of international humanitarian law committed by the German Reich during World War II”; and b) “whether Germany, by refusing to address the claims for reparation submitted to it after the establishment in 2000 of the ‘Remembrance, Responsibility and Future’ Foundation, failed to comply with its obligations concerning reparation for the Italian victims of the crimes committed by the German Reich, and if so, what the legal consequences arising from such wrongful conduct are”. [FN53]

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[FN53] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany regarding Italy’s Counter-Claim, of 18.05.2010, pp. 7 and 9-10, paras. 14 and 21. In its own words, “The dispute submitted by Italy has substantially a twofold object. First, there is the disputed question of the existence, at the time when, in the 2000s, the present dispute was triggered, of a right of reparation in favour of Italy. In this respect, what the Court has to decide is essentially whether or not Italy, by concluding the two 1961 Settlement Agreements, waived all its claims for reparation, including the claims relating to the grave violations of international humanitarian law committed by the German Reich during World War II. Secondly, and strictly linked to the first issue, there is the question of whether Germany, by refusing to address the claims for reparation submitted to it after the establishment in 2000 of the `Remembrance, Responsibility and Future’ Foundation, failed to comply with its obligations concerning reparation for the Italian victims of the crimes committed by the German Reich, and if so, what the legal consequences arising from such wrongful conduct are. Taking into account the subject-matter of the present dispute as here defined, it is clear that the facts or situations to which regard must be had for the purposes of applying the temporal limitation clause set forth in Article 27(a) [of the 1957 European Convention] are not the occurrences of World War II. The dispute submitted by Italy is one with regard to a certain situation - the reparation regime established by the two 1961 Settlement Agreements - and with regard to certain facts - the events following the establishment of the `Remembrance, Responsibility and Future’ Foundation. These facts and situation, and not the occurrences during World War II, constitute the source or real cause of the dispute on reparation” (ibid., pp. 9-10, para. 21).
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52. Seeking to demonstrate that there is indeed a dispute between the Parties as to how the two 1961 Agreements are to be interpreted, Italy refers to some of the questions the Court will have to address if it decides to entertain the Counter-Claim. It notes that the two 1961 Agreements have threefold implications, in the sense that Germany is said to have: a) “waived what it considered to be its right to avail itself of the Italian waiver of all claims” under the 1947 Peace Treaty; b) recognized that “an obligation of reparation towards Italy existed (…) opening the way for a process of reparations”; and c) “made it clear that [the two 1961 Agreements] did not exhaust the range of reparations which could be provided to Italian victims, by explicitly recognizing that other avenues remained available (or would become available) under German legislation”. [FN54]

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[FN54] Ibid., p. 17, para. 43.
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53. In order to substantiate the argument that the two 1961 Agreements created a “radically new situation” so that Germany became precluded from resorting to the waiver clause of the 1947 Peace Treaty, Italy refers to the text of Article 3 of the Indemnity Treaty [the second 1961 Agreement] (which suggests that the agreements are without prejudice to claims not falling within their specific subject-matter) and to an “exchange of letters” that took place at the time of the Agreements’ celebration. [FN55] Italy maintains that the 1961 Agreements could not have solved the reparations issue as suggested by Germany, pointing to the practice of several States that denied that, waiver clauses similar to those of the two 1961 Agreements, could have the effect of closing the debate on reparations. [FN56]

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[FN55] Ibid., pp. 18-19, paras. 45-47.
[FN56] Ibid., pp. 20-21, para. 53.
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54. Italy further objects to Germany’s position that the two 1961 Agreements, as well as the German legislation on reparations, consisted of ex gratia measures; in Italy’s view, “no treaty can be really seen simply as a gesture of good will and cannot be considered a unilateral act”, and both the treaties and the relevant German legislation “were the result of international pressure and intergovernmental negotiations”. [FN57] Italy sums up that

“the mere fact that Italy and Germany have opposing views on these and other issues directly linked to the meaning and scope, as well as the effects, of the 1961 Agreements (and subsequent German practice) proves that there is ‘… a disagreement on a point of law or fact, a conflict of views…’ between the parties, and places the 1961 Agreements and their consequence at the heart of the dispute”. [FN58]

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[FN57] Ibid., pp. 21-22, para. 55.
[FN58] Ibid., pp. 22-23, para. 57.
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c) The Debate on the Notion of “Continuing Situation”

55. Another bone of contention between Germany and Italy concerns the incidence in the cas d’espèce of the notion of “continuing situation”. Germany stresses that “the core of the Counter-Claim [of Italy] is epitomized by the contention that Germany has a continuing obligation to provide reparation for the violations of international humanitarian law committed by the authorities of the Nazi regime during the time of the military occupation of Italy”. [FN59] In Germany’s view, since “[n]o tort claim or other claims against Germany flows from the 1961 Agreements”, [FN60] the Court should abstain from entertaining the counter-claim for lack of jurisdiction ratione temporis.

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[FN59] ICJ, Preliminary Objections of F.R. Germany (…), cit. supra n. (44), pp. 22-23, para. 35.
[FN60] Ibid., pp. 22-23, para. 35.
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56. Italy, on its part, affirms in its Counter-Memorial that the “obligation of reparation” on which its counter-claim is based, “has been and continues today to be breached by the German side in relation to a great number of victims”. [FN61] That being so, it argues that, while “the crimes from which the obligation of reparation takes its origins have to be assessed as ‘faits instantanés’”, “the internationally wrongful act consisting in breach of the obligation of reparation is by no means instantaneous”, falling within the definition of breaches having a continuing character envisaged by Article 14(2) of the ILC Articles on State Responsibility. [FN62]

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[FN61] ICJ, Counter-Memorial of Italy , cit. supra n. (25), p. 11, para. 1.17.
[FN62] Ibid., p. 12, para. 1.17.
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57. Although Italy makes this point when it discusses the applicability of contemporary rules on State immunity and international humanitarian law to the Applicant’s alleged obligation to provide reparation (cf. supra), Germany argues that this line of reasoning consists in an attempt to “overcome the temporal hurdles standing in the way of [Italy’s] Counter-Claim”. [FN63] Germany then invites the Court to make a distinction between “the interference with the rights of the other party” - which, in the present case, took place in 1943-1945, i.e., in a period falling outside the jurisdiction ratione temporis of the Court, - and “the consequences entailed thereby”, - i.e. the alleged obligation to provide reparation. [FN64]

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[FN63] ICJ, Preliminary Objections of F.R. Germany (…), cit. supra n. (44), pp. 12-13, para. 20.
[FN64] Ibid., p. 13, para. 21.
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58. Germany recalls, in this context, the decision of the PCIJ in the Phosphates in Morocco case (Italy versus France, 1938), [FN65] and further contends that, in the line of what has been decided by the PCIJ, “the complaints raised against the way and method of settlement do not count with regard to determining the applicability of the relevant time clause” in the present case.[FN66] In this connection, Germany refers to examples taken from the case-law of the European Court of Human Rights (ECtHR),[FN67] singling out cases such as those of Malhous versus Czech Republic case (2000, concerning deprivation of ownership or any other right in rem), and the Kholodov and Kholodova versus Russia case (2006, concerning Mr. D. Kholodov’s death); [FN68] yet, as these cases pertained admittedly to “instantaneous acts” rather than continuing situations, they do not bear relevante to the present case before the ICJ, which is of a distinct nature.

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[FN65] In that case, Italy submitted that the Court had jurisdiction ratione temporis to entertain claims related to an executive decision taken by the Moroccan administration six years before France accepted the compulsory jurisdiction of the Court because: a) the denial of justice on the part of France constituted in itself an internationally wrongful act; and b) the executive decision and the denial of justice constituted “a single, progressive illegal act which [had not been] fully accomplished until after the crucial date” (p. 23). The PCIJ rejected these arguments, pondering that: a) a complaint of a denial of justice [could not] be separated from the criticism which the Italian Government [directed] against the decision of the Department of Mines of January 8th, 1925”; (2) the alleged denial of justice merely allowed “the unlawful to subsist”, exercising “no influence either on the accomplishment of the act or on the responsibility ensuing from it” (p. 28).
[FN66] ICJ, Preliminary Objections of F.R. Germany (…), cit. supra n. (44), pp. 13-15, para. 22.
[FN67] Cf. ibid., pp. 15-18, paras. 23-28 (references to the cases Malhous versus Czech Republic [2000], Blecic versus Croatia [2006], Preussische Treuhand versus Poland [2008], Kholodov and Kholodova versus Russia [2006], and Varnava and Others versus Turkey [2009]).
[FN68] Cf. ibid., pp. 15-17, paras. 24 and 26.
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59. Italy, in turn, points out that it has “no difficulty in admitting that the notion of a continuing wrongful act has no relevance for the purposes of determining the jurisdiction ratione temporis of the Court”, and affirms that it “has never intended to rely on this argument”. [FN69] Yet, Italy criticizes Germany’s invocation, to its purpose, of the case Phosphates in Morocco and of the examples taken from the case-law of the European Court of Human Rights. [FN70] In Italy’s view,

“Unlike the situation in the Phosphates in Morocco case, the subject-matter of the present dispute is not whether during World War II German authorities committed grave violations of international humanitarian law giving rise to Germany’s international responsibility vis-à-vis Italy. These facts do not constitute the subject-matter of the present dispute simply because they are not in dispute between the parties. Although the present dispute concerns the issue of the reparation owed by Germany as a consequence of the crimes committed by German authorities in the period between 1943 and 1945, the focal point of the dispute – le fait générateur - is to be found in facts and situations subsequent to the critical date. Thus, Germany’s attempt to suggest that the present dispute presents the same situation as in the Phosphates in Morocco case is simply unconvincing”. [FN71]

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[FN69] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany…, op. cit. supra n. (53), p. 11, para. 25.
[FN70] Ibid., pp. 11-13, paras. 26-29.
[FN71] Ibid., p. 12, para. 27.
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VII. THE ORIGINS OF A “CONTINUING SITUATION” IN INTERNATIONAL LEGAL DOCTRINE

60. The origins of the notion of a “continuing situation” have passed virtually unnoticed in expert writing of our times. It was necessary to wait for its configuration, first, in international litigation, and then, in international legal conceptualization (cf. infra), for the notion to begin to attract some, but not much, attention on the part of expert writing. Coincidentally, it was precisely in the rich tradition of German as well as Italian international legal thinking that the origin and early development of that notion lie. It is not my intention, within the confines of the present Dissenting Opinion, to proceed to an in-depth study of this specific point; I shall only refer to the earliest elaboration of this notion in international legal doctrine.

61. Already in the year of the I Hague Peace Conference, in his book Völkerrecht und Landesrecht (1899), Heinrich Triepel identified the point at issue:

“Völkerrechtlich geboten nennen wir einmal alles Landesrecht, dessen Schöpfung sich als Erfüllung völkerrechtlicher Pflicht darstellt, ferner aber das, das der Staat zwar ohne solche Verpflichtung geschaffen hat, aber nachmals aufrechtzuerhalten verpflichtet wird. Dort besteht die Staatspflicht in Erlass und Aufrechterhaltung des Rechts, hier allein in dieser. Umgekehrt - wenn die Staaten zu bestimmtem Zeitpunkte völkerrechtlich verpflichtet werden, ein Recht bestimmten Inhalts zu haben, so verletzt der Staat, der das entsprechende Recht besitzt, seine Pflicht durch dessen Abschaffung und die fortgesetzte Unterlassung der Wiedereinführung, der von vornherein des gebotenen Rechts ermangelnde nur durch die Nichteinführung; beide aber begehen ein, wenn ich so sagen darf, völkerrechtliches `Dauerdelikt’”. [FN72]

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[FN72] H. Triepel, Völkerrecht und Landesrecht, Leipzig, Verlag von C.L. Hirschfeld, 1899, p. 289 : - “We call `required by international law’ (Völkerrechtlich geboten) all domestic law the creation of which represents the fulfillment of an international obligation, but also that which the State has created absent such an obligation, but subsequently becomes obligated to uphold. In one case the obligation of the State comprises the enactment and the duty not to repeal the law, in the other only the latter. Conversely - if at a given time States are internationally obliged to have rules of law with a given content, the State which already has such laws is breaching its obligation if it repeals them and fails to re-enact them, whereas the State which does not yet have such laws breaches its obligation merely by not introducing them: both States thus commit, if I may say so, a continuous violation of international law (völkerrechtliches Dauerdelikt)” [free translation].
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62. Although H. Triepel did not go deeper into the argument, he displayed his intuition as to situate it not only in the relationship between international law and domestic law, but also in its temporal dimension. Fourteen years later, shortly before the outbreak of World War I, his book came out in an Italian edition, where the same paragraph appeared:

“Imposto dal diritto internazionale è per noi anzitutto il diritto interno la cui creazione rappresenta l’adempimento di un obbligo internazionale, ed in secondo luogo il diritto interno che fu creato dallo Stato senza esservi internazionalmente obbligato, ma che posteriormente lo Stato si è obbligato a conservare in vigore. Nel primo caso il dovere dello Stato consiste nell’emanazione e nel mantenimiento in vigore di determinate norme di diritto, nel secondo caso soltanto nell’ultimo obbligo. Reciprocamente, si a un determinato momento gli Stati sono internazionalmente obbligatti ad avere norme di diritto di un dato contenuto, lo Stato ce già le possiede viola il suo dovere se le abolisce e trascura di introdurle nuovamente, mentre lo Stato che non le possiede ancora lo viola soltanto col non introdurle; ambedue peraltro commettono, se mi è lecito usare questa espressione, un `reato continuato’ internazionale“. [FN73]

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[FN73] H. Triepel, Diritto Internazionale e Diritto Interno (trad. G.C. Buzzati), Torino, Unione Tipografico-Editrice Torinese, 1913, p. 286. One decade later, lecturing in the opening courses of The Hague Academy of International Law (1923), H. Triepel reiterated his view: - “Nous nommons internationalement ordonné, d’abord tout le droit interne dont la creation se présente comme l’accomplissement d’un devoir international, et en outre le droit que l’État a créé sans y être tenu, mais qu’il est obligé maintenant de conserver. Dans la première hypothèse, le devoir de l’État consiste à créer et à conserver le droit, dans la seconde, il ne consiste qu’à le conserver. Inversement, quand les États sont internationalement astreints à avoir, à une certaine époque, un droit d’un contenu déterminé, l’État, qui possède le droit dont il s’agit, viole son devoir s’il abroge ce droit et s’il s’abstient ensuite de le réintroduire; tandis que celui qui ne possède point dès le début le droit internationalement ordonné, ne viole son devoir que s’il ne l’introduit pas. Mais tous les deux commettent, pour ainsi dire, un `délit permanent international’ (Dauerdelikt, comme on dit en allemand)”; H. Triepel, “Les rapports entre le droit interne et le droit international”, 1 Recueil des Cours de l’Académie de Droit International de La Haye (1923) p. 109.
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63. It was in the inter-war period that the notion of “continuing situation” was in fact elaborated, in the early writings of Roberto Ago. In his Hague Academy lectures of 1939, in the outbreak of the II World War, R. Ago argued that, in international law, there are situations which are conformed by a sole wrongful act or omission (délit international simple), and others which are conformed by a series of them, and the effect of such wrongful human conduct in time (délit international complexe or continu). In the case of these latter, there is a prolongation in time of the tempus commissi delicti. [FN74]

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[FN74] R. Ago, “Le délit international”, 68 Recueil des Cours de l’Académie de Droit International de La Haye (1939) pp. 512, 514, 517-519 and 523.
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64. The essential element in the distinction between them lies “dans l’instantanéité ou dans la permanence” of the action or omission. An example of a breach prolonged in time is afforded by the promulgation of a (domestic) law in breach of the law of nations, thereby generating a délit continu. [FN75] And R. Ago added, as to the obligation of reparation, that this latter “ne se manifeste pas du tout comme une obligation subsidiaire”, but rather as “une obligation primaire, établie par une règle coutumière”. [FN76]

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[FN75] Ibid., pp. 519-520.
[FN76] Ibid., p. 529.
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By that time, the notion of a “continuing situation” in breach of international law was already being pleaded in international litigation (cf. infra).

VIII. THE CONFIGURATION OF A “CONTINUING SITUATION” IN INTERNATIONAL LITIGATION AND CASE-LAW

65. As the Court, in its present Order, appears not to have deemed it necessary to pronounce on the notion of a “continuing situation”, I feel obliged to do so, as I regard the matter of importance for the present and future of international law. It has been the object of contentions on the part of both Italy and Germany, and has not seldom been raised before contemporary international tribunals (such as the ICJ, and the European and Inter-American Courts of Human Rights). Although, in the present case before the ICJ, at the end of their recent debates (in the written phase which preceded the present Order of the Court), it was clarified that the notion at issue did not provide the main basis for the positions of the contending parties, yet not only was it invoked by both before the Court, but it remains, in my view, important for a proper understanding of the time dimension of cases of the kind. I shall thus dwell upon it, in the domain of Public International Law, as well as in that of the International Law of Human Rights proper.

1. In Public International Law

66. May I first refer to the era of the PCIJ. On one occasion, in his oral arguments before the old PCIJ, in the public sitting of 12.05.1938, in the case of Phosphates in Morocco (Italy versus France), counsel for Italy, Roberto Ago, argued that the facts of that dispute before the PCIJ went back to a legislative act of 1920 (establishing the “monopole des phosphates”), extended to a decision taken in 1925 (pertaining to the “cartel phosphatier”), and to a déni de justice occurred in 1931-1933. [FN77] In this succession of facts, there were thus - he added - elements which were prior to the date of acceptance of the compulsory jurisdiction of the PCIJ. [FN78]

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[FN77] Cour Permanente de Justice Internationale (CPJI), Série C (Plaidoiries, Exposés Oraux et Documents), n. 85, affaire des Phosphates du Maroc, n. 85, 1938, pp. 1218, 1220, 1230-1231. According to him, the breach of international law incurred into, “prolonge son existence dans le temps et se renouvelle à chaque instant”; ibid., pp. 1240-1241, and cf. p. 1237.
[FN78] CPJI, Série C (Plaidoiries…), op. cit. supra n. (77), p. 1233, and cf. p. 1231.
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67. In his view, the facts, in particular, which extended from 1925 to 1933, gave origin to a “violation parfaite du droit des gens”. [FN79] In the oral argument of Roberto Ago,

“L’ensemble de ces faits, intimement liés par une connexion nécessaire, (…) visant à un même but, représente, du point de vue logique et téléologique, aux effets pratiques et juridiques un seul fait illicite international continué et progressif.
On y retrouve (…) tous les éléments constitutifs du délit continué: pluralité d’actions, unité du droit violé, unité de résolution et de but chez l’agent.
(…) Le fait illicite continué, (…) étant composé à la fois par une succession de faits illicites particuliers, doit être regardé nécessairement comme étant un délit unique. (…) Le fait illicite progressif doit être qualifié juridiquement comme un fait illicite unique”. [FN80]

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[FN79] Ibid., p. 1233, and cf. p. 1229.
[FN80] Ibid., pp. 1234-1235, and cf. p. 1238.
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68. This latter is represented by its being continuously maintained, in breach of an international obligation; in this way,

“La violation du droit international ne s’est pas achevée au moment où elle a commencé; elle continue à se produire à chaque moment successif tant qu’elle ne cesse pas. Ce qui se prolonge dans le temps, ce ne sont pas des conséquences d’une violation initiale, achevée et épuisée, mais c’est précisément la violation même qui se renouvelle continuellement et qui, par là, continue à se consommer aussi longtemps que durent la même volonté et la même activité de l’agent.
C’est précisément pour cette raison qu’en droit interne, lorsqu’on est en présence d’un état délictueux qui se prolonge dans le temps, on ne fait partir la prescription que du moment où l’état délictueux a pris fin”. [FN81]

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[FN81] Ibid., p. 1239.
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69. In its Judgment of 14.06.1938 (Preliminary Objections) in the Phosphates in Morocco case, the PCIJ was, however, of the view that, as to the alleged continuing situation or acts, presumably constituting a single whole (pp. 22-23), what was ultimately a determining factor was

“the will of the State which only accepted the compulsory jurisdiction within specified limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance” (p. 24).

70. In the cas d’espèce, the cited acts and situations were not, in the view of the PCIJ, the culmination of earlier events, nor did they alter the situation (as to the “monopolization” of Moroccan phosphates) which had already been established. The Court thus dismissed the argument of Italy of a “continuing and progressive violation” constituted by successive acts of the respondent State (pp. 25-27). Conceptually, thus, the PCIJ subscribed to the traditional voluntarist conception of its own jurisdiction, and espoused a static and atomized view of the whole matter brought into its cognizance.

71. It is not my intention here to take this decision into discussion, more than seven decades later, but rather to refer to it, for the purposes of the present Dissenting Opinion. As to the ICJ era, may it be recalled that, in its Advisory Opinion of 1971 on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970), the ICJ pronounced on South Africa’s international responsibility arising from a continuing violation (its “continued presence in Namibia”, which was being “maintained in violation of international law”).[FN82] The ICJ found that “[b]y maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation”. [FN83] It then asserted the obligation of the U.N. member States “to recognize the illegality and invalidity of South Africa’s continued presence in Namibia”. [FN84]

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[FN82] ICJ, ICJ Reports (1971) p. 56, para. 126.
[FN83] Ibid., p. 54, para. 118; and cf. ibid., p. 47, para. 95, for the Court’s reference to a “persistent violation of obligations”.
[FN84] Ibid., p. 54, para. 119.
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72. The point I wish to make here is that, although the notion of continuing situation has roots in the international legal thinking of as early as the first half of the XXth century, it has passed almost unnoticed, and remains virtually unexplored, in doctrinal writings to date, in Public International Law. Yet, the notion has received some attention in the particular domain of the International Law of Human Rights, [FN85] on the part of both the European and the Inter-American Courts of Human Rights. It has further been acknowledged - in addition to the jurisprudential level - also at normative level in recent years, and can no longer be overlooked.

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[FN85] Among the very few articles devoted to the issue to date, cf., in particular: J. Pauwelyn, “The Concept of a `Continuing Violation’ of an International Obligation: Selected Problems”, 66 British Year Book of International Law (1995) pp. 415-450; A. Buyse, “A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR”, 75 Nordic Journal of International Law (2006) pp. 63-88; A. Van Pachtenbeke and Y. Haek, “From De Becker to Varnava: The State of Continuing Situations in the Strasbourg Case Law”, 1 European Human Rights Law Review (2010) pp. 47-58.
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2. In the International Law of Human Rights

73. At jurisprudential level, the notion of “situation continue” was early to become object of attention on the part of the European Court of Human Rights (ECtHR), - as well as of the former European Commission of Human Rights, - in relation to the application of the rule of exhaustion of local remedies in cases of detention [while] on remand. [FN86] Attention was then turned by the ECtHR on the length or actual duration of the detentions at issue, as “continuing situations”. [FN87] Along the years, the ECtHR has at times been faced with continuing situations in distinct circumstances.

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[FN86] A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, University Press, 1983, pp. 221-228.
[FN87] Cf. ibid., pp. 223 and 225.
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74. It is not surprising to find that the notion of continuing situation has been developed particularly in the domain of the International Law of Human Rights, given the special character of human rights treaties, which create, within the conceptual universe of international law, mechanisms of protection of the rights inherent to human beings, and positive obligations (of protection) on the part of the State, whose responsibility may be engaged by successive wrongful acts as well as omissions. There may well exist a causal connection between the original facts (a term which is not a synonym of acts) and subsequent acts or omissions of the State at issue, conforming a continuing situation.

75. In a recent case, that of Varnava and Others versus Turkey (2009), the ECtHR was seized of a case concerning the forced disappearance of nine men, in 1974. The Court was competent to examine complaints against Turkey pertaining to facts having occurred after 28.01.1987. In its Judgment of 18.09.2009, the Grand Chamber of the ECtHR pointed out that the mortal remains of one of the fatal victims were discovered in a mass grave in 2007, but there were no sighting or news of the other eight missing men since late 1974 until the present (para. 112).

76. The ECtHR’s Grand Chamber cross-referred to the case-law on jurisdiction ratione temporis of its homologue, the Inter-American Court of Human Rights (IACtHR), in particular the leading case of this latter, the case Blake versus Guatemala (1998) (paras. 93-96, 138 and 147). The ECtHR decided that there had been a continuing violation of Article 2 (right to life) and of Article 5 (right to liberty and security of the person) of the European Convention of Human Rights, on the account of the failure of the authorities of the respondent State to conduct an effective investigation of the fate of the nine men who had disappeared in life-threatening circumstances (dispositif, paras. 4 and 6).

77. The Court, furthermore, found a continuing violation of Article 3 (freedom from torture and other inhuman or degrading treatment or punishment) of the European Convention, in respect of the applicants (dispositif, para. 5). [FN88] In addressing the continuing suffering of the relatives of the disappeared persons, the ECtHR pondered:

“A disappearance is (…) characterized by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred (…). This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. It cannot therefore be said that a disappearance is, simply, an `instantaneous’ act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation” (para. 148).

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[FN88] And cf. paras. 194 and 208 of the Judgment.
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78. In the same Judgment, the ECtHR further observed, in relation to the continuing violation of Article 3 of the Convention, that

“The length of time over which the ordeal of the relatives has been dragged out and the attitude of official indifference in face of their acute anxiety to know the fate of their close family members discloses a situation attaining the requisite level of severity, There has, accordingly, been a breach of Article 3 in respect of the applicants” (para. 202).

The ECtHR insisted on its warning, in the context of the case at issue, as to the impact of the passing of time in legal relations (para. 161), and asserted the obligation “to take due measures to protect the lives of the wounded, prisoners of war, or civilians in zones of international conflict”, a duty which extends to “providing an effective investigation for those who disappeared in such circumstances” (which had not been provided in the cas d’espèce - para. 174).

79. Earlier on, on the other side of the Atlantic, the Inter-American Court of Human Rights (IACtHR), in its leading case on competence ratione temporis, that of Blake versus Guatemala (1996-1999), - referred to by its European homologue, the ECtHR (supra), - was faced with the case of a forced disappearance of a person (Mr. N.C. Blake), which began in March 1985 and extended to June 1992, when his mortal remains were found. In the meantime, the respondent State recognized the compulsory jurisdiction of the Court, on 09.03.1987, with regard to facts subsequent to this date. The respondent State raised a preliminary objection of the Court’s lack of competence ratione temporis.

80. The IACtHR, in its Judgment on preliminary objections (of 02.07.1996), considered that the forced disappearance implied violations of several human rights, some of which “may be prolonged continuously or permanently until such time as the victim’s fate or whereabouts are established” (para. 39). The IACtHR found itself competent ratione temporis to examine, not the violations of the rights to life and personal liberty of the disappeared person, but their subsequent effects on their close relatives. Thus, in its Judgment on the merits of the case (of 24.01.1998), the IACtHR considered the forced disappearance of Mr. N.C. Blake as marking the beginning of a “continuing situation” in breach of his close relatives’ right to judicial protection (access to justice) and to a fair trial; the Court established the respondent State’s responsibility for those breaches, - for lack of effective investigation, and prosecution and sanction, of those responsible for Mr. N.C. Blake’s disappearance and death.

81. In my Separate Opinion in the IACtHR’s Judgments on preliminary objections (para. 14) as well as on reparations (para. 24), I deemed it fit to draw attention to the impact of the legal conceptualization of a “continuing situation” upon traditional postulates of the law of treaties, and called for the humanization of international law, to start and advance precisely in that chapter, so much impregnated of State voluntarism and of undue weight attributed to the forms and manifestations of consent as the law of treaties has been. In any case, I added, in my Separate Opinion in the IACtHR’s Judgment on reparations (of 22.01.1999), that that process of humanization was already in course, with the insertion, into the first Vienna Convention on the Law of Treaties (1969, and also into the second, 1986), of the provisions on jus cogens (Articles 53 and 64), as well as the humanitarian provision of Article 60(5), a true clause of safeguard in defence of the human being (paras. 30-32).

82. Moreover, in my Separate Opinion in the IACtHR’s Judgment on the merits (para. 38) of the same Blake case, I further turned attention to the enlargement of the notion of victim of violations of the protected rights (due to the continuing suffering of the closed relatives of the forcefully disappeared person - para. 38). At last, in my Separate Opinion in the following Judgment on reparations, I turned attention also to the element of intemporality proper to the international protection of rights inherent to the human person, - a protection which is thus intended to apply in all circumstances and all the time, without temporal limitations (paras. 4 and 45).

83. In sum, the notion of continuing situation has been upheld in the case-law of both the ECtHR and the IACtHR, on the basis of a careful examination of the circumstances of each cas d’espèce. The two international tribunals of human rights have been careful to avoid generalizations and to set up general criteria for the identification of continuing situations. Notwithstanding, they have both at times established the existence of continuing situations, without prejudice of juridical security. They have thereby contributed to the fulfillment of the object and purpose of the European and the American Conventions on Human Rights. Given the nature of certain cases - such as the present case concerning Jurisdictional Immunities of the State (opposing Germany to Italy) - nowadays lodged with the ICJ, which concern not only the rights of States, but have a direct incidence also on the fundamental rights of the human person, it is, in my view, high time for the Hague Court, also known as the World Court, to become more attentive to the notion of continuing situation as it has been developing in Public International Law and the International Law of Human Rights along the last decades.

IX. THE CONFIGURATION OF A “CONTINUING SITUATION” IN INTERNATIONAL LEGAL CONCEPTUALIZATION AT NORMATIVE LEVEL

84. The notion of a “continuing situation” has marked its presence not only at jurisprudential level, but also at normative level. Two elements marked their presence in its configuration in law-making exercises, namely, first, the acknowledgment of the time factor, the inter-temporal dimension, stretching from the fait générateur to the whole period of persistence of the continuing situation; and, secondly, the effects that such situation may have on the victims, which, in case of grave breaches of human rights, constitute an aggravating circumstance. It is, however, beyond the purpose of the present Dissenting Opinion, to embark on an examination of this second element. Examples of the conceptualization of a “continuing situation” at normative level exist in regional as well as universal (United Nations) levels.

85. At regional level, the 1994 Inter-American Convention on Forced Disappearance of Persons conceptualizes the forced disappearance of persons as, inter alia, an offence which “shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined” (Article III). Taking this provision of the 1994 Inter-American Convention into account, in my aforementioned Separate Opinion in the IACtHR’s Judgment on the merits of the Blake case (of 24.01.1998), I pondered that

“forced disappearance of person is, first of all, a complex form of violation of human rights; secondly, a particularly grave violation; and thirdly, a continuing or permanent violation (until the fate or whereabouts of the victim is established). In fact, the continuing situation (…) is manifest in the crime of forced disappearance of persons. As pointed out in this respect, in the travaux préparatoires of the Inter-American Convention on Forced Disappearance of Persons,

`This crime is permanent in so far as it is committed not in an instantaneous way but permanently, and is prolonged as long as the person remains disappeared’. [FN89]

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[FN89] OEA/CP-CAJP, Informe del Presidente del Grupo de Trabajo Encargado de Analizar el Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas, doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, of 25.01.1994, p. 10.
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Such consideration was duly reflected in Article III of the Convention (supra)” (para. 9).

86. At universal level, likewise, the 2006 U.N. International Convention for the Protection of All Persons from Enforced Disappearance, on its part, expressly refers to the “continuous nature” of the offence of enforced disappearance of persons (Article 8(1)(b)). The same conception was adopted, fourteen years earlier, in the 1992 U.N. Declaration on the Protection of All Persons against Forced Disappearances of 1992, which, after pointing out the gravity of the crime of forced disappearance of person (Article 1(1)), likewise warned that this latter ought to be “considered a permanent crime while its authors continue concealing the fate or whereabouts of the disappeared person and while the facts have not been clarified” (Article 17(1)).

87. May it further be recalled that, two decades earlier, still at the U.N. level, ECOSOC resolution 1503(XLVIII), of 27.05.1970, established a (confidential) procedure to investigate situations revealing a “consistent pattern of violations of human rights”. These latter were essentially continuing situations (e.g., those brought about State policies of racial discrimination). This is yet another example of the international legal conceptualization, at normative level, of the configuration of a “continuing situation” in breach of human rights.

88. Yet, in so far as the notion of “continuing situation” is concerned, in the International Law of Human Rights, in particular, international case-law preceded law-making. Once again, in my same Separate Opinion in the Blake case (merits), I further pointed out that

“Long before the typification of the forced disappearance of person in the International Law of Human Rights, the notion of `continuing situation’ found support in the international case-law in the domain of human rights. Thus, already in the De Becker versus Belgium case (1960), the European Commission of Human Rights, for example, recognized the existence of a `continuing situation’ (situation continue/situación continuada). [FN90] Ever since, the notion of `continuing situation’ has marked presence in the case-law of the European Commission, on numerous occasions. [FN91] The continuity of each situation appears - as the European Commission has expressly warned in the Cyprus versus Turkey case (1983) - as an aggravating circumstance of the violation of human rights proven in the cas d’espèce“ (para. 11). [FN92]

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[FN90] Cf. Cour Européenne des Droits de l'Homme, Affaire De Becker (Série B: Mémoires, Plaidoiries et Documents), Strasbourg, C.E., 1962, pp. 48-49 (Rapport de la Commission, 08.01.1960).
[FN91] Cf., e.g., the decisions of the former European Commission of Human Rights concerning the petitions ns. 7202/75, 7379/76, 8007/77, 7742/76, 6852/74, 8560/79 and 8613/79, 8701/79, 8317/78, 8206/78, 9348/81, 9360/81, 9816/82, 10448/83, 9991/82, 9833/82, 9310/81, 10537/83, 10454/83, 11381/85, 9303/81, 11192/84, 11844/85, 12015/86, and 11600/85, among others.
[FN92] In its Report of 04.10.1983 in the Cyprus versus Turkey case (petition n. 8007/77) the European Commission concluded that the continuing separation of families (as a result of the refusal of Turkey to allow the return of Greek Cypriots in order to reunite themselves with their next of kin in the North) constituted an "aggravating factor" of a continuing situation in violation of Article 8 of the European Convention of Human Rights. European Commission of Human Rights, Decisions and Reports, vol. 72, pp. 6 and 41-42.
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89. A “continuing situation” may well occur with certain breaches of human rights, but not all of them. Many of such breaches are “instantaneous acts”, such as, e.g., summary and extra-legal executions. But there are some breaches which are continuous, and forced disappearance of person is not the only one of them. There may also occur a continuing denial of justice: rather often, there are unreasonable and prolonged delays that end up by constituting a continuing denial of justice. As the time of human beings is not the time of human justice, [FN93] rather often the justiciable ones have to wait a great many years - not seldom a whole life-time - for justice to be done, if at all. Lawyers, national and international, know this far too well.

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[FN93] On this specific point (and in relation to universal jurisdiction), cf. my Dissenting Opinion in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal, Order of 28.05.2009), paras. 39 and 46-64.
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90. In sum, no tribunal, national or international, can today overlook the notion of a “continuing situation”, not even the World Court. This notion has in recent years found international legal conceptualization not only in international human rights protection, but also in domains of Public International Law. To recall but one example, Article 14 (on “Extension in time of the breach of an international obligation”) of the Articles on State Responsibility (2001) of the U.N. International Law Commission (ILC) provides that

“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation”.

91. The work of the ILC on its adopted Articles on State Responsibility, in this particular respect, took due note of the contribution of the IACtHR’s decision on the Blake case (supra) [FN94] on the matter at issue. The ILC, furthermore, acknowledged the temporal element (the extension in time) when it addressed the consequences of a serious breach of an obligation under international law (Article 41(3)), with a direct bearing on the State’s duty to cease such consequences and to provide reparation.

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[FN94] Cf. J. Crawford, The International Law Commission’s Articles on State Responsibility - Introduction, Text and Commentaries, Cambridge, University Press, 2005 [reprint], p. 136, and cf. pp. 251-252.
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X. THE “CONTINUING SITUATION” IN THE PRESENT CASE

92. In the present case before the ICJ (original claim and counter-claim), there is no dispute between Germany and Italy concerning the facts of the II World War and the facts extending up to the celebration of the two 1961 Agreements celebrated between them. Therefore, the waiver of Article 77(4) of the 1947 Peace Treaty between the Allied Powers and Italy cannot possibly be invoked as a ground for establishing the lack of jurisdiction ratione temporis of the ICJ to entertain Italy’s counter-claim. This latter, according to Italy, [FN95] pertains to the dispute as to the facts ranging as from the celebration of the two 1961 Agreements onwards, until the present time.

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[FN95] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany …, op. cit. supra n. (53), pp. 7, 9-10, 15 and 25, paras. 13, 21, 35 and 64; ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), p. 129, para. 7.4.
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93. This being the triggering point of the alleged “continuing situation” in the cas d’espèce, nor can the provision of Article 27(a) [FN96] of the 1957 European Convention for the Peaceful Settlement of Disputes be possibly invoked as a ground for determining the lack of jurisdiction ratione temporis of the ICJ to entertain Italy’s counter-claim. The notion of “continuing situation” was not at all invoked to bring the triggering point back to the occurrences of 1943-1945 in the II World War; quite on the contrary, it pertained to the right to reparation for war crimes, being an element to be taken into account by the Court as from the new continuing situation generated by the celebration of the two Agreements of 1961 onwards, - as it ensues from the contentions of the parties in the original claim and the counter-claim and all arguments relating thereto.

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[FN96] Cf. text cit. in n. (44), supra.
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94. The finding of the Court’s majority of lack of jurisdiction ratione temporis leading to the admissibility of the counter-claim thus requires demonstration. The submissions contained in Italy’s counter-claim, and the arguments as to the law submitted by the contending parties to this Court, in my understanding fall entirely with the Court’s jurisdiction ratione temporis, and the Court should, thereby, in my view, have declared the counter-claim admissible. To make my own position quite clear, I shall next examine the scope of the present dispute before the ICJ, and turn then attention to those I regard as the true bearers (titulaires) of the originally violated rights, against the background of what I devise as the pitfalls of State voluntarism.

XI. THE SCOPE OF THE PRESENT DISPUTE BEFORE THE COURT

95. Already in the dawn of its era, the old PCIJ spelled out its characterization of a “dispute”, in the well-known obiter dictum in its Judgment of 20.08.1924 in the case of the Mavrommatis Palestine Concessions case (Greece versus United Kingdom), in the following terms:

“A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”. [FN97]

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[FN97] PCIJ, Series A, n. 2, 30.08.1924, p. 11.
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The present case (original claim and counter claim), opposing Germany to Italy, fits well into this characterization. There is here a dispute between Italy and Germany concerning the law (not the facts). The facts are not in dispute. There is here a conflict of their legal views on a claim of State immunity in face of claims of war reparations. This is the bone of contention between Germany and Italy.

96. A contentieux on reparations does not have a “subsidiary” nature in relation to the faits générateurs of the international responsibility of States. It has a dynamics of its own. Thus, besides the initial engagement of State responsibility by its faits générateurs (the events of 1943-1945, not controverted here), responsibility may ex hypothesi be again engaged in case of lack of due reparation, as a separate and additional breach of international law. It will depend whether there is or not State immunity, - a point which is beyond the scope of the present Order of the ICJ. Yet, we are here, within the scope of the present Order, before a contentieux opposing a vindication of State immunities to vindications of war reparations. The original claim and the counter-claim are ineluctably intertwined.

97. The duty of reparation emanates from a fundamental principle of international law, acknowledged by the PCIJ in its early years, in the Chorzów Factory case (Germany versus Poland): in its Judgment on Jurisdiction, of 26.07.1927, if asserted that “it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form”. [FN98] And in its Judgment on the Merits (in the same case), of 13.09.1928, it reiterated that

“it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation”. [FN99]

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[FN98] PCIJ, Series A, n. 9, 26.07.1927, p. 21.
[FN99] PCIJ, Series A, n. 17, 13.09.1928, p. 29.
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98. Likewise, early in its era, the ICJ itself had the occasion to reassert this “principle of international law” (involving a duty to provide reparation). In its historical Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations (of 11.04.1949); it added therein that in “claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization” (p. 184). The Organization vindicates its own right to reparation, not that of its agent. Its own right is distinct from those of its agents. Likewise, a State’s right is distinct from the rights of individuals subject to its jurisdiction.

99. Other contemporary international jurisdictions have also had the occasion to acknowledge that a contentieux of reparations has its own dynamics, distinct from that of the contentieux as to the merits of the cases at issue, however complementary they may be. In recent years, the Inter-American Court of Human Rights has faced successive cases of (total or partial) recognition of international responsibility by the respondent States, which, in cases of total or integral recognition, has allowed the Court to move on straight to the contentieux of reparations. [FN100] This latter followed its own dynamics, clearly separate from the original faits générateurs of the international responsibility of the State concerned, in relation to which controversy had ceased to exist. Controversy existed only in relation to the claims as to the reparations due.

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[FN100] Cf., e.g., Inter-American Court of Human Rights (IACtHR), Aloeboetoe and Others versus Suriname case (Reparations, Judgment of 10.09.1993), Series C, n. 15; IACtHR, Trujillo Oroza versus Bolivia case (Reparations, Judgment of 27.02.2002), Series C, n. 92; IACtHR, Goiburú and Others versus Paraguay case ([Merits and] Reparations, Judgment of 22.09.2006), Series C, n. 153.
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100. The present case concerning Jurisdictional Immunities of the State before the ICJ is an inter-State contentieux between Germany and Italy, concerning their opposing claim and counter-claim, of State immunity and war reparations, respectively. Such interrelated claims are two faces of the same coin. By dismissing one of the claims by means of the present Order, the Court’s majority deprived the Court of the examination and settlement of the dispute in its entirety. The cas d’espèce originated not in the events of the II World War (of 1943-1945), but in the initiative of aggrieved individuals, in recent years, to seek justice before domestic tribunals.

XII. THE TRUE BEARERS (TITULAIRES) OF THE ORIGINALLY VIOLATED RIGHTS AND THE PITFALLS OF STATE VOLUNTARISM

101. Their rights are not the same as their State’s right. How those individuals are to vindicate their rights is another matter, beyond the scope of the present decision of the ICJ on the Italian counter-claim. And it is a question which, as a result of the unfortunate dismissal by the Court’s majority of the counter-claim as “inadmissible as such”, will now fall beyond the scope of the present dispute to be adjudicated by the Court at the merits stage. The Court will now address only the German claim of State immunity, in isolation. This is, in my view, much to be regretted, for the unique occasion which the Court has just failed to take up to settle the case while at the same time contributing to the progressive development of international law in this domain still surrounded by uncertainties, despite its utmost relevance for the jus gentium of our times.

1. The “Real Cause” of the Present Dispute

102. In the present Order, the Court’s majority relies on the general waiver of Article 77(4) the 1947 Peace Treaty between the Allied Powers and Italy. That was a general Peace Treaty, between the Allied Powers and Italy, to which, by the way, Germany was not a Party. The 1947 Treaty was general and wide in scope, a product of its time, of the aftermath of the II World War. The waiver clause of its Article 77(4), clearly turned to claims of a patrimonial character, is general, ma non troppo: as general as it may be, it is not absolute.

103. The waiver clause in the 1947 Peace Treaty was directed, as its drafting terms disclose, [FN101] to claims of a patrimonial nature, rather than all kinds of claims. By the time that waiver (Article 77(4)) was enshrined by the Allied Powers and Italy into the Peace Treaty in 1947, they could not have anticipated that that waiver, however general it intended to be, could not extend over all the complexities of victimization in the Third Reich, such as the deportations and forced labour to which Italian nationals (individuals and not their State) had been subjected to by Nazi Germany between 1943 and 1945.

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[FN101] Article 77(4) of the 1947 Peace Treaty states: - “Without prejudice to these and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war”.
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104. This mens rea is confirmed by the other paragraphs of Article 77 of the 1947 Peace Treaty, referring to: Italian property in Germany not being enemy property (Article 77(1)); Italian property removed to Germany to be restituted to Italy (Article 77(2)); new reference to Italian property in Germany (Article 77(3)); transfer of German assets in Italy to Germany. This is the context in which the purported waiver of Article 77(4) was inserted to, in a provision endowed with an essentially patrimonial character. There is nothing whatsoever in Article 77 of the 1947 Peace Treaty, or in this latter as a whole (to which Germany was not a party), that can provide a basis for the Court’s majority view that there is a “continuity” between the 1947 purported waiver and the waiver clauses in the two 1961 Agreements, or, worse still, that these latter would be an indemonstrable “improvement” of the former.

105. The subsequent adoption of the two 1961 Agreements, this time between Germany itself and Italy, bears witness of that. The old PCIJ had already had the occasion to clarify that a dispute may well presuppose “the existence of some prior situation or fact”, not controverted by the parties. A situation or fact in respect of which a dispute is considered to have arisen is to be seen as “the real cause of the dispute”. [FN102] The celebration of the two 1961 Agreements constitutes, in my view, the triggering point of a new continuing situation, containing the “real cause of the dispute”, and projecting itself from then onwards into our days. Such dispute between Germany and Italy thus clearly falls within the jurisdiction of the Court ratione temporis, on the basis of Article 27(a) of the 1957 European Convention for the Peaceful Settlement of Disputes.

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[FN102] PCIJ, case of the Electricity Company of Sofia and Bulgaria (1939), Series A/B, n. 77, p. 82.
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2. Inconsistencies of State Practice

106. Claims of Italian nationals on the basis of German legislation on compensation for Nazi persecution victims were not encompassed by the waiver of Article 77(4) of the 1947 Peace Treaty, because of the provision “without prejudice to these and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany”. This provision, as just pointed out, was intended to apply to claims of a patrimonial nature (cf. supra). State responsibility for war crimes subsisted.

107. In fact, in this regard, the German Bundesgerichtshof (Supreme Court) itself, in a decision of 14 December 1955, interpreted the limited scope of the 1947 waiver clause, by reckoning that this latter had not brought about a final settlement of the matter given the wording of the clause, “without prejudice to (…) any (…) dispositions in favour of Italy and Italian nationals by the Powers occupying Germany” [Decisions of the Bundesgerichtshof in Civil Matters, Vol. 19, pp. 258 et seq.]; accordingly, the Bundesgerichtshof admitted that the Italian claims and the corresponding German obligations still existed. [FN103] In 1947, in a peace treaty to which Germany was not a party, the Allied Powers demanded the waiver from Italy “exclusively in their own interest”, and that waiver did not cover claims of war crimes reparations. [FN104] I cannot see why the Court’s majority gave so much importance to that waiver, to the point of trying to base its whole and succinct reasoning on it.

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[FN103] ICJ, Counter-Memorial of Italy, of 22.12.2009, p. 108, para. 5.53, n. 223.
[FN104] Cf. ibid., p. 108, para. 5.53, and n. 22. 
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108. The celebration of the two 1961 Agreements, this time by Germany itself with Italy, disclosed Germany’s recognition that reparation obligations existed in 1961. This marks, in my view, the triggering point of a new continuing situation, from then onwards, up to the present, which forms the object of the dispute before the Court (claim of State immunity and counter-claim of pending war reparations). The two Agreements, celebrated on 02.06.1961 between Germany and Italy, were: a) the Agreement on the Settlement of Certain Property-Related, Economic and Financial Questions (the so-called “Settlement Agreement”); and b) the Agreement on Indemnity in Favour of Italian Nationals Affected by National-Socialist Measures of Persecution (the so-called “Indemnity Agreement”).

109. The exchange of letters between Germany and Italy attached to the 1961 Indemnity Agreement [FN105] stated that “claims brought by Italian nationals which had been rejected with final and binding effect on the basis of Article 77(4) of the Italian Peace Treaty [of 1947] were to be re-examined”. Thus, new applications under the 1953 Federal Restitution Law (Bundesentschädigungsgesetz-BEG) were seemingly to be treated without objections on the basis of Article 77(4) of the 1947 Peace Treaty. Furthermore, in a memorandum (Denkschrift) submitted to the Legislative on 30.05.1962, [FN106] the German Federal Government recalled Article 77(4) of the 1947 Peace Treaty, and instructed the German authorities in charge not to raise objections on the basis of that provision, in case of claims to restitution. In the words of the memorandum (Denkschrift):

“(…) [T]he special character of the claims to compensation for measures of National Socialist persecution (Ansprüche auf Wiedergutmachung nationalsocialistischer Verfolgungsmaβnahmen) justifies not raising objections based on Article 77(4) to applications pursuant to the Bundesentschädigungsgesetz. (…) Regarding the Bundesrückerstattungsgesetz of 19 July 1957, the Federal Government […] instructed the German authorities in charge not to raise objections based on Article 77(4) of the Peace Treaty with Italy of 10 February 1947 in the case of claims to restitution”. [FN107]

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[FN105] Cf. ibid., Annex 4.
[FN106] Cf. ibid., para. 5.56 (photocopy of whole memorandum in German, as obtained from the Library of the Bundestag in Berlin, Drucksache des Deutschen Bundestages IV/438, p. 9).
[FN107] Drucksache des Deutschen Bundestages IV/438, p. 9, cit. in: Observations of Italy on the Preliminary Objections of the F.R. Germany Regarding Italy’s Counter-Claim, p. 19, para. 47.
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110. All this shows that Germany reckoned, in its practice, that the waiver clause contained in Article 77(4) of the 1947 Peace Treaty did not cover war crimes reparations. It further shows that the purported waiver of Article 77(4) of the 1947 Peace Treaty was not as general - and certainly not absolute at all - as the Court’s majority in the present Order would make one believe, - not even on the basis of German State practice! The reasoning of the Court’s majority in the present Order, in my perception, tries in vain to find a basis on Law, and finds none, and not even on State practice!

111. And this is not all. More recently, the 2000 Law on the “Remembrance, Responsibility and Future” Foundation in Germany, provided for compensation to some victims of the war crimes of the Third Reich, excluding however prisoners of war from its field of application (on the basis of Section 11.3); the right to reparation of at least some victims was thus reckoned to subsist. All this shows that the pending dispute between Germany and Italy (claim and counter-claim together) remains indeed surrounded by uncertainties, and that State practice alone - with its usual inconsistencies - cannot provide secure guidance to the work of international adjudication.

3. No Lip Service to State Voluntarism

112. Unlike the Court’s majority, I am of the view that there is no room at all for paying an instinctive lip service to State voluntarism in the present case. The Court, in my understanding, cannot - and should not - try to develop a sound reasoning on the basis of waivers of claims of breaches of fundamental human rights. The facts before the Court in a way show that conscience has stood above the will: Germany and Italy have presented to the Court their distinct views of the case or continuing situation at issue, in their respective original claim and counter-claim. These two are inextricably interconnected, and fall quite clearly under the jurisdiction of the Court ratione temporis.

113. The Court has been invited to proceed to the consideration of the cas d’espèce at the height of its responsibilities, and in my view the only way to do this properly is by taking cognizance of the original claim and the counter-claim altogether. In the present case, without the counter-claim on war reparations the examination of the basic issue raised in the original claim becomes irremediably mitigated and incomplete. By depriving the Court of the consideration of the original claim and the counter-claim altogether, by means of the present Order it has just adopted, the Court’s majority ended up, in my view, depriving the Court of the possibility of the proper and full exercise of its functions in the realization of its mission. In my understanding, the pursuit of the realization of justice at international level has, in the present Order of the Court, succumbed to an instinctive search for manifestations of the will (or consent) of States, [FN108] in attributing an undue weight to waivers of claims of violated rights which are not theirs.

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[FN108] This is nothing new; for earlier unfortunate examples, cf., e.g., ICJ, case of the East Timor (Portugal versus Australia, Judgment of 30.06.1995), ICJ Reports (1995) pp. 90-106; ICJ, case concerning Armed Activities on the Territory of the Congo (R.D. Congo versus Rwanda, Judgment of 03.02.2006), ICJ Reports (2006) pp. 6-53.
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114. My own personal understanding is that a State can waive claims on its own behalf, if it so decides, but not on behalf of human beings (whether its nationals or not) who have been victims of atrocities which shock the conscience of humankind. The individual victims, and not their State, are the bearers (titulaires) of the rights which had been violated shortly before the 1947 Peace Treaty (between 1943 and 1945), starting with the right to respect for their own dignity as human beings. Rights inherent to the human person are endowed with an element of timelessness. Their vindication cannot be waived at will, by any State whatsoever.

115. The present dispute between Italy and Germany shows, already at this stage, that the rights of Italian victims of serious violations of international humanitarian law (war crimes and crimes against humanity) have subsisted. Their vindication, by so-called “Italian Military Internees” (IMIs, i.e., soldiers who were detained, denied the status of prisoners of war, transferred to detention camps and sent to forced labour), as well as civilians likewise detained and transferred to detention camps and sent to forced labour, and other victims of the civilian populations in the context of massacres, “as part of a strategy of terror”, [FN109] has resisted the erosion of time. Fundamental human rights are simply not amenable to waivers of their claims by States, by means of peace treaties, of other kinds of treaties, or by any other means. This can be further appreciated in a wider horizon.

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[FN109] Cf. ICJ, Counter-Memorial of Italy, of 22.12.2009, p. 15, para. 2.8.
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116. In the days of the historical II Peace Conference, held here at The Hague, the participating States decided to set forth a general obligation, incumbent on all parties to an armed conflict, to make reparations (not only on the part of the defeated States in favour of the victorious powers, as was the case in previous State practice). This was done on the basis of a German proposal, which resulted in Article 3 of the IV Hague Convention IV [FN110] is the first provision dealing specifically with a reparation regime for violations of international humanitarian law. [FN111] Thanks to the reassuring German proposal, Article 3 of the IV Hague Convention of 1907 clarified that it was intended to confer rights directly upon individuals, [FN112] human beings, rather than States.

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[FN110] Article 3 states: - “A belligerent party which violates the provisions of the said Regulations [Regulations respecting the laws and customs of war on land, annexed to the IV Hague Convention] shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces”.
[FN111] This article of the IV Hague Convention of 1907, came to be regarded as being also customary international law, and it was reiterated in Article 91 of the I Additional Protocol (of 1977) to the 1949 Geneva Conventions on International Humanitarian Law. Article 91 (Responsibility) of the I Protocol states: - “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces”.
[FN112] Cf., to this effect, Eric David, “The Direct Effect of Article 3 of the IV Hague Convention of 18 October 1907 Respecting the Laws and Customs of War on Land”, in War and the Rights of Individuals - Renaissance of Individual Compensation (eds. H. Fujita, I. Suzuki and K. Nagano), Tokyo, Nippon Hyoron-sha Co. Publs., 1999, pp. 50-53; and cf. also, e.g., F. Kalshoven, “State Responsibility for Warlike Acts of the Armed Forces”, 40 International and Comparative Law Quarterly (1991) pp. 831-833; D. Shelton, Remedies in International Human Rights Law, 2nd. ed., Oxford, University Press, 2006, p. 400.
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117. This legacy of the II Hague Peace Conference of 1907 projects itself to our days. [FN113] The time projection of the suffering of those subjected to deportation and sent to forced labour in the II World War (period 1943-1955) has been pointed out in expert writing, also in relation to the prolonged endeavours of the victims to obtain reparation.

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[FN113] For a general reassessment of that 1907 Conference, on the occasion of its centennial commemoration in 2007, cf.: [Various Authors,] Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix / Topicality of the 1907 Hague Conference, the II Peace Conference (ed. Yves Daydet), Leiden, Nijhoff/The Hague Academy of International Law, 2008, pp. 3-302.
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In the early seventies it was pointed out, for example, that

“it is both surprising and alarming that twenty-five years after the [II World] War many restitution and compensation cases are still pending. It is especially disturbing that some of these cases have been pending for more than twenty years”. [FN114]

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[FN114] K. Schwerin, “German Compensation for Victims of Nazi Persecution”, 67 Northwestern University Law Review (1972-1972) p. 518, and cf. pp. 519-523.
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118. More recently, after the enactment of the German Compensation Law of 02.08.2000, it was again recalled that the subjection of prisoners of war to forced labour was characterized by “inhuman conditions” of detention, “insufficient nutrition” and “lack of medical care”. And,

“According to historical research, these appalling conditions were predominant for Italian military internees [IMIs] in Germany. (…) The Italians were not prisoners of war who happened also to be subjected to forced labour. Instead, the exploitation of their labour force was the principal reason for their continued detention in Germany. (…)
Lastly, one can only deeply regret the tardiness of the legislation passed only in the year 2000, 55 long years after the end of the II World War. This tardiness was properly recognized by the German Parliament itself when, in the Stiftungsgesetz Statute’s preamble, it emphasized that `the law comes too late for those who lost their life as victims of the National Socialist regime, or died in the meantime’”. [FN115]

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[FN115] B. Fassbender, “Compensation for Forced Labour in World War II”, 3 Journal of International Criminal Justice (2005) pp. 251-252.
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Not only had those victims to endure inhuman and degrading treatment, but later crossed the final limit of their ungrateful lives living with impunity, without reparation and amidst manifest injustice. The time of human justice is definitively not the time of human beings.

119. Looking at the serious breaches of the Law during the II World War in a wider dimension, the pitfalls of State voluntarism - proper of the positivist legal thinking - were eloquently denounced by the learned Professor at the University of Heidelberg, Gustav Radbruch, in the aftermath of the II World War, and shortly before his death in 1949. In announcing his own personal conversion to the thinking of natural law, he pondered that positivism left the German Judiciary immobilized and defenceless in face of all the atrocities perpetrated in the Third Reich, seen by the power-holders as in conformity with their jus positum (or rather, their imposed laws). That tragically showed, after “a century of legal positivism”, - added G. Radbruch, - that all laws ought to be in conformity with the Law, superior to them, that is, natural law. [FN116]

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[FN116] G. Radbruch, Introducción a la Filosofía del Derecho [3rd. Spanish edition of Vorschule der Rechtsphilosophie], Mexico/Buenos Aires, Fondo de Cultura Económica, 1965, pp. 178 and 180.
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120. Stressing the cleavage between the Sein and the Sollen, he argued that, where statutory law manifestly negates - to an extreme and intolerable degree - the equality at the core of all justice, it must be disregarded by judges in favour of the fundamental principles of justice. The international legal profession nowadays, marked by a preponderant and thoughtless adherence to legal positivism, should not forget the warnings of that German Professor, tormented as he became by the horrors, perpetrated with impunity, of the Third Reich. The main lesson which G. Radbruch drew was that the positivist conviction that “a law is a law” (dura lex sed lex, or else Gesetz ist Gesetz) rendered German jurists of the time defenceless against arbitrary of “criminal” (“verbrecherische”) laws.

121. He added that positivism is incapable of establishing the validity of laws on its own, and it had assumed that such validity follows from the fact that such laws had the power to come into being. Notwithstanding, it is justice which constitutes the highest value, and an unjust law, in principle to be observed, when it comes to be in tension with justice, becomes an “incorrect law” (“unrichtiges Recht”), which is displaced by justice. When that law does not even aspire to serve justice, - oblivious of equality which is at its centre, - it is not only “incorrect law”, it never achieves the quality of law at all, the ultimate purpose of which is to serve justice. [FN117]

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[FN117] G. Radbruch, “Gesetzliches Unrecht und Übergesetzliches Recht” (1946), in G. Radbruch, Rechtsphilosophie (ed. E. Wolf), Stuttgart, K.F. Koehler Verlag, 1950, pp. 352-353, and cf. pp. 347-357.
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122. In an essay published posthumously, G. Radbruch, again regretting the sad legacy of positivism, insisted on his view that there exists a Law higher than the laws, a natural law, a law of reason (ratio), which is above the laws (ein übergesetzliches Recht). And he expressed the hope - keeping in mind the then recent horrors of the Third Reich - that one day the world will see a whole array of international organizations wherein groups of people are no longer attached to their respective nation States, but rather dedicated solely to the cause of humanity as a whole. These human beings “beyond nationality” (übernationale Menschen), in his forecast, would be capable to create properly a true international law, and to adjudicate international disputes.  [FN118]

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[FN118] G. Radbruch, “Die Erneuerung des Rechts”, in Naturrecht oder Rechtspositivismus? (ed. W. Maihofer), Bad Homburg vor der Höhe, H. Gentner Verlag, 1962, pp. 2 and 6-7, and cf. pp. 1-10.
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123. I find of perennial value the main lesson extracted by G. Radbruch from the grave violations of human rights and international humanitarian law perpetrated during the long dark night [FN119] of the years of the Third Reich. Among those brutalities, stands that of forced labour in war industry, which has received much less attention from historians that other aspects of those somber times. For us who have the privilege to serve the cause of justice, it is imperative not to lose sight, in regard to that abominable practice, that the ultimate bearers (titulaires) of the originally violated rights were not the States, but human beings, of flesh and bones, and soul. The vindication of their rights stand in the background of the vindicated State right to immunity. In the present case before the Court, counter-claim and original claim form an indivisible whole.

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[FN119] To paraphrase some medieval thinkers.
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XIII. THE INCIDENCE OF JUS COGENS: PURPORTED WAIVER OF VINDICATION OF RIGHTS INHERENT TO THE HUMAN PERSON BEING DEVOID OF JURIDICAL EFFECTS

124. In any case, any purported waiver by a State of the rights inherent to the human person would, in my understanding, be against the international ordre public, and would be deprived of any juridical effects. To hold that this was not yet recognized at the time of the II World War and the 1947 Peace Treaty - a view remindful of the old positivist posture, with its ineluctable subservience to the established power, - would be, in my view, without foundation. It would amount to conceding that States could perpetrate crimes against humanity with total impunity, that they could systematically perpetrate manslaughter, humiliate and enslave people, deport them and subject them to forced labour, and then hide themselves behind the shield of a waiver clause negotiated with other State(s), and try to settle all claims by means of peace treaties with their counterpart State(s).

125. Already in the times of the Third Reich, and before them, this impossibility was deeply-engraved in human conscience, in the universal juridical conscience, which is, in my understanding, the ultimate material source of all Law. To hold that enforced labour was not prohibited at the time of the German Third Reich would not stand (cf. infra), not even on the basis on the old positivist dogmas. It does not stand at all, neither in times of armed conflict, nor in times of peace. The gradual restrictions leading to its prohibition, so as to avoid and condemn abuses of the past against the human person, became manifest not only in the domain of International Humanitarian Law, but also in that of the regulation of labour relations (proper of the international conventions of the International Labour Organization – ILO). In my own perception, even before all those instruments (infra), enslavement and forced labour were proscribed by human conscience, as the gross abuses of the past weighed too heavily on this latter.

1. Conventional International Law

a) International Humanitarian Law

126. As to International Humanitarian Law, may it be recalled that, well before the sinister epoch of the Third Reich, the Regulations Respecting the Laws and Customs of War on Land, Annex to the (IV) Hague Convention Respecting the Laws and Customs of War on Land, adopted at the II Hague Peace Conference of 1907, with the aim “to serve, even in this extreme case, the interests of humanity” (preamble, para. 2), imposed clear restrictions on the labour of prisoners of war (Article 6), and prohibited the confinement of these latter (Article 5). The IV Hague Convention of 1907 contained, in its preamble, the célèbre Martens clause (cf. infra), whereby in cases not included in the adopted Regulations annexed to it,

“the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the principles of humanity, and the dictates of the public conscience” (para. 8).

127. Two decades later, by means of the 1926 Geneva Anti-Slavery Convention, the States Parties recognized that it was “necessary to prevent forced labour from developing into conditions analogous to slavery” (preamble, para. 5). They further warned that “recourse to compulsory or forced labour may have grave consequences”, and thereby they undertook,

“each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all measures to prevent compulsory or forced labour from developing into conditions analogous to slavery” (Article 5).

128. Three years later, and still one decade before the outbreak of the II World War, the 1929 Geneva Convention Relative to the Treatment of Prisoners of War, again imposed restrictions on the labour of prisoners of war (Articles 28-30 and 32-34), and categorically prohibited “to employ prisoners in the manufacture or transport of arms or munitions of any kind, or on the transport of material destined for combatant units” (Article 31). And, promptly at the end of the II World War, the 1945 Charter of the International Military Tribunal of Nuremberg listed among “war crimes” the “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” (Article 6(b)), and among “crimes against humanity” the “enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war” (Article 6(c)).

129. In any case, well beyond the provisions of the aforementioned treaties, celebrated years before, and shortly after, the II World War, forced labour - analogous to slavery - in the war industry was prohibited by the universal juridical conscience, the ultimate material source of International Law. In this respect, we do not need to indulge into the superficial positivist exercise of spotting express prohibitions in the text of treaties (the jus positum). Slave work, forced labour in armaments industry, was prohibited by general international law, well before the nightmare and the horrors of the Third Reich.

b) International Labour Conventions

130. As to the international instruments of the International Labour Organization (ILO), may it be recalled that the Forced Labour Convention (n. 29) of the ILO was adopted in 1930, almost one decade before the outbreak of World War II. And even well before then, forced labour was proscribed by human conscience. The International Labour Office itself has drawn attention to the fact that the 1930 Forced Labour Convention (n. 29), followed by the 1957 Abolition of Forced Labour Convention (n. 105), have practically found universal acceptance [FN120] (being “the most widely ratified of all international labour Conventions”), [FN121] and the principles embodied therein have been incorporated in several international instruments, at both universal and regional levels. The International Labour Office has, accordingly, propounded the view that

“[T]he prohibition of the use of forced or compulsory labour in all its forms is considered now as a peremptory norm of modern international law of human rights”. [FN122]

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[FN120] Counting nowadays on 170 and 164 ratifications, respectively; cf. op. cit. n. (122), infra, p. 12.
[FN121] Cf. op. cit. n. (122), infra, pp. 1 and 34. Yet, despite this universal condemnation of forced labour, the problem remains in our days, as “millions of people around the world are still subjected to it”, in a true “affront to human dignity” (ibid., p. 1), as illustrated by the persistence of slavery-like practices, trafficking in persons for the purpose of exploitation, and illegal forms of compulsion to work (cf. ibid., pp. 35-47).
[FN122] International Labour Office, Eradication of Forced Labour, Geneva, ILO, 2007, p. XI.
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131. It has gone even beyond the domain of the International Law of Human Rights, in reiterating, in its recent study on the matter (published almost eight decades after the 1930 Forced Labour Convention [n. 29]), the view that

“Freedom from forced or compulsory labour was among the first basic human rights subjects within the Organization’s mandate to be dealt with in international labour standards. The principles embodied in the ILO Conventions in this field have since been incorporated in various international instruments, both universal and regional, and have therefore become a peremptory norm of international law”. [FN123]

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[FN123] Ibid., p. 111. - For a study of the historical background of the 1930 Forced Labour Convention (n. 29), and the early engagement in the matter on the part of the ILO and the League of Nations, cf. Jean Bastet, Le travail forcé et l’organisation internationale (SDN et BIT), Paris, LGDJ, 1932, pp. 1-181.
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132. This is not the only assertion to this effect; in yet another study published seven years ago by the ILO, the view is restated that, as from the letter and the spirit of the 1930 Forced Labour Convention (n. 29), - followed by the 1957 Abolition of Forced Labour Convention (n. 105), - the evolution of this particular matter has attained

“the status of the abolition of forced or compulsory labour in general international law as a peremptory norm from which no derogation is permitted”. [FN124]

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[FN124] M. Kern and C. Sottas, “The Abolition of Forced or Compulsory Labour”, in Fundamental Rights at Work and International Labour Standards, Geneva, ILO, 2003, p. 44, and cf. p. 33.
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133. It should not be forgotten that this was achieved only after much human suffering, of succeeding generations. As observed at the time of the celebration of the 1957 Abolition of Forced Labour Convention (n. 105), there is “humiliating historical evidence” that “the formal abolition of slavery was only reluctantly achieved, little by little, during the XIXth century”; as “hidden or even overt forms of serfdom” still persisted in some countries, it the mid-XXth century it was thus necessary to conclude the 1957 ILO Convention on Abolition of Forced Labour (n. 105). At that same time, moreover, the 1958 U.N. Conference on the Law of the Sea “found itself faced with the infamous slave trade to deal with as a still existing evil surviving from the past”. [FN125]

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[FN125] J.H.W. Verzijl, Human Rights in Historical Perspective, Haarlem, Haarlem Press, 1958, p. 6.
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c) International Law of Human Rights

134. Keeping in mind all the aforementioned developments, - the evolution of the new jus gentium of our times, - it is clear that, a long time ago, the prohibition of forced labour in all circumstances became established in the law of nations, in times of armed conflict as well as of peace (cf. supra). As proclaimed, in the aftermath of the II World War, by the 1948 Universal Declaration of Human Rights, “[a]ll human beings are born free and equal in dignity and rights” (Article 1). This prohibition derives from the fundamental principle of equality and non-discrimination. This fundamental principle, according to the Advisory Opinion No. 18 of the Inter-American Court of Human Rights (IACtHR) on the Juridical Condition and Rights of Undocumented Migrants (of 17 September 2003), belongs to the domain of jus cogens.

135. In that transcendental Advisory Opinion of 2003, the IACtHR, in line with the humanist teachings of the “founding fathers” of the droit des gens (jus gentium), pointed out that, under that fundamental principle, the element of equality can hardly be separated from non-discrimination, and equality is to be guaranteed without discrimination of any kind. This is closely linked to the essential dignity of the human person, ensuing from the unity of the human kind. The basic principle of equality before the law and non-discrimination permeates the whole operation of the State power, having nowadays entered the domain of jus cogens. [FN126] In a Concurring Opinion, it was stressed that the fundamental principle of equality and non-discrimination permeates the whole corpus juris of the International Law of Human Rights, has an impact in Public International Law, and projects itself onto general or customary international law itself, and integrates nowadays the expanding material content of jus cogens. [FN127]

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[FN126] IACtHR, Advisory Opinion n. 18 (of 17.09.2003), on the Juridical Condition and Rights of Undocumented Migrants, Series A, n. 18, paras. 83, 97-99 and 100-101.
[FN127] Ibid., Concurring Opinion of Judge A.A. Cançado Trindade, paras. 59-64 and 65-73. - In recent years, the IACtHR, together with the ad hoc International Criminal Tribunal for the Former Yugoslavia, have been the contemporary international tribunals which have most contributed, in their case-law, to the conceptual evolution of jus cogens (well beyond the law of treaties), and to the gradual expansion of its material content; cf. A.A. Cançado Trindade, “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law”, in XXXV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – OAS (2008) pp. 3-29.
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2. General International Law

136. I have already referred to the Martens clause (para. 121, supra) inserted into the preamble of the IV Hague Convention of 1907 (cf. supra), and, even before that, also in the preamble of the II Hague Convention of 1899 (para. 9), adopted at the I Hague Peace Conference of 1899, [FN128] - both pertaining to the laws and customs of land warfare. Its purpose was to extend juridically the needed protection to civilians and combatants in all situations, even though not contemplated by the conventional norms; to that end, the Martens clause invoked the “principles of the law of nations” derived from “established” custom, as well as the “principles of humanity” and the “dictates of the public conscience”. Subsequently, the Martens clause was again to appear in the common provision, concerning denunciation, of the four Geneva Conventions of International Humanitarian Law of 1949 (Article 63/62/142/158), as well as in the Additional Protocol I (of 1977) to those Conventions (Article 1(2)), - to quote some of the main Conventions of International Humanitarian Law.

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[FN128] It was originally presented by the Delegate of Russia (Friedrich von Martens) to the I Hague Peace Conference (of 1899).
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137. The Martens clause has thus been endowed, along more than a century, with continuing validity, in its invocation of public conscience, [FN129] and it keeps on warning against the assumption that whatever is not expressly prohibited by the Conventions on International Humanitarian Law would be allowed; quite on the contrary, the Martens clause sustains the continued applicability of the principles of the law of nations, the principles of humanity, and the dictates of the public conscience, independently of the emergence of new situations. [FN130] The Martens clause impedes, thus, the non liquet, and exerts an important role in the hermeneutics and the application of humanitarian norms.

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[FN129] As, however advanced may the codification of humanitarian norms be, it will hardly be considered as being truly complete.
[FN130] B. Zimmermann, “Protocol I - Article 1”, in Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949 (eds. Y. Sandoz, Ch. Swinarski and B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, p. 39.
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138. The fact that the draftsmen of the Conventions of 1899, 1907 and 1949 and of Protocol I of 1977 have repeatedly asserted the elements of the Martens clause in those international instruments reckons that clause as an emanation of the material source of International Humanitarian Law [FN131] and of International Law in general. In this way, it exerts a continuous influence in the spontaneous formation of the contents of new rules of International Humanitarian Law.

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[FN131] H. Meyrowitz, “Réflexions sur le fondement du droit de la guerre”, in Études et essais sur le Droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet (ed. Ch. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984, pp. 423-424; and cf. H. Strebel, “Martens' Clause”, in Encyclopedia of Public International Law (ed. R. Bernhardt), vol. 3, Amsterdam, North-Holland Publ. Co., 1982, pp. 252-253.
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139. By intertwining the principles of humanity and the dictates of public conscience, the Martens clause establishes an “organic interdependence” of the legality of protection with its legitimacy, to the benefit of all human beings. [FN132] The legacy of Martens is also related to the primacy of Law in the settlement of disputes and search for peace. [FN133] Contemporary juridical doctrine has also characterized the Martens clause as source of general international law itself; [FN134] and no one would dare today to deny that the “principles of humanity” and the “dictates of the public conscience” invoked by the Martens clause belong to the domain of jus cogens. [FN135] The aforementioned clause, as a whole, has been conceived and reiteratedly affirmed, ultimately, to the benefit of humankind as a whole, thus maintaining its topicality. The clause may be considered as an expression of the raison d’humanité imposing limits on the raison d’État.

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[FN132] C. Swinarski, “Préface”, in V.V. Pustogarov, F.F. Martens..., op. cit. infra n. (133), p. XI.
[FN133] V.V. Pustogarov, Fedor Fedorovitch Martens - Jurist i Diplomat, Moscow, Ed. Mezdunarodinye Otnoscheniya, 1999, pp. 1-287.
[FN134] F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Internacional - Libro-Homenaje al Prof. D. A. Truyol y Serra, vol. II, Madrid, Univ. Complutense, 1986, p. 836.
[FN135] S. Miyazaki, “The Martens Clause and International Humanitarian Law”, in Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de J. Pictet (ed. C. Swinarski), Geneva/The Hague, CICR/ Nijhoff, 1984, pp. 438 and 440.
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3. The Incidence of Jus Cogens, in the Light of the Submissions of the Contending Parties

140. The previous considerations bring me to a remaining line of brief reflections on the incidence of jus cogens, in the light of the submissions of Italy and Germany in the present case concerning Jurisdictional Immunities of the State. Their submissions, on this specific issue, and in the context of the cas d’espèce, are not so diverging as one might perhaps expect them to be. It is certain that, in its Memorial, Germany begins by criticizing the arguments of Italy’s Corte di Cassazione in its 2004 Judgment in the Ferrini case, as, in Germany’s view,

“(…) As a legal concept, jus cogens did not exist at the time when the violations occurred from which the plaintiffs attempt to derive their claims. Thus, to apply the standard of jus cogens to the tragic events of World War II does not correspond to the general rules of temporal applicability of international law. Any conduct must be appraised by the standards in force at the time it was practice”. [FN136]

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[FN136] ICJ, Memorial of F.R. Germany, of 12.06.2009, pp. 52-53, para. 85.
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It then added that, “since international law is essentially based on the consent of States”, it is in their “general practice” that answers must be sought as to the consequences “entailed by a breach of a jus cogens rule”. [FN137]

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[FN137] Ibid., p. 54, para. 87.
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141. Such assertions do not resist closer examination. State consent and jus cogens are as antithetical as they could possibly be. The practice of States alone, permeated with incongruences as it usually is, cannot at all provide sole guidance for extracting the consequences of a breach of a peremptory norm of general international law (jus cogens), in the sense of Articles 53 and 64 of the two Vienna Conventions on the Law of Treaties (1969 and 1986). When the first of those Vienna Conventions was adopted, it marked the emergence of jus cogens only in the domain of the law of treaties. In the course of the official debates of the Vienna Conference of 1986, which adopted the second Vienna Convention, I deemed it fit to warn as to the manifest incompatibility between jus cogens and the static positivist-voluntarist conception of international law (with emphasis on the will or consent of States). [FN138]

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[FN138] Cf. U.N., Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organization (Vienna, 18.02.1986-21.03.1986), vol. I, N.Y., U.N., 1995, pp. 187-188 [intervention by Mr. Cançado Trindade (Brazil)].
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142. The truth is that jus cogens goes well beyond the law of treaties, and this is not new. Still in its Memorial, Germany asserts that, “undoubtedly”, jus cogens “prohibits genocide”; and it promptly concedes, in this connection, that

“This ban has its legal foundation both in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and in (earlier) general rules of international law”. [FN139]

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[FN139] ICJ, Memorial of F.R. Germany, op. cit. supra n. (136), p. 53, para. 86.
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Thus, Germany itself rightly - and commendably - recognizes the incidence of jus cogens going well back into the past, and well before the relevant provisions (Articles 53 and 64) of the 1969 Vienna Convention on the Law of Treaties. It ends up by recognizing that jus cogens (in general international law) prohibited genocide already at the times of the crimes of the Third Reich, which shocked the conscience of humankind. Even before the end of the XIXth century (on the occasion of the I Hague Peace Conference of 1899), the prohibition of genocide was deeply-rooted in the universal juridical conscience, or in “the dictates of the public conscience”, to paraphrase the Martens clause (supra).

143. The 1948 Convention against Genocide went on to put that on paper, after the horrors of the Third Reich. But well before that Convention, everyone with a sane mind knew perfectly well that the perpetration of genocide is a wrongful act, is a crime, it goes against the Law. As to the treatment of detained persons, in its Counter-Memorial in the present case, Italy, on its turn, in relation to jus cogens, considers that

“It seems to be universally accepted that, even before the II World War, provisions concerning the treatment of prisoners had a non-derogable character. (…) The Charter annexed to the Agreement of 8 August 1945 establishing the Nuremberg International Military Tribunal qualified as war crimes the violations of the laws or customs of war. The Tribunal found that, by 1939, the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 `were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war’.

In 1946, General Assembly resolution 95(I) confirmed the Nuremberg Principles as regards international crimes. Even if the context was that of individual criminal responsibility and not of State responsibility and jus cogens definition, it cannot be denied that the criminalization of violations of humanitarian law committed during the II World War is indicative of the idea that such violations were considered, already at that time, as affecting the most fundamental values of the international community”. [FN140]

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[FN140] ICJ, Counter-Memorial of Italy, of 22.12.2009, pp. 62-63, paras. 4.62-4.63.
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144. In fact, we can go back, - even before the II Hague Peace Conference (1907), - to the time of the I Hague Peace Conference (1899), in the line of the viewpoints submitted to the Court by both Germany and Italy, not necessarily diverging herein. By the end of the XIXth century, in the days the I Hague Peace Conference, there was a sense that States could incur into delictual responsibility for mistreatment of persons (e.g., for transfer of civilians for forced labour); this heralded the subsequent age of criminal responsibility of the individual State officials, with the typification of war crimes and crimes against humanity.

145. The gradual awakening of human conscience led to the evolution from the conceptualization of the delicta juris gentium to that of the violations of international humanitarian law (in the form of war crimes and crimes against humanity), – the Nuremberg legacy, - and from these latter to that of the grave violations of international humanitarian law (with the four Geneva Conventions on International Humanitarian Law of 1949, and their I Additional Protocol of 1977). [FN141] With that gradual awakening of human conscience, likewise, human beings ceased to be objects of protection and became reckoned as subjects of rights, starting with the fundamental right to life, encompassing the right of living in dignified conditions.

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[FN141] I Geneva Convention, Articles 49-50; II Geneva Convention, Articles 50-51; III Geneva Convention, Articles 129-130; IV Geneva Convention, Articles 146-147; I Additional Protocol, Articles 85-88. - The I Additional Protocol of 1977 (Article 85) preferred to stick to the terminology of the four Geneva Conventions of 1949 in this particular respect, and maintained the expression of “grave breaches” on international humanitarian law, in view of the “purely humanitarian objectives” of those humanitarian treaties; yet, it saw it fit to state that “grave breaches” of those treaties (the four Geneva Conventions and the I Additional Protocol) “shall be regarded as war crimes” (Article 85(5)). Cf. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949, Geneva, ICRC/Nijhoff, 1987, pp. 990 and 1003.
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146. Human beings were recognized as subjects of rights in all circumstances, in times of peace as well as of armed conflict. As to the former, may it here be briefly recalled that, well before the 1948 Universal Declaration of Human Rights, in the inter-war period, the pioneering experiments of the minorities system and the mandates system under the League of Nations granted direct access to the individuals concerned to international instances (the Minorities Committees and the Permanent Mandates Commission, respectively), in order to vindicate the rights emanated directly from the law of nations (the evolving jus gentium). As to the latter, likewise, as from the II Hague Peace Conference of 1907 onwards, human beings were recognized as being entitled to war reparations claims.

147. A detailed factual account of the cruelty and the untold human suffering of deportation and forced labour of workers and of the civilian population (of occupied Belgium),[FN142] already in the I World War (period 1916-1918), published in 1928, observed that

“Le système de déportation institué à l’automne de 1916 consiste essentiellement dans la réquisition généralisée ou lévée en masse de la classe ouvrière masculine pour les besoins de main-d’œuvre de l’organisme de guerre allemand (…).
Pareille réquisition est formellement contraire au droit des gens, tant traditionnel que codifié par les Conventions de La Haye”. [FN143]

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[FN142] Cf. F. Passelecq, Déportation et travail forcé des ouvriers et de la population civile…, op. cit. supra n. (23), pp. 318-320, 329-330, 334-335, 374-376 and 394. The author ends his book (on the considerable suffering of those subjected to deportation and forced labour in 1916-1918) with these words: - “Nous ne formulerons pas de conclusion. Pour plusieurs raisons, il est préférable que le lecteur reste immédiatement en présence des faits et entende leur leçon muette sans interposition de personne”; ibid., p. 404. He let the facts speak for themselves.
[FN143] Ibid., p. 374 (emphasis added).
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Two decades later, the IV Geneva Convention (1949) expressly prohibited forcible transfers, [FN144] in addition to the earlier restrictions set forth in the 1907 Hague Regulations (IV Hague Convention). Those international instruments came to be regarded as declaratory of the evolving customary law on the matter. [FN145]

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[FN144] Art. 49(1), in addition to Article 147 on unlawful deportations or transfers.
[FN145] Cf., e.g., J.-M. Henckaerts, “Deportation and Transfer of Civilians in Time of War”, 26 Vanderbilt Journal of Transnational Law (1993) pp. 469-519.
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148. The 1907 Hague Regulations (IV Hague Convention) contained restrictions, rather than a peremptory prohibition, because at the beginning of the XXth century the practice of deporting persons came to be regarded as “having fallen into abeyance”. But the worst was still to come, with the imposed formation of a “forced labour service”, along two World Wars, with its appalling features, insufficiently examined by historians to date:

“millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions”. [FN146]

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[FN146] Jean S. Pictet et alii (eds.), Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, ICRC, 1958, p. 278.
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They were in this way sent to forced labour, in the war industry. Such events disclosed the necessity of “more detailed provisions” on the matter, giving expression to a prohibition which was already present in human conscience. Accordingly, in the IV Geneva Convention of 1949,

“‘unlawful deportation or transfer’ was introduced among the grave breaches, defined in Article 147 of the Convention as calling for the most severe penal sanctions”. [FN147]

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[FN147] Ibid., p. 280.
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149. Thus, by the mid-XXth century any doubt was dispelled that prohibitions of the kind had come to be regarded as “having been embodied in international law”. [FN148] As to the idea of jus cogens, it had found expression even earlier, in relation to distinct situations, keeping in mind general international law and the very foundations of the international legal order. The expression “jus cogens” was utilized by Judge Schücking, of the old PCIJ, in his Separate Opinion in the Oscar Chinn case. [FN149] One year later, in his course at the Hague Academy of International Law, A. Verdross also evoked the expression “jus cogens”, and referred himself to the aforementioned Separate Opinion of Judge Schücking. [FN150]

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[FN148] Ibid., p. 279.
[FN149] PCIJ, Oscar Chinn case (United Kingdom versus Belgium), Series A/B, n. 63, 1934, pp. 148-150, esp. p. 149.
[FN150] Cf. A. Verdross, “Les principes généraux du Droit dans la jurisprudence internationale”, 52 Recueil des Cours de l'Académie de Droit International de La Haye (1935) pp. 206 and 243.
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150. In the same year of 1935, another scholar, J.H.W. Verzijl, - endorsing the views of Judge Schücking in his invocation of jus cogens in the Oscar Chinn case (in his own words, - “M. Schücking, le juge allemand, me paraît avoir parfaitement raison”), - also referred to jus cogens, and was quite critical of the decision of the PCIJ in the Oscar Chinn case, for having pursued an essentially voluntarist-positivist approach (unfortunately still en vogue in our days). In the words of J.H.W. Verzijl,

“(…) À une question fondamentale du droit international public, l’arrêt a donné une solution des plus regrettables. En effet, il s’agissait de savoir qu’elle était la tâche de la Cour dans le cas d’un traité accusé par quelques-uns de ses membres d’être entaché de nullité absolue pour cause de violation de certaines normes antérieures ayant le caractère de droit impératif (jus cogens). (…)
La situation est assez simple: lorsqu’elle reconnaît que l’acte postérieur est contraire aux normes antérieures, revêtues du caractère de jus cogens, la Cour est obligée de le laisser hors application, comme étant absolument nul, quand même aucune des parties litigantes n’invoque cette nullité. Dans une hypothèse pareille, la nullité est de droit et doit être constatée d’office.
Mais la Cour Permanente n’a pas fait ainsi. (…) Je n’hésite pas à qualifier cet arrêt de pessimi exempli. Car, en effet, en se soumettant à la volonté des parties litigantes, la Cour a, par cet arrêt regrettable, ouvert la porte à toutes sortes de fraude au droit des gens impératif. (…) N’a-t-elle pas, par cet arrêt, préparé aux États les voies pour se dérober impunément, voire même sous sa sanction tacite, aux règles de droit reconnues antérieurement comme devant constituer pour l’avenir la base inébranlable des rapports internationaux?”. [FN151]

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[FN151] J.H.W. Verzijl, “La validité et la nullité des actes juridiques internationaux”, 15 Revue de droit international (1935) pp. 321-322.
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151. My own view, as I have already pointed out, is that States cannot waive claims of violations of the fundamental rights inherent to the human person, and any purported waiver to that effect would be deprived of any juridical effects. This applies even more forcefully if those violations (under the International Law of Human Rights) are also serious or grave breaches of International Humanitarian Law and amount to war crimes. This was already recognized in the mid-XXth century, in respect of deportation to slave-labour. Thus, the 1945 [London] Charter of the International Military Tribunal (of Nuremberg) included “deportation to slave labour” among “war crimes, namely, violations of the laws or customs of war” (Article 6(b)). The 1945 Charter of the Nuremberg Tribunal further included “enslavement” and “deportation” among “crimes against humanity” (Article 6(c)).

152. Shortly after the adoption of the Charter of the Nuremberg Tribunal, the U.N. International Law Commission (ILC) was directed by the U.N. General Assembly resolution 177(II), paragraph (a), to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal”. In pursuance of the General Assembly resolution, the ILC started considering the subject at its very first session. The ILC espoused the view that

“since the Nuremberg principles had been affirmed by the General Assembly, the task entrusted to the Commission by paragraph (a) of resolution 177(II) was not to express any appreciation of these principles as principles of international law but merely to formulate them”. [FN152]

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[FN152] U.N., Yearbook of the International Law Commission (1950)-II, p. 374.
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This view was approved by the General Assembly in 1949, and, after the consideration of the report on the matter (rapporteur, Jean Spiropoulos), the ILC adopted, in its session of 1950, a formulation of the principles of international law formulated in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal. [FN153]

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[FN153] Ibid., p. 374.
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153. Principle VI of the ILC’s Formulation of the Nuremberg Principles included, among “war crimes”, the “deportation to slave-labour or for any purpose of civilian population of or in occupied territories”; and it likewise included, among “crimes against humanity”, “enslavement” and “deportation” of “any civilian population”. [FN154] In sum, the ILC only formulated the principles at issue, which had already been recognized by the international community, and duly asserted by the U.N. General Assembly. The “dictates of the public conscience” - to paraphrase the Martens clause - had already echoed in the U.N. General Assembly. The international community already recognized jus cogens. Could claims of war crimes reparations be waived in 1947? Not at all. Could claims of reparations of crimes against humanity be waived in 1947? Not at all. Could claims of reparations of serious breaches (two years later codified as “grave breaches”) of international humanitarian law be waived in 1947? Not at all; not in my perception, not in my conception.

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[FN154] Ibid., p. 377.
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XIV. CONCLUSIONS

154. May I now, at last, proceed to a summary of the foundations I have cared to lay, in the present Dissenting Opinion, of my own position, contrary to the decision taken by the Court’s majority in the present Order. In summarily discarding the Italian counter-claim as “inadmissible as such”, the Court should have at least instructed properly the dossier of the cas d’espèce, by holding, prior to the decision it has just taken, public hearings to obtain further clarifications from the contending parties. The same treatment is to be rigorously dispensed to the original claim and the counter-claim as a requirement of the sound administration of justice (la bonne administration de la justice). They are, both, autonomous, and should be treated on the same footing, with a strict observance of the principe du contradictoire. Only in this way the procedural equality of the parties (applicant and respondent, rendered respondent and applicant by the counter-claim) is secured.

155. Counter-claims, as a juridical institute transposed from domestic procedural law into international procedural law, already have their history, but the ICJ’s jurisprudential construction on the matter is still in the making. Article 80(1) of the Rules of Court entitles the ICJ to entertain a counter-claim if “it comes within the jurisdiction of the Court” and “is directly connected with the subject-matter of the claim of the other party”. The present Order of the Court is not in line with the procedural history of the Court’s handling of counter-claims (cf. supra). The Court, furthermore, felt it sufficient to examine only one of the requisites of Article 80(1), on the basis, data venia, of erroneous assumptions as to the facts and as to the law, and failing thus to comply in toto with that provision of its own Rules.

156. The Order that the Court has just adopted has made abstraction of the configuration of the notion of “continuing situation” in international legal thinking, - in both international litigation and case-law, and in international legal conceptualization at normative level. Furthermore, it has not addressed the position of the true bearers (titulaires) of the originally violated rights, oblivious of the pitfalls of State voluntarism. Its emphasis fell solely on waiver of claims, again oblivious of the incidence of jus cogens, rendering certain waivers of claims devoid of any juridical effects (supra).

157. The Court has discarded the Italian counter-claim on the basis of succinct considerations in the two brief paragraphs 28 and 29, of the present Order. Paragraph 29 is a petitio principii, simply begging the question. The ratio decidendi lies in paragraph 28 of the Order: it argues that the two 1961 Agreements provided Italy with forms of compensation for certain of its nationals going beyond the “regime” established shortly after the II World War, and that they did not affect or change the legal situation of the Italian nationals at issue in the present case. It adds that the legal situation of those Italian nationals is “inextricably linked” to an “appreciation” of the scope and effect of the waiver contained in Article 77(4) of the 1947 Peace Treaty and “the different views of the Parties as to the ability of Germany to rely upon that provision”.

158. This is, in fact, another petitio principii, trying to make one believe that there is continuity between the 1947 Treaty Peace Treaty between the Allied Powers [FN155] and Italy, and the 1961 Agreements. This petitio principii ultimately leads the Court to declare that the counter-claim relates to facts and situations which already existed prior to the entry into force of the 1957 European Convention for the Peaceful Settlement of Disputes, thus falling outside its jurisdiction ratione temporis, and enabling it to declare the counter-claim “inadmissible as such”. The matter summarily disposed of, in the present Order, is not so clear and self-evident as the Court’s majority seems to believe. On the basis of the considerations and reflections developed in the present Dissenting Opinion, I am led to conclude that the Court’s majority position does not stand, and finds no basis, neither as to the facts nor as to the law, to rely upon. It is nothing but a petitio principii.

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[FN155] Namely: Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, China, France, Australia, Belgium, Byelorussian Soviet Socialist Republic, Brazil, Canada, Czechoslovakia, Ethiopia, Greece, India, The Netherlands, New Zealand, Poland, The Ukrainian Soviet Socialist Republic, Union of South Africa, and the People’s Federal Republic of Yugoslavia.
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159. Germany expressly acknowledges that “there exists in fact a certain divergence of opinions regarding the legal connotation of the two 1961 Agreements”, [FN156] whether they set up or not a “reparation regime”. [FN157] Germany and Italy further disagreed as to whether the celebration of the two 1961 Agreements represented a gesture of good will on the part of Germany, or else a mandatory process of settlement of reparations claims. [FN158] Germany’s obligation of effective reparation in respect of claims of Italian victims of serious violations of international humanitarian law, though finding a historical causal nexus in the crimes committed by the Third Reich, actually derives juridically from decisions of post-war Germany, formalized through the two 1961 Agreements. [FN159]

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[FN156] ICJ, Preliminary Objections of the F.R. Germany…, op. cit. supra n. (44), p. 22, para. 35.
[FN157] Cf. ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany…, op. cit. supra n. (53), pp. 20 and 25, paras. 52 and 65.
[FN158] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany…, op. cit. supra n. (53), pp. 22-23, paras. 56-57.
[FN159] Cf. ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), p. 111, para. 5.63.
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160. In this connection, both parties have excluded occurrences of the period preceding the entry into force of the 1957 European Convention for the Peaceful Settlement of Disputes from the subject-matter of the present dispute, in so far as consideration of the counter-claim is concerned. [FN160] Italy makes it quite clear that “it is the issue of reparation, and not the factual and legal assessment of events of the II World War, which forms the central point of the dispute”. [FN161] The tragic occurrences of the II World War do not constitute the real cause of the present dispute on reparation claims; the 1961 Agreements do, and form the triggering point of a continuing situation persisting to date.

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[FN160] ICJ, Memorial of Germany, op. cit. supra n. (24), pp. 8-9, para. 7; ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), pp. 37-38, paras. 3.14-3.15.
[FN161] ICJ, Counter-Memorial Italy, op. cit. supra n. (26), pp. 37-38, para. 3.15.
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161. As already pointed out, there is evidence to the effect that, from 1961 onwards, Germany decided no longer to avail itself of the waiver clause of Article 77(4) of the 1947 Peace Treaty, even retroactively; from then onwards, applications of Italian nationals would no longer be discarded (unlike what used to happen before 1961, on the basis of Article 77(4) of the Peace Treaty). Reference has already been made, first, to the exchange of letters (between the Secretary of State of the German Foreign Office and the Italian Ambassador in Bonn) of 2 June 1961 (on the same day as the two Agreements were signed, [FN162] taking into account that exchange of letters), indicating that a new obligation had emerged, - and, secondly, to the memorandum submitted to the legislative bodies by the German Federal Government on 30 May 1962, indicating its preparedness to consider claims of reparations (arising out of war crimes in the II World War) of Italian victims. [FN163] These Agreements embodied an obligation under international law, representing not only a simple gesture of good will. [FN164]

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[FN162] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany…, op. cit. supra n. (53), pp. 18-19, para. 46; and cf. ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), Annex 4.
[FN163]There was a clear instruction of the German Government to its legislative authorities not to object to claims to restitution on the basis of the waiver of Article 77(4) of the 1947 Peace Treaty; cf. also ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), pp. 108-109, para. 5.56.
[FN164] ICJ, ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany…, op. cit. supra n. (53), pp. 21-22, para. 55.
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162. Be that as it may, even if that would not be the case, the Court is not in principle bound by the submissions of the parties. In the determination of its own jurisdiction, so as to say what the Law is (juris dictio), it is perfectly entitled to go beyond the submissions of the contending parties. The Court is the master of its own jurisdiction. In the present case, it does not need to embark on an exercise of the kind, motu proprio, as the submissions of the contending parties leave no room for doubt that the Court’s jurisdiction ratione temporis is well-established, and the way was thus paved for it to declare the admissibility of the counter-claim.

163. The present Order seems to be at pains to concede that the two 1961 bilateral Agreements provided forms of compensation extending beyond (allant au-delà) the “regime” established in the aftermath of the II World War. The truth is that the two “regimes” (of 1947 and 1961) are independent from each other, and are to be considered separately. May I recall that the celebration of the 1961 Indemnity Agreement was accompanied by an exchange of letters between Germany and Italy (cf. supra), - which cannot pass unnoticed here, - wherein Germany itself held that all applications which had previously been rejected in the fifties because of Article 77(4) of the 1947 Peace Treaty would be reconsidered, and new applications of Italian nationals under the Federal Compensation Law of 1953 [FN165] and Federal Restitution Law would be dealt without raising objections based on article 77(4) of the 1947 Peace Treaty.

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[FN165] This Law has been amended many times; the Federal Compensation Law of 1965 (BEG Final Law) is still in force. Cf. ICJ, Counter-Memorial of Italy, op. cit. supra n. (26), Annexes 5 and 6.
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164. The new legal reparation regime, started with the two 1961 Agreements, - as explained by Germany itself in that exchange of letters, - does not match the previous one established in 1947 by the Peace Treaty, and rendered Article 77(4) of the 1947 Peace Treaty obsolete. A new situation emerged in 1961, without continuity with that of 1947 Peace Treaty. This is owed to several factors. To start with, Germany was not a party to the 1947 Peace Treaty, between the Allied Powers and Italy. The mens rea of that extensive 1947 Treaty (a piece of contemporary world history) was to strike a balance between the will of the Allied Powers to impose a heavy toll on Germany and the concomitant attempt by the Allied Powers not to undermine their chances to resort in due course to Germany’s economic potential and solvency. The issue of reparation was dealt with in a piecemeal approach, tangentially, and was postponed for proper regulation at a later time.

165. The mens rea of the two 1961 Agreements was quite different, as their titles indicate themselves, and their contents clearly confirm it (cf. supra), and the celebration of the two 1961 Agreements constitutes the triggering point of a new situation, a continuing situation in respect of claims of war reparations which extends up to the present time. This continuing situation started in 1961, relating to facts subsequent to the entry into force of the 1957 European Convention for the Peaceful Settlement of Disputes, thus falling entirely within the Court’s jurisdiction ratione temporis, what enabled it to declare the counter-claim “admissible as such”. That is what the Court should have done.

166. The present Order itself identified the Italian nationals at issue in the present case as “certain Italian victims of serious violations of humanitarian law committed by Nazi Germany between 1943 and 1945” (para. 26), - that is, human beings of flesh and bones, and soul. Along the fifties, several States started to engage in political processes with Germany through the celebration of treaties such as the two 1961 Agreements. Italy started negotiations with Germany which led to the conclusion of their two bilateral 1961 Agreements.

167. This was the first bilateral step which eventually led to the settlement of certain pending bilateral claims of reparation for war crimes. Shortly afterwards, in the aforementioned exchange of letters following the celebration of the 1961 Indemnity Agreement, Germany interpreted the waiver clause and explicitly held that it was not applicable (cf. supra). The 1961 Agreements are the ones to which both Germany and Italy are parties, and the Court cannot thus “link” (even less so “inextricably”!) the situation of war reparation claims of the Italian victims at issue here, with the one established between Italy and the Allied Powers (not Germany). But this is not all.

168. May I further recall that Germany’s conception of the waiver clause contained in Article 77(4) of the 1947 Peace Treaty was again, for a second time, clarified in 1962. The Federal Government instructed the German authorities in charge, on 30 May 1962, not to raise objections based on Article 77(4) of the 1947 Peace Treaty in case of claims of restitution, due to the special character of the claims to compensation for measures of Nazi persecution (cf. supra). Unlike what the Court’s majority assumes, the “regime” of the 1947 Peace Treaty was not “continued” or perfected by the 1961 Agreements: it was simply replaced. Article 77(4) of the 1947 Peace Treaty had become obsolete, and thus no longer applicable.

169. The relationship between the Peace Treaty of 1947 and the two Agreements of 1961 cannot at all be described as one of continuity. There is merely a historical causal nexus, which does not entail the exclusion of the Court’s jurisdiction ratione temporis over the Italian counter-claim. As I previously observed, the international contentieux of reparations is endowed with a dynamics of its own, and there are nowadays many examples in international litigation to that effect (cf. supra). Under these circumstances, the Court does not need to “appreciate” (as the Order says), the scope and effect of the waiver contained in Article 77(4) of the 1974 Peace Treaty in order to decide whether the counter-claim falls within its jurisdiction.

170. This “appreciation” was, in any case, undertaken by Germany itself, already in 1961 and 1962, and deprived that waiver clause of its raison d’être. The Court’s Order seeks to establish an “inextricable link” (only in its imagination) between the 1947 waiver, fallen into desuetudo, and the legal situation of the victimized Italian nationals concerned, in order to conclude that the present dispute relates to facts or situations existing prior to 1961, so as to find itself deprived of jurisdiction ratione temporis. However, Germany’s position as to that waiver clause was only been established in 1961, and not earlier, in the sense of rendering the waiver clause at issue inapplicable.

171. Germany recognized that the waiver of Article 77(4) of the 1947 Peace Treaty had no longer any effect. Applications (for compensation) which had been previously rejected in the fifties on the ground of Article 77(4) would be reconsidered, and new applications (of Italian nationals) under the Federal Compensation Law of 1953 and Federal Restitution Law would be dealt without raising objections based on Article 77(4) of the 1949 Peace Treaty. Germany’s position disclosed a juridical conviction that the 1947 purported waiver of claims against it was no longer to have legal effects, on ground of obsolescence. Germany expressed its belief not to be obliged by the waiver clause of 1947. Its subsequent practice - the aforementioned exchange of letters, and the memorandum (Denkschrift) of 30.05.1962 - affected directly the waiver clause of the 1947 Peace Treaty.

172. A new continuing situation thus emerged in 1961, as to war reparation claims, extending to the establishment in 2000 of the “Remembrance, Responsibility and Future” Foundation, and from then to date. This is what Italy actually expressed before the Court, [FN166] adding that “as Germany has always (…) acknowledged its international responsibility deriving from the conduct of the German Reich, (…) the present dispute did not arise because of the unlawful conduct of German authorities during World War II. (…) It does not constitute the source or real cause of the present dispute”. [FN167] This was triggered much later, with the celebration of the two 1961 German-Italian Agreements.

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[FN166] ICJ, Observations of Italy on the Preliminary Objections of the F.R. Germany (…), op. cit. supra n. (53), pp. 9-10, para. 21.
[FN167] Ibid., p. 9, para. 20.
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173. In addition, and much to my regret, the Court’s decision in the present Order seems more open and receptive to the sensitivity of States than to that of the victimized human beings, subjected to deportation and sent to forced labour. Unfortunately for its posture, not seldom States appear to be even more sensitive than human beings, so they are unlikely to be pleased, anyway. The Court’s tenacious search to identify, above all, the will of States, is also, in my view, much to be regretted. Its decision in the present Order, in my view does not stand, however, even from its voluntarist outlook. Germany itself cared to show, in its new posture (as from 1961 onwards) in relation to the 1947 waiver, that to try to build a legal reasoning on a waiver of the kind is like trying to build a castle over the sand.

174. After all, above the will stands human conscience. Moved by this latter, the contending parties, Germany and Italy, agreed to submit their present dispute (original claim and counter-claim) to this Court. By means of their respective original claim and counter claim, Italy and Germany commendably provided the Court with a unique opportunity to pronounce on a matter - that of State immunity in relation to claims of war crimes reparation - of the utmost importance for the present state and the future of the law of nations (the jus gentium); the Court regrettably dropped this unique occasion, for reasons which escape my comprehension.

175. The present case concerning Jurisdictional Immunities of the State does not concern State immunities in abstracto, or in isolation: it pertains to State immunity in direct connection with reparations for war crimes. The arguments of the contending parties, in the written phase which preceded the present Order of the ICJ, in my perception leave no doubt that there is a direct connection between Germany’s original claim and Italy’s counter-claim, in conformity with Article 80(1) of the Rules of Court. Such direct connection is inescapable.

176. As to the jurisdictional requirement, the vindications of the contending parties, both that of Germany as to State immunities, and that of Italy as to war reparation claims, as from the two 1961 Agreements, in my perception fall clearly within the Court’s jurisdiction ratione temporis, on the basis of Article 27(a) of the 1957 European Convention for the Peaceful Settlement of Disputes. Any assertion to the contrary would require demonstration, which I have not at all found in the present Order of the Court.

177. The fact that the Court found itself, in the present Order, without jurisdiction ratione temporis and declared the counter-claim “inadmissible as such”, does not mean that it really does not have jurisdiction to entertain it: the Court’s majority has found it so, but there are, data venia, cogent reasons to the contrary. All it means is that the conception of international law espoused by the Court’s majority in the present Order led it to its finding. It is not my own conception, which goes well beyond the strict inter-State outlook, so as to reach the ultimate bearers (titulaires) of rights, the human beings, confronted with waiver of their claims of reparation of serious breaches of their rights by States supposed to protect, rather than to oppress, them.

178. States may, if they so wish, waive claims as to their own rights. But they cannot waive claims for reparation of serious breaches of rights that are not theirs, rights that are inherent to the human person. Any purported waiver to this effect runs against the international ordre public, is in breach of jus cogens. This broader outlook, in a higher scale of values, is in line with the vision of the so-called “founding fathers” of the law of nations (the droit des gens, the jus gentium), and with what I regard as the most lucid trend of contemporary international legal thinking.

179. One cannot build (and try to maintain) an international legal order over the suffering of human beings, over the silence of the innocent destined to oblivion. At the time of mass deportation of civilians, sent to forced labour along the two World Wars (in 1916-1918 and in 1943-1945) of the XXth century (and not only the II World War), everyone already knew that that was a wrongful act, an atrocity, a serious violation of human rights and of international humanitarian law, which came to be reckoned as amounting also to a war crime and a crime against humanity. Above the will stands conscience, which is, after all, what moves the Law ahead, as its ultimate material source, removing manifest injustice.

(Signed) Antônio Augusto CANÇADO TRINDADE.



DECLARATION OF JUDGE AD HOC GAJA

In deciding on the admissibility of Italy’s counter-claim the Court is applying for the first time Article 80 of the Rules of Court as amended with effect from 1 February 2001. Unlike the previous provision, the new text requires the Court to take a decision “after hearing the parties” also on an objection raised by the claimant State with regard to the Court’s jurisdiction on the counter-claim. In the context of the Rules of Court (see, e.g., Art. 58, para. 2, Art. 67, para. 1, Art. 79, para. 9 and Art. 84, para. 2) “hearing the parties” appears to imply that an oral hearing should be held. This seems particularly justified when an objection relates to jurisdiction, given the impact of a decision on jurisdiction. In case of a denial of jurisdiction, the defendant State would be effectively prevented from bringing to the Court the inadmissible counter-claim as a separate claim.

In the case in hand, an oral hearing would probably have helped the Court to identify more precisely the date when the dispute arose and the facts and situations to which the dispute related. It may have allowed the Court to establish which claims had been the object of “repeated attempts to reach an agreement” (thus a memorandum of the German Government quoted in the Memorial of the Federal Republic of Germany (p. 10, para. 10)) before the conclusion of the 1961 bilateral agreements.

(Signed) Giorgio GAJA.

 
     

 

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