Compensation and immunity: Germany v. Italy at the ICJ

The recently undertaken case between Germany and Italy at the International Court of Justice at The Hague concerns claims by victims of violations of International Humanitarian Law for compensation for the alleged acts of German soldiers in the Italian town of Civitella during World War II. In recent years, Italian courts, including the Corte di Cassazione, have granted a number of applications directed against Germany, thereby infringing upon Germany's right to jurisdictional immunity (the landmark Ferrini decision has been translated and reprinted in 128 ILR 659 as has been commented on by Bianchi in 99 AJIL (2005) 242).

That such claims are possible appears clear from international treaty law: Art. 91 of the First Additional Protocol to the Geneva Conventions (AP I) states that violations of provisions of the Geneva Conventions or the Additional Protocols lead to the liability of the "party to the conflict which violates the provisions of the Conventions or of this Protocol" - liable to pay compensation and that it "shall be responsible for all acts committed by persons forming part of its armed forces."

Art. 3 of the Fourth Hague Convention (Laws and Customs of War on Land) (Hague IV) also requires that "[a] belligerent party which violates the provisions of the said Regulations 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."

Art. 3 Hague IV has become part of the law of the land of the Federal Republic of Germany by virtue of Art. 25 of Germany's Federal Constitution (the Grundgesetz) and both Hague IV and the AP I have been ratified by Germany. While Hague IV dates from 1907, the AP I only dates from 1977. Of course only Hague IV applies to World War II.

Only states as parties can bring such claims under AP I and Hague IV because these conventions do not provide for compensation claims by individual victims. The wording of Art. 3 Hague IV and Art. 91 AP I emphasizes the obligation of a party to provide compensation in case of a breach of an obligation under the treaty in question. Back then such obligations were meant to be between the states which are parties to an international treaty. Although a lot has changed between 1907 and 1977 with regard to the position of the individual under international law, the choice of the virtually identical wording in Hague IV and AP I indicates that the drafters of AP I did not want to create rights for the individual, despite the fact that by 1977 there existed already rights of individuals outside human rights treaties, for example in Art. 36 of the Vienna Convention on Consular Relations which dates back to 1963. Individuals therefore cannot sue directly under Art. 91 AP I or Art. 3 Hague IV – and states in general don't do so. The fact that these rules are rarely resorted to by states does not mean that there is customary international law to the contrary and that these rules have become the object of desuetudo. As a matter of fact, states which want to defend themselves against such claims have resorted to a kind of act of state doctrine, as Japan has done until recently, or relied on the principle of jurisdictional immunity. The latter is at stake here.

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