State Immunity for International Crimes: the Cassazione’s Solitary Breakaway Has Come to an End (judgment 32139/2012).

By on October 11, 2012

In August, the First Criminal section of the Cassazione, the Italian Supreme Court (ISC),
annulled (without re-trial) a decision of 2011, whereby the Military Court of
Appeal had condemned Germany to pay reparation to the Italian victims of some Nazi
officers, who had been found guilty of war crimes perpetrated in Italy during the
ending phase of World War II. The challenge before the ISC was brought by the
German State against the tort-related section of the dispositif, and did not touch upon the criminal conviction of the

In this judgment,
the Italian judges had to perform a forced (and awkward) turnabout on the issue
of State immunity from civil foreign jurisdiction in the case of crimes against
humanity, in the wake of the International Court of Justice (ICJ)’s judgment of February
. Indeed, earlier the same year, the ICJ had upheld Germany’s claim
that Italy had breached the international custom providing States with immunity
from foreign civil jurisdiction for acts committed in the exercise of sovereign
prerogatives (acta jure imperii).
Indeed, Italian courts had since 2004 started to award damages to Italian plaintiffs
suing Germany for WWII-related crimes, and had dismissed Germany’s invocations
of State immunity, based on a long-standing rule of customary law.

The ungrateful task of the ISC was to implement
the ICJ’s dictum and to put an end to
the unsuccessful campaign launched by the Cassazione
itself, aiming at the creation/recognition of an exception to the general principle
of State immunity. This doctrine was first heralded in the Ferrini judgment (5044/2004), it was later confirmed in the 2008
orders (see e.g. order 14201/2008 Mantelli)
and it was generally accepted and applied by several courts of first instance
and appeal, up until very recently.

Italy’s position in The Hague replicated the
reasons provided by the ISC in the Ferrini
case-law: although there certainly is a custom that confers upon States
immunity from the civil jurisdiction of other States, especially if acts jure imperii are in question, there also
are rules of higher status prohibiting the commission of international crimes.
The effective implementation of these higher rules cannot be frustrated by the
rules of immunity, especially when the conduct examined has taken place in the
State of the forum.

A similar argument had been used by the
Military Court of Appeal in the judgment later challenged before the ISC. It had
referred to the evolutionary status of international customs and to the necessity
to strike a balance between the purpose of State immunity (a safeguard for State
sovereignty) and the paramount interest to indemnify the victims of the most heinous
violations of human rights. Somewhat apart from the hierarchical argument (a jus cogens prohibition must trump a rule
of custom), the Military Court of Appeal also declared that a new custom had indeed
solidified, which was capable of derogating from the general one of State
immunity. As a consequence, since German international crimes in Italy in 1944
were not committed on the initiative of single commanders but in the execution
of a centralised plan, Germany was liable for damages.

After perusing the ICJ’s decision, the judges
of Piazza Cavour felt the need to recapitulate the phases of the legal
vicissitude described above, also to justify before the eyes of the plaintiffs
the spectacular revirement they were
about to include in the operative part of the decision.

The ISC took note of the main point of the ICJ’s
reasoning that led to the rejection of Italy’s position: the jus cogens rank of the material norms
prohibiting international crimes does not affect the rules on State immunity,
which are of procedural nature and apply regardless of the gravity of the
conduct. In other words, the peremptory character of the rules of behavior
cannot trump the principles of State immunity, despite of their concededly
lower rank. This is because there is no conflict between them in the first
place: stating the contrary would be tantamount to ignore “the distinction that
must be drawn between the substantive primary rule and the secondary rules that
come into play once a violation has occurred” (para. 120 of the ICJ’s

The ISC seised the occasion to question the
correctness of such distinction, stating that

Appare[…] indebitamente
riduttivo confinare la categoria dello jus cogens alla sua sola protata
sostanziale, ignorando che la sua effettività concreta si misura proprio alla
stregua delle conseguenza giuridiche che derivano dalla violazione delle norme
appears unduly restrictive to confine jus
rules within their substantive scope. Such operation would disregard
the fact that their practical efficiency is depending precisely on the legal
consequences attached to the violation of peremptory norms.]

The Italian judges, in addition, noted that this
distinction ends up promoting impunity and attracting crimes against humanity in
the category of acts jure imperii, providing
them with undeserved protection. This notwithstanding, the ISC acknowledged the
undisputed authoritativeness of the ICJ’s decision, and the isolation of its own
position in Europe. It took cognisance that the rationale of State immunity is
to preserve sovereignty, and that – as of now – no act whatsoever can be
considered serious enough to put this preservation into doubt.

Before admitting defeat, the ISC also took the
chance to provide a “friendlier” reading of the ICJ’s judgment. According to this
interpretation, the ICJ itself, far from disavowing the convincingness of the
principles declared in the 2004 and 2008 decisions of the ISC, limited itself
to register the lack of agreement thereon, and acknowledged that the ISC was
legitimately bringing a contribution to “to the emergence of a rule shaping the
immunity of the foreign State” in international law. The Italian decisions were
therefore seen as an attempt to bring about a change in the law, which was “inspired
by the principles of legal civilization”. However, the lack of consensus surrounding
the Italian position could only lead to the discontinuation of the case-law it
had generated.

As for the impact of the ICJ’s decision on the proceedings
at hand, the ISC noted that Italy had incurred international responsibility for
the acts of its judiciary, and had been ordered to restore the status quo antea, regardless of the
means chosen to that aim, and irrespective of the finality of the domestic
judgments already delivered.

The Court, with a slight and involuntary comic
effect, declared that it had no direct obligation to follow the ICJ’s decision,
but it would agree to do so spontaneously, not to aggravate Italy’s position at
the international level, and to issue a judgment “reflecting the current status
of international law”. It also conceded that it would not be a problem for
Italy to implement the ICJ’s decision through the adoption of a statute. It had
been argued that such statute might be unconstitutional ab origine, because it would be at variance with the international
custom limiting State immunity from civil jurisdiction in the case of crimes
against humanity – and international customs enjoy a quasi-constitutional rank
in the domestic order (under Art. 10 of the Constitution). However, since it
had been conclusively clarified that such international custom, in fact, does
not (yet?) exist, the question of constitutionality could not arise in the
first place.

The ISC, net of all the dicta aimed at explaining why it still believed to be
sort-of-right, has displayed a remarkable degree of deference to the authority
of the ICJ, on an issue of considerable political weight. In so doing, it had
to swallow its pride and grant immunity to Germany, but the result is
uplifting: Italy is a good citizen of the international community, and its
State organs are aware of the obligations it has entered in. Far from creating
a schizophrenic situation like those of the Avena
and LaGrand cases (if you don’t
remember the details, I recommend this article),
the Italian judiciary acted responsibly and spared Italy from further troubles
at the international level.