THE BALANCE BETWEEN IMMUNITY AND HUMAN RIGHTS

Internal Continuous Evaluation 2: CASE ANALYSIS

For

Course Name: Public International Law

Submitted by:

Name of the Learner: Jahanvi

PRN: 22010223090

Division/Group: Group C

Semester: 7

Batch: 2022-2027

Academic Year: 2025-26

Submitted to:

Name of the Evaluator: Dr Syed Mujtaba Athar (Course In-Charge)

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University)

July – November 2025

Page 1 of 7
 Annexure – Declaration

This written submission, based on the topic “The Balance Between Immunity And Human Rights”
submitted by the undersigned to Symbiosis Law School, NOIDA, Symbiosis International (Deemed
University), Pune, for the course ‘Public International Law’ as part of Internal Continuous Evaluation
(ICE 2): Case analysis, is my original work carried out for the course. The research work has not been
submitted elsewhere for award of any degree or any other purpose whatsoever. The material borrowed
from different sources and incorporated in the submission has been duly acknowledged.

I have also taken due care that the contents of my project are not similar or same as another learner’s
submission for the aforesaid course.

I confirm that my submission or any part of it is not AI-generated content or any form of plagiarism.

I understand that I could be held responsible and accountable for plagiarism, if any, even if detected later.

JAHANVI

Date: 22 September 2025

Page 2 of 7
 INDEX

SR. NO. PARTICULARS PAGE NO.

1. Introduction 4
2. Facts of the case and background 4
3. Issue 5
4. Rule 5
5. Application 6
6. Critical reflections and aftermath 7
7. Conclusion 7

Page 3 of 7
INTRODUCTION

The doctrine of ‘sovereign equality’, which is summed up in the maxim ‘par in parem non habet
imperium (an equal has no power over an equal)’, has long been the foundation of the
international legal order. Out of this principle derives the doctrine of State immunity, which
excludes the jurisdiction of the courts of one state over another. Nevertheless, the post-World
War II period has been characterized by the emergence of an alternative normative discourse,
which focuses on the individual, which defines the basic human rights and outlaws some acts as
so heinous that they contravene peremptory norms of international law (jus cogens), to which
there is no derogation.

In 2012 the case was initiated by a sequence of rulings of Italian courts, starting with the
landmark Ferrini ruling in 2004, which refused Germany jurisdictional immunity in civil actions
against Italian war crime and crimes against humanity victims in the period between 1943 and
1945. These offenses involved massacres, deportations and forced labour. Germany responded
by initiating a case at the ICJ in 2008, claiming that the actions of Italy were a serious violation
of its duty under the customary international law on State immunity. (Germany v. Italy, I.C.J.
Reports 2012, paras. 27–29, 52)

FACTS AND PROCEDURAL BACKGROUND

The lawsuits against Germany in Italian courts were filed by people who had suffered enormous
damages during the World War II. One such case is that of Luigi Ferrini who was taken to
Germany to perform forced labor and the family of the victims of the Distomo massacre in
Greece wanted to pass a judgment in Italy through a court in Greece. The Italian Court of
Cassation in Ferrini judgment determined that the immunity of the State could not be used in
respect of the acts that constituted international crimes because they were not in line with the
norms of jus cogens. This Italian judicial tendency resulted in the placement of many other
claims and judicial mortgages on Italian state-owned property, including Villa Vigoni. (Germany
v. Italy, I.C.J. Reports 2012, pp. 148–149, 157–158, paras. 27–29, 34–35, 52) The application by
Germany to the ICJ asked the Court to pronounce that Italy had infringed its immunity under the
jurisdiction and to request Italy to void the impact of its local court rulings. Italy justified its
stance on three main grounds: first, that the violations (violation of jus cogens) were too grave to
override the rule of immunity; second, that the rule of immunity was not upheld as the denial of
immunity was a last resort measure since victims had no other effective remedy; and third, that
the acts were within a territorial tort exception to immunity.

Page 4 of 7
ISSUE

1. Is a state immune to civil actions in the courts of a foreign state to wrongful acts of its
armed forces in an armed conflict?

2. Is it possible to defeat the defense of state immunity based on the fact that the acts were
serious offenses against human rights and there is no other way of reparation or remedy?

RULE

• United Nations Conventions on jurisdictional, immunities of state and their property

- The Court notes (Germany v. Italy, I.C.J. Reports 2012, p. 136, para. 74) that Article
12 offers an exemption of immunity to the claims of pecuniary compensation on
death, injury, or damage of property due to acts that take place wholly or partially
within the territory of the forum State.

• European Convention of State Immunity,1972, article 31.

The Court relies on this provision to strengthen its opinion that military actions on foreign soil in
armed conflict are also immunized (Germany v. Italy, I.C.J. Reports 2012, p. 138, para. 79).

• Article 774 of the 1947 Peace Treaty:

Contains waiver clauses related to reparations, interpreted as not covering war crimes reparations
claims under ICJ analysis. (Germany v. Italy, I.C.J. Reports 2012, p. 152, para. 22)

APPLICATION

The Core Legal Dilemma: State Immunity vs. Human Rights

The State Immunity Doctrine. State immunity is a procedural doctrine which prohibits national
courts in adjudicating claims against a foreign state. It was originally absolute, but the doctrine
was a restricting theory, in that it drew a distinction between the public acts of a state (acta jure
imperii) and the commercial or private acts (acta jure gestionis), and the immunity was confined
to the former.

Italy’s Counter-Arguments

Italy Counter Arguments Italy attempted to be innovative when it suggested that the rule of
immunity had been developed to include exceptions due to the consideration of human rights.

1. The Territorial Tort Exception: Italy claimed that the harmful acts had their effects on
Italian soil, and thus, they were subject to a known exception to immunity of torts that

Page 5 of 7
 resulted in death, personal injury, or property damage. But the ICJ carefully examined the
practice of the states.

2. The Jus Cogens Argument: This was the strongest and the most radical argument of Italy.
Italy claimed that the standards against war crimes and crimes against humanity were jus
cogens. According to peremptory norms, they occupy the top of the normative hierarchy.
Italy therefore contended, a collision between a jus cogens norm and a lower rule of
customary international law, such as State immunity must be decided in favour of the
former.

The Court’s Reasoning: A Strict Separation of Procedure and Substance

The ICJ was able to take a methodologically restraint stance, basing its decision on a solid
evaluation of current state practice and opinio juris instead of judicial law-making. Its rejection
of the arguments of Italy, especially the one that Italy was under the jus cogens, was on the basis
of clear and firm separation of procedure and substantive law.

Para 93: “The two sets of rules address different matters. The rules of State immunity are
procedural in character and are confined to determining whether or not the courts of one State
may exercise jurisdiction in respect of another State. They do not bear upon the question whether
or not the conduct in respect of which the proceedings are brought was lawful or unlawful.”
(Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, I.C.J.
Reports 2012, p. 141, para. 93)

In making immunity appear to be a pure procedural preliminary fact the Court held that this does
not override the substantive outlawing of the wrongful act. The issue of immunity, as seen by the
Court, comes before, and is independent of the merits on the case. Thus the granting of immunity
does not mean condoning of the act or declaring the act legal; it just means that the domestic
court is not the right place to decide over the issue.

Para 91: “...under customary international law as it presently stands, a State is not deprived of
immunity by reason of the fact that it is accused of serious violations of international human
rights law or the international law of armed conflict.”( I.C.J. Reports 2012, p. 140, para. 91)

The references to the decisions of the other tribunals, such as European Court of Human Rights,
supported this interpretation in such cases as Al-Adsani v. United Kingdom which had also
declined to provide that a jus cogens claim could be asserted above State immunity.

Para 101: “The Court can find no basis in the State practice from which customary international
law is derived that international law makes the entitlement of a State to immunity dependent
upon the existence of effective alternative means of securing redress.”

Page 6 of 7
CRITICAL REFLECTIONS AND AFTERMATH

The ICJ's judgment in Germany v. Italy was a paradox: legally sound yet deeply unsatisfying. By
strictly adhering to existing state practice on sovereign immunity, the Court correctly applied
international law but left victims of the gravest crimes without a judicial remedy. This decision
exposed a stark "enforcement gap" in the international system, where strong human rights norms
are often blocked by procedural rules that prioritize state sovereignty. The greatest effect was the
audacious response of the Constitutional Court in Italy. The Italian court in its landmark
Judgment No. 238/2014 declined to apply the decision of the ICJ. It decided that the absolute
state immunity was incompatible with the main principles of the Italian constitution.

CONCLUSION

Germany v. Italy (2012) covered two important issues which informed its judgment. Firstly, the
Court had to decide on whether Germany was a party that had a right to invoke the jurisdictional
immunity of the Italian jurisdiction in the acts of its armed forces that had occurred during the
World War II. The Court reiterated that under the customary international law, states were
immune to the foreign jurisdiction against sovereign acts, such as military acts in the armed
conflict, even acts resulting in gross violations. Second, the Court had to know whether the
immunity would be eliminated depending on the degree of the violations, the fact that the
fundamental human rights were at stake and that there were no other methods of recompensing
the victims. The Italian arguments were founded on the denial of immunity on the ground of
violation of human rights, on the jus cogens norms and that the Italian courts were the last resort
of the victims- were not accepted. The Court felt that the immunity of states is not nullified by
the severity of the offences and the absence of other means of compensation. The questions of
immunity must be decided as soon as the proceedings start irrespective of the merits or
circumstances which caused the case. (Jurisdictional Immunities of the State (Germany v. Italy:
Greece Intervening), Judgment, I.C.J. Reports 2012, p. 141, para. 93)

Page 7 of 7