Staatenimmunität im Zivilprozess bei gravierenden Menschenrechtsverletzungen

On 3 February 2012 the International Court of Justice (ICJ) delivered a long-awaited judgment concerning state immunity for gross human rights violations. Germany had instituted proceedings against Italy before the Hague Court in 2008. In Germanýs view, Italy had failed to respect its jurisdictional immunity in three cases. In the first case, Italian courts had ordered Germany to pay reparation to victims of war crimes and crimes against humanity committed by German state organs during the Second World War. In the second case, Italian courts and other state organs had allowed Greek victims of similar violations of international humanitarian law, committed by German troops during the Second World War on Greek territory, to initiate measures of constraint against German sovereign real estate located in Italy. In the third case, Italian courts had declared Greek judgments against Germany, similar to the Italian judgments in the first case, enforceable in Italy. The ICJ concluded that Germanýs immunity had been violated in all three cases. It found that public international law does not recognize an exemption from the principle of state immunity for personal injuries committed by the military forces of a foreign state on the territory of the forum state. Moreover, the ICJ reasoned that, even where the human rights which have been grossly violated are considered as peremptory norms of public international law (jus cogens), they may not override the principle that a state is immune before foreign courts for acts in which it is exercising sovereign power. The present article examines the reasoning of the ICJ judgment and puts it into context with previous decisions by other national and international courts. While the article concludes that the current situation in public international law has been adequately assessed by the ICJ, it also seeks to evaluate its long-term consequences for the conflict between state immunity and human rights.