In the innovative 2004 Ferrini decision, the Italian Court of Cassation allowed Italian victims of Nazi crimes to claim reparations directly from Germany via Italian national courts, thereby abrogating Germany's State immunity. Italy's highest court held that Italian courts had jurisdiction to hear these claims since they constituted a violation of jus cogens, fundamental principles in international law. This overstepping of Germany's State immunity created a new exception to the rule of immunity from civil lawsuits. According to the Italian Court of Cassation, the international community has made it clear that State officials can no longer invoke immunity to evade criminal prosecution for international crimes. To maintain legal coherence, the Court argued, immunity shall not apply to States that abrogate their civil responsibility, as there would be no reason to uphold the immunity of the State while denying the immunity of its officials.
Following this landmark ruling and subsequent lawsuits, Germany initiated proceedings before the International Court of Justice (ICJ) to revoke the Italian court's decision as a violation of customary international law. Both Italy and Germany agreed that international crimes were committed; the issue was whether Germany was sheltered from Italian courts' jurisdiction by customary international law, or whether jus cogens violations created an exception to the general immunity.
By allowing reparations to be pursued in the Ferrini case, the Italian Court implicitly granted individuals a right of reparation. Indeed, Italy was explicit before the ICJ that it had abrogated Germany's immunity because of the specific issue at stake: ensuring reparations and access to justice for Italian World War II victims. Without denying State immunity, the victims would be denied justice.
As no state practice lent support to the Italian position (1), the ICJ sided with Germany. On 3 February 2012, it ruled that States have the right to immunity from foreign courts, even if the case concerns allegations of jus cogens violations.
Thus, international law maintains a strict division between individual and State immunity and between civil and criminal responsibility. Former officials can be charged by foreign national courts in criminal cases and they would not enjoy immunity in cases of international crimes, as ruled in the UK Pinochet case (2), yet the State cannot be held responsible in civil cases before the courts of third-party states.
European Court of Human Rights (ECtHR)
A claim similar to that in the Ferrini case was submitted in the UK. The victim sought reparations from Saudi Arabia having allegedly been subjected to torture there. In 2006, the House of Lords rejected the case on the grounds of State immunity. Citing Ferrini, it stated that "one swallow does not make a rule of international law." (3) The case is now pending before the ECtHR, and it seems that the ICJ ruling has diminished the likelihood of the claimant's success. (4)
(1) The Italian Court of Cassation mainly based itself on the Greek Distomo case (1997), yet that case was ultimately overruled. In the Distomo case, the Greek Supreme Court held in May 2000 that a Greek court could exercise jurisdiction over civil claims related to World War II crimes on the grounds that a country that committed war crimes must be deemed to have waived its sovereign immunity. Yet, the judgment could not be enforced in Greece because of the denial of consent of the Ministry of Justice to enforce this decision against German state property in Greece. Then, in a parallel case, the Greek Special Supreme Court, empowered to decide cases involving the interpretation of international law, ultimately ruled that the law had been wrongly interpreted. The case went on to the ECtHR on the grounds that the claimants were being deprived of a remedy, contrary to Article 6(1) of the European Convention on Human Rights. The ECtHR held, relying on its Al-Adsani decision, that international law does not allow an exception to State immunity for civil claims resulting from international crimes. The European Court did recognize the possibility that customary international law might develop in this direction in the future. Kalogeropoulou and others v. Greece and Germany, Application No. 50021/00, ECtHR Judgment, 12 December 2002, p. 10. Quite surprisingly, the legal saga did not end there. After Ferrini, on 2 May 2005, the Court of Appeal of Florence declared the Greek Distomo decision as being enforceable in Italy. This decision was confirmed by the Court of Cassation in May 2008.
(2) Pinochet (No. 3) ( 1 AC 147; ILR, Vol. 119, p. 136).
(3) Jones v. Saudia Arabia, UK House of Lords (2006), para. 22.
(4) Jones v. UK and Mitchell and others v. UK, Application nos. 34356/06 and 40528/06 (pending). See also Al-Adsani v. UK, Application no. 35763/97, ECtHR Judgment, 21 November 2002.