International Court of Justice

Berkeley model united nations Welcome Letter

Hello delegates! My name is Amanda Ostrom, and I will be your Head Chair for the Interna- tional Court of Justice (ICJ) committee this year. I am a Sophomore studying Political Science, with a concentration in International Relations. After graduation, I plan to attend law school. In my spare time, I love getting coffee with my friends, watching baseball (I’m a ride or die San Francisco Giants fan), spending time with my two Labrador Retrievers, Olive and Bailey, and traveling. I have been involved with Model United Nations for four years; two years as a delegate in high school and two years as a member of Berkeley Model United Nations. I love the possibilities and intellectual debate that MUN creates, and I am looking forward to providing an exciting and immersive atmosphere at conference this year!

Annie Ren will be serving as one of your Vice Chairs for ICJ in the upcoming BMUN LXVIII. She is currently a Sophomore, studying Applied Mathematics and Economics at Cal, and this will be her second year in Berkeley Model UN. Her hobbies include playing volleyball and soccer, making repeated trips to Thailand, smothering her cat with unrequited love, and photographing her adven- tures. She is excited to meet all of you and witness the amazing things you are all capable of. Feel free to reach out if you have any questions!

Ashwin Srikanth will be serving as your vice chair for the ICJ. He is currently a Junior at the University of California Berkeley studying Molecular and Cellular Biology and Public Health. Though his major may have little to do with international law, he has always been fascinated with law as a feld that is both precise and extremely far-reaching and he knew that the ICJ was the committee for him when he participated as a delegate. Outside of MUN, he sings bass in chamber choir, is an avid fan of basketball and football, and loves watching TV shows like Game of Thrones and Brooklyn 99. He is incredibly excited to be your vice chair this year and cannot wait to meet you!

Peter Liu is a freshman studying data science at UC Berkeley. He has been involved with MUN for three years. He loves basketball, soccer, Game of Thrones and Ed Sheeran. He is very excited to meet you all in ICJ!

“The crimes have never been atoned for nor have they been adequately addressed by the judiciary”

-Hans-Jürgen Schlamp, 2012

berkeley model united nations 1 For sixty years after the end of World War II, Italian citizens who were affected by the confict sought reparations for the actions of the Nazi regime. The Italian court system permitted these citi- zens to bring lawsuits against the state of Germany, violating the unspoken understanding within the international community of jurisdictional immunity, which grants immunity to foreign countries within national courts of law. By allowing the German government to be charged and convicted for the actions of the Third Reich, Italy challenged the widespread acceptance of jurisdictional immunity and sparked a debate within the International Court of Justice (ICJ) regarding its legal foundation. This case is full of twists, from the Italian government seizing German-owned property on Lake Como, to the Greek government inserting itself in the case partway through the trial. The ICJ will replicate these events, while debating the nuances of treaties and dealing with the antics of European states, all while recognizing the fragile state of modern European politics. Ultimately, you will answer two questions pertaining to the issue of jurisdictional immunity: Should the average citizen be able to bring lawsuits against an entire nation? And should international law refect the age-old adage of “letting go of the past?”

This case raises several broad questions, and accordingly, there are many avenues for debate within the committee. If Germany claims jurisdictional immunity, does that limit the Italian and Greek survivors’ right to justice? Furthermore, what does that mean for future victims of human rights abus- es? Conversely, if Italy allows its citizens to bring charges against Germany for government actions, what prevents individual citizens from suing foreign countries for every action they take? What would this mean for international relations long-term?

This topic synopsis is not an exhaustive summary; it is up to you to formulate your own ver- dicts and research the nuances of the case. I have included what I believe are the most critical facts of the case and the strongest arguments in favor of both sides to assist you in your research. How- ever, I encourage you to independently study the various theories surrounding this case; there are many different opinions about the ruling in this case. The more you research your stance outside of the foundational information that the Topic Synopsis provides, the more passionate and confdent you will be about your verdict and in committee.

I look forward to hearing from you throughout the next year through blog posts, emails, and more; the Dais is eagerly looking forward to BMUN LXVIII!

berkeley model united nations 2 See you at BMUN 68! Amanda Ostrom

Head Chair, Internation Court of Justice

Topic A: Germany v. Italy (Greece Intervening): Jurisdictional Immunities of the State GLOSSARY OF TERMS

Jurisdictional Immunity:

“one sovereign state cannot be sued before the courts of another sovereign state without its con- sent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts” (Yang). • Jurisdictional immunity only applies to the actions of States, so individuals can still be held accountable for their actions in foreign courts of law. This allows States to prosecute for- eign nationals for crimes committed abroad.

Acta Jure imperii: public acts of a government (Bianchi).

Acta Jure gestionis: private, commercial acts of a government (Bianchi). • The distinction between the two above terms is important because actions considered acta jure imperii qualify for jurisdictional immunity, whereas actions which are acta jure gestionis do not. If a government is acting in an offcial capacity (for example, diplomat- ic relations) those actions are immune, whereas commercial activities (such as those by a state-owned enterprise) are not.

berkeley model united nations 3 Universal Jurisdiction: the ability of a State to prosecute, regardless of the location of commission of the crime and the na- tionality of the defendant, based on violations of international law.

Jus Cogens:

“those rules which derive from principles that the legal conscience of mankind deem[s] absolutely essential to coexistence in the international community” (Parker); the spirit of the law; the ideals of basic human rights which most laws are founded upon.

Measures of Constraint: enforcement of a legal judgement, such as seizing property or money from a defendant.

Exequatur: a legal document issued by an authority that allows for a third party to exercise legal authority/en- force rights within the jurisdiction of the authority.

Customary international law:

Shared legal practices of States which, over time, becomes binding international law through repeti- tion and adoption (Parker). • Article 38 of the Statute of the ICJ allows the Court to consider customary international law when formulating its verdicts. Accordingly, the Court can consider jus cogens principles, which are not codifed laws but rather human rights ideals, when deciding a case.

Territorial Tort Exception:

The idea that jurisdictional immunity does not apply to actions committed by the Respondent within the Applicant’s territory • The territorial tort exception is a developing theory of law, supported by Article 11 of the

European Convention on State Immunity and Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property. While some legal scholars argue this exception applies in Germany v. Italy, most believe that the territorial tort exception

berkeley model united nations 4 only applies to insurable accidents, such as traffc collisions.

BACKGROUND ON THE ICJ

History of the ICJ

Following World War I, the need for an international authority to settle disputes and promote diplomacy was overwhelmingly apparent. World War I had sprung from long-standing tensions, caused countless deaths and injuries, and shaken the previous distribution of world power. From the view of many international leaders, particularly President Woodrow Wilson of the United States, a global organization was imperative to preventing another destructive war. The League of Nations was formed for this purpose in 1920; Article 14 of the Covenant of the League of Nations estab- lished the Permanent Court of International Justice (PCIJ), a predecessor to the International Court of Justice (ICJ) (“History”). The PCIJ was responsible for arbitrating international disputes and giving advisory opinions, which are the same responsibilities the ICJ carries out today.

Article 14 of the Covenant of the League of Nations: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.” (“The Covenant”)

The PCIJ held its inaugural sitting on February 15th, 1922, becoming the frst permanent international tribunal to have widely accepted jurisdiction. Throughout its existence, the PCIJ han- dled 29 contentious cases and issued 27 advisory opinions (“Permanent”). The League of Nations became less authoritative in the 1930s due to the rise of tensions in Europe and the lack of support from powerful nations such as the United States. Despite President Woodrow Wilson’s belief in the League of Nations, the United States Congress refused to authorize the nation’s participation in the League of Nations due to its international and power-sharing nature, instead preferring the United

berkeley model united nations 5 States return to its isolationist policies. The lack of support and leadership from the United States, as well as the rise of the openly hostile Nazi Party in German politics, made it diffcult for the League of Nations to operate harmoniously and forcefully. Many European nations were naïve to the dangers of Adolph Hitler’s aspirations, and hesitant to trust each other after centuries of imperial confict and the fresh memories of World War I. As such, the League of Nations and the PCIJ were rendered obsolete by the start of World War II in 1941.

Inaugural Sitting of the PCIJ, February 15th, 1922 (“International”). At the conclusion of World War II, the international community again recognized the need for an international organization to promote cooperation among nations, one more widely accepted and effective than the League of Nations. To this end, the United Nations was formed in 1945. The newly created International Court of Justice (ICJ) became one of its six principal organs: UN Charter, Article 7, Section 1: “There are established as principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat” (“Chapter III”).

berkeley model united nations 6 During discussions regarding the structure of the ICJ, four main suggestions arose and were agreed upon: the Statute of the Court for the ICJ would be based upon the Statute of the PCIJ; the ICJ would retain the responsibility to issue non-binding, advisory opinions; acceptance of jurisdiction could not be mandatory; and the ICJ could not deal with political matters (“History”). The PCIJ, while dormant, technically still existed at the time of the ICJ’s creation. To eliminate any conficts of authority and signal a fresh start, the PCIJ was symbolically dissolved and its powers transferred to the ICJ in October 1945. The election of the frst ICJ justices took place on February 6th, 1946 at the First Session of the United Nations General Assembly and the Security Council. The ICJ held its inaugural public sitting on April 18th, 1946 and began hearing its frst case in May 1947 (UK v. Albania) (“History”).

Inaugural sitting of the ICJ in the presence of Princess Juliana of the Netherlands. April 18th, 1946 (“ICJ”).

berkeley model united nations 7 How the ICJ Works

The ICJ, hereafter referred to as the Court, is located at the Peace Palace in The Hague, Neth- erlands.

Peace Palace, The Hague, Netherlands (“Peace Palace”). Fifteen judges from around the world are elected by a majority in both the General Assembly and the Security Council. These judges serve nine-year terms on the bench (“The Court”). At any given time, the Court may not include two judges from the same originating country to ensure rep- resentation of multiple legal systems and diversity of opinion on the bench. The Court has two lines of work: advisory opinions and contentious cases. Contentious cases are disputes submitted to the Court by one or both parties where the verdict of the Court is legally binding. After the application is submitted to and accepted by the Court, the Applicant Party (the State which submitted the dispute) will submit a Memorial, which contains their argument and supporting case law. The Respondent Party (the State which is being accused) will submit a Counter-Memorial, which includes an admission or denial of the accusations, an opposing argument, and any other relevant facts or laws. Follow- ing this, the States can continue to modify and elaborate upon their arguments through documents called Replies and Rejoinders, which are essentially responses to accusations levied by the opposing side. After reviewing these documents, evaluating evidence, and hearing testimony, the Court reach-

berkeley model united nations 8 es a binding verdict, which means both Parties are required to abide by the Court’s decision and recommended course of action. Advisory opinions are non-binding decisions given by the Court at the request of United Na- tions organs and sub-organs, such as the General Assembly or the Security Council. Advisory opin- ions can be requested for any legal issue within the scope of the requesting UN agency’s mandate (“How the Court Works”).

The ICJ at BMUN

The ICJ at BMUN will operate similarly to the real ICJ, with some modifcations. As delegates, you will be acting as judges on the ICJ. Witnesses will provide important evidence to the commit- tee through their testimony. After debating with your fellow delegates and weighing the evidence provided, you will write your verdicts on the case. Although the case in reality was ruled upon by the Court, we will be starting committee with the original application made by Germany and reaching our own verdicts through a trial. While the facts of the case will be presented below, it is up to you as delegates to determine the outcome of the case in our committee. Regardless of what happened, what should have happened? This is what you will be debating within committee and writing verdicts on. For more information on the specialized format of our committee, see the Procedure Guide post- ed on the ICJ page.

CASE BACKGROUND

Historical Events

September 1, 1939 - Germany invades Poland, sparking World War II in Europe (“World War II”).

June 10, 1940 - Italy enters World War II as Germany’s allies.

September 27, 1940 - Italy, Germany, and Japan sign the Tripartite Pact, formalizing the alliance that will become the Axis.

October 1940 - Mussolini sends troops from Albania to invade Greece. Fighting between Greeks and Italians begins (“Fact File”).

April 6, 1941 - Germany invades Yugoslavia and Greece to assist Italian troops (“Fact File”).

berkeley model united nations 9 April 23, 1941 - Greece surrenders to Germany. Nearly 15,000 Greek soldiers are killed in the battle for Greece (“Fact File”).

Occupied Greece, 1941 (“German”).

September 8, 1943 - Italy becomes the frst axis power to surrender to Allied forces following the fall of Benito Mussolini.

September 23, 1943 - The Italian Social Republic is proclaimed with the previously ousted Mussolini as prime minister and head of state. The Italian Social Republic is a German puppet-state that was sparsely recognized and was an attempt at legitimizing German military action in Italy, as well as an attempt to discredit the preliminary anti-fascist rulings of King Viktor Emmanuel III. German forces disarm and capture a large portion of the Italian Army. Instead of declaring them prisoners of war and treating them as such, Nazi Germany declares Italian soldiers as “military internees,” rather than POWs, so they can be deported as forced labor (Schlamp). Over 600,000 internees are shipped to Nazi Germany to perform forced labor, with 40,000 dying as a result of overwork, hunger, or murder (Nangeroni).

“Between September 1943 and April 1945, the Nazis’ calculated campaign of violence spared no one. In some cases, women, children, and the elderly were viciously murdered alongside the men, as villages were overrun” (Amella).

October 13, 1943 - Italy formally declares war on Nazi Germany. Germany, with troops stationed

berkeley model united nations 10 throughout Italy at the time, occupies the country. During the German occupation of Italian terri- tories, Germany commits numerous war crimes, including the Marzabotto Massacre, in which Nazi troops murder over 770 civilians, and the Sant’Anna di Stazzema Massacre, in which 560 civilians, including over 130 children, are murdered (Kirby).

German-Occupied Italy, 1943 (“German”).

Occupied Greece, 1943 (“German”).

berkeley model united nations 11 June 10, 1944 - German Waffen SS Troops of the 4th SS Polizei Panzergrenadier Division kill 218 Greek civilians (one-fourth of the village’s population) in Distomo, including men, women, children, and the elderly. The village is burned to the ground after the massacre (Koenig). The massacre is committed by troops under the command of Fritz Lautenbach and Hans Zampel (Lautenbach was never arrested, and Zampel was acquitted after extradition to Germany) (“Recalling”).

“‘A burly German soldier launched himself through the window and fred a shot in the air from his pistol,’ said [Loukas] Sehremelis, now 83, sitting in the tiny living room where his family was massa- cred on 10 June 1944. ‘He then emptied the clip of his automatic rife, killing my little brother and two women’” (“Recalling”).

Distomo Massacre Gravesite (Agence France-Presse). berkeley model united nations 12 Winter 1944 - Nazi Germany declares many military internees’ citizens of the state to more effec- tively integrate them into forced labor campaigns. In 2001, the German government declares these actions to be illegal in order to avoid paying individual reparations to survivors.

1944 - While retreating from Italy, German troops commits numerous acts of violence against Italian citizens. 15,000 Italians are killed in total (Amella).

February 10, 1947 – The Treaty of Peace with Italy, one of the Paris Peace Treaties, is signed be- tween Italy and the Allied powers. As part of the agreement, Italy waives Italian citizens’ right to outstanding claims against Germany, among other things.

Events Prior to the Application by Germany

July 1953 – The German Bundestag passes the Federal Supplementary Law, which would later be amended to become the Federal Compensation Law. The law grants compensation to those forced to undergo forced labor, deportation, and imprisonment in camps by the Nazi regime. However, the law includes a series of exclusions, so that victims can only receive compensation if they meet certain residence, deadline, racial, political and religious requirements (“Federal Compensation Law (1956)”).

April 29, 1957 - The European Convention for the Peaceful Settlement of Disputes is signed. Article 1 of the Convention states:

“The High Contracting Parties shall submit to the judgement of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:

a) the interpretation of a treaty;

b) any question of international law;

c) the existence of any fact which, if established, would constitute a breach of an interna- tional obligation;

d) the nature or extent of the reparation to be made for the breach of an international obligation.” (“European Convention”).

berkeley model united nations 13 May 23, 1969 – The Vienna Convention on the Law of Treaties is signed. Articles 53 and 64 of the Convention state that treaties may be considered void if they substantively confict with current inter- national customs (jus cogens).

November 6, 1976 – The European Convention on State Immunity is signed. Article 11 of the Con- vention codifes the territorial tort exception.

1997 and 2000 - Relatives of the victims of the Distomo Massacre attempt to sue the German gov- ernment in Greek courts. They are awarded damages in 1997 and 2000 but prevented from execut- ing the judgement because the Greek Minister of Justice did not authorize the damages, and Greek law requires judgements against sovereign states to receive prior approval from the Ministry of Justice (Koenig).

2000 - Towards the turn of the millennium, former Italian internees bring civil suits against the state of Germany demanding compensation for their time as captors. Italian courts uphold these griev- ances, justifying the decision by stating that in the case of accusations of human rights violations or international war crimes, jurisdictional immunities of states should be set aside.

March 11, 2004 - Ferrini v. Germany. The Italian Supreme Court ruled that jurisdictional immunity does not apply because the acts in question were committed on Italian territory and violated interna- tional norms, or jus cogens (Bianchi).

December 2, 2004 - The United Nations Convention on Jurisdictional Immunities of States and Their Property is signed. Article 12 of the Convention codifes the territorial tort exception.

May 29, 2008 - Mantelli v. Germany. The Italian Court of Cassation, the highest court in Italy, rules that Italian courts have jurisdiction to preside over these World War II related cases, despite Germa- ny’s application for jurisdictional immunity (“Jurisdictional”).

October 21, 2008 - The Prosecutor v. Max Josef Milde (“Jurisdictional”). This is the last of the three major Italian court cases which spur the German application to the ICJ.

berkeley model united nations 14 Villa Vigoni, situated on Lake Como in Lombardy, Italy, is owned by the German government. The property is mostly used for intergovernmental events, seminars, and meetings. As an enforcement against Germany for the judgement rendered by the Greek courts, the Italian government issued a judicial mortgage on the Villa Vigoni property (“Vigoni Workshops”).

Events of the Case

December 23, 2008 - The Federal Republic of Germany institutes proceedings at the International Court of Justice against the Italian Republic. In its application, Germany expresses its desire for the Court to rule that Italy had overstepped its bounds in ignoring Germany’s jurisdictional immunities when ruling on civil cases. As the basis for the court’s jurisdiction, Germany invokes the European Convention for the Peaceful Settlement of Disputes. (“Jurisdictional”)

December 22, 2009 – The Italian Republic fles a Counter-Memorial that provides justifcation for ignoring the jurisdictional immunities of Germany when ruling on civil cases.

January 13, 2011 – The Hellenic Republic (Greece) fles an application for permission to intervene. Interventions in contentious cases are permitted when the country wishing to intervene will be direct- ly impacted by the potential verdict. Like Italy, Greece had set aside Germany’s jurisdictional immuni- ty in civil cases and would be affected by the verdict of the ICJ.

February 3, 2012 - The ICJ renders its Judgement.

berkeley model united nations 15 “Italy had violated the principle that one state cannot and should not exercise jurisdiction over (the acts of) another state. This principle is based on the notion of sovereignty and, thus, the (legal) equality of all states.”

January 14, 2013 - The Italian Parliament drafts legislation enacting the ruling of the ICJ by render- ing the civil judgements void by law.

SAMPLE ARGUMENTS

The following section includes arguments and evidence which support both sides of the case. You are welcome to use none, all, or some of these ideas in your verdicts. However, the Dais would highly smile upon verdicts which incorporate original thought, new evidence, and strong deductive reasoning.

Argument for Germany

Procedural issues are separate from substantive issues, meaning the procedures of a case are not dependent on the content of the accusations at the hand. Because jurisdictional immunity is a procedural issue, it always applies, regardless of the severity of the accusations. The distinction between procedural and substantive law is to ensure that laws cannot be selectively applied based on the situation (Scherr). Therefore, the jurisdictional immunity of Germany should be upheld in this case despite the accusations of human rights violations.

The seizure of Villa Vigoni, a German government-owned property located in Italy, did not meet the necessary requirements for a measure of constraint. Villa Vigoni is a non-commercial gov- ernment property, meaning it would fall under the classifcation of acta jure imperii. As stated above, the classifcation acta jure imperii qualifes for jurisdictional immunity, and as such, the seizure of Villa Vigoni was unlawful. Additionally, the Greek court rulings should not have been enforced in Italy because the application for exequatur had not been properly met. An application for exequatur, which can ex- tend the jurisdiction of a legal judgement, should only be granted if the court would not be obligat- ed to accord jurisdictional immunity in a dispute of identical character. In other words, Italy should

berkeley model united nations 16 not have granted exequatur to the Greek judgements because Germany would have been awarded jurisdictional immunity in the original proceedings, had they taken place in Italy:

“It observed that a court seised of an application for exequatur of a foreign judgment ren- dered against a third State had to ask itself whether, in the event that it had itself been seised of the merits of a dispute identical to that which was the subject of the foreign judgment, it would have been obliged under international law to accord immunity to the respondent State.” (“Jurisdictional”).

Furthermore, Article 77, Section Four of the 1947 Peace Treaty between Italy and Germany waived the right of Italian nationals to seek redress from Germany for the events of World War II:

Article 77(4) of the 1947 Peace Treaty between Italy and Germany: “Without prejudice to these and to any other dispositions in favour of Italy and Italian nationals by the Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrange- ments entered into in the course of the war, and all claims for loss or damage arising during the war” (“artic with Italy”).

Lastly, jurisdictional immunity is considered by some to be a necessity out of practicality. Without jurisdictional immunity, global restitution for crimes against humanity would be ongoing and futile. Germany, and other countries in similar situations, would be forced into a never-ending cycle of debt due to reparations. This would create a massive burden for affected nations long after the events in question, creating long-term domestic and international economic problems.

Argument for Italy

As human rights law has evolved, jus cogens has prevailed over conficting laws. In situations

berkeley model united nations 17 where the law does not explicitly protect basic human rights, the principle of jus cogens is used as justifcation to overrule those laws. This is because jus cogens encompasses the intention of the law, which is more important than what the law literally states (Parker). Accordingly, jus cogens should prevail in this case and the Italian judgements should stand.

“Human rights concerns take priority over the need to respect foreign states’ interests.” -Andrea Bianchi, 2005

Moreover, the concept of universal jurisdiction supports Italy’s actions. Universal jurisdiction, which allows a national legal authority to prosecute particularly egregious conduct outside of its juris- diction, is necessary to ensure the prosecution of large-scale, international crime. Universal jurisdic- tion gives the Italian government the right to prosecute German criminals for human rights abuses, even though they are of a different nationality (Yee). The Italian government also has a wealth of treaties that support its argument. Article 11 of the European Convention on State Immunity and Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property both codify the territorial tort exception, which is the idea that jurisdictional immunity does not apply to actions committed within the territory of the suing State. Article 11 of the European Convention on State Immunity: “A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible prop- erty, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred” (“European Convention”).

Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property: Personal injuries and damage to property: “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which re-

berkeley model united nations 18 lates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission” (“United Nations Con- vention”).

The crimes committed by the Nazi regime against Italian citizens largely occurred on Italian territory. According to the above treaties, these crimes would fall under the territorial tort exception, voiding Germany’s claims of jurisdictional immunity. Furthermore, based on Articles 53 and 64 from the 1969 Vienna Convention on the Law of Treaties, treaties and agreements can be rendered void if international values have evolved into con- fict with the original treaty:

Article 53. TREATIES CONFLICTING WITH A PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW (“JUS COGENS”): “A treaty is void if, at the time of its conclusion, it conficts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general inter- national law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modifed only by a subsequent norm of general international law having the same character.”

Article 64. EMERGENCE OF A NEW PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW (“JUS COGENS”): “If a new peremptory norm of general international law emerges, any existing treaty which is in con- fict with that norm becomes void and terminates.”

In other words, treaties can become obsolete if commonly held values confict with them, so the 1947 Peace Treaty between Italy and Germany is arguably void in the face of support for human rights.

berkeley model united nations 19 WHAT WE ARE LOOKING FOR IN A SOLUTION

This case is unique among cases brought before the ICJ, both in the complexity of the po- litical turmoil contextualizing Germany’s application and in the plethora of legal factors that must be considered when ruling on the case. From the concepts of acta jure to considering jurisdictional immunity, this case, more than any other, demonstrates the elaborate nature of international jurispru- dence. It is therefore necessary that you, as judges presiding over this case, formulate your verdicts to exacting standards. When making judgements on a contentious case such as this, it is all too easy to begin think- ing purely in moral terms. Although the moral content of generally accepted norms holds some sway in legal validity, the ICJ must always concern itself primarily with legal analysis and evidence. Thus, your verdict should be driven not purely by moral considerations, but by concrete legal evidence presented throughout the debate. In the spirit of employing legal-based evidence, this case espe- cially requires you to distinguish between key legal concepts and apply them to the situation pre- sented. For example, one of the key questions presented in the case is whether Germany’s actions in Italy constituted acta jure imperii versus acta jure gestionis and should therefore be granted immu- nity. When considering this and other key questions in your verdict, you must remember to not only defne these terms as it applies to your analysis, but also justify your usage of these terms. Perhaps one of the most important aspects to be considered when formulating your verdicts is the concept of setting a precedent for the future. The power of international law lies not just in the resolution of legal conficts, but in its ability to determine courses of action in the future. In your role as judges, you must also consider the future implications of your verdict in your analysis and mediate accordingly.

QUESTIONS TO CONSIDER

1. How does the ICJ’s role of setting precedent affect the way this case should be

ruled? 2. “Do states enjoy full jurisdictional immunity before foreign domestic courts for acts committed by their armed forces in the course of conducting an armed con-

berkeley model united nations 20 fict?” (“Jurisdictional”) How does the fact that the perpetrators of these crimes were armed forces affect the outcome of the case, if at all? Should this case be ruled differently if the accused were acting in their capacity as civilians? 3. Japan, China, and Korea have been involved in similar legal battles regarding human rights abuses from WWII. How does the outcome of those cases inform your opinion on this case? (Umeda) 4. Why is the concept of jus cogens important to international law? 5. How does the seizure of Villa Vigoni affect the outcome of this case? Was the seizure lawful?

berkeley model united nations 21 Works Cited

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