Committee: International Court of Justice ​ Issue: Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) ​ Student Officer: Amin Houta (International Court of Justice President) ​ Critical Date: 23/12/2008 ​ I. Introduction During the time of the Second World War, under the leadership of Adolf Hitler, Germany was intent on military expansion in order to “return Germany to its former glory.”1 This Nazi movement required and triggered genocide and ethnic cleansing on grargantuan scales to be undertaken in the European territories. Many of which were committed on Italian territory. After the end of the Second World War, Germany was required to implement several laws that would cause them to pay reparations to the victims of such attacks, however, former military internees did not fall under the confounds of this law and were thus unable to claim compensation. Many former Italian Military Internees, being unable to claim compensation, raised many civil cases against the German Government in Italian courts. Germany refused these claims not due to the substance of the facts, but that Germany believed these claims to be a violation of Germany’s jurisdictional immunity which prevented Germany from being subject to any form of administrative, civil or criminal proceedings in a foreign court without their consent. On 23rd of December 2008, the Federal Republic of Germany instituted proceedings against the Italian Republic, under the claim that Italy had failed to respect or recognize the jurisdictional immunity in which they enjoy under international law. According to Germany, Italy allegedly violated International law by allowing civil claims to be brought up against the German Government. Additionally, Italy took measures of constraint against Villa Vigoni, a German estate situated in Italian grounds, in order to claim compensation for the violent acts committed by the Third Reich. II. Key Vocabulary State Immunity: (n) The protection of a State and its property from the jurisdiction of courts in ​ another state. This includes administrative, civil, and criminal proceedings, or jurisdictional 1 “Germany's Master Plan: The Story of Industrial Offensive.” Journal of the American Medical Association, ​ ​ ​ American Medical Association, 13 Mar. 1943, jamanetwork.com/journals/jama/article-abstract/260562. 1 of 10 immunity. This principle is based on the notion of sovereignty and, thus, the (legal) equality of all states.2 Reparations: (n) the compensation for war damage paid by a defeated state.3 ​ ​ Third Reich: (n) Translates to “The Third Realm”, which was the perception of Nazi Germany ​ ​ from 1933 to 1945 under the ruling of Adolf Hitler and the Nazi Party.4 Military Internees: (n) The official name giving by Germany to Italian soldiers that were ​ captured and deported in the territories of Nazi Germany.5 III. Involved Countries and Organizations 1) Germany During the time of the Second World War, Germany was under the dictatorial rule of Adolf Hitler who was the pivotal leader that caused much of the strife and loss of WW2. Hitler had what was known as Generalplan Ost, or in English, Master Plan East. Generalplan Ost was a secret Nazi German plan conducted by Adolf Hitler for the colonization of Central and Eastern Europe. Implementing their plan triggered the genocide and ethnic cleansing on a massive scale on German occupied territories, many in Italy.6 As a result, they were forced to implement several laws that included reparations to the victims of such attacks, however, they did not include former military internees and could not claim such compensation. The Federal Republic of Germany are the applicants of the case, instituting proceedings ​ on the 23rd of December, 2008, filing a case against the Italian Republic in which they did not dispute the facts of the Italian civil claims that the Third Reich had indeed committed atrocities against the people of both, despite these events being irrefutable facts on both the sides of Italy 2 “State Immunity.” Oxford Public International Law, opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1106. 3“Reparations.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/reparations. 4 Signoretta, Paola E., and John Larner. “World War II.” Encyclopædia Britannica, Encyclopædia Britannica, ​ ​ ​ Inc., 17 June 2020, www.britannica.com/place/Italy/World-War-II. 5 NS-Zwangsarbeit, Dokumentationszentrum. “Italian Military Internees.” NS, www.ns-zwangsarbeit.de/en/italian-military-internees/. 6 “Germany's Master Plan: The Story of Industrial Offensive.” Journal of the American Medical Association, ​ ​ ​ American Medical Association, 13 Mar. 1943, jamanetwork.com/journals/jama/article-abstract/260562.” 2 of 10 and Germany. Germany argued in its application that "[i]n recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State."7 2) Italy During the Second World War, Italy had faced many hardships, after their surrender to the Allied Powers and declaring war on their former Axis partners, Germany occupied the Italian capital of Rome. Italy then coordinated the Via Rasella attack against the occupying forces which only resulted in the German forces retaliating with a mass shooting and massacre the next day, known as the Ardeatine Massacre. Since that day, it was calculated that approximately 153,200 Italian civilians died due to German military activity and crimes against humanity.8 Furthermore, approximately 650,000 Italian people,9 both military and civilian, were captured, deported and transferred to the German Reich and other Nazi occupied territories in order to work as forced labour in places such as the armaments. As mentioned above, after the war, Germany implemented laws to enable the payment of reparations to those that were victims to Germany’s military campaigns, and as mentioned before, thousands of former military internees and their relatives did not fall under this classification so they were unable to claim any form of compensation. In later years, many of the former military internees raised civil claims against Germany in Italian courts. For example, on the 23rd of September, 1998, Luigi Ferrini took proceedings against Germany, in an italian court, seeking reparation for the physical and psychological harm suffered as a result of his capture and deportation. Germany pleaded jurisdictional immunity under customary international law.10 Furthermore, in 2004, Giovanni Mantelli and 13 other Italians, filed a pecuniary petition against Germany, but it was denied due to lack of jurisdiction.11 Finally, on 12 October 2006, the Italian military Court of La Spieza sentenced in absentia, Max 7 “Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening).” ICD - Germany v. Italy - ​ ​ Asser Institute, www.internationalcrimesdatabase.or ​ 8 “Research Starters: Worldwide Deaths in World War II: The National WWII Museum: New Orleans.” The ​ ​ National WWII Museum | New Orleans, ​ www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-worldwid e-deaths-world-war. 9 NS-Zwangsarbeit, Dokumentationszentrum. “Italian Military Internees.” NS, ​ ​ ​ www.ns-zwangsarbeit.de/en/italian-military-internees/. 10 “Ferrini v. Federal Republic of Germany.” ICD - Ferrini v. Germany - Asser Institute, ​ ​ ​ www.internationalcrimesdatabase.org 11 “Federal Republic of Germany v. Mantelli Et Al.” ICD - Germany v. Mantelli - Asser Institute, ​ ​ ​ www.internationalcrimesdatabase.org 3 of 10 Josef Milde, a german citizen, to life imprisonment as punishment for his role in the massacres, pursuant of Article 185 of the Italian Military Penal Code in times of war.12 The Italian Republic is the defendant of the case in which they denied the German claim that Italy had violated the international law by disregarding Germany’s state of Jurisdictional immunity. Italian Courts argued and held that “…jurisdictional immunity is not absolute…” and that “…in cases of crimes under international law, the jurisdictional immunity of States should be set aside.” (paras 27 – 29).13 3) Greece Greece was another one of the countries that had suffered greatly at the hands of German troops during the Second World War. On the 13th of December, 1943, the 117th Jäger Division, a division of the German military, massacred 693 residents in the Greek village of Kalavyrta. On the 10th of June, 1944, The Distomo Massacre was perpetrated by members of the German Waffen SS in the village of Distomo, Greece with 214 confirmed kills. After the war, Greek courts ordered that Germany pay reparations for the physical and psychological damage caused by the German troops. Germany refused to pay on the basis that these “Greek judicial decisions could not be recognized within the German legal order because they have been given in breach of German’s entitlement of State Immunity.”14 The Greek courts then asked Italian courts to enforce the judgement by ordering a legal charge over a property of Germany in Italy as a measure of enforcement. During the case, on the 13th of January, 2011, Greece issued a Declaration of Intervention on the side of Italy. IV. Focused Overview on the Issue 1) WW2 On the 1st of September, 1939, German troops invaded Poland, triggering the Second World War.15 On June 10th, 1940, the Kingdom of Italy (now referred to as the Italian Republic), lead by the Italian prime minister and leader of the National Fascist Party, Benito Amilcare