Recently instituted proceedings by Germany against Italy before the International Court of Justice may help to clarify a legal issue that has become a hot topic of the sovereign immunity defense as a principle of customary international law.

Germany contends the violation of this principle by Italian courts, which ruled in favor of claiments seeking compensation for violations of humanitarian law by the Third Reich in World War II. Although not disputing the gross violations of international law standards that occurred during this time, Germany invoked the notion it was barred from civil liability due to the nature of these acts as acta iure imperii. This, in turn, would grant Germany jurisdictional immunity against any claims arising out of what had happened at this time.

However, Italian courts, including the Corte di Cassazione, which is Italy's highest court in civil matters, followed a restrictive interpretation of jurisdictional immunity. Focusing on the barbaric nature of the acts, it rather developed a doctrine of non-invokability of sovereign immunity in cases of grave violations of human rights and humanitarian law.

In its own reasoning, the Corte di Cassazione described the exception it had developed as a rule of international law in formation. The reasoning resembles one in an earlier ruling by the United States District Court for the District of Columbia in a similar case, also arguing in favor of an immunity exception for barbaric acts committed by a foreign sovereign. The decision was later reversed by the United States Court of Appeals for the District of Columbia Circuit, yet with one judge dissenting in favor of the exception.

The disputed exception is a mixed blessing, both legally and politically. As for the latter, Germany openly acknowledges the suffering of those seeking compensation, yet at the same time argues it instituted ample mechanisms after World War II to compensate victims. On the other hand, these mechanisms did not resolve a host of compensation issues and are, therefore, considered insufficient by those left out. Legally, one may argue for an exception to sovereign immunity in cases of gross human rights violations, especially since such acts can be regarded a violation of the principle of commity of nations on which the idea of immunity is essentially based.

It remains highly disputable, however, whether such an exception already exists as a principle of customary international law. Even more dubious is any such rule during World War II, or, as another line of argument, its retroactive applicability to violations of international law commited at that time.

Both the press release No. 2008/44 of December 23, 2008, as well as Germany's application of December 22, 2008, Federal Republic of Germany v. Italian Republic, are now at the International Court of Justice's official website.-- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.