In 2012, in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the International Court of Justice (ICJ) ruled that Italy had violated Germany’s jurisdictional immunity by awarding damages to World War II victims of forced labor in its domestic courts. The ICJ’s 2012 judgment found that customary international law did not recognize an exception to the principle of jurisdictional immunity for serious violations of fundamental human rights. To support its analysis, the Court adopted an inaccurate and incomplete reading of relevant case law and legislative practice, opting to maintain a stricter approach to immunity. Because it failed to account for the lack of a clear and definite answer to the issue posed by the case, domestic courts and states have somewhat disregarded the ICJ’s judgment. In fact, courts in Italy persevered in their approach, leading Germany to file a new case before the ICJ, Questions of Jurisdictional Immunities of the State and Measures of Constraint against State-Owned Property (Germany v. Italy), in 2022.

This Note looks back to the 2012 judgment and highlights the flaws of its reasoning. Taking stock of the various developments that have occurred since 2012, it then offers a renewed reading of the law of jurisdictional immunity as it presently stands. Should the ICJ reach the merits of Germany’s second case, this Note argues that customary international law no longer clearly bars courts from exercising jurisdiction over foreign sovereigns who have committed serious violations of fundamental human rights.

Continue reading Goethe, Homeless in Rome?