ICJ Permits Greece to Intervene in Germany v. Italy Immunity case

ICJ Permits Greece to Intervene in Germany v. Italy Immunity case

On the 4th of July, the International Court of Justice (ICJ) decided that Greece can intervene in the Jurisdictional Immunities of the State case (Germany v. Italy). The case concerns a claim by Germany that Italian courts have failed to respect the sovereign immunity of Germany in cases brought in Italian courts dealing with human rights violations by Germany during World War II. In addition to cases originating in Italy, Germany alleges that Italian courts have acted in breach of international law by enforcing, in Italy, the judgment of the Greek courts in the Distomo massacre case. Greece’s request for intervention relates to the aspect of the case that deals with enforcement of the Greek judgments (which relate to claims by Greek nationals). The ICJ’s decision permits intervention only in relation to that aspect of the case. For more details on Greece’s request to intervene, see the post by Antonios Tzanakopoulos and for more on the original case, see my own post from when the case was first filed in 2009.

I believe that this is only the third time in the history of the present Court in which intervention under Article 62 of the ICJ Statute has been permitted. Article 62 permits a State which has an interest of a legal nature in the subject matter of the case to apply to the Court for permission to intervene. In most cases, where Article 62 intervention has been requested, the ICJ has denied the request. Most recently (in May of this year), the Court denied requests for intervention by Honduras and Costa Rica in the Territorial and Maritime Dispute (Nicaragua v Colombia) (see decisions here and here). The ICJ’s decision to permit Greece’s intervention in the Immunities case was reached without the Court holding a hearing on the issue. This is because neither of the two original parties to the case (Germany and Italy) objected to the intervention. Greece will be intervening as a non-party to the case, meaning that it will not be bound by the decision of the Court but it cannot put it’s own claims at issue.

In the intervention decision in the Immunities case, the Court held that

Whereas the Court, in the judgment that it will render in the main proceedings, might find it necessary to consider the decisions of Greek courts in the Distomo case, in light of the principle of State immunity, for the purposes of making findings with regard to the third request in Germany’s submissions, concerning the question whether Italy committed a further breach of Germany’s jurisdictional immunity by declaring Greek judgments based on occurrences similar to those defined in the first request as enforceable in Italy; and whereas this is sufficient to indicate that Greece has an interest of a legal nature which may be affected by the judgment in the main proceedings; (para 25)

It is not quite clear why the ICJ would have to comment on whether the Greek courts got their immunity decisions right when the ICJ is considering whether the Italian courts violated German immunity in enforcing those judgments. Afterall, immunity from execution is different from immunity from jurisdiction. The Italian cases refer to the former and the Greek cases the former. If the Greek courts got their immunity decision wrong that may be a basis for saying that foreign courts ought not to enforce decisions reached in excess of jurisdiction by the forum court. However, that is a different matter from whether the foreign court has itself breached immunity (which is what Germany has claimed). But the fact that this potential issue exists (though not yet articulated this way) might suffice to justify intervention. Also, the fact that the Greek judgments represent claims by Greek nationals may suggest that Greece has an interest inwhether it is lawful to enforce those judgments.