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State responsibility in private civil action—sovereign immunity—immunity for jus cogens violations— belligerent occupation—peace treaties

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Ilias Bantekas
Ilias Bantekas
Affiliation:
School of Law, University of Westminster
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Extract

Prefecture of Voiotia v. Federal Republic of Germany. Case No. 137/1997.

Court of First Instance of Leivadia, Greece, October 30, 1997.

On November 27, 1995, the Prefecture of Voiotia (soudiern Greece) and other claimants, in their individual capacity, brought a claim of indemnity before the Court of First Instance of Leivadia against the German state. The plaintiffs based their claims on atrocities (willful murder and destruction of private property) committed by German occupation forces against the persons and property of die village of Distomo in Voiotia on June 10, 1944. They sought compensation for the material and mental damage suffered as a result of those atrocities, which were specifically described in their briefs. The Greek Foreign Office forwarded the complaint to the German Foreign Office, which rejected and returned it to the Greek Embassy on the grounds that the suit impaired the sovereign rights of the German state. Germany was not represented at trial. The court awarded damages to the individual claimants of 9,448,105,000 drachmas (approximately $30 million).

Type
International Decisions
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 765 - 768
Copyright
Copyright © American Society of International Law 1998

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References

1 No. 137/1997, at 14 [hereinafter Judgment].

2 Id. at 9.

3 Jus imperii, according to the court, covers any act by which the sovereign authority of a state is manifested. Id. at 10.

4 This is so, the court noted, in order to safeguard the sense of justice in international relations. Id. at 11. See 3 Emmanuel Roukounas, International Law 78–95 (1983). The court stated that, even where a state is found to be acting as a fiscus, a national court may not have jurisdiction over these acts if the judicial proceedings will harm the sovereign rights of the accused state. Judgment at 12.

5 The court also stated, however, that “lex fori is influenced by [and should be construed in accordance with] international conventions and an international perspective, according to the rule of reciprocity.” Judgment at 11.

6 Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Convention and Hague Regulations].

7 Judgment at 12.

8 See JK v. Public Prosecutor, 87 ILR 93 (Neth. Sup. Ct. 1981) (holding that the killing of a civilian by a member of the occupying forces was a breach of Article 46 of the Hague Regulations).

9 Judgment at 12. The military tribunals formed at the end of World War II asserted the customary obligation of the occupant commander to ensure the welfare of the civilian population within his area of authority, and stressed the strict liability attributed to executive commanders for breaching this obligation. See In re Yamashita, 327 U.S. 1, 16 (1946), where the Supreme Court ruled that Articles 1 and 49 of the Hague Regulations imposed “an affirmative duty to take such measures as were within [an executive commander's] power and appropriate in the circumstances to protect prisoners of war and the civilian population.” See rulings to the same effect in United States v. Von Leeb (“The High Command Case”), 11 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, at 462, 544–45, 632 (1950); United States v. List (“The Hostages Case”), id. at 757, 1260.

10 In such a case, the court determined, the state in question has declined to exercise its immunity privilege. Judgment at 12.

11 Id. at 13.

12 Id.

13 That is, Article 46 of the Hague Regulations, supra note 6. See Judgment at 14–15.

14 Penal Code Art. 10, and the Penal Act of April 19, 1834. See Judgment at 15.

15 Sept. 27, 1968, 1990 O.J. (C 189) 2 (consolidated text, giving citations to the official texts of the instruments concerned).

16 Judgment at 15.

17 Id.

18 Oct. 15, 1985. For the text, see Council of Europe, Explanatory Report on the European Charter of Local Self-Government (1986). This instrument was given effect in Greek law through Law No. 1850/1989. See Judgment at 15.

19 Id. at 15, 16.

20 Id. at 16. Article 3 of the Hague Convention, supra note 6, provides: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

21 Judgment at 16.

22 This point was also made by the German Federal Constitutional Court in its decision No. 2 BvL 33/93 (May 13, 1996), Einscheidungen des Bundesverfassungsgerichts 94, 315, cited in Judgment at 17.

23 Feb. 27, 1953, 4 UST 443, 333 UNTS 3.

24 Judgment at 18. The Moscow Treaty, 29 ILM 1186 (1990), was signed on September 12, 1990, by the Federal Republic of Germany, the German Democratic Republic, France, the Soviet Union, the United Kingdom and the United States.

25 This point was noted by the German Federal Constitutional Court in the case cited at note 22 supra. That case is cited to this effect in Judgment at 18.

26 Judgment at 17.

27 Reference was also made to scholarly opinions of foreign international jurists.

28 It appears that the measures taken by Germany with respect to the victims of genocide may be distinguished in some respects from the position Germany has taken regarding injuries occasioned by military operations and military occupation as such.