On 29 April 2022, Germany instituted proceedings against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State, and, subsequently, requested the indication of provisional measures. In this case, the parties, the basis of the court’s jurisdiction, and most of the alleged violations are the same as in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case. Therefore, as I will argue below, Germany could have achieved the same result by requesting an interpretation of the 2012 judgment, spending much less money and time, instead of instituting a separate case.  

Following the institution of proceedings by Germany, the International Court of Justice (the Court), by issuing an Order on 10 June 2022, fixed 12 June 2023 as the date for the filing of the Memorial by the Applicant (Germany) and 12 June 2024 for the filing of the Counter-Memorial by the Respondent (Italy). Therefore, in the ordinary situation, where the Preliminary Objections are raised and another round of the written pleadings is done, the Court’s possible judgment will be issued latest by 2027. Meanwhile, Germany was able to obtain the Court’s judgment in a relatively shorter time by requesting the interpretation of the 2012  ruling in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case.

Examining the Court’s practice in dealing with the requests related to the interpretation of its judgment shows that this proceedings will be much shorter than the ordinary proceedings in the Court  (see table) This is mainly due to the fact that in the interpretative proceedings, the Court’s jurisdiction is not considered the same as in the usual proceedings, and each of the parties of the case in which the original judgment was issued –Applicant or Respondent- can request the interpretation of the judgment by filing an application. The jurisdiction of the Court under Article 60 of the ICJ Statute does not require any other basis of jurisdiction between the parties. Even if the basis of jurisdiction that existed in the original case can no longer be relied upon, the Court can still accept the request for interpretation of the judgment. For example, the Optional Protocol to the Vienna Convention on Consular Relations (1963) could no longer be invoked at the time of the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals because of the withdrawal of the United States. Also, in the interpretation of the judgment, the existence of a dispute concerning the meaning or scope of the judgment does not require the same criteria as are required to establish a dispute in ordinary proceedings. Also, there does not need to be a formal dispute concerning the meaning or scope of the judgment, and it will suffice if the parties have different views on the meaning or scope of the judgment. Certainly, one of the reasons that show the different views of the parties regarding the meaning and scope of the judgment is that they do not agree with each other on how to implement the judgment, just as such different views can be seen between Germany and Italy.

Moreover, contrary to the revision of the Court’s judgment after the discovery of some facts of such a nature as to be a decisive factor, which is only possible before the lapse of 10 years from the date of the judgment, the request for interpretation of the judgment is not subject to any time limitation. The Court, for example, accepted the request for interpretation of its judgment in the Temple of Preah Vihear case about half a century after the date of the judgment. Also, Germany should not have worried about the fact that it might be deprived of some of its powers by asking for the interpretation of the 2012 judgment. Because the request for the interpretation of the judgment will cause a proceeding in respect of a previously heard case before the Court, which will have all the powers of an ordinary proceeding, including the nomination of an ad hoc judge. It is even possible to request an interim order in the interpretative proceedings, as was done in Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) and Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand).

That said, it should be noted that the Court does not go beyond the framework of the case in which the judgment is the subject of interpretation, and the interpretation can only explain the meaning and scope of the original judgment, even if the Court finds that it made a mistake in the original judgment or ignored some facts. The interpretation proceedings are also limited to the operative part (dispositif) of the original judgment. In this case, therefore, it is necessary to examine the dispositif of the 2012 judgment to ascertain whether Germany, by requesting the interpretation of the dispositif of the 2012 judgment, could achieve the same results it seeks in the new litigation. In this regard, paragraphs of 1, 3, and 4 of the dispositif of the 2012 judgment and Germany’s demands in the Application dated 22 April 2022 (paragraph 43) must be considered.

dispositif of the 2012 judgment (paras. 1,3-4):

The Court,

• Finds that the Italian Republic has violated its obligation to respect the immunity which the Federal Republic of Germany enjoys under international law by allowing civil claims to be brought against it based on violations of international humanitarian law committed by the German Reich between 1943 and 1945;
• Finds that the Italian Republic has violated its obligation to respect the immunity which the Federal Republic of Germany enjoys under international law by declaring enforceable in Italy decisions of Greek courts based on violations of international humanitarian law committed in Greece by the German Reich;
• Finds that the Italian Republic must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which the Federal Republic of Germany enjoys under international law cease to have effect.

Germany’s demands in the Application dated 22 April 2022 (paragraph 43):

• Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945;
• Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy;
• Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect;
• Italy is required immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

It appears, as I discuss below, that Germany could achieve the same results by requesting an interpretation of the dispositif of the 2012 judgment (paras. 1, 3-4).

In the first paragraph of the operative clause of its 2012 Judgment, the Court found that “Italy has violated its obligation to respect the immunity which Germany enjoys under international law by allowing civil claims to be brought against it”. It added in the third paragraph that “Italy has violated its obligation to respect the immunity which Germany enjoys under international law by declaring enforceable in Italy decisions of Greek courts based on violations of international humanitarian law committed in Greece by the German Reich”. These paragraphs are a direct consequence of the fact that Italy’s obligation has a continuing character; that of the requirement that Italy respect Germany’s immunity under international law including an implied obligation not to violate it in future. Also, the Court’s finding in the fourth operative part of the 2012 Judgment that “Italy must ensure that the decisions of its courts and those of other judicial authorities infringing the immunity, by enacting appropriate legislation, or by resorting to other methods of its choosing” cease to have effect, extended beyond time limits.

The Court’s role under Article 60 of the ICJ Statute is to clarify the meaning and scope of what the Court decided in the judgment which it is requested to interpret (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), p. 402) and the conduct of the Parties between 3 February 2012, when the original Judgment was delivered, and 2021‑2022, indicates that there is a dispute, within the meaning of Art. 60, between the Parties. Accordingly, Germany asks the Court to adjudge and declare an obligation incumbent on Italy to “take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany and ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy, cease to have effect”. This is a particular consequence of the general and continuing obligation to respect the immunity which Germany enjoys under international law. Despite the fact that the Court in the interpretative proceedings should basically determine the meaning and scope of the original judgment, the Court sometimes affirms some related obligations of the Parties along with the interpretation of the judgment. For example, in its 2013 judgment, which interpreted the 1962 judgment in the Temple of Preah Vihear case, the Court referred to some of the related obligations of the Parties, including cooperation between Parties and with the international community in the protection of the temple as a World Heritage Site, the obligation not to take any deliberate measures which might damage directly or indirectly such heritage, and the duty to settle any dispute by peaceful means (paras. 105-106). Therefore, it was also possible that the Court would consider obligations or measures in the interpretation of the 2012 judgment and specifically to prevent possible violations of the judgment by Italy again.

Vahid Bazzar is a Ph.D. graduate in public international law from Allameh Tabataba’i University School of Law and Political Sciences, Iran. His research interests span international dispute settlement including the International Criminal Court and the International Court of Justice. Dr. Bazzar may be contacted at vahidbazzar@gmail.com.

Read more on this topic at the Asian Journal of International Law.