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2 of 100 DOCUMENTS Copyright (c) 2005 The American Society of International Law American Journal of International Law January, 2005 99 A.J.I.L. 242 LENGTH: 4610 words INTERNATIONAL DECISION: FERRINI V. FEDERAL REPUBLIC OF GERMANY.: Italian Court of Cassation, March 11, 2004.: Italian Court of Cassation ruling on immunity from suit for damages for deportation and forced labor during World War II NAME: ANDREA BIANCHI, Graduate Institute of International Studies, Geneva and EDITED BY DAVID D. CARON LEXISNEXIS SUMMARY: ... In a tort action brought by an Italian citizen, Luigi Ferrini, against the Federal Republic of Germany (FRG) for deportation and forced labor during World War II, the tribunal of first instance of Arezzo upheld the FRG's plea of immunity, holding that the alleged acts were jure imperii and therefore entitled to protection under customary international law. This decision was affirmed by the Court of Appeal, but in a judgment of March 11, 2004, the Italian Court of Cassation overruled the lower courts' findings and held that the FRG did not enjoy immunity under customary international law for deportation and forced labor. ... Instead, the crucial issue was whether the foreign state was entitled to immunity when its conduct, due to its "extreme gravity," amounted under customary international law to an international crime, defined as a violation of international law that jeopardizes "universal values that transcend the interests of individual national communities." ... The Court of Cassation underscored that the Greek Court's finding that the tort exception had attained customary status was not determinative of the question concerning Germany's immunity in Ferrini. Faced with the objection that the tort exception does not apply in the course of an armed conflict, the Greek Court had resorted to the argument that the violation of peremptory norms of international law relating to fundamental human rights entails renunciation of all the benefits and privileges accorded by international law, thus amounting to an implied waiver of sovereign immunity. ... HIGHLIGHT: State immunity -- deportation and forced labor claim -- international crimes -- jus cogens -- tort exception -- universality of jurisdiction in civil cases TEXT: [*242] In a tort action brought by an Italian citizen, Luigi Ferrini, against the Federal Republic of Germany (FRG) for deportation and forced labor during World War II, the tribunal of first instance of Arezzo upheld the FRG's plea of immunity, holding that the alleged acts were jure imperii and therefore entitled to protection under customary international law. n1 This decision was affirmed by the Court of Appeal, n2 but in a judgment of March 11, 2004, the Italian Court of Cassation overruled the lower courts' findings and held that the FRG did not enjoy immunity under

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customary international law for deportation and forced labor. n3 Among the grounds for appeal to the Court of Cassation, the petitioner invoked the violation of Articles 10 and 24 of the Italian Constitution, which assure, respectively, the automatic incorporation of customary international law into the Italian legal system and the protection of individual rights by courts. n4 In particular, the petitioner maintained that the Court of Appeal had erred in holding that foreign sovereign immunity is a rule of customary international law and that immunity may be granted to a foreign state even when the alleged violation is against jus cogens rules -- in particular, the ones pertaining to the respect for human dignity and the inalienable rights of individuals. The Court of Cassation firmly rejected the first contention by stating that foreign sovereign immunity is undoubtedly a rule of customary international law, n5 although the Court conceded that the scope of application of such immunity is subject to a steady process of erosion. n6 The rest of the judgment is largely taken up with the second issue -- namely, whether a foreign state can be granted immunity for alleged violations of peremptory norms of international law. [*243] The Court emphasized that Ferrini was not a case in which there was a question of whether the foreign state's activity should be characterized as sovereign or not, for there was no doubt that the war operations allegedly undertaken by the defendant state were an expression of its sovereign prerogatives. Instead, the crucial issue was whether the foreign state was entitled to immunity when its conduct, due to its "extreme gravity," amounted under customary international law to an international crime, defined as a violation of international law that jeopardizes "universal values that transcend the interests of individual national communities." n7 That the alleged activities occurred in time of war was not deemed especially relevant by the Court, which presented two grounds for distinguishing Ferrini from a previous decision in which it had dismissed, for lack of jurisdiction, a claim concerning an action in tort against the executive branch of government. In that case, which concerned the deliberate destruction, resulting in civilian deaths, of a nonmilitary target during NATO's aerial bombings of Kosovo, the Court had considered the issue as nonjusticiable since the conduct of hostilities is the prerogative of the executive. n8 In its attempt to distinguish the present case from it, the Court noted that abstention from judicial scrutiny over general policy issues does not prevent courts from ascertaining criminal and civil liabilities that may result from their implementation. Moreover, due to the operation of Article 10 of the Constitution, both the rules of customary international law safeguarding human dignity and those that define the most serious violations of those rules as international crimes were "automatically" part of the domestic legal system and provided suitable judicial standards for evaluating tortious conduct. n9 The Court noted that deportation and forced labor are considered war crimes and therefore as crimes under international law in numerous international instruments, ranging from General Assembly Resolution 1/95 of December 11, 1946, to the Statutes of the ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda, to the International Criminal Court. Furthermore, at the time of the Nuremberg Judgment, the prohibitions on deportation and forced labor laid down in the 1907 Hague Regulations were already regarded as customary law rules. n10 In further support of its reasoning, the Court referred to the German law establishing the Foundation "Remembrance, Responsibility and Future" with a view to compensating the victims of deportation and forced labor -- which the Court took as evidence that the facts alleged by petitioners were not episodic events but part of an overall strategy pursued by the German Reich. n11 Shifting its attention to the tort exception to sovereign immunity, the Court discussed the Greek Supreme Court's decision in Prefecture of Voiotia v. Federal Republic of Germany (the Distomo massacre case) n12 as a means of highlighting the main points in its analysis. The Court of Cassation underscored that the Greek Court's finding that the tort exception had attained customary status was not determinative of the question concerning Germany's immunity in Ferrini. Faced with the objection that the tort exception does not apply in the course of an armed conflict, the Greek Court had resorted to the argument that the violation of peremptory norms of international law relating to fundamental human rights entails renunciation of all the benefits and privileges accorded by international law, thus amounting to an implied waiver of sovereign immunity. The Italian Court rejected this argument since, in its view, no waiver can be inferred in the abstract, n13 but nevertheless adduced other reasons for reaching the same result as the Greek Supreme Court.

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[*244] Relying on Article 40 of the International Law Commission's draft articles on state responsibility, n14 and on international as well as comparative case law, the Court in Ferrini elaborated further on the notion of international crimes, holding that they undermine the very foundations of international coexistence. International crimes were defined as serious violations of norms that aim to protect fundamental human rights -- norms that are nonderogable and take priority over other international rules (be they customary or treaty based), including jurisdictional immunities. Moreover, the Court noted that international crimes are not subject to statutes of limitation and that they trigger the applicability of the principle of universal jurisdiction (which, in some instances, is even rendered obligatory by treaty provisions). On these grounds, the Court reasoned, there was no doubt that the principle of universal jurisdiction was applicable in Ferrini, despite its being a civil case. n15 In the Court's view, the grant of immunity in the case of international crimes would run counter to the normative developments highlighted above, since it would hamper the protection of values that are of essential importance to the international community. n16 According to the Court, there was no doubt that priority must be granted to the higher-ranking norms, as suggested by the minority of the European Court of Human Rights in Al-Adsani v. United Kingdom. n17 This approach would conform also with the indication given by the ICTY in Furundzija n18 that violations of peremptory norms should entitle the victim to bring an action in tort before the domestic tribunals of a foreign state. The argument that no express human rights exception to state immunity exists in international law is flawed because respect for the inalienable rights of human beings has attained the status of a fundamental principle of the international legal order. This principle affects the scope of other principles and rules of international law, including the principle of sovereign equality of states. The Court thus advocated a systematic approach to the interpretation of the customary rules of state immunity, which must be construed with due heed to the other principles and rules of the system to which they belong. The Court distinguished Ferrini from the recent case law of other national tribunals on the ground that in all the relevant cases, the violation had occurred in a state other than the forum state. n19 The tort exception to foreign sovereign immunity was also discussed at some length. In particular, the Court took the exception to mean that the traditional dichotomy between acts jure imperii and acts jure geslionis was unsuitable to be applied to certain cases and that, in spite of the ongoing controversy concerning its alleged customary nature, the criterion based on the nature of the foreign state's activities was no longer the sole parameter for determining whether or not immunity should be granted. This position was supported, moreover -- in the view of the Court -- by the 1996 amendments to the United States' Foreign Sovereign Immunities Act. n20 By singling out particular, serious human rights violations such as torture, extrajudicial killing, and hostage taking -- offenses that are obviously not helpfully discussed in terms of the traditional dichotomy between acts jure gestionis and jure imperii -- the amendments and their subsequent enforcement by U.S. courts demonstrate that in the case of tortious conduct of a particular gravity, human rights concerns take priority over the need to respect foreign states' interests. n21 [*245] Finally, the Court emphasized that nowadays it is uncontroversial that "in case of international crimes, functional immunity may not be invoked by foreign states' organs." n22 This sweeping statement was grounded on the relevant provisions of the statutes of international criminal tribunals and also on the practice of municipal courts. Since functional, or residual, immunity is but a corollary of foreign sovereign immunity, there would be no reason to uphold the immunity of the state while denying the immunity of its organs in respect of the same acts. In sum, the fact that the relevant acts were carried out in the forum state, coupled with their qualification as international crimes triggering the principle of universality, prompted the Court to find jurisdiction against the Federal Republic of Germany and to vacate the Court of Appeal's judgment. **** The Ferrini decision is a valuable addition to the ongoing debate on the issue of whether immunity should be granted to foreign states for egregious violations of human rights. The most striking -- and very welcome -- feature of the Italian decision is its richness in terms of crossreferences to the case law of national and international courts. At a

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time of evergrowing transnational judicial dialogue, it is somewhat comforting that courts operate and take decisions paying due heed to what is done in other jurisdictions. n23 This openness does not entail acceptance or emulation of prevailing trends. Faced with a fairly established practice by Anglo-Saxon jurisdictions to grant immunity to foreign states in similar cases, n24 the Italian Court did not hesitate to take a different stance. Following in the wake of the Greek Supreme Court's 2000 judgment in the Prefecture of Voiotia case, n25 the Italian Court of Cassation addressed most of the relevant arguments presented in international legal scholarship and in the case law of municipal courts. Although the two judgments differ in terms of reasoning, their complementarity is self-evident. n26 If, until recently, Prefecture of Voiotia had stood almost in isolation for the proposition that foreign states should not enjoy immunity for serious violations of human rights, Ferrini adds further strength to the argument, primarily developed by legal scholars, n27 that this position is demanded as a matter both of law and of policy. Indeed, what makes Ferrini especially interesting is its systematic interpretation of the law of state immunity. Rather than focusing exclusively on the allegedly self-contained regime of the jurisdictional immunities of foreign states, the Court takes a much broader approach to framing the issue of whether foreign states can be sued before municipal courts for human rights and humanitarian law violations. In particular, the Court interprets this matter against the background of other principles and rules of international law, ranging from the law of state responsibility to international criminal law. In so doing, however, the Court's reasoning is not always persuasive; for example, to hold that deportation and forced labor are well-established individual crimes under international law does not imply that they are necessarily international crimes of states as such. [*246] The Court in Ferrini does not seem to have properly distinguished between state and individual responsibility under international law. What could appear as a methodological flaw in its approach finds its justification, or at least its source, in the Court's overall framing of the case. The Court takes the position that some fundamental values concerning the protection of human rights are preeminent in the contemporary international legal order, and that any hurdle standing in the way of the judicial enforcement of those values has to yield -- as a means of protecting the fundamental interests of the international community. Following the minority's view in Al-Adsani v. United Kingdom, n28 in which the dissenting judges had invoked the peremptory character of the prohibition of torture to lift the immunity of the foreign state, the Court in Ferrini seems also to acknowledge the formal priority that jus cogens rules enjoy vis-a-vis other rules of international law. It is unclear, however, whether the rule of decision in the case is based on this normative hierarchy or, instead, on the argument arising out of the Court's broader, systematic approach to the interpretation of foreign sovereign immunity against the background of other principles and rules of international law. The ambiguity on the actual rule of decision for the Ferrini judgment turns out to be even greater if one looks at the Court's references to the tort exception, emphasizing that, in any event, the tort having occurred in the forum state, Italian courts would have jurisdiction under the corresponding customary law exception to state immunity. On closer scrutiny, the judgment seems to purport that the jurisdiction of Italian courts against the foreign state can be established on both grounds, with the tort exception argument playing an ancillary role in relation to the main consideration that international crimes give rise to universal civil jurisdiction against foreign states. In this context, it is interesting to note that the Court underscores that the traditional distinction between acts jure imperii and acts jure gestionis is no longer suitable to be used as the general criterion to determine when immunity is to be granted. n29 Despite its slips and ambiguities, this decision stands firmly against those other national and international judgments that, albeit reluctantly at times, n30 concur in upholding the foreign states' pleas of immunity for alleged violations of human rights. In fact, the ever widening divide between the jurisprudence of courts directly applying customary international law and those deciding on the basis of national law clearly attests to the difficulty of providing solid foundations, on the basis of state practice and opinio juris, for the existence of a customary law rule of either immunity or non-immunity for foreign states that have allegedly committed serious violations of human rights. For this reason, it seems that the preferred approach to this issue would be an interpretive one involving a determination of which outcome is more consistent with the general principles of the contemporary international legal order. n31 In this broad interpretive context, most of the considerations advanced in Ferrini are relevant. To hold that certain

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customary rules of international law lay down prohibitions applicable to all the "components" of the international community n32 has the merit of stressing the need to [*247] uphold the underlying values of those norms and to avoid normative incongruities. For example, to uphold the immunity of foreign states while lifting that of their organs for the same violations calls into question the consistency of the whole normative system. By the same token, consideration of the legal consequences stemming, under the law of state responsibility, from a serious violation of a jus cogens rule may well lead, by way of interpretation, to the nonrecognition of a state's jurisdictional immunity. n33 Indeed, in the light of the Ferrini decision, the jus cogens argument may be used differently than it usually is by advocates of the normative hierarchy theory. n34 It has to be conceded that there is a problem in arguing that human rights norms having a peremptory status automatically prevail against any other conflicting norms. The human rights norms are substantive in character, whereas jurisdictional immunities are procedural; consequently, there is technically no direct conflict. n35 No such problem arises, however, in arguing either that a serious violation of a peremptory norm may entail nonrecognition of immunity under the law of state responsibility or that in interpreting the scope of application of jurisdictional immunities, one needs to take into account, and eventually yield to, the systemic need of assuring the implementation of the values underlying peremptory norms. These interpretative approaches are ultimately more persuasive, especially since they do not rely on the alleged existence of a customary international law rule of absolute immunity -- a rule whose historical roots and theoretical foundations have been effectively called into question. n36 The difficulty of enforcing judgments for damages against foreign states raises the question of whether it is worth obtaining such judgments in the first place. n37 What this query fails to take into account is that in most cases the victims of serious human rights violations seek redress of a different kind, as no remedy can make good the injury that they have suffered. Even a declaratory judgment -- by stigmatizing the conduct of the wrongdoing state -- may therefore be a sufficient redress for the plaintiffs. n38 A final remark may be in order. This terrain is one where the strain between conservatism and innovation -- which marks the contemporary epoch of international law -- is most evident. n39 The apparently technical nature of the law of state immunity scarcely hides its theoretical underpinnings and the underlying normative policy issues that are at stake. To argue in favor or against the immunity of foreign states and their organs before municipal courts for alleged egregious violations of international human rights and humanitarian law is tantamount to taking a stance on a variety of issues that remain controversial, including: How should one strike a balance between conflicting sets of rules equally valued by the international community? n40 What is the [*248] place of jus cogens norms in contemporary international law, and what are the consequences of their breach outside the context of the law of treaties? What role should domestic courts play in adjudicating claims involving issues of international law? n41 With such important issues at stake, the ongoing debate on whether foreign States should enjoy immunity for alleged violations of human rights is likely to continue, with fervent critics and passionate advocates on both sides. Legal Topics: For related research and practice materials, see the following legal topics: GovernmentsLocal GovernmentsClaims By & AgainstInternational LawDispute ResolutionTribunalsInternational LawImmunityGeneral Overview FOOTNOTES:

n1 Ferrini v. Repubblica Federale di Germania (Trib. Arezzo Nov. 3, 2000). Since Italy has no foreign sovereign immunity statute, courts make direct application of customary international law under Article 10 of the Constitution to settle disputes involving state immunity claims.

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n2 Ferrini v. Repubblica Federale di Germania (Corte app. Firenze Jan. 14, 2002). n3 Ferrini v. Repubblica Federale di Germania (Cass. Mar. 11, 2004) (Sez. Un.). The case has been published in 87 RIVISTA DI DIRTTTOINTERNAZIONALE 539 (2004), from which the page numbers for the citations have been taken. English translations from the case are those of the author. n4 Article 10 provides: "The Italian juridical order conforms to the generally recognized norms of international law. . . ." Article 24 provides: "Everyone can take judicial action for the protection of individual rights and legitimate interests. . . ." These translations are taken from 9 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Albert P. Blaustein & Gilbert H. Flanz eds., 1971) (Release 2003-8). n5 A different view is presented in the recent U.S. Supreme Court case of Republic of Austria v. Altmann, 124 S.Ct. 2240 (2004), which is discussed in a case report by Charles Brower II at 99 AJIL 236 (2005). n6 In this context, however, it should be noted that the UN General Assembly just adopted the UN Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004). See David P. Stewart, The UN Convention on Jurisdictional Immunities of States and Their Property, 99 AJIL 194 (2005). n7 87 RIVISTA DI DIRITTO INTERNAZIONALE at 544. n8 See Presidenza Consiglio Ministri v. Dusan Markovic (Cass. June 5, 2002), in 2003 CORRIERE GIURIDICO 635-36. n9 87 RIVISTA DI DIRITTO INTERNAZIONALE at 544. n10 Id. at 545. n11 See also Agreement Concerning the Foundation "Remembrance, Responsibility and the Future," July 17, 2000, U.S.-FRG, 39 ILM 1298 (2000). n12 Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000 (Hellenic Sup. Ct. May 4, 2000). This Supreme Court judgment is discussed in a case report by Maria Gavouneli and Elias Bantekas at 95 AJIL 198 (2001); the trial court's judgment is discussed by Elias Bantekas at 92 id. 765 (1998). n13 87 RIVISTA DI DIRITTO INTERNAZIONALE at 546. According to the Court, only explicit action ascertained in casu can amount to a waiver. n14 The Commission maintains an electronic archive on state responsibility at <http://www.un.org/law/ilc/archives/statresp.htm>. n15 87 RIVISTA DI DIRITTO INTERNAZIONALE at 547.

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n16 Id. n17 Decided Nov. 21, 2001, the case has been reprinted in 123 ILR 24. n18 See Prosecutor v. Furundzija, No. IT-95-17/1-T, para. 155 (Dec. 10, 1999), 121 ILR 214. n19 Mr. Ferrini was transported from Italy, where he had been apprehended, to Germany; part of the tortious conduct therefore occurred in the forum state. n20 See 28 USC 1605(a)(7) (2000). n21 Litigation under section 1605(a)(7) of the Foreign Sovereign Immunities Act has been regularly reported in the Journal. See Sean Murphy, Contemporary Practice of the United States, 96 AJIL 463 & 964 (2002); 97 id. at 187 & 966 (2003); 98 id. at 349 (2004). n22 87 RIVISTA DI DIRTTTO INTERNAZIONALE at 550. The Court did not seem to be aware of the International Court of Justice's 2002 judgment in Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14). n23 See Vicki C. Jackson, Comparative Constitutional Federalism and Transnational Judicial Discourse, 2 INT'L J. CONST. L. 91 (2004). U.S. courts and particularly the Supreme Court do not seem willing, for the time being, to join this transnational judicial dialogue. See Andrea Bianchi, United States Courts and International Law: The Myth of Lohengrin Revisited, 15 EUR. J. INT'L L. 751 (2004). n24 Besides the well-known leading cases Nelson v. Saudi Arabia, 507 U.S. 349 (1993), and Al-Adsani v. Kuwait, 107 ILR 536 (Eng. C.A. 1996), see, most recently, Bouzari v. Islamic Republic of Iran (Ontario Ct. App. June 30, 2004), at <http://www.ontariocourts.on.ca/>, and Jones v. Ministry of the Interior (Kingdom of Saudi Arabia) (Eng. C.A. Oct. 28, 2004), at <http://www.bailii.org/ew/cases/EWCA/Civ/2004/1394.html>. n25 See supra note 12 and accompanying text. n26 All the more so when one realizes that both courts' decisions were grounded directly on the interpretation of customary international law via the operation of constitutional law provisions that make it possible for each of the two courts in both countries to apply customary law directly. n27 See Andrea Bianchi, L'immunite des Etats et les violations graves des droits de l'homme: la fonction de l'interprete dans la determination du droit international, 108 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 63 (2004) (developing further the stance originally taken in Denying State Immunity to Violators of Human Rights, 46 AUSTRIAN J. PUB. INT'L. L. 195 (1994)) and references therein contained. n28 See the dissenting opinion of Judges Rozakis and Caflisch (joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajic) in Al-Adsam v. United Kingdom (Eur. Ct. H.R. Nov. 21, 2001), 123 ILR 24.

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n29 On the unsuitability of this distinction, see Rosalyn Higgins, The Role of Domestic Courts in the Enforcement of International Human Rights: The United Kingdom, in ENFORCING INTERNATIONAL HUMAN RIGHTS BEFORE DOMESTIC COURTS 37, 54 (Benedetto Conforti & Francesco Francioni eds., 1997). n30 See, e.g., Jones v. Ministry of the Interior (Kingdom of Saudi Arabia), para. 32 (Q.B. July 30, 2003 (per Whitaker, Master)). n31 This approach, while blurring the distinction between lex lata and lex ferenda, has the merit of acknowledging the law's uncertainty on this particular point and of fostering interpretive solutions based on the systemic consideration of the international legal order. Accord ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 7 (1994): "Where there is ambiguity or uncertainty, the policy-directed choice can properly be made." n32 87 RIVISTA DI DIRITTO INTERNAZIONALE at 545. The term "components" has no established meaning in international law, and the Court left it unqualified. Presumably, the Court meant to refer to various actors of international law, including states and -- from what can be inferred generally from the judgment -- also individuals. n33 See Article 41 (2) of the International Law Commission's draft articles on state responsibility: "No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40 [that is, "a serious breach by a State of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation." On the articles see JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT, AND COMMENTARIES (2002). n34 See Lee M. Caplan, State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Argument, 96 AJIL 741(2003). n35 Fouad Zarbiev, Quelques observations sur le traitement de l'exception d'immunite juridictionnelle de l'Etat etranger par la Cour europeenne des droits de I'homme, 59 REVUE TRIMESTRIELLE DES DROITS DE L'HOMME 621, 641 (2004). n36 See GAMAL MOURSI BADR, STATE IMMUNITY: AN ANALYTICAL AND PROGNOSTIC VIEW 9-62 (1984) (reviewing the evolution of the rule in historical perspective); see also Michael Byers, Custom, Power, and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, 17 MICH. J. INT'L L. 109, 170 (1995). n37 See the 2003 ruling of the German Federal Supreme Court in the Distomo Massacre Case (Greek Citizens v. Federal Republic of Germany), 40 ILM 1027, in which the Court refused to recognize the Greek judgment, see supra note 12 and accompanying text, awarding damages against the Federal Republic of Germany for war crimes. n38 See Andrea Bianchi, Serious Violations of Human Rights and Foreign States' Accountability, in MAN'S

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INHUMANITY TO MAN 149, 178-81 (Lal Chand Vohrah et al. eds., 2003). n39 See Marco Sassoli, L'arret Yerodia: quelques remarques sur une affaire au point de collision entre les deux couches du droit international, 106 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 791 (2002). n40 See Arrest Warrant of 11 April 2000 ((Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14), Sep. Op. Higgins, Kooijmans, & Buergenthal, JJ., para. 75. n41 One may find it of interest to contrast the views expounded in this decision with those expressed in HAZEL FOX, THE LAW OF STATE IMMUNITY 315-22, 517-40 (2002).