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State immunity-deportation and forced labor claim-international crimes-jus cogens-tort exception-universality of jurisdiction in civil cases
FERRINI V. FEDERAL REPUBLIC OF GERMANY.
Italian Court of Cassation, March 11, 2004.
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.1 This decision was affirmed by the Court of Appeal,2 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.3
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.4 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,5 although the Court conceded that the scope of application of such immunity is subject to a steady process of erosion.6
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. 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...