Staatenimmunität und Kriegsverbrechen

The immunity of states from foreign lawsuits is a direct expression of the sovereignty of states. It is, however, limited to acts by sovereign authority (acta iure imperii) and is not in conflict with lawsuits against acts by management authority (acta iure gestionis). Therefore, acts by sovereign authority are out of reach of the jurisdiction of another state, opposed to acts by non-sovereign authority, i.e. commerce or economic transactions. This strict distinction has been questioned in recent publications and breached by several laws and court decisions. Well-known amongst these court decisions is the judgement of the Greek Areopag in the so-called Distomo lawsuit, which convicted the Federal Republic of Germany to pay compensations for severe war crimes and crimes against humanity committed by the SS and the Wehrmacht. The inquiry at hand supports the emerging tendency to approve the submission of such crimes and severe violations of human rights to foreign courts, and not to let them fail on the ground of the sovereignty of the state. The controversial positions that the highest courts of Greece, Germany and Italy assumed in regard to this issue, lead to the conclusion that the judgements of the Greek court cannot generally be qualified as illegal. Yet, only judgements which are considered illegal with absolute certainty defy the German Ordre Public and must not be recognized and carried out. This study outlines the development from an absolute immunity to a limited immunity, which prevailed in numerous codifications since the early seventies, especially in Europe, the United States and Great Britain. It goes along with a limitation of the sovereignty of states, especially in the field of international trade and economy. This is a proceeding trend; particularly the appreciation of the preservation of human rights further limited the sovereignty of the states. Moreover, the options of implied waiver and forfeiture are being discussed as further limitations of immunity. The most frequent offence clauses which are grounded on international laws of immunity imply a further erosion of the protection of immunity. Highly controversial within this debate is the question, if this includes war crimes as well. This study, however, concludes that these clauses, likewise the terrorism clauses, can be applied to severe war crimes as committed in Distomo. This is also not invalidated by the prohibition of ex post facto laws.