Jurisdictional immunity of the state in cases involving serious human rights abuses

powstanie

In a decision of 29 October 2010 (IV CSK 465/09), the Polish Supreme Court examined the case of Wincjusz Natoniewski, a survivor of the Second World War, who instituted civil proceedings against the Federal Republic of Germany claiming compensation for injuries he suffered as a consequence of acts perpetrated by German armed forces in 1944. This case is one of many in which survivors of large-scale armed operations against civilians and other barbaric acts seek compensation from the state. Such cases involving serious human rights violations call into question the issue of a state’s entitlement to immunity.

DOUBTS AS TO IMMUNITY

Among other issues, the Polish Supreme Court was called upon to decide whether courts in Poland were obliged to accord Germany jurisdictional immunity in proceedings regarding claims for compensation arising out of torts perpetrated in Poland (forum state) by German armed forces, and whether the immunity extends to acts involving the most serious violations of rules of international law of a peremptory character.

According to the Court, customary international law has developed to the point where there is no obligation to accord immunity to a state that perpetrated torts on the territory of the forum state.

The answer to these questions was essential in order to determine whether Polish courts may exercise jurisdiction in respect of Germany. The Court pointed out that, while the existence of a state’s immunity, generally derived from customary international law, is unquestionable, its scope and extent are not universally agreed upon. The Court considers that a state’s entitlement to immunity should be limited to acta jure imperii, as opposed to acta jure gestionis. Despite dealing with the former under the circumstances of the present case, the Court extended its analysis and addressed the issue of territorial tort principle, i.e. a situation when the acts were perpetrated on the territory of the forum state.

THE CONCLUSIONS

According to the Court, customary international law has developed to the point where there is no obligation to accord immunity to a state that perpetrated torts on the territory of the forum state. The Court further explained that, since the issue of immunity is procedural in nature, it should be examined in accordance with the rule of international law existing at the time of the proceedings, rather than the one binding at the time of the events that subsequently led to the proceedings. However, having extensively reviewed the literature, decisions rendered worldwide in similar cases and the provisions of international legal acts such as the European Convention on State Immunity, the Supreme Court came to the conclusion that this exception does not extend to torts committed by the armed forces. The Supreme Court also rejected the argument that a state’s entitlement to immunity should depend upon the gravity of the perpetrated acts. According to the Supreme Court, the rule of state immunity does not contravene jus cogens rules in cases involving serious violations of international law and human rights abuses, because both sets of rules address different matters (procedural v. substantive). Therefore, the issue of the lawfulness or unlawfulness of a given act is irrelevant as far as the state’s immunity is concerned.

The Supreme Court concluded that, given the present development of international public law, Germany is entitled to jurisdictional immunity in proceedings resulting from torts perpetrated by German armed forces in Poland during the Second World War. The reasoning of the Polish Supreme Court was later confirmed by the International Court of Justice in the Jurisdictional immunities of the state (Germany v. Italy) judgment of 3 February 2012.

 

Posted on by Agnieszka Gołąb in Civil Procedure

About the author

Agnieszka Gołąb
Agnieszka Gołąb

Ph.D. candidate in civil procedure at the University of Warsaw. She holds an M.A. in Law and Applied Linguistics from the University of Warsaw. She completed a work placement at the European Commission in Luxembourg. She is a former editor-in-chief of the Warsaw University Law Review.