National Implementation of IHL
Milde case, Court of Cassation, 9 October 2008
Milde, Cass. sez. I pen. Sentenza n. 1072 ud. 21/10/2008, (IT 2008)

Court of Cassation
(last accessed on 30.08.2013)

In the statement in review, the Court of Cassation addresses the question of whether immunity should be upheld even when specific behaviours constitute international crimes and violations of fundamental norms of international law. The case concerns actions by German citizens that occurred in Italy during the Second World War.

Following the trend of the Tribunal in previous judgments, the Court reaffirmed that the customary principle of States’ immunity does not have an unlimited and absolute application, being not applicable when a contradiction arises with the international customary principle providing the right to reparation for damages caused by international crimes arising from gross violations of human rights.

The Court affirms that the principle attributing fundamental importance to inviolable human rights could not fail to affect other international principles, especially the principle of the sovereign equality of States.

Reaffirmed that, according to treaty law and judicial practice on this matter, functional immunity of State officials of the foreign State could no longer be invoked in cases of international crimes. The Judge argues that there can be no valid reason to maintain the immunity of the State for behaviours that can be defined as international crimes and therefore to deny that its responsibility can be enforced before the judicial authority of a foreign State. Therefore, in the case at hand, the Court denied the immunity from civil jurisdiction for Germany due to the fact that the right asserted by the plaintiff arose from an international crime.

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application/pdf 1,182 KB Milde v. Italy - Decision of 09.10.08.pdf