Initial submissions of evidence between Italy and Germany set the tone for an already unbalanced trial at the Hague’s International Court of Justice (ICJ), this Friday morning.
The second day of proceedings in the ICJ case between Italy and Germany saw both parties presenting evidence for their case. The advocates’ focus was on customary international law, how to prove its existence, and on the admissibility of jurisdictional claims.
The proceedings opened with a statement of the facts on behalf of Germany, who notably took on full responsibility for the actions and events under the Nazi regime during the second World War.
After a settlement of the facts on both sides, the Presidents moved to evidence submissions. Here, Germany’s advocates presented an iron-clad front, offering several pieces of evidence connected in a coherent fashion, ranging from international conventions to ICJ precedents. Their efforts mainly revolved around asserting their legal immunity as a sovereign state from foreign jurisdiction, and proving there was no customary law basis for Italy’s holding that human rights claims provide an exemption to this jurisdictional immunity.
What seemed to be a turning point was an article of the Treaty of Paris between Italy and the Allied Forces (1947), allegedly exempting Germany from all outstanding claims Italy has on the State as of the document’s drafting, in 1945.
The relevance of this provision was confirmed by two German advocates, disclosing that it constituted a central and contentious element of their application against Italy.
A judge also echoed this opinion, although, upon further questioning, there seemed to be an air of dissatisfaction with the banality of evidence presented by Germany among the 7 decision makers. One specific voice understated the submission of this article mentioning the exceptions that Germany had overlooked.
At the time of the interview, it was expected that Italy would respond to the submission of this provision with a temporal exception set out in one of its subsections. This prediction came true, and it also turned out to be Italy’s most relevant point.
In fact, Italy’s submissions of evidence could be seen as underwhelming, presenting a smaller number of pieces compared to the opposing party, also lacking the same apparent coherence.
A German advocate lamented a lack of understanding between the two parties, and particularly the lack of legal relevance in the submissions brought by Italy. A small dispute arose in court regarding the pertinence of the European Convention on Human Rights provisions against torture and inhumane or degrading treatment, submitted by the Italian representatives.
Following the first hearing, advocates, judges and chairs disassembled into the coffee rooms, momentarily setting aside their differences for a limbo where cookies and thoughts could be shared. Here, judges remained largely diplomatic. Upon being asked about the strength of the arguments pronounced so far, one judge simply anticipated the upcoming deliberations with their colleagues, retaining a neutral use of words, even though it could be inferred that it won’t be an easy discussion.
All in all, it is still early to make an accurate prediction of the case’s impending outcome, especially in the wake of the forthcoming witness testimonials, but there is a palpable air of superiority within the German front, a shadow that Italy might have to work hard to overcome.
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