Abstract

The paper comments on Decision 238/2014 of the Italian Constitutional Court, in which the Italian Constitutional Court addressed the tension between human rights and State immunity. Its focus is on the reasoning adopted by the Italian Constitutional Court, which relied on Italian 'foreign relations law' to avoid giving effect to the international legal rules on State immunity.

Highlights

  • IntroductionWe are writing this introduction while the COVID-19 pandemic has accelerated, especially in Italy, the dwindling of a generation leading to the obliteration of its memory

  • Reconciling State Immunity with Remedies for War Victims in a Legal PluriverseAnne Peters and Valentina Volpe AbstractThe chapter explains the threefold aspiration of the book as an academic, societal, and diplomatic project

  • This is what happened in the litigation on reparation for German war crimes which culminated in Sentenza 238/2014.1 With this judgment, the Italian Constitutional Court (ItCC) denied the German Republic’s immunity from civil jurisdiction over claims to reparation for Nazi crimes committed during World War II (WWII), indirectly challenging the International Court of Justice (ICJ)’s Jurisdictional Immunities Judgment of 20122 and paving the way for a series of domestic proceedings against Germany

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Summary

Introduction

The German–Italian dispute over the scope of sovereign immunities and reparations claims for war crimes committed by German armed forces during World War II (WWII) in Italy is in many ways specific and historically contingent. For many observers the dispute represents the injustices and inconsistencies inherent in the international legal order and seems to contribute to that order’s legitimacy deficits They doubt that a legal order which hampers redress against serious human rights violations before national courts in the interest of an abstract legal concept, such as sovereign equality protected through state immunity, can be considered as just.. The adverse impact of such uncoordinated efforts at prompting or retaining law-reform in a decentralized legal order have culminated in the Jurisdictional Immunities Judgment and Sentenza 238/2014 and point to the need for caution by all actors involved Such adverse consequences may affect the state itself in so far as non-compliance by courts may incur state responsibility. The chapter concludes by stressing that concepts such as immunities or the respect for judicial organs of the international order guarantee its stability and thereby serve to protect human rights, albeit indirectly (section IV)

The Historical Background
The Italian Corte di Cassazione and the Ferrini and Milde Judgments
The ICJ and the Jurisdictional Immunity Judgment
Immunity and Human Rights-Based Exceptions
Reparation for Gross Human Rights Violations and War Crimes
The Interplay Between International and Domestic Law
A Plea for a Pluralisme Ordonné
A ‘Modest Proposal’
Beyond State Immunity
Conclusion
Preliminary Observations
The Surprise
Challenge to a Foundational Rule of International Law
Jurisdictional Immunity
The Different Methods of Reparation
The Impossibility of Reparation of War Damages by Individual Actions
The Hard Task of Seeking an Equitable Peace Settlement
VIII. Looking to the Future
Krieger
Adverse Effects
Incurring State Responsibility
Preserving Judicial Authority Through Legitimizing Strategies?
Creating False Promises
Generalizable Standards
Concluding Remarks
Confrontation and Mutual Neglect Versus Legal Peace
Why the French Railroad Deportees and Not IMIs?
North American Remedies Against Immunities
The Complexity of the Reconciliation Task
Academic Diplomacy as a Supplement to Governmental and Judicial Dialogues
Moral Responsibility and Legal Liability
The Imperfect Lump Sum Agreements of 1961
Fundamental Legal Changes Since 1961
A Belated Solidarity
Territorial and Personal Scope of Solidarity
Calculation of the Reparation
Financing
The Proper Use of Supreme Principles as Part of the ‘Constitutional Identity’
Compensation Agreements and German Compensation Law After World War II
Immunity As a Part of the System
The Individualization of Claims Under International Law
Prospects for Future Regimes of Compensation and Reconciliation
Conclusions
Epilogue
Fontanelli
Next of Kin
DART: The Australian Solution
Other Compensation Schemes
Comfort Women
A Ten-Step Sketch of a Future German-Italian Joint Scheme
Reparation or Compensation
The Amount Paid to Each Victim
The Management of the Fund and the Organs Overseeing Its Distribution
The Eligibility Criteria
The Treatment of Heirs
The Standard and Burden of Proof
The Involvement of Victims
Legal Peace
The EU Membership of Italy and Germany
At What Stage of Development is the EU’s Law on State Immunity?
Techniques of Dialogue Between Judges at the European Level
Implications for EU Law
The Suggestions Provided by EU Law
Law and Negotiations
Techniques of Judicial Dialogue
Possible Ways to Solve the Conflict Between Germany and Italy
Zimmermann
The Hague Conference on Private International Law4
Brussels Ia Regulation
Regional European Customary Law on State Immunity?
Immunity and Grave Breaches of International Law
A Clever Move and Its Implications
Concluding Thoughts
Domestic Courts as Law Enforcers
Domestic Courts as ‘Gate-Keepers’
Which Role for Courts at the Intersection of Legal Orders?
Who Can Bring a Claim and Who Is a Victim?
Time Frame for Reparation Obligations
Type of Reparation
Enforcing a Successful Adjudication
The Compatibility of a Reparation Scheme with the Italian Constitution
Unsettling Settlements
Unmaking History
Quid Iuris or Quid Iustum?
The Right to an Effective Judicial Protection
The Stalemate Between International and Domestic Law
You Cannot Have Your Cake and Eat It
The German Position
The Italian Position
Factual
Constitutional
Theoretical
Strategic
Ex Post Remarks
Italian Ambiguities Towards Fascism
Conclusions in Point of Fact
Findings
Conclusions in Point of Law
Full Text
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