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
Summary
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)
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