Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights

Valerio Onida

doi:10.1007/978-3-662-62304-6_17

Abstract

AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.

Highlights

The situation following the adoption of the 2012 International Court of Justice (ICJ) Judgment—which holds that the German state is not subject to the jurisdiction of Italian courts for proceedings brought by former Italian Military Internees (IMIs) or their families, and other victims of acts carried out by German armed forces in Italy
The Italian Constitutional Court (ItCC) did not deny that Italy is subject in general terms to a duty to abide by the judgments of the ICJ concerning the Italian state
If we ask the question of quid iustum—namely, what would be a fair solution to this specific case?—we can no longer content ourselves with only noting the conflict between the two legal systems but must answer a different question: within the dispute between the Italian victims of crimes against humanity committed by German armed forces and the German state, which has refused to recognize a right of redress to victims, should not the fundamental rights of the individual prevail over the rule providing for exemption from Italian jurisdiction, which has been inferred from international law?

Summary

Introduction

The situation following the adoption of the 2012 International Court of Justice (ICJ) Judgment—which holds that the German state is not subject to the jurisdiction of Italian courts for proceedings brought by former Italian Military Internees (IMIs) or their families, and other victims of acts carried out by German armed forces in Italy. The conflict is not between the Italian and the German governments but between an international court, by the rulings of which the states of the international community are bound, and a national constitutional court, the rulings of which are binding on the Italian government and legislature and are not subject to any form of appeal (Article 137(3) of the Italian Constitution)

Quid Iuris or Quid Iustum?

The Right to an Effective Judicial Protection

Conclusion