THE DECISION OF THE ITALIAN CONSTITUTIONAL COURT CONCERNING THE JURISDICTIONAL IMMUNITIES OF GERMANY

Abstract

In judgment No. 238/2014 the Italian Constitutional Court held that the Italian Constitution required Italian courts to disregard the decision of the International Court of Justice (ICJ) upholding Germany’s jurisdictional immunity and to continue proceedings against Germany concerning actions for damages arising out of war crimes and crimes against humanity committed by Germany during the Second World War. The Court balanced the constitutional value of respect for international law, demanding respect for the binding force of the ICJ judgment, against the value of enforcing fundamental rights, and gave precedence to the latter. This type of balancing has also been employed by the Court of Justice of the European Union and by the German Constitutional Court. Where the highest national courts prefer constitutional values over States’ international obligations, they cause a dilemma for other State organs as from the international perspective no State may rely on its internal law to justify non-performance of international norms. Yet the decision of the Italian Constitutional Court has attempted to close a “justice gap” in the regulation of the treatment of victims of international crimes committed during the Second World War. It is therefore hoped that the two governments follow the admonition of the ICJ to reopen negotiations.