THE ITALIAN FUND FOR THE VICTIMS OF THE THIRD REICH: CRITICAL REFLECTIONS AND A PROPOSAL FOR FUTURE REPARATION INITIATIVES

Abstract

Building on the dispute between Germany and Italy over states' jurisdictional immunities, the contribution shows how Italy's recent establishment of the Restorative Trust Fund for victims of the Third Reich is not sufficient to resolve the dispute between the two states. Taking a cue from restorative models adopted domestically by various states, particularly with reference to transitional justice, the contribution outlines a model of a trust fund in favor of victims that can combine the right of access to justice with respect for immunity from the jurisdiction of the foreign state, useful for future restorative initiatives in Italy or abroad. To avoid violations of immunity, the forum state wishing to take over from the responsible foreign state for the purpose of reparation should create a grievance commission with exclusive jurisdiction over applications for access to the reparation fund, so that the proceedings are not brought by the victim against the foreign state, but directly with respect to the reparation fund. The contribution explains why this procedure is not contrary to foreign state immunity with reference to the concept of indirect impleading in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of States and their Property. The decisions of a grievance commission would not bring into play the immunity from the jurisdiction of the foreign state as long as they do not affect the property, rights and interests of the latter in the domestic system of the forum state. To this end, the commission's decisions-executable on the ground, subject, therefore, to the property of the foreign state-should be drafted in the form of a finding of victim status, not a finding of responsibility of the foreign state. In order to provide victims with full access to justice, on the other hand, it is necessary for the decisions of the grievance commission to be appealable to ordinary courts.