I. Introduction
We 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. This book was conceived to recount that individual and collective remembrance in its intertwinements with law and history. Such entanglements are particularly painful when courts and judges are called to adjudicate on historical narratives.
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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Against this background, our work has a threefold aspiration: it provides a scholarly contribution on the issue of war crimes and reparation for the victims of armed conflict; it seeks to form part of a broader civic debate, shedding light on these topics for a larger public engagement; and it proposes concrete legal and political solutions to the parties involved to overcome the present paralysis with a view to a durable interstate conflict resolution. We submit that a latent crisis fuelled by Sentenza 238/2014 is festering in the relationship between the German and Italian Republics. Future exchanges at both institutional and civil society levels might also help judges directly involved in the post-Sentenza reparation cases which are currently pending. Keeping this objective in mind, we see the book as an exercise of academic diplomacy, in a forward-looking and conciliatory spirit.
Our authors hail from diverse academic backgrounds and represent a wide variety of perspectives across domestic and international public law. We deliberately invited only Italian and German nationals and addressed them specific sets of questions. One of our objectives was to tease out (and ideally overcome) postures of possible epistemic nationalism.3
The book’s primary scholarly aim covers three legal themes: state immunity,4 reparation for serious human rights violations and war crimes,5 including historical ones,6 and the interaction between international and domestic law and institutions, notably courts.7
These three themes are interlinked: the international rules and principles of state immunity operate in proceedings before national courts, and are being developed through the practice of those courts which in turn contributes to the formation of customary law, in addition to international treaty law.8 With regard to the reparation of serious violations of international human rights, an interaction between the international and the domestic level of rules and institutions is visible as well: reparation is sometimes acknowledged and granted as a matter of international legal obligation, but needs in any case to be implemented through domestic procedures. These themes form the intertwined threads running through the volume.
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After the introduction, Part II, Immunity, investigates core international law concepts, such as those of pre/post-judgment immunity and international state responsibility, as embedded in contemporary legal discourse (Paolo Palchetti, Christian Tomuschat and Heike Krieger). Part III, Remedies, examines the tension between state immunity and the right to remedy, suggesting original schemes for overcoming the legal impasse and solving the conundrum under international law (Riccardo Pavoni, Jörg Luther, Stefan Kadelbach and Filippo Fontanelli). Part IV adds European Perspectives to the main themes of the book by showcasing relevant regional examples of legal cooperation and judicial dialogue against a common European horizon (Alessandro Bufalini, Bernardo Giorgio Mattarella, Doris König and Andreas Zimmermann). Part V, Courts, addresses a series of questions on the role of judges in the areas of immunity and human rights at both the national and international level (Christian J. Tams, Raffaela Kunz, Giovanni Boggero and Karin Oellers-Frahm). Part VI, Negotiations, suggests, inter alia, concrete ways out of the impasse with a forward-looking aspiration (Andreas von Arnauld, Valerio Onida, Andreas L. Paulus and Francesco Francioni).
In Part VII, The Past and Future of Remedies, emeritus justice Sabino Cassese, sitting judge in the Court that decided Sentenza 238/2014, adds some personal recollections and critical reflections on the Judgment. Joseph H. H. Weiler’s Dialogical Epilogue concludes the volume by entering into conversation with some of the authors and placing the main findings of the book in a wider European and international law perspective.
In order to set the scene for the following chapters, we first summarise the proceedings leading to Sentenza 238/2014 (section II) and then contextualise the judgment by offering a snapshot of the law on the main themes of the volume (sections III–V), a law which is, as the European Court of Human Rights (ECtHR) put in Jones, in a ‘state of flux’.9 We close with concrete legal policy suggestions for moving toward a resolution of the Italian-German controversy (section VI).
II. Sentenza 238/2014: The Culmination of a Judicial Saga
1. The Historical Background
The events leading to Sentenza 238/2014 can be traced back to the unsolved quarrels between Italy and Germany regarding WWII crimes. Sentenza is, therefore, one pronouncement in a long judicial conversation or judicial tug-of-war that has developed at the local, national, and international level.10 The facts that gave rise to the various judicial proceedings are the uncontested atrocities committed by German forces in the occupied Italian territory between September 1943 and the end of the war in May 1945.11 They notoriously included massacres of civilians and the deportation of a large number of the population for forced labour. The core issue litigated on the multilevel judicial battlefield is reparation for these civilian victims and for the ‘Italian Military Internees’ (IMIs), ie the several hundred thousand members of the Italian army who German forces took prisoner both in Italy and elsewhere in Europe. IMIs were denied the status of prisoner of war (POW) and were deported to Germany and German-occupied territories for use as forced labour.
2. The Italian Corte di Cassazione and the Ferrini and Milde Judgments
The question of war crimes reparation gained relevance and a renewed judicial and political attention in the early 2000s.12 One of the main actors of this judicial turn has been the Italian Supreme Court (Corte di Cassazione), which gained international attention with the inauguration, in those years, of a ground-breaking jurisprudence concerning state immunity and gross human rights violations.
The Corte di Cassazione adopted the well-known Ferrini judgment in 2004.13 The procedural history began in September 1998, when Luigi Ferrini instituted proceedings against the Federal Republic of Germany before the Tribunal of Arezzo. Ferrini was an Italian national who had been arrested and deported to Germany in 1944 where he had been detained and forced to work in a factory until the end of the war. He was seeking damages for the physical and psychological injuries suffered.
Unsurprisingly, in November 2000, the Tribunal of Arezzo decided that Luigi Ferrini’s claim was inadmissible because Germany, as a sovereign state, was protected by jurisdictional immunity. On the same grounds, the Court of Appeal of Florence dismissed the appeal of the claimant. However, on 11 March 2004, the Italian Corte di Cassazione quite unpredictably contradicted this well-established line of jurisprudence grounded in international customary law, holding that Italian courts had jurisdiction over the claims for compensation brought against Germany by Luigi Ferrini. The Court argued that state immunity does not apply in circumstances in which the act complained of constitutes an international crime. Assuming the role of an interpreter of international law, the Italian Corte di Cassazione affirmed: ‘Respect for the inviolable rights of the human person has indeed assumed the value of a fundamental principle of the international legal order (…). The emergence of this principle cannot fail to reflect on the scope of other principles to which this order is traditionally inspired and, in particular, on the “sovereign equality” of States, to which state immunity from foreign civil jurisdiction is linked’. ‘[T]here can be no doubt that the antinomy should be resolved by giving prevalence to the highest-ranking norms’.14
A few years later, while numerous reparation proceedings were instituted before ordinary Italian courts, the Corte di Cassazione confirmed the Ferrini jurisprudence in a number of cases all adjudicated in 2008. The most remarkable of them was surely the Milde case.15 Max Josef Milde had been a member of the ‘Hermann Göring’ division of the German armed forces who was charged with participation in massacres committed on 29 June 1944 in Civitella in Val di Chiana, Cornia and San Pancrazio in Italy. The Military Court of La Spezia had sentenced Milde in absentia to life imprisonment and ordered Milde and Germany, jointly and separately, to pay reparation to the successors in title of the victims of the massacre who appeared as civil parties in the proceedings. Germany appealed to the Military Court of Appeals in Rome against that part of the decision which was directed against the German Republic and the Court dismissed the appeal in 2007. The following year, the Corte di Cassazione rejected Germany’s argument of lack of jurisdiction and confirmed the reasoning it had adopted in Ferrini: in cases of serious international law crimes, the jurisdictional immunity of states should be set aside. According to the Court, ‘the principle of respect for the “sovereign equality” of States must remain without effects in the event of crimes against humanity (…) whose real substance consists in an abuse of state sovereignty’.16
In the same year, the Corte di Cassazione granted an application of exequatur to the Greek courts’ judgments Prefecture of Voiotia v Federal Republic of Germany concerning Nazi massacres of the Greek civilian population during WWII.17
3. The ICJ and the Jurisdictional Immunity Judgment
The German reaction was not long in coming. In December 2008, just a few months after the Milde judgment of the Corte di Cassazione, the Federal Republic of Germany instituted proceedings before the ICJ against the Italian Republic. According to Germany, Italy through its judicial practice ‘failed to respect the jurisdictional immunity which … [the German state] enjoys under international law’.18
In the Jurisdictional Immunities Judgment, issued in 2012, the ICJ endorsed the German position. In particular, the Court openly contradicted the Ferrini jurisprudence and the legal argument that a normative hierarchy between peremptory human rights and immunity must lead to setting aside state immunity in domestic litigation dealing with ius cogens violations. The Court stated that ‘under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law’.19 The ICJ grounded this decision on the quite formalistic assumption that the rules of ius cogens and those of state immunity do not conflict because they operate at different levels. The rules of state immunity ‘are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State’,20 and these procedural immunity rules do not address the question of whether or not the conduct around which the proceedings turn in substance was lawful or unlawful.21
The ICJ also rejected an additional set of arguments brought by Italy.22 The Italian ‘last resort’ claim deemed ‘Italian courts (…) justified in denying Germany the immunity to which it would otherwise have been entitled, because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed’.23 The ICJ considered, with particular reference to the IMIs status, that it was ‘a matter of surprise—and regret—that Germany decided to deny compensation to a group of victims on the ground that they had been entitled to a status [that of POW] which, at the relevant time, Germany had refused to recognize’.24 However, the Court could find ‘no basis’ in the state practice conditioning the entitlement of state immunity ‘upon the existence of effective alternative means of securing redress’.25
In conclusion, the ICJ held that Italy violated the jurisdictional immunity which Germany enjoys under international law by allowing civil claims based on violations of international humanitarian law by the German Reich between 1943 and 1945,26 and that Italy also committed violations of the immunity owed to Germany by taking enforcement measures against German properties, in particular Villa Vigoni, a German cultural centre on Lake Como.27
The ICJ judgment received mixed assessments in the academic world, and critical voices seemed to prevail.28 Commentators found the judgment ‘unsatisfying’,29 with ‘thin reasoning’,30 and failing to give ‘an encouraging legal message’, while being ‘not particularly persuasive’, and ‘collaborating in the deconstruction of jus cogens’.31 They deplored the ‘excessively formalistic reasoning’ and ‘disputable logic’ of the judgment which was ultimately deemed a ‘missed opportunity’.32 The fiercest critic sensed an ‘air of strong conservatism’ in the judgment, identified ‘entirely misplaced’ statements, and in the end, found the judgment’s reasoning ‘unacceptable’.33 In the opposing camp, defenders appraised the ICJ judgment as ‘no surprise, but wise’34 and as making ‘eminent sense’.35
Most of the Italian courts immediately acknowledged and complied with the ICJ judgment. They declared all further civil actions brought against Germany with claims for reparation for human rights violations during WWII inadmissible.36
In order to avoid further civil actions before Italian courts and obey the ICJ Judgment, the Italian Parliament adopted Law No 5/2013 by which Italy ratified the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI).37 The Statute prescribes how Italian courts must react to a judgment of the ICJ declaring the immunity of a foreign state: in proceedings pending a final judgment, the courts are to pronounce ex officio their lack of jurisdiction.38 Final judgments can be appealed to be overturned (‘impugnate per revocazione’).39
In the meantime, further civil proceedings were nonetheless instituted. The Tribunal of Florence heard three such proceedings. Instead of declaring the complaints inadmissible, the Tribunal stayed the proceedings and addressed a question of constitutionality to the ItCC, concerning the compatibility of Law No 5/2013 with Article 2 and Article 24 of the Italian Constitution.40 This proceeding gave rise to Sentenza 238/2014.
4. The Italian Constitutional Court and Sentenza 238/2014
The ItCC’s Sentenza of 22 October 201441 reopened the legal and political debate on the issue of compensation to Italian victims (and their heirs) of Nazi crimes during WWII.42
Using a different approach from the one adopted by the Corte di Cassazione in Ferrini, the Judgment of the ItCC paid lip service to the international law principle of state immunity and to the ‘external’ binding force of ICJ judgments (by virtue of Article 94 of the UN Charter). In Sentenza 238/2014, the ItCC neatly distinguished the ‘international’ from ‘domestic’ effects of an international norm and the ICJ judgment. The Corte Costituzionale stated that these international norms and acts could not deploy any internal effect within the Italian legal order, on the basis of a dualistic (‘Triepelian’)43 understanding of the relationship between domestic law and international law: ‘[T]he incorporation, and thus the application, of the international norm would inevitably be precluded, insofar as it conflicts with inviolable principles and rights’ of the Italian constitutional order.44
Access to justice, as guaranteed by Article 24 of the Italian Constitution, is both a right and a principle in this sense. The guarantee encompasses the right to appear and to be defended before a court of law in order to protect one’s rights and at the same time, in the Court’s jurisprudence, it is considered among the ‘supreme principles’ of the Italian constitutional order.
The Italian Constitutional Court did not verbally contest the ‘particularly qualified’ ICJ interpretation of the international customary law regarding immunity.45 However, the Corte Costituzionale strongly affirmed its exclusive role as a guarantor of constitutional principles: ‘It falls exclusively to this Court to ensure the respect of the Constitution and particularly of its fundamental principles’.46 The Corte reserved for itself the competence to review the compatibility of the international norm of state immunity from the civil jurisdiction against the benchmark of those (constitutional) principles. It ascertained whether the customary norm of immunity, as interpreted by the ICJ, can be ‘incorporated into the constitutional order’.47 By framing the issue purely as a matter of ‘incorporation’, the ItCC ‘shields Judgment 238/2014 from the obvious criticism: that the ItCC thought it knew international law better than the ICJ (…). Rather, [the ItCC] claims to know Italian constitutional law better’, as Christian J. Tams puts it in his chapter. This is a particularly problematic feature of Sentenza 238/2014. The outcome is that, without openly admitting it, the ItCC reserved for itself the competence to ascertain whether international law ‘is constitutional’ or not.48
Despite its staunch dualism, the Corte brought international law into play, by insinuating that the Judgment ‘may also contribute to a desirable—and desired by many—evolution of international law itself’.49
Sentenza 238/2014 has triggered extensive and heated scholarly commentary. Supporters50 celebrated the judgment as the ‘best possible solution’51 which ‘deserves full appreciation’ because it ‘reflects the most cherished values of our civilization’,52 and it was seen as ‘a lesson in juridical civilization’ and a ‘badge of honour (…) to human rights’.53 Critics54 reproached the judgment for ‘seriously imperil[ing] the authority of international law’,55 as well as for being ‘contradictory’ and a ‘breach of the law’,56 and they qualified it as a ‘sort of murder of international law through municipal law’, even as a ‘judicial putsch’.57 Both sides probably agree that it was the ‘judgment of the year’58 and a ‘historic decision’.59
Sentenza 238/2014 itself does not yet constitute an internationally wrongful act, because it does not in itself disregard state immunity. What counts are the lower courts’ reconsiderations of the claims and their decisions on holding them admissible by setting aside state immunity. Arguably, the simple reopening of those proceedings, not only decisions on their merits or the execution of a judgment, could already be seen to constitute an internationally wrongful act. The content of Italian state responsibility would then be primarily restitution in kind which in our case would mean to somehow strike down the civil lawsuits against Germany.
Moreover, any execution of a substantive judgment would, in addition, violate post-judgment immunity against execution (Paolo Palchetti). The relevant parts of the pertinent provision of Article 19 of the UN Convention on State Immunity of 2004 seem to express customary international law.60 The most attractive German object of execution, the Villa Vigoni, is protected because it serves governmental objectives in a wider sense, including cultural policy, and has a non-commercial character.61 However, a mortgage on part of this property was registered (again) in 2019, shedding light on the persisting legal insecurity.62
Sentenza 238/2014 triggered a wave of judgments by several Italian courts.63 These lower court decisions in Florence (2015 and 2016),64 Rome (2015),65 Piacenza (2015),66 Ascoli Piceno (2016 and 2017),67 Sulmona (2017),68 and Fermo (2018)69 ordered Germany to pay reparation to Italian victims of massacres and deportation. At least 38 cases are currently pending,70 although Germany has decided to no longer appear before Italian courts. TheCorte di Cassazione ultimately confirmed and reinforced these judgments, echoing the familiar Ferrini jurisprudence, in a recent case of September 2020.71
Moreover, just one year before, the same Corte di Cassazione seemed to have already allowed the execution of some of these lower judgments, at least against those assets of the Federal Republic of Germany that are not devoted to public purposes (Giovanni Boggero/Karin Oellers-Frahm).72
As early as 25 November 2014, one month after Sentenza 238/2014, Italy had declared its general recognition of the jurisdiction of the ICJ under the optional clause of Article 36(2) of the ICJ Statute, potentially inviting a second lawsuit before the ICJ. However, Germany decided against instituting a second proceeding before the ICJ against Italy for violating state immunity and for failing to uphold the 2012 judgment. At the time of writing, the situation does not seem any closer to a solution.
III. Immunity and Human Rights-Based Exceptions
The recent development of international law on immunities has been marked, in the words of Rosanne van Alebeek and Riccardo Pavoni, by ‘a clear trend towards restricting immunity so as to impact least the rights and interests of private parties’.73 Nevertheless, ‘unabated heed is usually paid to the core rationale for immunity rules: the need to protect the sovereign rights of states’.74 In a sober assessment, Ingrid Wuerth affirms that ‘[a]s international law stands today, immunity applies in suits alleging human rights violations as it does in other cases.’75 The early millennium’s momentum towards human-rights based exceptions to immunity76 has been slowed down or even cut off. This halt may be due to the experience that such exceptions cause interstate frictions (as illustrated by the German-Italian case), and it is of course a consequence of the authoritative pronouncement by the ICJ in Jurisdictional Immunities. The hesitation also corresponds to a mounting scepticism toward the humanisation of international law and what the critique calls a human rights overreach or ‘proliferation’.77 The backlash against international human rights is, to some extent, populist rhetoric.78 Nevertheless, it must be taken seriously.
The tension between immunity and the protection of private interests is most acute when it comes to claims for reparation for war crimes and crimes against humanity before national courts. While the ICJ in Jurisdictional Immunities has decided only on the immunity of the state sued as a legal person before domestic courts in civil procedures, the Court explicitly distinguished this constellation from criminal law proceedings against state officials.79 However, a range of actors is seeking to keep the door open for a further evolution of the law, notably but not strictly limited to criminal proceedings against state officials. So far, six states have deposited interpretative declarations upon their ratification of UNCSI, stating that the Convention is without prejudice to any future international development in the protection of human rights.80 In 2009, the Institut de droit international adopted its Naples Resolution which states that ‘[i]mmunities should not constitute an obstacle to the appropriate reparation to which victims (...) are entitled.’81 A decade later, draft Article 7 ‘Crimes under international law in respect of which immunity ratione materiae shall not apply’ was provisionally adopted within the International Law Commission.82
Three main argumentative strategies have been employed to carve out an exception from immunity in the event of serious human rights violations and crimes: the idea of an implied waiver of immunity, the theory of a normative hierarchy under which the ius cogens status of the crimes would trump immunity, and finally the ‘remedy theory’ which focuses on the right to a judge which would lead to an obligation of the courts to examine the merits instead of dismissing a limine any complaint, and if only as a last resort (ultima ratio).83 However, none of these approaches has gained much ground (except the last one to which we will return below), nor has led to a broad change in practice.84
As a factual matter, the development of a new customary law—or treaty-based exception to state immunity (especially from execution) in cases of serious violations of human rights and international humanitarian law—is not impossible, but it still seems improbable, even at the highly integrated European regional level, as Andreas Zimmermann convincingly demonstrates in his chapter. A distinct question is whether and under which conditions it is desirable in legal policy terms.
Normatively, granting compensation for international crimes (notably recent ones) may form a useful part of a transitional justice strategy and contribute to the establishment of a sustainable peaceful order. Nevertheless, executive measures against foreign states based on judgments granting compensation against those countries, issued by the domestic courts of the victims’ own states, risk creating significant international tensions. ‘No state’—as Christian Tomuschat recalls—‘is prepared to see its governmental conduct supervised by the judiciary of another country’, and ‘by attributing to each state its own sphere of jurisdiction (…) international law contributes to upholding peace in interstate relations’. This risk of conflict might even be exacerbated when judgments concern historical as opposed to recent crimes.
One way of containing this risk is resorting to domestic litigation in the home state of the victims only as an ultima ratio. This was, as mentioned, the Italian argument before the ICJ.85 The civil proceedings are the last resort only when alternative remedies are lacking. As previously explained, Sentenza 238/2014 and subsequent judgments by the Italian Corte di Cassazione86 have resorted to the third argumentative strategy, relying on the individual victims’ right of access to a court (as also stressed by Valerio Onida). However, these judgments have not endorsed the condition of ‘last resort’. In other words, they have not conditioned the displacement of state immunity on the absence of another effective and reasonable means for the plaintiffs to reclaim their rights.87 Before the Italian courts, applicants have not been asked to show that they do not benefit from any other effective remedy.
The weak point of the Italian case law is that it does not dwell sufficiently on the contours of how the right of access to a court (which is of course not absolute) may legitimately be restricted. The task therefore is to spell out the conditions for such restrictions.
This task has so far been undertaken mainly by the ECtHR which has been called a ‘de facto court of appeal’ on immunity.88 Philippa Webb finds that the Strasbourg Court ‘has the potential to lead us into an age of greater accountability for human rights violations’.89 The ECtHR case law on the immunity of international organizations (not of states) has gone in the direction of a balancing test, tying the denial of access to a court (as a lawful restriction of the right to access under Article 6 of the European Convention on Human Rights (ECHR)) to the existence of a reasonable alternative remedy. With regard to state immunity, such a balancing approach would however not be in line with ICJ’s ruling in Jurisdictional Immunities.90 And because the ECtHR has confirmed that the 2012 ICJ Judgment ‘must be considered by this Court as authoritative as regards the content of customary international law’,91 a further elaboration of a balancing approach by the Strasburg Court seems unlikely.
An alternative to lifting state immunity (under certain conditions) might be to strengthen diplomatic protection, maybe by acknowledging an international law-based obligation of the states to consider properly and with due diligence any request by their citizens to undertake steps of diplomatic protection at the international level.92 Another way to secure accountability could be to establish an obligation of the states whose officials committed the crimes to grant access to judicial remedy and to award reparation under their own domestic law,93 typically state liability statutes. Such a state obligation would ultimately be enforceable in international fora, and might help victims more than adjudication and enforcement in other equally sovereign states.94 Given the dilemma in which courts find themselves, ‘between a rock and a hard place’ (Andreas Paulus), it seems important to continue exploring these strategies for reconciling human rights protection with peaceful interstate coexistence.
IV. Reparation for Gross Human Rights Violations and War Crimes
The deportation of IMIs and their exploitation as forced labourers together with the massacres against the civilian population were (as Germany acknowledges) ‘a serious violation of the international law of armed conflict applicable in 1943-1945’ for which the state has assumed full responsibility.95 Moreover, Germany paid reparations to the state of Italy, based on two international treaties of 1961.96 Nevertheless, Germany has not granted individual reparation to large numbers of victims, and this denial is what led to Sentenza 238/2014.
The civil proceedings which ultimately involved the Corte Costituzionale might be seen in the overall current climate of addressing historical crimes. A strong wave of demands for reparation in the context of colonialism,97 violence committed against indigenous peoples,98 and slavery99 is rolling on. Germany in particular is confronted with state claims for reparation, notably for damages caused in WWII, by Greece and Poland.100 In addition, Namibia has requested reparation for crimes committed by German officials in the colonial context against the Herero and Nama people.101 In a recent urgent debate in the UN Human Rights Council, the High Commissioner for Human Rights stated that ‘[b]ehind today’s racial violence, systemic racism, and discriminatory policing lies the failure to acknowledge and confront the legacy of the slave trade and colonialism’. She urged states to ‘make amends for centuries of violence and discrimination, including through formal apologies, truth-telling processes, and reparations in various forms.’102
It is of course a fundamental question whether and under which conditions it makes sense to draw history before courts. Indeed, as Andreas von Arnauld recalls in his chapter, ‘adjudicating history might prove bottomless once one goes further back, with claims relating to early colonialism and beyond. However, in most of the recent cases of “history taken to court,” compensation is but a secondary aim, the primary aim being to make the voice of the victims heard (…)’. He continues that courts are increasingly turned into fora to make one’s story heard, ‘and this process is used as leverage to exert pressure on the political system to listen’.
A judicial response is plausible where, as in the case leading to Sentenza 238/2014, the conduct was already unlawful according to the standards of international law applicable at the time of perpetration. Still, the issue of reparation for individual victims might need a nuanced response when the crimes lie in the distant past.
Even for contemporary atrocities, general international law as it stands does not yet fully acknowledge an individual right to reparation for victims of armed conflict.103 But individual reparation is increasingly present in special reparation schemes, established by interstate treaties, other (often hybrid international/domestic) legal instruments, and soft law.104 In other words, reparation for victims of international and non-international armed conflicts is becoming a typical feature in the ius post bellum, and this trend is unlikely to fade away. Nonetheless, as Stefan Kadelbach argues, in the law of international armed conflict, a true antagonism is visible between the substantial and procedural dimensions of the law of reparations. While the victims are recognized as holders of the claims, ‘the procedural right to espouse these claims on their behalf is still in the hand of the states.’ This might also explain why a gap in implementation of ‘scandalous proportions’ remains, as a UN Special Rapporteur—who saw a ‘dismal record in the implementation of reparations’—put it.105
With regard to the German crimes in particular, Graziella Romeo deplores the ‘double standards’ on the side of Italy. Human rights violations committed by Italian officials during the Fascist regime, for example by adopting and applying racial laws, and also by aiding German forces in perpetrating massacres against civilians, were not compensated on an individual basis but were mainly addressed ‘with legislative provisions pertaining to welfare policy and only insufficiently restored, while a general regime concerning the restoration for human rights violations is still missing.’106 She opines that the ‘desirable (...) evolution of international law itself’, as solicited by the Corte Costituzionale,107 ‘needs to be paired with a similar effort on the side of the Italian Parliament and courts’.108 This shared ‘sorry saga’ indeed generates a shared committment (Francesco Francioni). Similar ‘double standards’ seem to be applied by the German side, too. In particular, the selectivity of various compensation schemes adopted by Germany and the constant exclusion of IMIs from reparation schemes dedicated to WWII victims (Jörg Luther) are not clearly justified: ‘Why the French railroad deportees and not IMIs?’ (Riccardo Pavoni).
Another important point is that—in the end—reparation for victims of armed conflict can only come about in an interplay between international and domestic law. If domestic institutions and procedures are not built up, then a putative international law-based entitlement to reparation would anyway remain virtual, a ‘pie in the sky’ as Shuichi Furuya recently put it.109 However, the domestic reparation programmes for the victims of war crimes in both interstate and civil wars are often situated in a grey zone between law and politics. Such programmes have occasionally become an issue in regional human rights courts. These courts then examine the effectiveness of such programmes while applying the principle of subsidiarity which demands a certain amount of deference to the domestic institutions. This aspect is another manifestation of the new pluriverse made of international law and multiple domestic legal orders. This brings us to the third theme of the book: the interaction between international and domestic law and the role of domestic courts therein.
V. The Interplay Between International and Domestic Law
As we have seen, state immunity, remedies and reparation for victims of atrocities are legal institutions which sit at the interface of international and domestic law. ‘Cross-fertilisation’ among different jurisdictions and their courts is typical in both areas.110
Generally speaking, national courts are called to apply and enforce international rules. This role has been captured by the theory of ‘dédoublement fonctionnel’,111 and by the idea that national judges are the ‘natural judges of international law’.112 Thus, the activity of domestic courts strengthens and promotes international law.
On the other hand, national courts often, and maybe increasingly so, resist the application of international law and the implementation of international judgments, notably of the regional human rights courts.113 In the Inter-American human rights system, courts in Venezuela, Uruguay, Dominican Republic, Costa Rica, El Salvador, and Argentina have refused to fully implement judgments issued by the Inter-American Human Rights Bodies since 2011.114 In the European human rights system, the resistance by the Russian Constitutional Court, followed by the legislature, is notorious, and the Court quoted Sentenza 238/2014 as a precedent.115
1. Sentenza 238/2014 in the Line of Resistance of Domestic Courts Against International Judgments
Thus, Sentenza 238/2014 appears as one more building block in the wall of ‘protection’ built up by domestic courts against ‘intrusion’ of international law, relying on the precepts of their national constitution.116 This theme runs as a fil rouge through various chapters of the book. By way of introduction, we wish to recapitulate the most important points de repère.117 The ItCC relied on its established case-law on the effects of European Union law, notably on the doctrine of controlimiti in order to erect a barrier to the ‘introduction’ of the ICJ judgment into the domestic legal order: ‘As was upheld several times by this Court, there is no doubt that the fundamental principles of the constitutional order and inalienable human rights constitute a “limit to the introduction (…) of generally recognized norms of international law’ (…) and serve as ‘counterlimits’ [controlimiti] to the entry of European Union [and now international] law”’ into the domestic legal system.118
Ironically, this front of resistance had been spearheaded—as it is well known—both by the German Federal Constitutional Court (FCC), and by the ItCC already in the 1970s.119 In 2004, the FCC denied a strictly binding effect of the ECHR and ECtHR-judgments, and instead (only) ordered German authorities and courts to ‘take into account’ the Convention and Strasbourg judgments, and only within the confines of the German Basic Law.120 The most recent German case of 2020 held that the Court of Justice of the European Union (CJEU)’s judgment upholding the European Central Bank’s decision to establish a Public Sector Purchase Programme was ‘manifestly disproportionate’ and thus ultra vires.121
Sentenza 238/2014 repeats that any international norm (or international judgment) which stands in conflict with ‘principi fondamentali dell’ordinamento costituzionale’ may not be applied by domestic institutions. The German FCC in Görgülü had marked the boundary of applicability of judgments of the ECtHR with exactly the same wording (‘tragende Grundsätze der Verfassung’).
The referring court of Florence had quoted a previous Italian constitutional judgment pointing to the ‘identità’ of the Italian legal order. There, the ItCC had reaffirmed the principle that ‘the tendency of the Italian legal order to be open to generally recognized norms of international law and international treaties is limited by the necessity to preserve its identity; thus, first of all, by the values enshrined in the Constitution’.122 This is exactly what other European courts have done before (albeit with regard to EU law): the Spanish Tribunal Constitucional,123 the French Conseil constitutionnel,124 and the German Bundesverfassungsgericht.125
Sentenza 238/2014 is in some way a follower of the CJEU’s Kadi decision126 which the ItCC quotes.127 But unlike Kadi, which mounts resistance against the UN Security Council and thus against an essentially unaccountable and not fully representative body, Sentenza 238/2014 is directed against the International Court of Justice, a body which represents the international rule of law and all regions of the world. Generally speaking, this Court has so far enjoyed a high degree of acceptance.128 The de facto disobedience to the ICJ seems less justified as a matter of principle, and implies more serious damage to the normativity of the international legal system than disobeying the Security Council.
Just like Kadi, Sentenza 238/2014 insists on the fact that it has nothing to do with ‘outbound’ compliance of the state (Italy) with international law, but only concerns the internal compatibility of two Italian laws with the Italian Constitution: ‘The result is a further reduction of the scope of this norm, with effects in the domestic legal order only.’129 Put differently, the ItCC neatly distinguishes ‘internal’ and ‘external’ effects of an international norm: ‘The impediment to the incorporation of the conventional norm [Article 94 of the United Nations Charter] to our legal order—albeit exclusively for the purposes of the present case—has no effects on the lawfulness of the external norm itself, and therefore results in the declaration of unconstitutionality of the special law of adaptation, insofar as it contrasts with the abovementioned fundamental principles of the Constitution’.130 So technically (in a dualist world view), the case is not about supremacy but about incorporation: ‘Accordingly, the incorporation, and thus the application, of the international norm would inevitably be precluded, insofar as it conflicts with inviolable principles and rights. This is exactly what has happened in the present case.’131
The judicial pretence that the ‘internal’ unconstitutionality basically does not concern international law, and the observation that the judicial pronouncement does not accord any priority or supremacy to internal law is formally correct. However, it is as unpersuasive in substance as it was in the CJEU Kadi judgment.132 That distinction between inside and outside resonates with good old nineteenth century dualism, according to which international law and domestic law are ‘two circles which at best touch each other but which never intersect’.133
The Italian Constitutional Court’s consolation that ‘[i]n any other case, it is certainly clear that the undertaking of the Italian State to respect all of the international obligations imposed by the accession to the United Nations Charter, including the duty to comply with the judgments of the ICJ, remains unchanged’134 does not help much for managing the practical problem at stake.
2. A Plea for a Pluralisme Ordonné
That stiff dualism à la Heinrich Triepel and Dionisio Anzilotti does not only fail to resolve the practical problem but additionally bears the real risk of reinforcing the perception that international law is only soft law or even no law at all. We submit that more flexibility is warranted. Courts should entertain procedural mechanisms of reciprocal restraint, respect, and cooperation for adjusting competing claims of authority between the international and the national bodies.135
Domestic (constitutional) courts should take into consideration international law in good faith and interpret the domestic constitution in the light of international law. A domestic court could interpret the (constitutional) right of access to a court (such as under Article 24 of the Italian Constitution) in the light of the ECtHR judgment Sfountouris v Germany, which implicitly held that access to domestic courts (in Germany) in suits for damages on account of German WWII-crimes appears to satisfy the standards of Article 6 ECHR.136 Against this context, Sentenza 238/2014 appears as une occasion perdue, considering that ‘the ItCC had the opportunity to oppose state immunity from jurisdiction to another international law principle’ (Sabino Cassese).
National courts can also use a more ‘harmonising’ approach à la Jones.137Jones was a case on state immunity (involving Saudi Arabia) against allegations of torture. The ECtHR here had insisted that both issue areas of international law, the law of immunities and human rights law, must be reconciled, acknowledging ‘the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity’.138 This led the ECtHR ‘to conclude that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court’.139 But the Court also observed that ‘in light of the developments currently under way in this area of public international law, this is a matter which needs to be kept under review’.140
National courts can also apply the Bosphorus strategy.141 In that approach, courts should employ a legal presumption that a legal act performed by a body rooted in ‘another’ legal system is in conformity with their ‘own’ standards. In Bosphorus, this presumption is coupled with the reciprocal recognition of such acts, ‘as long as’ some minimum requirements are not undercut. In this scheme, domestic courts abstain from revisiting (judicial or quasi-judicial) decisions taken by an international body on the basis of the rebuttable presumption that the respective international regime, or another state’s domestic legal system (in our case Germany) offers a functionally equivalent legal protection. It is ‘the admissibility of an imperfect accordance between the two systems’, as Alessandro Bufalini puts it, that enhances the potentialities of equivalent protection as a technique for the balancing of different interests. Concededly, this more dialogical technique requires a close relationship or similarity of legal orders, explaining why the technique is often used in the European context, while ‘it is not used very often in genuine international law cases’ (Doris König).
Most importantly, conflicts between international law and constitutional law should be resolved by balancing in the concrete case, not on the basis of a normative hierarchy or the norms’ expression in international law as opposed to domestic law. Less attention should be paid to the formal sources of law, and more to the substance of the rules in question. The ranking and effects of the norms at stake should be assessed in a subtler manner according to their substantial weight and significance.142 Such a non-formalist, substance-oriented perspective implies that on the one hand, certain less significant provisions in state constitutions would have to give way to important international norms. Inversely, fundamental rights guarantees should prevail over less important norms (independent of their locus and type of codification). The fundamental idea is that what counts is the substance, not the formal category of conflicting norms. Admittedly, this new approach does not always offer strict guidance, because it is debatable which norms are ‘important’ in terms of substance. Still, such a flexible approach appears to correspond better with the current state of global legal integration than the idea of a strict hierarchy, particularly in human rights matters. From this perspective, international law, constitutional law, and other states’ constitutional law find themselves in a fluid state of interaction and reciprocal influence, based on discourse and mutual adaptation, but not in a hierarchical relationship.143
This flexible, procedural solution also reflects the fact that many different interests and claims are at play and to a certain extent allows the multiple roles played by domestic courts to be reconciled. Raffaela Kunz invites courts to increasingly see themselves as ‘mediators between orders’ rather than guardian of a particular legal system. ‘More than strict conflict rules and hierarchies, what better fits to the complex reality is an approach that allows to take into account the different interests at stake and to balance them’.
Is the openness of the question ‘who decides who decides’ and the lack of an ultimate authority—in our context a tribunal sitting over and above the ICJ and the Italian Corte Costituzionale—a merit of the global order? In theory, such openness constitutes an additional mechanism for limiting power and seems to allow for a heterarchical adjustment of regimes. Within this paradigm, the constitutional resistance of the Corte Costituzionale might be interpreted as the pulling of an ‘emergency brake’ whose availability had been the pre-condition for the opening-up of the states’ constitutions towards the international sphere in the first place. Along this line, one could argue that—in the absence of a super-arbiter—the Italian courts are entitled to act as ‘guardians’ of the rights of the victims or their descendants ‘as long as’ a customary human rights exception to state immunity has not crystallized or until a special agreement between Germany and Italy, on a special compensation programme or a claims tribunal, has been concluded. Potential models for each of these solutions already exist. In particular, numerous internal and international arrangements in the context of transitional justice might inspire the creation of a German-Italian Fund for the IMIs, as Filippo Fontanelli explains in detail in his chapter.
In the long run, reasonable resistance by national actors—if it is exercised under respect of the principles for ordering pluralism, notably in good faith and with due regard for the overarching ideal of international cooperation—might build up the political pressure needed to promote the progressive evolution of international law in the direction of a system more considerate of human rights. This is the ‘barking and biting’ approach mentioned by Bernardo Giorgio Mattarella: barking and a ‘bite, from time to time and in exceptional circumstances, can be appropriate and necessary’. Indeed, such domestic resistance has, in the past, had salutary effects in the sense that it has stimulated an improvement in the attacked regime’s fundamental rights protection: in reaction to the German Constitutional Court’s Solange I decision, the EC/EU formalised its scheme of fundamental rights protection culminating in the European Charter of Fundamental Rights and—perhaps—the accession of the EU to the ECHR. Arguably, it was in reaction to the CJEU’s Kadi decision and its progeny that the United Nations 1267-sanctions regime was complemented with an ombudsman procedure.144
At first glance, Sentenza 238/2014 strengthens the position of the individual against the state. But on a more profound level, it strengthens unilateralism and particularism over universalism and multilateralism. As Heike Krieger highlights, these kinds of challenges to the normativity of the international legal order are troubling. Sentenza 238/2014 ultimately gives priority to one state’s national outlook about what constitutes a proper legal order over the universal standard pronounced by an international court. Concededly, this ICJ standard is unsatisfactory and seems to be biased in favour of the stability of an interstate system. On the other hand, it still has the merit of being universal. The lack of an ultimate arbiter tends to result in the political dominance of the more powerful actors which are normally the domestic ones such as the Italian Corte Costituzionale—and the German Bundesverfassungsgericht. One way out would be to establish such an arbiter.145 As long as this is missing, we need to work towards what has been called a ‘pluralisme ordonné’.146
VI. A ‘Modest Proposal’
This book reflects multiple sensibilities and different perspectives on the issue of war crimes, immunities and reparation. Although an idem sentire is recognizable among the authors, they meaningfully disagree on strategies for a sustainable solution of the stalemate. This variety of viewpoints prevents us from adopting one shared conclusion and explains the form of the ‘dialogical’ epilogue en lieu de conclusion.
As editors, in a purely personal capacity, we nevertheless submit a five-step ‘modest proposal’ which is inspired by ideas formulated by numerous authors, and represents a short manifesto ideally addressed to decisionmakers.
Negotiations
Political talks concerning the issue at hand should be resumed as soon as possible, as already encouraged by the ICJ in its 2012 Judgment.147 Further legal action, eg filing another case before the ICJ, would not lead to an effective solution and would come at the expense of the victims.
Reparation
A joint German-Italian reparation fund should be created to provide lump sum payments to the victims. A prior stocktaking of the reparation measures adopted so far and a non-bureaucratic registration of victims would form the basis for the creation of such a fund. When compiling the list of victims and determining the most important reparation criteria (eligibility requirements, level, and type of reparation), Italy could take over a leading role and send an important sign of assuming responsibility towards its own citizens. Criteria based on the economic need of victims could also be taken into consideration.
Victims
There is a need to recognize those victims who have thus far received no attention, including the IMIs. Together with the payment of an—at least symbolic—reparation sum, such recognition would generate satisfaction, encouraging pacification.148
Where a direct victim had lost her or his life as a consequence of wrongful acts, the heirs can bring a case before courts. First degree relatives (in the vertical line) and the spouse should be considered as direct victims still affected by the events. In principle, no other relatives or further generations of heirs should be eligible for lump sum reparation.
Actors
Besides the Italian and German foreign ministers, the Heads of State could assume a leading role in initiating the necessary steps. It is advisable to involve civil society organizations as well as other non-state actors.
Time-Factor
Effective reparation requires adopting the aforesaid measures urgently. At the same time, determined action might be appreciated as manifesting cooperation within Europe and as underlining Italy’s and Germany’s unreserved commitment to safeguarding human rights and promoting human dignity.
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