Introduced by Serena Forlati* and Pietro Franzina**
The dispute between Germany and Italy on the jurisdictional immunities of the former has now entered a new phase. Some recent developments warrant taking a fresh look at the vexed question of the relationship between the immunities of States, on the one hand, and the right of individuals to access justice and obtain reparation in respect of international crimes and egregious violations of human rights, on the other. Before delving into such developments, it is useful to recall the main episodes of a saga that has lasted for more than 18 years and is not yet over.
On 11 March 2004, the Italian Court of Cassation held in Ferrini[1] that the Federal Republic of Germany was not entitled to jurisdictional immunity as regards claims for compensation brought by victims of international crimes committed by the armed forces of the Third Reich. The judgment met with considerable controversy both among scholarly commentators[2] and in domestic courts. In his leading opinion for the House of Lords in Jones v Saudi Arabia, Lord Bingham maintained that the 2004 Ferrini judgment ‘cannot … be treated as an accurate statement of international law as generally understood; and one swallow does not make a rule of international law’.[3] Italian courts, for their part, gave a number of rulings along the lines of Ferrini. Not only did they assert the liability of Germany in respect to other victims and their relatives, they also held that judgments by Greek courts, which ruled on similar grounds that Germany owed compensation, should be enforceable in Italy, despite the claim by Germany that their enforcement would also breach its immunity.
Against this background, Germany brought proceedings against Italy before the International Court of Justice (ICJ). In its judgment of 3 February 2012, the ICJ ruled that, as a matter of customary international law, a State is not deprived of immunity because it is accused of serious violations of international human rights law or of the international law of armed conflicts. Accordingly, the ICJ held that Italy had violated Germany’s immunity by allowing civil claims to be brought against it on the basis of violations committed by the German Reich between 1943 and 1945, as well as by taking measures of constraint against German property in Italy and by declaring enforceable in Italy decisions of Greek courts based on similar violations committed by the German Reich’s forces in Greece.[4]
Legislation was subsequently adopted in Italy in order to implement the ICJ ruling.[5] Italian courts, too, initially aligned with the ruling, including the Court of Cassation, which reviewed its own judgment in Ferrini to that effect.[6]
Two years later, however, the Italian Constitutional Court turned the tables. Through its judgment no 238/2014,[7] the Court held that the implementation of the ICJ judgment in the Italian legal order would be incompatible with the right to judicial protection enshrined in Article 24 of the Italian Constitution. In the view of the Constitutional Court, the customary rule on jurisdictional immunities, as interpreted by the ICJ, may not have effect in the Italian legal system insofar as that incompatibility exists.
The judgment of the Constitutional Court, which formally addressed only immunity from adjudication, was followed by several judgments by Italian courts which disregarded Germany’s sovereign immunity and awarded damages to victims of Nazi crimes and their families. Some of those entitled to compensation under the latter judgments instituted enforcement proceedings with the aim of seizing German State-owned property located in Italy, including buildings designated for non-commercial purposes such as parts of the German Archaeological Institute, the German Cultural Institute, the German Historical Institute and the German School, all of them in Rome.[8]
These developments eventually led Germany to bring the matter, once again, before the ICJ. In its application of 29 April 2022, Germany argued that judgment no 238/2014 of the Italian Constitutional Court was ‘adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations’, and complained that, as a result of that judgment, its right to sovereign immunity was being violated by Italy ‘in a widespread and systematic manner’.[9] Germany asked the ICJ to adjudge and declare that Italy had violated, and continued to violate, its obligation to respect Germany’s sovereign immunity, and that Italy was therefore required to ensure that the existing decisions of its courts infringing Germany’s right to sovereign immunity ceased to have effect. In addition, Germany sought a declaration that Italy was required to provide ‘full reparation for any injury’ caused through the above violations, as well as appropriate assurances of non-repetition.[10]
The new application included a request for provisional measures. However, this was later withdrawn in light of the steps that the Italian Government took on the day following the application of Germany to the ICJ, that is, the adoption of Decree-Law No 36/2022, which addresses at least some of the concerns raised by Germany. Article 43 of Decree-Law sets forth a mechanism whereby Italy will indemnify the victims of war crimes and crimes against humanity – committed in Italy or as against Italian nationals – for the prejudice suffered as a result of serious violations of human rights law and the law of armed conflicts committed by Third Reich forces between 1 September 1939 and 8 May 1945. Access to this mechanism will henceforth be the only viable form of redress for victims and their families, since enforcement proceedings concerning compensation for those violations are now moot: Article 43 of the Decree-Law provides, in fact, that pending proceedings must cease, and it also prevents fresh proceedings from being instituted.
As with all Decree-Laws, which are temporary measures that the Government may adopt ‘in case of necessity and urgency’, Decree-Law no 36/2002 was submitted to the Italian Parliament for its conversion into law (Decree-Laws lose effect as from the date they were passed if they are not transposed into law within sixty days of their publication). The piece of legislation enacted to this effect (Law no 79 of 29 June 2022) modified Article 43 in some respects. Notably, the final text of Article 43, as converted into law, includes a provision whereby enforcement proceedings based on foreign judgments rendered against Germany in respect of war crimes and crimes against humanity committed by Third Reich forces are also moot. The Decree-Law, however, fails to include the ‘foreign’ victims of the crimes in question, where they have been committed in a country other than Italy, among those entitled to benefit from the new fund. In practice, this means that Greek victims of Nazi crimes will not be able to pursue their cases in Italy, nor will they have access to the redress mechanism that Italy has funded.
The latest developments of the saga raise several questions. Some relate to the fate of the new proceedings before the ICJ; other questions concern the appropriateness of the new redress mechanism, its impact on pending enforcement proceedings and the reasonableness of distinguishing between ‘Italian’ and ‘foreign’ victims for redress purposes, from the perspective of both international and domestic (constitutional) law. There are other questions regarding the impact of the latest occurrences on the development of the law of jurisdictional immunities and on the emergence of an individual right to redress for this kind of violations under international law.
The above questions are discussed in the four contributions that compose this Zoom-in. Karin Oellers-Frahm analyses the significance of the described developments on the proceedings pending before the ICJ. Riccardo Pavoni examines the current state of the relationship between jurisdictional immunities and the right of victims to obtain redress, whereas Pierfrancesco Rossi reassesses the reasoning followed by the Italian Constitutional Court in its 2014 judgment and its possible impact on the emergence of new international legal rules in the field of immunities. Finally, Giorgia Berrino illustrates the impact of Article 43 of Decree-Law no 36/2022, as converted into law, on enforcement proceedings based on claims for damages resulting from war crimes committed by the armed forces of the Third Reich.
* Professor of International Law, University of Ferrara.
** Professor of International Law, Catholic University of the Sacred Heart, Milan.
[1] Italian Court of Cassation, Ferrini v Federal Republic of Germany, Judgment no 5044/2004; ILDC 19 (IT 2004) 11 March 2004.
[2] See, among others, A Bianchi, ‘Ferrini v Federal Republic of Germany’ (2005) 99 AJIL 242; P De Sena, F De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’ (2005) 16 Eur J Intl L 89; A Gattini, ‘War Crimes and State Immunity in the Ferrini Decision’ (2005) 3 J Intl Criminal Justice 224.
[3] <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060614/jones.pdf > Jones and others v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26.
[4] Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment [2012] ICJ Reports 99.
[5] Law no 5 of 14 January 2013, in Gazzetta Ufficiale della Repubblica Italiana no 24 of 29 January 2013.
[6] Italian Court of Cassation, Judgment no 1136/2014.
[7] A translation in English is in A Peters, V Volpe, S Battini (eds), Remedies against Immunities? Reconciling International and Domestic Law after the Italian Constitutional Court’s Sentenza 238/2014 (Springer 2021) 401.
[8] See para 26 of the Application at <www.icj-cij.org>.
[9] ibid para 21.
[10] ibid para 43.
