Access to Justice and Its Pitfalls: Reparation for War Crimes and the Italian Constitutional Court

Abstract

In spite of commendable efforts towards addressing the issue of reparation for victims of Nazi crimes during the Second World War, Judgment No. 238, which was handed down by the Italian Constitutional Court, reveals inherent limitations within its approach. The reasoning set out by this judgment is based entirely on the constitutional right of access to justice prevailing over the rule of jurisdictional immunity of the state, as interpreted by the International Court of Justice in the 2012 decision in Germany v. Italy . The historical failure to provide reparation to a whole class of victims of Nazi crimes as they were deemed to fall outside all reparation schemes agreed at the international level, demonstrates that domestic judicial remedies cannot fill this historical and legal ‘black hole’. In the end, the residual immunity from execution will most likely prevent the attachment of a foreign state’s funds necessary for adequate compensation of the victims or their successors. This article argues, on the one hand, that the road to a solution of this historical injustice lies in a negotiated settlement between Italy and Germany. On the other hand, the Italian government and parliament should fulfil their part in providing interim compensation to the victims pending such an international settlement. The Italian Republic owes a heavy debt to such victims for their contribution to the moral and political emancipation of the country from its alliance with Nazi Germany and building a new state founded on the 1947 Constitution.

1. Introduction

Judgment No. 238 of the Italian Constitutional Court represents an absolute first in judicial practice relating to international law. It is the first decision by a superior national court to declare unenforceable a judgment of the International Court of Justice (ICJ) because of the unconstitutionality of an act of parliament expressly adopted to ensure compliance with that ICJ judgment. It is also the first decision of a national court that, to the knowledge of this author, has declared unconstitutional a domestic law implementing the United Nations Charter, specifically Article 94, which mandates the national enforcement of judgments rendered by the ICJ. There are precedents like Medellin , ¹ and Kadi , ² in which principles of constitutional and supranational law were invoked to block the implementation of international law within the internal legal order. However, these cases should be distinguished. In Medellin , the Supreme Court of the United States did not declare the unconstitutionality of any legislative act, but rather found that the judgment in Avena ( Mexico v. United States ) was not automatically enforceable in the United States failing an express congressional act implementing it. ³ In Kadi , the European Court of Justice (ECJ) did not address a judgment of the ICJ, but a resolution of the Security Council.

The novelty of the case explains the vast echo it has produced, and the variety of opinions, both critical and favourable, which have proliferated in the literature. ⁴ This brief article does not seek to add another comprehensive critical review of the judgment. It will rather focus on the legal historical context that has paved the way to the present conflict between the ICJ and the Italian Constitutional Court. The article intends to outline the best options available in order to overcome such a conflict without sacrificing the human rights of the individuals concerned.

2. The Legal Loophole

To understand the judgment of the Constitutional Court, the proximate and remote causes of the dispute must be recalled. The immediate cause is, evidently, the ICJ’s judgment, handed down on 3 February 2012. ⁵ This judgment found Italy in breach of its international obligations for having denied Germany’s immunities in cases brought against Germany in Italian courts by plaintiffs claiming damages for war crimes and crimes against humanity committed by German armed forces in Italy, and against Italian nationals, during the Second World War. The judgment of the ICJ precluded access to courts by Italian plaintiffs and Italy, in compliance, passed a law that, inter alia, required the enforcement of immunity in all judicial proceedings against Germany, including those concluded with a final judgment having the force of res judicata.⁶

The remote causes are more complex. Such causes arise from the legal ‘black hole’ consistently left open in international and national law with regard to the reparation of a whole class of victims of war crimes and crimes against humanity committed in Italy by German armed forces between September 1943 and April 1945. Reparation was first regulated by the 1947 Peace Treaty between Italy and the Allied and Associated Powers. Article 77, after providing for restitution by Germany to Italy and Italian nationals of property removed by force or duress, continues, in the fourth paragraph, that: ‘Italy waves on its own behalf and on behalf of Italian national all claims against Germany and German nationals … This waiver shall be deemed to include … all claims for loss or damage arising during the war’. This represents a general waiver undertaken towards the Allied and associated powers, not Germany, in line with the traditional practice of victors in peace treaties. It raises the question whether Germany, as a third party, may claim legal rights or benefits arising from this treaty provision and whether it may preclude the individual right of access to justice and reparation under constitutional and international law. ⁷

This waiver notwithstanding, Italy and Germany have concluded other bilateral treaties bearing on the issue of war reparation. The first, dated 2 June 1961, concerned the settlement of property related economic and financial questions. ⁸ Article 2 contains the declaration by Italy that the lump sum paid by Germany had the effect that ‘all outstanding claims on the part of the Italian Republic or Italian natural or legal persons to be settled to the extent that they are based on rights and circumstances which arose during the period from 1 September 1939 to 8 May 1945’. Again, this is a general declaration. Nonetheless, does it extend to claims of victims of war crimes and crimes against humanity? There is nothing in the text of the agreement to indicate that it does. Comments by German authors on the treaty have pointed out that, in the parliamentary debates preceding the conclusion of the agreement, nothing suggests that the compensation was intended to cover claims arising from war crimes and crimes against humanity. ⁹ The most conclusive evidence pointing at such an intention is that a second agreement was concluded on the same date, in which Germany undertook to pay a lump sum of 40 million marks to Italian victims of Nazi persecution on account of race, faith or ideology, incorporating the standard clause that the payment was intended as ‘final settlement’. This leaves open the question whether this agreement also encompasses war crimes and crimes against humanity. The limited scope of the agreement dealing with ‘persecution’ does not specify that war crimes and crimes against humanity are additionally covered.

To understand the relevance of this gap in justice for victims of war crimes and crimes against humanity other than persecution, the judicial vicissitudes of German legislation on war reparation must be taken into account. This legislation came under attack in courts in the United States in the 1990s given its limited scope of application, namely, it protects victims having their usual residence in Germany. In Princz v. Germany , ¹⁰ federal courts first asserted jurisdiction over a claim for damages of a survivor of a slave labour camp in Germany. Subsequently, in a controversial decision on appeal, the courts granted immunity to Germany. Yet, this case and a host of similar cases brought against German firms, on allegations of slave labour during the Nazi regime, worked as a catalyst for the enactment in 2000 of the German Federal Law establishing the foundation entitled, ‘Remembrance, Responsibility and the Future’. This Law introduced a comprehensive reparation scheme aimed at closing the remaining loopholes in the legislation. Article 11 excludes prisoners of war from reparation on the correct assumption that they can be lawfully detained under international law.

However, many of the Italian plaintiffs in the proceedings against Germany before Italian courts belonged to the category of ‘military internees’ and deported civilians captured after the Italian armistice on 8 September 1943. The great majority of these individuals were entitled to the status of prisoners of war, having refused to join German armed forces and be drafted into the short-lived puppet state, the Fascist Republic of Salò. ¹¹ The authorities of the Third Reich did not accord status of ‘prisoners of war’, but treated them as ‘internees’, deprived of any international protection and subjected to inhuman conditions and slave labour. An estimated 80,000 internees died from starvation and summary execution. ¹² The Federal Law excluding prisoner of war was interpreted as excluding ‘hypothetical’ prisoners of war, that is, individuals, who, in principle, would have been entitled to this status and protection, however, in practice, had been denied this status by the Nazi authorities. In a series of suits brought by Italian ‘putative’ prisoners of war before German court this incoherence was never corrected. In 2004, the German Bundesverfassungericht ruled that Article 11 of the Federal Law did not violate the principle of equal protection of the law. Furthermore, it was held that there was no provision within international law for an individual right of reparation for victims of forced labour. ¹³ Against this background, the ICJ stated: ‘The Court considers that it is 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 which, at the relevant time, Germany had refused to recognize’. ¹⁴ In response to this lingering denial of justice, the victims of Nazi war crimes resorted to Italian courts and the Court of Cassation in the now famous Ferrini judgment ruled that sovereign immunity must be set aside to allow redress for victims when a respondent state is responsible for uncontested war crimes and crimes against humanity which constitute breaches of jus cogens . ¹⁵

3. The Jurisdictional Failure

The judgment in Ferrini dates back to 2004. Pursuant to this judgment, the governments of Italy and Germany should have taken initiatives towards remedying this gap in justice contained in post-Second World War reparation schemes. However, the two states, which should be operating under the rule of law of the common European framework, did not undertake any rectifying actions. The government of Italy failed to address, diplomatically or legally, the problematic and developing situation of judicial proceedings against Germany. Germany, for its part remained obstinate in its denial that the exclusion from its reparation scheme of an entire class of victims of uncontested atrocities constituted an unreasonable inequity. The two states merely brought the matter before the ICJ, a zero-sum game that has led to this point. In the face of persistent denial of justice in the reparation system and the ICJ’s disregard of the right of victims to a remedy, the Constitutional Court’s decision is commendable for its intent to provide a remedy of last resort. However, can this decision lead to any practical result in favour of the victims? Two difficulties merit consideration in this respect.

4. A Pyrrhic Victory for Access to Justice?

The first problem concerns the effectiveness of the individual right of access to justice, as framed by the Constitutional Court pursuant to Articles 2 and 24 of the Constitution. The vindication of the supremacy of this right, to the point of trumping the international law principle of jurisdictional immunity, risks being a pyrrhic victory for victims. Since the cases brought in Italian courts against Germany concern claims for reparation, the right of access to courts is effective only to the extent that judgments in favour of victims may be executed against property of the defendant. The Constitutional Court does not indicate that the exception to jurisdictional immunity based on human rights should be pushed to the extreme of allowing forcible execution against property of the defendant, let alone property used in the performance of official functions. It is generally accepted that immunity from execution is subject to a separate and stricter legal regime as compared to jurisdictional immunity. Similarly, Italian jurisprudence upholds immunity from execution in relation to judgments in which the foreign state had been denied jurisdictional immunity. ¹⁶ The Constitutional Court could subject this aspect of immunity to constitutional review. This would require a separate decision, however, which is unlikely. Moreover, it would require a stricter test of compatibility for lifting immunity with the countervailing principles of commitment to the international rule of law and cooperation, as enshrined in Articles 10 and 11 of the Italian Constitution.

It follows that, short of lifting immunity from execution, the victims could not achieve a concrete result for compensation through recognizing the overriding constitutional right of access to justice. This conclusion is supported by the recent adoption in the Italian parliament of specific legislation expressly confirming immunity over money deposited in bank or postal accounts dedicated to the fulfilment of institutional functions by diplomatic missions of states and international organizations. ¹⁷

5. Alternative Remedies

This leads to the second problem raised by Judgment No. 238, namely, the relevance of alternative forms of protection, other than judicial remedies, to uphold victims’ human rights. These alternative remedies include the negotiation of a diplomatic settlement between Italy and Germany with a view to closing the gap left by previous agreements as well as adopting ad hoc legislation in the Italian parliament. Regrettably, the Constitutional Court did not consider these alternative remedies.

The law of diplomatic protection is progressively developing this customary law institution beyond the traditional Mavrommati paradigm of state rights towards the recognition of the international relevance of the rights of injured individuals. The Draft Articles on Diplomatic Protection adopted by the International Law Commission (ILC) in 2006, ¹⁸ and recent judicial practice of the ICJ and human rights courts, reflects this evolution. ¹⁹ This trend has been fully captured by Italy during the preparatory work for the Draft Articles when its delegation to the General Assembly proposed the recognition of an enforceable legal obligation held by the state to exercise diplomatic protection of individual victims of breaches of human rights. ²⁰ It is not clear whether in making this proposal the Italian government was considering the Ferrini judgment, rendered two years earlier.

Be that as it may, this case could have provided a precious opportunity for the Italian government to apply its own theory of ‘mandatory diplomatic protection’. Rather than turning a blind eye, the Italian Government could, and should, have launched a robust diplomatic initiative with Germany aimed at resolving the nagging problem of uncompensated victims. This road was implied by the ICJ in acknowledging that, while its recognition of immunity may preclude judicial redress for victims, their claims ‘could be the subject of further negotiations involving the two States concerned’. ²¹ This signifies an important warning. With due respect for the Court, however, I submit that the cautious could used in the judgment would have been more appropriately replaced with a stronger hortatory should for two reasons. First, the above analysis and the ICJ’s judgment establishes that a whole class of victims of war crimes and crimes against humanity have been left without a remedy in the various reparation schemes agreed at the international level and enacted by Germany at the federal level. There is no moral or political justification for perpetuating such a denial of justice, and therefore, there is a duty to engage in bilateral negotiations in good faith. Second, historically, the level of brutality displayed in the conduct of German armed forces towards Italian nationals, often with complicity of the Italian Fascist collaborators, far exceeds that reached by the same forces in other occupied areas of Western Europe between September 1943 and April 1945. Germany in acknowledging these atrocities has a special responsibility to close any gaps in reparation for victims.

Pending such international settlement with Germany, the Italian government and parliament hold the responsibility to adopt legislation to provide provisional compensation to Italian nationals against whom judicial redress has been precluded by the ICJ judgment. There are two strong reasons supporting this option. Legally, a legislative remedy represents the sole avenue to defuse the time bomb of the judicial claims resumed before Italian courts pursuant to Judgment No. 238 and to avert the absurd outcome that Italy may eventually be required to compensate Germany for damage suffered as a consequence of violating its immunity. Italy has already adopted this model of provisional compensation in the past. Law No. 1066 (1975) and Law No. 971 (1977), for instance, concerned Italian victims of Libyan and Ethiopian confiscations of private property, respectively. ²² However, the most compelling reasons underlying such a solution are moral and political. The majority of the Italian claimants are so-called ‘military internees’, that is, those members of the Italian armed forces who had refused to join the Nazi Fascist effort to continue the war after September 1943. These internees had been captured by German forces, refused the status of prisoners of war and interned in inhuman conditions in German death camps. They represent, as aptly designated by commentators, the ‘other resistance’ next to the active resistance against the German occupation and the Fascist rogue state within Italy. ²³ The Italian Republic owes such military internees a heavy debt for their contribution towards the moral and political emancipation of Italy from the brutal Nazi Fascist alliance, and for building the new state founded on the 1947 Constitution.

Beyond the legalist argumentation of the Constitutional Court, Judgment No. 238 finds it importance more in its underlying message than in its text. The Italian and German governments have been given notice that something has to be done to carry out the gentle but unmistakable, recommendation, contained in paragraph 104 of the 2012 ICJ judgment: that is to seek a negotiated solution to this unfortunate, long-standing dispute.

1 Medellin v. Texas, 552 U.S. 491 (2008).

2 ECJ, Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities , Joined Cases C-402/05 P and C-415/05 P, Judgment of 3 September 2008.

3 ICJ, Avena and Other Mexican Nationals (Mexico v. United States) , 31 March 2004, ICJ Reports (2004) 12.

4 See symposium on the judgment of the Constitutional Court with comments by M. Bothe et al., XXIV Italian Yearbook of International Law (2014) 1.

5 ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) , Judgment of 3 February 2012, available online at http://www.icj-cij.org/docket/files/143/16883.pdf (visited 26 October 2015) (hereinafter ‘ Jurisdictional Immunities ’).

6 Law No. 5, 14 January 2013, reprinted with a note by A.L. Ciampi.

7 For a positive answer, A. Gattini, Le riparazioni di guerra nel diritto internazionale (Cedam, 2003). For a more nuanced approach favourable to the relevance of individual rights, F. Francioni, ‘Implementation of the Peace Treaty with Italy’, 3 Italian Yearbook of International Law (1977) 347.

8 See text and analysis, Jurisdictional Immunities, § 24.

9 M. Bothe, ‘The Decision of the Italian Constitutional Court Concerning the Jurisdictional Immunities of Germany’, XXIV Italian Yearbook of International Law (2014) 25.

10 Princz v. Germany , 26 F3 1166 (DC Cir. 1995), 1 July 1994.

11 On the complex history of the Italian military internees, see G. Schriber, I militari italiani internati (Ufficio Storico dello Stato Maggiore dell’Esercito, 1992); A. Natta, L’altra resistenza. I militari italiani internati in Germania, (Einaudi, 1996). On the Republic of Salò, see the monumental work by F.W. Deakin, The Brutal Friendship. Mussolini, Hitler and the Fall of Fascism (Harper and Row Publishers, 1962).

12 Cf. Schreiber and Natta, supra note 11.

13 See Jurisdictional Immunities , § 26. Attempts to bring the matter of the Italian victims of slave labour in Germany before the Strasbourg Court failed with the Court’s decision of inadmissibility based on jurisdiction ratione materiae. See ECtHR, Associazione Nazionale Reduci et al. v. Germany, Appl. No. 45563/04, Admissibility Decision of 4 September 2007, available online at http://hudoc.echr.coe.int/eng?i=001-82292 (visited 26 October 2015).

14 Jurisdictional Immunities , § 99.

15 Italian Court of Cassation (United Sections), Ferrini v. Federal Republic of Germany , Judgment No. 5044, 11 March 2004. The Italian text of the judgment is published in 87 Rivista di diritto internazionale (2004) 539. For a comprehensive comment, M. Iovane, ‘The Ferrini Judgment of the Italian Supreme Court: Opening Up Domestic Courts to Claims of Reparation for Victims of Serious Violations of Fundamental Human Rights’, XIV Italian Yearbook of International Law (2004) 165.

16 See Italian Court of Cassation (United Sections), Judgment No. 3468, 19 March 1992, reprinted in 75 Rivista di diritto internazionale (1992) 403.

17 Art. 19 bis , Law No. 162, 10 November 2014, Gazzetta Ufficiale No. 261, ‘ Nuove norme in materia di processo civile ’. For a critical comment, B. Conforti, ‘Il legislatore torna indietro di circa novant’anni: la nuova norma sull’esecuzione di conti correnti di Stati stranieri’, 98 Rivista di diritto internazionale (2015) 558.

18 UN Doc. A/CN.4/61/10, in particular, Art. 19.

19 See ICJ, Ahmadou Sadio Diallo (Guinea v. Democratic Republic of Congo) , 19 June 2012, ICJ Reports (2012) 344; ECtHR, Cyprus v. Turkey , Appl. No. 25781/94, Judgment of 10 May 2001.

20 International Law Commission, Documents of the 58th Session, Comments and Observations Received from Governments , UN Doc. A/CN.4/561, add. (2006).

21 Jurisdictional Immunities , § 104.

22 See A. Giardina, ‘Compensating Nationals for Damage Suffered Abroad: Italian Practice’, VII Italian Yearbook of International Law (1986–1987) 13.

23 Natta, supra note 11.