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Germany v Italy before the ICJ over WWII claims

 On December 23rd, the Federal Republic of Germany instituted proceedings against Italy before the International Court of Justice claiming that “Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign state.” (See the Press Release of the ICJ here, a Press Release from the German Parliament here.) The case was caused by numerous decisions by Italian courts awarding damages to victims of Nazi war crimes during Germany’s occupation of Italy between 1943-1945.

Factual background

Especially during the late 1990s, Germany was faced with a growing number of disputes brought before Italian courts by individuals who had suffered during Germany’s occupation of Italy and who sought compensation for the harm they had endured. In many cases the claimants are the heirs of the actual victims. According to Germany’s application to the ICJ in the present case, roughly 250 claimants have introduced proceedings (i.e. civil actions) before 24 Italian courts. Moreover, Germany is concerned that hundreds of additional cases may be brought against it in the future, depending on how the early cases are being decided by the Italian courts.

In the most important Italian case, the Ferrini judgment by the Corte di Cassazione from March 11, 2004, the Corte di Cassazione decided that Italy held jurisdiction regarding a claim brought by a person who had been deported to Germany to perform forced labour. This decision has been confirmed by the Corte di Cassazione in several decisions in 2008. In October 2008, an Italian court ordered Germany to pay around 1 million euros in compensation to the families of nine victims killed by the German army in Civitella, Tuscany in 1944. Whereas Germany acknowledges that it has to assume responsibility for acts performed by the Third Reich, it is of the opinion that as a sovereign State it has immunity in foreign national courts and that decisions by the Italian courts thus can not be enforced. Instead, the position of the German government is that the consequences of Nazi atrocities must be tackled with the help of treaties and political settlements. According to a spokesperson from the German Foreign Ministry, the fact that compensation is being sought for harm caused by the Third Reich before national courts is “morally understandable but it is, in judicial terms, the wrong way to address this injustice”.

Germany has already paid tens of billions of dollars since the 1950s to victims of Nazi atrocities and their families. Pursuant to the latest compensation program, between 2001-2007, Germany awarded almost 6 billion US dollars to 1.6 million people or their relatives due to the harm from slave labor during the war.

Italy has declared that it is not unhappy with the initiation of the proceedings before the ICJ. Since proceedings before the ICJ do have the potential to considerably strain the relations between two countries, it is likely that Germany’s intention to file the application was known, indeed supported by the Italian government. The problem of course is that even if the Italian government is in favor of a political settlement of the issue it can not stop the independent Italian judiciary from rendering decisions it considers are based on applicable law.

Jurisdiction of the ICJ

Germany’s application is brought before the ICJ under the European Convention for the Peaceful Settlement of Disputes from 1957. Both Italy and Germany have ratified the Convention. According to Art. 1 of the Convention:

The High Contracting Parties shall submit to the judgement of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.

Following from the application filed by Germany what is applicable here is letter b., namely the dispute as to whether or not a rule of customary international law protecting sovereign States from being sued before civil courts of another State exists. The application is furthermore limited in the sense that it only seeks clarification if the declaration of claims following from atrocities committed during the second World War as falling within the jurisdiction of the Italian courts constitutes a breach of international law; it is the time when the Italian courts started this practice, not the time when the atrocities themselves were committed. The latter would have rendered the application falling outside the rationae temporis of the ICJ (cf. Art. 27 European Convention for the Peaceful Settlement of Disputes).

The Question of admissibility

Germany addresses three different issues regarding the admissibility of the case. (I) First, it holds that there is no legal requirement that local remedies be exhausted beforehand since Germany does not exercise its diplomatic protection of German nationals abroad but instead it acts on behalf of itself to protect its sovereign rights. Irrespective of this claim, however, Germany maintains, and rightfully so, that the Italian decisions are by the Corte di Cassazione, the highest court in civil matters which thus would have complied with any requirement of exhaustion of local remedies. (II) Second, the application states that there is no need for prior exhaustion of diplomatic negotiations. Here Germany seems to be suggesting that the Italian government’s hands are tied because even if the government is willing to solve compensation issues by diplomatic means it can not influence how national courts decide in cases where individuals bring claims against Germany. The application interestingly acknowledges that the judiciary is independent thus protected against any influence from the political branches of government (see para. 5 of the application). However, it then goes on to state that “Italy, as a whole must shoulder responsibility for the acts of all its State organs, whatever their nature.” In this point Germany mentions Art. 4(1) of the Articles on Responsibility of States for Internationally Wrongful Acts, according to which conduct capable of entailing responsibility may emanate from any organ that exercises legislative, executive, judicial or any other functions. (III) Third, the application highlights that there is no primary jurisdiction of the Court of Justice of the European Community. Instead it is highlighted that the member States of the EC besides the inter-State obligations emanating from the European legal order still have to respect the general rules of international law.

Germany’s request and the Joint Declaration

The applicant’s main request is that the ICJ declares that Italy “by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II […] committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law” and that “the Italian Republic must […] take any and all steps to ensure that all the decisions of its courts […] infringing Germany’s sovereign immunity become unenforceable”.

The Application was accompanied by the Joint Declaration, adopted on the occasion of German-Italian Governmental Consultations, Trieste, 18 November 2008, in which both governments declared that they “share the ideals of reconciliation, solidarity and integration, which form the basis of the European construction”. Moreover, Germany “fully acknowledges the untold suffering inflicted on Italian men and women” during World War II. Italy, for its part, “respects Germany’s decision to apply to the International Court of Justice for a ruling on the principle of state immunity [and] is of the view that the ICJ’s ruling on State immunity will help to clarify this complex issue”.

Germany will be represented before the ICJ by Professor Christian Tomuschat from the Humboldt-Universität in Berlin.

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