Jurisdictional Immunities: Germany v. Italy, Again
On 29 April 2022, Germany instituted proceedings before the International Court of Justice against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.
The First Jurisdictional Immunities Case (2008-2012)
More than ten years have passed since the International Court of Justice rendered its judgment in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court was asked then to determine whether, in civil proceedings against Germany relating to acts committed by the Third Reich during the Second World War (such as deportation and forced labour), the Italian courts were obliged to accord Germany immunity.
In its judgment of 3 February 2012, the Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations.
The International Court of Justice explained that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.
The New Proceedings
The 2022 proceedings, as stated in the application filed by Germany, arise from the fact that Italian domestic courts, notwithstanding the 2012 judgment, “have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.
Germany refers in particular to Judgment No. 238/2014 of 22 October 2014 of the Italian Constitutional Court, whereby the latter acknowledged the duty of Italy to comply with the 2012 ruling of the International Court of Justice but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (the judgment has been the object of numerous comments: among those in English, see the contributions to this book edited by Valentina Volpe, Anne Peters and Stefano Battini, the remarks by Robert Kolb, Paolo Palchetti, Pasquale De Sena and others here, this paper by Marco Longobardo, and this one by Oreste Pollicino, to name a few).
In its application, Germany argues that Judgment No. 238/2014 of the Italian Constitutional Court, “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, had wide-ranging consequences”. It adds that, since the delivery of the Judgment, “at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts … have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II” (Giorgia Berrino discusses in this article a recent judgment of the Italian Court of Cassation which illustrates the approach decried by Germany).
Germany asks the International Court of Justice to adjudge and declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity, and its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy. Germany further asks the Court to declare that Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect, and immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.
Additionally, the Court is asked to adjudge that Italy is required to make full reparation for any injury caused through violations of Germany’s right to sovereign immunity, and to offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated.
The application of Germany contains a request for the indication of provisional measures. In fact, Germany asks the Court to order Italy to ensure that German properties indicated in the application “are not subjected to a public auction pending a judgment by the Court on the merits” and that “no further measures of constraint are taken by [Italian] courts against German property”.
The Italian Decree-Law of 30 April 2022
On 30 April 2022, i.e., the day after Germany instituted the proceedings before the International Court of Justice, a decree-law was published in the Italian Official Journal which appears to address, at least to some extent, the concerns raised by Germany.
Article 43 of Decree-Law No 36/2022 of 30 April 2022 creates a fund, financed by Italy, for the reparation of the prejudice suffered by the victims of war crimes and crimes against humanity, as a result of the violation of fundamental rights of persons by the the Third Reich’s Army (hereinafter, the Fund).
As stated in Article 43(1) of the decree-law, the purpose of the Fund is to provide reparation for the prejudice suffered for acts perpetrated on the Italian territory or otherwise harming Italian citizens between 1 September 1939 and 8 May 1945.
Article 43(2) stipulates that the Fund is available to those who obtained a final judgment whereby their right to damages has been ascertained and assessed. Such a final judgment must have been given in the framework of proceedings instituted either before the entry into force of the decree-law (i.e., 1 May 2022) or before the 30-day time-limit, starting from the entry into force of the decree, established under Article 43(6). Later requests will be rejected.
According to Article 43(3), “no new enforcement proceedings based on titles awarding damages shall be brought or pursued”. Pending enforcement proceedings, for their part, “shall be discontinued”.
The Italian Minister of Economy and Finance, as indicated in Article 43(4) shall adopt a decree, no later than 180 days following the entry into force of the decree-law, to determine: (a) the procedure for accessing the Fund; (b) the terms and the manner whereby payments will be made to those entitled to benefit from the Fund; (c) such additional provisions as may be necessary for the implementation of the above provisions.
Pursuant to Article 43(5), “any and all rights in connection with claims for damages based on the facts referred to in Article 43(1) shall cease to exist as soon as payment pursuant to the procedures under Article 43(4) is made”.
In short, the decree-law aims to shield Germany from the institution or the continuation of new and pending proceedings (including enforcement proceedings) in connection with acts perpetrated by the German Reich’s forces during the German occupation of Italy. Those entitled to claim damages for the prejudice suffered will be provided satisfaction through the Fund, following a dedicated procedure.
Apparently, this course of action is understood by the Italian Government to be consistent, at once, with the constitutional requirement that the victims of egregious violation of human rights be given access to justice and obtain reparation, and the expectation of Germany that its jurisdictional immunity, as provided for under international customary law, is preserved.
The Impact of the Decree-Law on the Proceedings Instituted by Germany
The implications of the Italian decree-law for the proceedings brought by Germany before the International Court of Justice remain to be seen.
As observed above, Germany asks the Court to adjudge, inter alia, that Italy should make “full reparation for any injury caused through violations of Germany’s right to sovereign immunity”. This is something the decree-law is not concerned with.
Germany also insists that Italy should “offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated”. Whether the adoption of a decree-law amounts, as such, to an appropriate insurance can arguably be challenged. Pursuant to Article 77 of the Italian Constitution, decree-laws are temporary measures that the Government may adopt “in case of necessity and urgency”. As soon as a decree-law is adopted, the measure is submitted to the Parliament for transposition into law, with the indication that it shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication.
— Update (5 May 2022): a webinar in English, organised by the University of Ferrara and the Catholic University of Milan, is scheduled to take place on 11 May 2022 at 10.30 am CET to discuss the issues raised by the application of Germany and the Italian decree-law: see further here.
— Update (6 May 2022): Germany has withdrawn its request for the indication of provisional measures. Germany informed the Court that it understands that, pursuant to the decree-law 30 April 2022, Italian courts are required to lift measures of enforcement previously taken, and that no further measures of constraint will be taken by Italian courts against German property used for government non-commercial purposes located on Italian territory. As stated by the agent of Germany in his letter to the Court, “Germany agrees with Italy that the Decree . . . addresses the central concern” expressed in the request for the indication of provisional measures. The proceedings remain in place for the remainder of the application.
Thanks Pietro for this very interesting report.
Germany is seeking compensation for harm sustained. Fair enough. But the legitimacy of seeking “assurances” for the future possible wrongs is unclear to me. Does Germany want assurances that the Italian government will not respect judicial independence and pressure Italian courts to rule in the ‘right direction’? I think Italy should care for redressing past wrongs, and ignore this request of Germany.
But this leads us to the second question. Can Italy affect pending proceedings with its new (retroactive ?) legislation? Does that comport with fundamental rights?
The request for appropriate assurances must be read in light of the rule of international customary law codified in Article 30 of the Draft articles on the Responsibility of States for Internationally Wrongful Acts, laid down by the UN International Law Commission (ILC). According to Article 30, a State responsible for an internationally wrongful act is under an obligation “to cease that act, if it is continuing” and “to offer appropriate assurances and guarantees of non-repetition, if circumstances so require”. As stated in the Commentaries of the ILC on the Draft articles, assurances and guarantees are concerned with the restoration of confidence in a continuing relationship, and are most commonly sought when the injured State has reason to believe that the mere restoration of the pre-existing situation does not protect it satisfactorily. In the case at issue, Germany’s request for assurances signals that Germany would not content itself with the discontinuation of pending proceedings, but rather expects Italy to prevent future proceedings from being instituted. That is definitely understandable, given the nature of the wrongful act that Germany is complaining of. Whether discontinuation of pending proceedings actually complies with Italian constitutional law (and with the international obligations of Italy regarding fair trial in civil proceedings) is debatable. That is a complex issue, and I won’t be discussing it in this comment (a webinar in English on this topic is about to be announced: it’ll take place next week). Please note that, under the decree-law referred to in the post, a dedicated procedure is being created for those claiming damages. This means that the discontinuation of pending proceedings will not entail that those entitled to damages are precluded from having their claims assessed (and enforced, against the Fund). The discontinuation will rather involve a change of procedural framework.
This is a very interesting development, indeed.
Article 43 of the Italian Law-Decree is very similar to a German law of 2 August 2000 setting up a foundation for the compensation of holocaust victims who had done forced and slave labor in Germany and its occupied territories during WW II. Art. 16 (2) of this law terminated pending litigation in German courts (at the time being ten thousands of lawsuits) and transferred the claims to the foundation for compensation. In a judgment of 7 December 2004 (1 BvR 1804/03) the German Federal Constitutional Court held that the transfer was compatible with the German constitution (article 14 Basic Law, right to property).
In international practice, it is not unusual to substitute private claims that are barred by state immunity by a (domestic) compensation scheme, see my 2017 Hague lecture on the Private-Public Divide in International Dispute Resolution, 2018 RdC 388, 49, paras 33 ff.