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Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux)

J.H.H. Weiler, co-Editor-in-Chief, International Journal of Constitutional Law

[Editors’ Note: This piece will be published in the next edition of the International Journal of Constitutional Law (I•CON) as part of the Editorial.]

Will we ever see closure to this saga at the center of which one finds the somewhat controversial decision of the International Court of Justice of 2012 and the very controversial decision of the Italian Constitutional Court of 2014 which rebuffed that decision?

There is no need to recap fully the endless “puntatas” in this story, which have been followed assiduously like a successful series on Netflix, not least on the blog, EJIL: Talk! (see here and here and here and here and here and here and here). I will just mention, since this is germane to my argument, that Italy and Germany had reached a settlement in the 1950s and 1960s, through treaties, on agreed compensation for all German crimes during World War II, which would preclude any further claims by Italy. Far from a King’s ransom, but the Italians accepted it. Germany duly paid what was agreed. Italy “unduly” spent the money on post-war reconstruction rather than compensating individual victims. Plaintiffs tried unsuccessfully to obtain relief in the German courts for a variety of legitimate legal obstacles.

In the wake of the ICJ decision, the Italian government and parliament, acting (entirely correctly) in exemplary good faith, introduced legislation that gave full effect to said decision. One thought at the time that this was the end of the series. A happy ending for the Rule of Law (though not so happy for the hapless victims of the German atrocities, sympathy for whom should not be forgotten).

Yet, to the surprise of most spectators, the “regia” thought otherwise and a new season was announced, featuring an application to the Italian Constitutional Court which struck down that legislation as violative of fundamental principles of the Italian Constitution and restored the right of the victims to bring civil actions for damages in the Italian courts.

As autumn follows summer, such actions were brought; as winter follows autumn, Germany (entirely correctly) refused to appear in such proceedings. And as spring follows winter, default judgments for damages were entered and German assets in Italy were attached.

Now it appears, as summer follows spring, that the Germans are losing their patience and word is that they are contemplating bringing the matter (the non-compliance of Italy with a decision of the ICJ) before the Security Council and/or starting new proceedings before the ICJ.

This series is beginning to be boring. When one reaches my age, one often has the feeling, in the face of the never-ending vicissitudes of international law and life, of “been there, seen that”. And from that vantage point, my unsolicited advice to the various German legal advisors is to chill out and cool it! Not least because, as the adage goes, “people in glass houses should not throw stones.”

To begin with, Germany, more than others, should have empathy and even sympathy for the predicament of the Italian government. Think for just one moment Weiss. Germany, an exemplary member of the European Union, a faithful icon of the rule of (European) law, suddenly finds itself in the face of a decision of its own much hallowed (and rightly so) Constitutional Court, which rebuffs (in a manner more rudely than the Italian Constitutional Court) the European Court of Justice and rides roughshod over the principle of the supremacy of EU law as enunciated by the ECJ. Anguished weeks and months follow: How does one affirm one’s respect for the rule of European law and, at the same time, one’s respect for German rule of law at the apex of which one finds, of course, one’s own Constitutional Court?

Eventually a way (of sorts) was found, though whether the Commission should pursue infringement proceedings against Germany for the decision of the German Constitutional Court is still not a question that allows easy answers, not least in the face of the inevitable copycats in other jurisdictions.

This is precisely the predicament of the current Italian government, the good faith of which cannot be called into question. Thus, instead of confrontation, the Germans would be wise to help their Italian brethren find a solution to a situation with which they are familiar, a solution which would not oblige the Italians to disrespect their own Constitutional Court by affirming their loyalty to one legal system of which they are part (the international legal order) at the expense of their domestic constitutional legal order.

The solution of “change your Constitution!” is laughable. Quite apart from the question whether on the substance the ICJ got it right (I predict that sooner or later sovereign immunity will no longer provide a shield to grave violations of human rights/jus cogens and the Italian decision could be an important element in shifting customary law in that direction), it is unlikely that an attempt of this kind would garner the sufficient majorities necessary for such an amendment. And even if it did, this could well become a landmark decision of the much discussed “unconstitutional” constitutional amendments. And then what?

It is slightly disturbing to see Germany, the author of the most unspeakable crimes in the 20th century (with Stalin and Mao vying for a place on the podium), strongly arguing for customary law immunity in such cases. But I have sympathy for their position. One can just imagine the Pandora box of cases, red meat for avaricious lawyers, coming from far and near. For a conflict 80 years old, any meritorious cases should be dealt with intergovernmentally. I have somewhat less sympathy for the German scholarly community, which could and should significantly tone down the howls of horror and outrage at the decision of the Italian Constitutional Court. Defying an international tribunal? Quelle horreur!

For in reaching that decision, the Italian judges had the comfort of the shade given by that leafy tree, the German Constitutional Court and the German legal order. You remember of course the Solange saga launched in the 1970s?  So long as …. beneath all the verbiage—make no mistake, a constructive decision—is the affirmation that when push comes to shove, in extremis, the German Constitutional Court could not, at that time, compromise the most fundamental principles of the German constitutional order. Just imagine, even today, a European law that compromised in the eyes of the German Court the inviolability of human dignity (the so-called eternal clause). Does anyone have any doubt about the outcome of such a case? The proof of the pudding is always in the eating—and that meal was provided by the Melloni decision of the German Court.

As regards international law, the European Court of Justice also provides some shade. Think Kadi (see here). Would the outcome have been different had the violative Security Council regime been sanctioned in The Hague by the ICJ? There is a hint to such in the Opinion of the Advocate General, but not in the decision of the CJEU itself. At best, the answer to this question is not clear.

One can of course doubt, as many Italian commentators have pointed out, whether the Italian Court correctly interpreted the Italian Constitution. But if they reached the conclusion that following the ICJ would compromise fundamental principles of their Constitution touching on basic human rights, the jurisprudential and moral issues are far from simple and, at a minimum, the shock and horror are misplaced. To my eyes, they were faced with a veritable tragic choice in the strict sense of the word. And in the face of tragedy, even of this nature, one can only feel a measure of sympathy.

So what now? Here is at least one possible direction for a solution that can as far as possible honor all the conflicting legitimate legal interests involved in this situation and avoid yet another season in this never-ending series.

Plaintiffs should be allowed to proceed with their civil actions—thereby respecting what the Italian Constitutional Court regards as an unbridgeable fundamental right in these circumstances. Germany should refuse to appear, vindicating their right of sovereign immunity as affirmed by the ICJ. And the Italian state should indemnify Germany for any damages awarded, vindicating its obligations both under the relevant treaties signed by the two states as well as under the general law of state responsibility in the face of a violation.  

The precise modalities are to be worked out and they are not simple. For example, the perception should not be created that Italy is paying for German war crimes; hence, it should be made clear that Germany has already made a lump sum compensation. Additionally, Italy should not be expected to offer a blank cheque. Thus, the Italians could by legislation limit the quantum of damages—it is doubtful if this would be held to be unconstitutional.

But the underlying principles embedded in this approach seem to me at least one solution to a saga the continuation of which seems as unnecessary as it is distracting to much bigger challenges facing Europe and the international legal order.

JHHW

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Published on November 3, 2021
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