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The Italian Constitutional Court’s judgment 238/2014 created a legal and political deadlock between Germany and Italy. In its ruling the Court refused to accord Germany immunity from Italian jurisdiction in civil proceedings on the compensation of World War II victims and thus indirectly challenged the 2012 judgment of the International Court of Justice (ICJ), which had upheld Germany’s entitlement to state immunity. Since 2015 a series of judgments by several Italian courts have given new life to the case. Courts in Florence, Piacenza and Rome ordered Germany to make reparations to Italian deportation victims and their heirs. Germany, in turn, contends that its state immunity bars the Italian courts’ jurisdiction and refuses to appear before the Italian courts. Numerous similar cases are currently pending.
Judgment 238/2014 exemplifies the tension between state immunity as one of the core rules of international law on the one hand and universal human rights, including a potential right to remedy, on the other. More than three years after the Sentenza, a solution balancing these antagonistic concerns does not seem to be in sight. Apart from the conflict between state immunity and human rights protection, the judgment raises further theoretical questions concerning the relationship between international law and national constitutional law, the role of domestic courts in the formation and change of international customary law, as well as the separation of powers in a democratic state.
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The open access book examines the consequences of the Italian Constitutional Court Judgment 238/2014 which denied the German Republic’s immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II. This landmark decision created a range of so far unresolved legal problems and controversies which continue to burden the political and diplomatic relationship between Germany and Italy. The judgment has wide repercussions for core concepts of international law and for the relationship between different legal orders.
The book’s three interlinked legal themes are state immunity, reparation for serious human rights violations and war crimes (including historical ones), and the interaction between international and domestic institutions, notably courts.
Besides meticulous legal analysis of these themes from the perspectives of international law, European law, and Italian law, the book contributes to the civic debate on the issue of war crimes and reparation for the victims of armed conflict. It proposes concrete legal and political solutions to the parties involved for overcoming the present paralysis with a view to a durable interstate conflict solution and helps judges directly involved in the pending post- Sentenza reparation cases.
After an Introduction (Part I), Part II, Immunity, investigates core international law concepts such immunity and international state responsibility. Part III, Remedies, examines the tension between state immunity and the potential right to remedy and suggests original schemes for solving the conundrum under international law. Part IV adds European Perspectives by showcasing relevant regional examples of legal cooperation and judicial dialogue. Part V, Courts, addresses questions on the role of judges in the areas of immunity and human rights at both the national and international level. Part VI, Negotiations, suggests concrete ways out of the impasse with a forward-looking inspiration.
