Remedies against Immunity?

11 – 13 May 2017, Villa Vigoni, Lake Como, Italy

The Max Planck Institute for Comparative Public Law and International Law – MPIL – (Prof. Anne Peters and Dr. Valentina Volpe), in cooperation with the German-Italian Centre for European Excellence Villa Vigoni (Prof. Immacolata Amodeo and Dr. Julian Stefenelli) and the Istituto di ricerche sulla pubblica amministrazione – IRPA – (Prof. Stefano Battini), organised a three-day international conference which took place from 11 to 13 May 2017 at Villa Vigoni, Lake Como, Italy.

Concept Note

Sentenza 238/2014 of the Italian Constitutional Court (ItCC) created a legal and political deadlock between Italy and Germany. In denying Germany immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II, the Italian Constitutional Court indirectly challenged the International Court of Justice’s (ICJ) judgment of 2012 which had confirmed the principle of State immunity. The Sentenza warrants renewed attention because a wave of judgments issued by several Italian courts since 2015 started breathing new life into the case. Court decisions in Florence, Rome, Piacenza, and Ascoli Piceno reaffirmed Italian jurisdiction and in some cases ordered Germany to pay reparations to victims of deportation and their heirs. Germany, however, contends that State immunity bars the Italian courts’ jurisdiction and it has refused to take part in the proceedings. Numerous similar cases are currently pending.

Sentenza 238/2014 exemplifies the tension between, on the one hand, the international rule of law and respect for one of its traditional core principles, i.e. State immunity (as embodied in the ICJ judgment) and, on the other hand, the idea of universal human rights, including a potential right to a remedy (as exemplified by the Constitutional Court’s insistence on access to a judge for the victims). Apart from the conflict between State immunity and human rights protection, Sentenza 238/2014 raises further theoretical issues: the relationship between international law and domestic law, the role of domestic courts in the formation and development of international customary law, and the issue of separation of powers in a democratic state.

International Conference

It is against this background that the MPIL in cooperation with Villa Vigoni and IRPA organised a binational conference, which saw the participation of leading figures in the field of constitutional and international law in order to discuss both the systemic and theoretical significance of Sentenza 238/2014 and its progeny and to suggest concrete solutions to the impasse created by Sentenza 238/2014. This was the first conference to bring together experts from both countries to jointly work towards possible forward looking solutions to the given issue and discuss their proposals with an enlarged institutional and civil society audience. The conference was thus not confined to a mere theoretical perspective. Rather, academic expertise was put to the service of interstate pacification, in an exercise of ‘academic diplomacy’, looking for possible reconciling solutions, against the common European horizon.

The conference took place from Thursday 11th until Saturday 13th May 2017 at the Villa Vigoni, Lake Como in Italy – a venue with a deep symbolic significance. Villa Vigoni is a German State property and the seat of a cultural and research centre intended to promote exchanges between Germany and Italy in the fields of culture, politics and economics. In the past, enforcement measures have been imposed by Italian authorities on this property in order to ensure the payment of compensation by Germany to victims of Nazi crimes.

The first two days (Panels I to IV) followed a purely academic format focusing on the major concerns and possible responses to Sentenza 238/2014 from both national and international law perspectives. There have been two main contributions for each panel by both a German and Italian scholar. Remarks by a discussant followed the main speeches, triggering the common discussion. Similarly, four rapporteurs took part in all sessions, registering main outcomes and proposals for the third day. In order to facilitate an open and frank discussion among the selected panelists, as well as to guarantee the necessary confidentiality, participation during the first two days was limited to speakers, discussants, chairs and rapporteurs, along with a limited number of engaged listeners. The group of engaged listeners was mainly composed of PhD candidates and junior scholars selected and admitted to participate in the conference on the basis of a public call.

After two days of closed discussions, on the third day, the conference’s results were made public and discussed before and with an enlarged audience. Following a keynote speech, the four rapporteurs presented the final proposals summarising the results of the preceding panels, concretising potential replies and solutions to the impasse. A Round Table of distinguished scholars discussed the main suggestions from different perspectives (Panel V). Both German and Italian stakeholders took part in the conference’s third day, such as judges involved in the pre/post-Sentenza proceedings, lawmakers, diplomats, legal experts, media representatives, and civil society organisations, specially associations of the victims. The Verfassungsblog livestreamed the whole final event online.

Online Symposium on the Verfassungsblog

The Verfassungsblog, partner of the event, published blog summaries of the main conference contributions during the entire event, reflecting the format and schedule of the conference online. The conference’s final day was then live broadcasted on the Verfassungsblog website enabling scholars and people around the world to follow the high-level discussions in real-time. The video recordings are now available on YouTube.

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