I. Introduction

In Sentenza 238/2014, the Italian Constitutional Court (ItCC) ruled that it was unconstitutional for Italian courts to apply the customary principle of state immunity to war crimes and crimes against humanity.Footnote 1 In the same vein, the ItCC found that the domestic law implementing the UN CharterFootnote 2 did not form part of the Italian legal system, as far as it obliged Italian courts to abide by a decision of the International Court of Justice (ICJ) pursuant to Article 94(1) of the UN Charter, if such a judgment upholds state immunity for crimes under international law. The ItCC also quashed a statute that ordered Italian courts to implement the Jurisdictional Immunities Judgment.Footnote 3 According to the ItCC, the fundamental rights of the Italian Constitution, and particularly the right of access to a court, were superior to obligations under international law. The Court thus transferred the controlimiti doctrine, which had been developed to allow for exceptions to the priority of EU law over domestic law, so as to allow for an exception to the obligation to abide by judgments of the World Court.Footnote 4

Irrespective of how convincing this decision is, it points towards a gap between individual rights and the capacity to invoke these rights before domestic or international courts. This gap (and the concomitant inconsistencies) is cause for concern. While international law since World War II (WWII) has witnessed an increase in norms that aim at the protection of the individual, it remains the case that states alone have standing before courts to bring suits for violations of these rights. State immunity reflects this concept. Apart from international human rights protection schemes, where individuals may raise complaints if the respondent state has recognized pertinent jurisdiction, traditional law by virtue of state immunity places the respondent state on an equal level with the state that espouses the claim and bars the holders of these rights from proceedings on their own behalf. Thus, even though Italy and its courts have a point in stressing the human rights nature of the claims concerned, they engage the international responsibility of the Italian state for violation of state immunity by enforcing such claims.

The present chapter elaborates further on this contradictory legal situation and tries to develop a notion of how contemporary international law should respond. In a first step, the complex interplay between traditional patterns of reparation, state immunity, and human rights in the Italian compensation cases is analysed (section II). Subsequently, this chapter identifies some tendencies in international law that appear to depart from this classical model (section III). These tendencies point at possible ways to better integrate victims of war crimes and crimes against humanity into compensation schemes (section IV)—and show that a conciliatory solution to the pending cases would comply better with the development through which international law has travelled in the past decades (section V).

II. Compensation, Immunity and Human Rights

In its Judgment of 3 February 2012, the ICJ once again upheld state immunity from national jurisdiction, which applies as long as no specific treaty obligates a state to exert jurisdiction.Footnote 5 More specifically, it found that Italian courts disregarded this principle by exercising jurisdiction over claims raised against the Federal Republic of Germany, by declaring Greek judgments against the German state enforceable, and by enforcing such judgments, which an Italian domestic court did by registering a legal charge on Villa Vigoni for the purpose of securing an acknowledged claim. After an analysis of state practice, the ICJ rejected the notion of exceptions to immunity from jurisdiction or from enforcement, including for war crimes and crimes against humanity.Footnote 6 Accordingly, Italy was held responsible vis-à-vis Germany,Footnote 7 even though the Court stressed that it did not rule on any individual claim for compensation under international law.Footnote 8

Before reconstructing the rationale of this judgment (section II.2.), it appears useful to take a look at the legal framework for the compensation of Italian victims of persecution and crimes committed during WWII (section II.1.).

1. Compensation Agreements and German Compensation Law After World War II

According to Article 77(4) of the Italian Peace Treaty, Italy waived ‘on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939’.Footnote 9 This waiver referred to ‘all claims for loss or damage arising during the war’.

This provision, theoretically, did not bar Italian war victims from presenting a claim under the German compensation law (Bundesentschädigungsgesetz). According to the statute’s pertinent version of 1956, however, reparations depended on the qualification of the claimant as a victim of national-socialist persecution as well as a domicile or permanent residence in Germany until 31 December 1952.Footnote 10 Claims had to be registered by 1 October 1957.

In 1961, Germany and Italy concluded two bilateral compensation agreements. The Agreement on the Compensation for Italian Nationals Subjected to National-Socialist Measures of Persecution, according to the official reasoning, was intended to include those Italian victims of persecution who did not qualify under the compensation law of 1956.Footnote 11 Germany agreed to pay DM (Deutsche Mark) 40 million ‘for the benefit of Italian nationals who, on grounds of their race, faith or ideology were subjected to (…) measures of persecution and who, as a result of those persecution measures, suffered loss of liberty or damage to their health, and for the benefit of the dependents of those who died in consequence of such measures’. This agreement was, according to its Article 3, meant to ‘constitute final settlement’ between the two states. Germany has held ever since that victims of war crimes, including Italian Military Internees (IMIs) or people deported and subjected to forced labour, were beyond the ambit of the term ‘victim of Nazi persecution’.

For all other types of claims the second agreement of 1961 is of interest, which concerns the ‘settlement of certain property-related, economic and financial questions’.Footnote 12 Germany paid a further lump sum of DM 40 million for ‘outstanding questions of an economic nature’. Italy, in turn, agreed to indemnify the Federal Republic of Germany ‘for any possible judicial proceedings or other legal action by Italian natural or legal persons’ in relation to claims ‘based on rights and circumstances which arose’ during WWII.Footnote 13 Article 24 of this agreement states that Germany considered the settlement agreed therein as final. The accompanying exchange of notes between both sides make no mention of Article 24. As a consequence, Germany considers it to be the responsibility of the Italian state to compensate claims within the scope of this agreement, including victims of war crimes and persons deported and subjected to forced labour.Footnote 14

This, however, did not happen. With the German Law of 2 August 2000 establishing the Foundation ‘Remembrance, Responsibility and Future’ (Erinnerung, Verantwortung und Zukunft), a further effort was madeFootnote 15 with the intention to cover damages for people who had not been compensated under the laws enacted or agreements concluded previously. However, it did not encompass prisoners of war (POW) for whom the allied forces had already set up a compensation scheme shortly after the war. The fact that the German Reich denied POW status to IMIs did not prevent German authorities from placing forced workers under that category. The ICJ noted that it was ‘a matter of surprise—and regret—that Germany decided to deny compensation’ for that reason.Footnote 16

2. Immunity As a Part of the System

The ICJ cited ample state practice, particularly judgments of domestic courts, to support its conclusion that there is no exception from immunity even for particularly grave violations of international law.Footnote 17 This is in line with the jurisprudence of the European Court of Human Rights (ECtHR), which has repeatedly held that no violation of the European Convention on Human Rights (ECHR) would ensue were courts to grant immunity from jurisdiction, including for claims against a state whose agents were accused to have committed human rights crimes such as torture and crimes against humanity.Footnote 18 The rationale behind this reasoning has two aspects: a reciprocity and a policy argument.

The reciprocity argument refers to the traditional concept of state immunity. It derives from the principle of the sovereign equality of states, which implies that no state’s institutions may sit as judges over the conduct of other states.Footnote 19 The historical motive to exempt the monarch from the jurisdiction of courts has ceded over time to the rationale of guaranteeing the exclusive competence of the respondent state to determine its policies.Footnote 20 Once an exception to the rule is made, the concern is that this would open the door for retaliation of a similar kind before other states’ courts and for a politicization in the administration of justice.Footnote 21 This concept seems all the more difficult to accept when the conduct in question amounts more clearly to serious and large-scale human rights crimes.Footnote 22

The policy argument addresses the possible consequences of exceptions to immunity. With respect to reparation after war and other types of conflict, opening the path to domestic courts has a potentially detrimental effect on the incentive to arrive at an agreement through compromise, because victims would prefer to go to court and seek full compensation.Footnote 23 Court judgments would discourage negotiated compensation schemes, which are typically accompanied by lump sum and final settlement clauses. If obtaining such judgments is a realistic option, then state parties would be even more hesitant than they currently are to engage in such treaties. Moreover, forum-shopping might be an unwanted consequence.

3. A Human Rights Perspective on Sentenza 238/2014

It should not go uncommented that the solution defended by the ItCC in Sentenza 238/2014 also raises serious concerns of a more general nature. To compromise the normativity of international law and even the UN Charter at the discretion of domestic courts comes as an invitation to actors in systems that do not primarily honour the protection of individual rights. In adapting the approach the European Court of Justice (ECJ) developed in the Kadi case,Footnote 24 in which the ECJ subjected sanctions by the UN Security Council to its judicial review,Footnote 25 the ItCC on the face of it made an effort to align with European fundamental rights standards. However, a similar approach was also followed with regard to the ECtHR,Footnote 26 so that the ItCC has aligned with other constitutional courts that formulate caveats to the implementation of ECtHR judgments. In an environment less prone to fundamental rights, the Russian Constitutional Court cited such jurisprudence with approval when it held that compliance with ECtHR judgments could be made conditional on a decree of the President of the Russian Federation.Footnote 27 Thus, probably against its own intentions, the ItCC has contributed to a dwindling fidelity to international law, of which human rights form an essential part.

In sum, also from a human rights perspective, albeit not in an obvious way, Sentenza 238/2014 entails ambivalent consequences. To conclude from this observation that fundamental rights are best served if the lines drawn by traditional international law were further followed, however, would drive the point too far. In a way, Sentenza 238/2014 goes in the direction of another trend in international law, namely the progressive development towards individualization.Footnote 28 In order to better understand the dilemma of the ItCC and to put forward an informed suggestion for possible future arrangements, it should be asked what that trend means for the compensation of victims of war crimes and crimes against humanity.

III. The Individualization of Claims Under International Law

The Jurisdictional Immunities Judgment reaffirms a distinction between substantive and procedural law,Footnote 29 which is also visible in the emancipation of individual rights from mediatisation by state interests in post-war compensation systems. In the law governing injuries against aliens, the violation of the rights of an individual foreign national was considered ‘in reality’ an infringement on the said individual’s home state to assert its own rights.Footnote 30 This so-called Vattelian fiction,Footnote 31 however, has been modified. In those crucial areas of international law in which the individual is at the centre—that is in human rights law, international criminal law and in international humanitarian law—compensatory schemes for violations of the individual’s rights form part of the regimes.

In international human rights law, the 1984 UN Convention against Torture demands that member states provide an individual right to compensation invokable by victims before domestic courts; this right must include means for comprehensive rehabilitation.Footnote 32 In other protection systems such an obligation of redress is framed in more general terms. Regional human rights courts use different powers to decide on reparations. The wording of Article 41 ECHR aims at pecuniary compensation, but it is the obligation to comply with ECtHR judgments (Article 46 ECHR) which is read to encompass non-pecuniary consequences, such as the duty to halt violations and, if necessary, to amend statute law or to reopen judicial and administrative proceedings.Footnote 33 The language of Article 63 of the American Convention on Human Rights goes further than Article 41 of the ECHR in spelling out that a breach of rights ‘be remedied and that fair compensation is made’.Footnote 34 The African Court of Human and Peoples’ Rights may ‘make appropriate orders to remedy the violation, including the payment of fair compensation and reparation’.Footnote 35 The reach of these Conventions coincides with the ‘jurisdiction’ of the respondent state party, which is understood to refer to its territory and also covers exterritorial acts if the state exercises control, for example through an army in occupied territory.Footnote 36

The central compensation clause in international criminal law is Article 75 of the Rome Statute.Footnote 37 The International Criminal Court can develop guidelines for reparation and may order compensation for victims to be paid either by the perpetrator or by a trust fund that the state parties can establish (Article 79 Rome Statute). Victims have no right, as a party to the proceedings, to direct a claim against the accused. However, they may file an application with the registrar of the court which has the power to order pecuniary reparation if the accused is convicted.Footnote 38

In humanitarian law, Article 91 of the first Additional Protocol to the Geneva Conventions of 1949 declares that states that violate the Conventions are liable for damages.Footnote 39 The official commentary of the International Committee of the Red Cross is sympathetic to a reading that this provision presupposes a claim of the individual and to reparation, but the matter remains disputed. At least there is a tendency in customary law to recognize standing of individuals to invoke these rights before courts.Footnote 40 Even though it appears that domestic courts, at least in Germany, are still reluctant to accept the individual orientation of humanitarian law when it comes to its being integrated into the domestic concept of state responsibility,Footnote 41 they rarely rule out this possibility.Footnote 42 At any rate, as of now the standing of the individual before courts to invoke these rights is not yet generally recognized. All that humanitarian law explicitly prescribes is that neither protected persons nor their home states may waive the rights guaranteed in the Geneva Conventions.Footnote 43

A development towards individualization can also be observed in the processing of mass claims. In the administration of damages after the invasion of Kuwait by Iraq, the United Nations Compensation Commission (UNCC) dealt with different categories of individual claims.Footnote 44 Eligibility for compensation included any direct loss and damage arising from this incident, which could have been a breach of humanitarian law. The home states were not regarded as holders of these claims but as agents of their nationals (and stateless persons which they represented). The UNCC also monitored payments to the claimants made by the recipient states that had an obligation to report.

The International Law Commission’s (ILC) Articles on State Responsibility likewise recognize the possibility of individual rights to reparation. Their Article 33(2) states that the rules on the content of responsibility are ‘without prejudice to any right, arising from the international responsibility of a state, which may accrue directly to any person or entity other than a state’.Footnote 45 According to the ILC commentary thereto ‘the individuals concerned should be regarded as the ultimate beneficiaries and in that sense as the holders of the relevant rights’.Footnote 46

Thus, the traditional concept of state responsibility appears to be ceding to a model of split entitlement: the victims are recognized as holders of the claims, but the procedural right to espouse these claims on their behalf is still in the hands of the states. This notion is also taken up in the work of the ILC project on diplomatic protection, which recognizes that a state in presenting such a claim ‘“in reality” (…) also asserts the rights of its injured national’.Footnote 47

IV. Prospects for Future Regimes of Compensation and Reconciliation

What would a compensation regime have to look like in order to absorb the developments sketched out in the preceding section? There can be no doubt that such a scheme would be based on the concept that individuals are the holders of claims to restitution, compensation, and satisfaction. The question is how these claims can be administered in a way that recognizes them without discouraging other efforts to reach a constructive settlement.

The central issue is who may present such claims. It is still the practice that states act on behalf of their nationals or other persons for whom they are responsible. The power of the UNCC to monitor the transfer of compensation by the victim’s home state pays tribute to the fact that this state does not espouse its own claim and may serve as a model solution to the problem that victims frequently do not receive any payment. The need to concentrate the process and to administer it effectively advocates in favour of maintaining the mechanism of diplomatic protection in principle. The question is whether this model should as a matter of policyFootnote 48 prevent individuals from bringing suits before domestic courts. As far as treaty systems address this point, they provide for the exclusiveness of the established scheme, such as the peace treaty between Ethiopia and Eritrea of 2000.Footnote 49 Another path would be mutual exclusion such that the registration of a claim requires that no other proceedings are pending.Footnote 50

A second crucial point is whether there can be an upper ceiling to the total amount of compensation, as it is one of the rationales of a lump sum agreement. Examples in history to the contrary seem discouraging and atypical. They include past generations of peace treaties, but also the compensation obligations Iraq incurred following its invasion of Kuwait. In that case reparation was not mutually agreed but one-sidedly imposed and financed by the sequestrated proceeds of the Iraqi oil production.Footnote 51 These examples notwithstanding, however, contemporary human rights law points at a distinction between damages resulting from serious crimes against life, integrity and personal liberty on the one hand, and other types of claims on the other hand. Whereas claims of the latter kind may still be negotiable, there is little space for limiting claims for serious human rights violations. It is widely recognized that serious crimes must entail investigations and, where the proceedings yield pertinent evidence, the indictment of the persons responsible.Footnote 52 It would contravene the strict stance human rights law takes in this respect to exclude claims altogether, be it only by limiting the funds at a court’s disposal.

However, it seems possible to provide for time limits for the registration of claims, if these limitations are not unduly short and made public in a way that the entitled can come to know of their rights. Recent models of mass claim processing are therefore compatible with the need to provide adequate reparation. They have the advantage of accelerating the procedure and of establishing unified methods for evaluating evidence. For that reason, the UNCC distinguished between different types of claims and typified the outcomes in the form of fixed amounts. There have also been inbuilt time constraints, in that deadlines for registration were set and an end to the proceedings was envisaged as a predefined point in time. In more complex proceedings one might also think of fixed time limits for every step in the procedure, as is the practice before some arbitral tribunals. Such efforts to speed up the procedure would be one lesson from past lump sum settlements, as it can take decades between the taking up of the claim and payment to the injured person.

For the financing of reparation claims, funds have been created or are foreseen which are administered by claims commissions, arbitral tribunals, or courts. Examples are national foundations in Austria and Germany and the victims trust fund mentioned in Article 79 of the Statute of the International Criminal Court.

Finally, remedies other than financial compensation, which are covered by the concept of satisfaction, may help to overcome serious human rights violations. One might profit from the experience of national reconciliation effortsFootnote 53 but also from the jurisprudence of the Inter-American Court of Human Rights, which has ordered official apologies, memorials, the naming of streets and other measures of that kind.Footnote 54

V. Conclusions

If there is an inter-temporal dimension to the case, it does not show primarily in the fact that the law of compensation was different at the time of WWII compared to the present. Rather, it is to be seen in the antagonism between subject matter and procedural law: whereas we are witnessing an increasing empowerment of the individual with respect to his or her rights in international law, the modes of implementing these rights are still strictly consensual. The individual has no standing before international courts or national courts of a foreign state unless states are willing to grant it, be it by agreement or by the waiver of immunity. Two different layers in the ‘geology of international law’Footnote 55 overlap, with the result that the ICJ has made it clear that immunity is still an obstacle to domestic jurisdiction for individual compensation claims. Therefore, Italy is under an obligation to indemnify Germany, both by virtue of this judgment and the bilateral compensation agreement of 1961, in case a domestic court should grant an order of execution.

This outcome is counter-intuitive and raises the concern of how convincing political statements embracing human rights really are. It is therefore necessary to find a conciliatory solution as it is also suggested in the obiter dictum to the ICJ judgment, which stresses that claims by Italian victims of war crimes whose entitlements to reparation have not yet been recognized ‘could be the subject of further negotiations between the two States concerned with a view to resolving the issue’.Footnote 56

The state of proceedings in Italy appears to open a window of opportunity. Some interpret Sentenza 238/2014 as abstract in nature, without entailing cogent consequences for pending and future cases. In particular, the distinction was stressed between immunity from jurisdiction and immunity from enforcement. The fact that the ICJ held that the latter ‘goes further than the jurisdictional immunity’Footnote 57 should be a reason for Italian courts to reflect on the matter and halt procedures.Footnote 58 The two governments, in turn, might use the period of suspension to engage in a conciliatory solution.

How could the issue be resolved? One suggestion has been to create a fund in which both states take a share:Footnote 59 Germany for obvious reasons and Italy because it failed to identify victims and take care of their fate. Companies which profited from forced labour and other private donors could be encouraged to participate. The total amount available should be dependent on the number of victims still alive; claims could be restricted to direct victims and their spouses. Payment should be made directly to the entitled persons. The total sum of money to be paid out in the end would certainly not be high, considering the shrinking number of claimants, the more so if compared to other expenditures that figure prominently in state budgets. If experience with past settlement procedures and reconciliation commissions is representative, the pecuniary aspect is not even the most important. Perhaps more relevant are the ways to provide some form of recognition of the injuries suffered and the consequences they had on the lives of victims and their next of kin.

Since the affected persons lives’ are approaching their end, both structure and procedure must be organized in such a way as to allow for speedy processing. This consideration points in favour of a commission rather than an arbitral tribunal, composed of representatives from both states or even independent experts who are familiar with such procedures, as they may be found, for example, in the International Organization for Migration. Procedures could follow the experience with mass claim proceedings as far as the categorization of claims and evidence are concerned. To lower the threshold, the constitutive agreement could stress that the solution found would constitute no prejudice for claims raised by other states and would not imply the recognition of a legal commitment beyond the immanent logic of the system created.

VI. Epilogue

It is only a ten-minutes’ drive away from Frankfurt University, where this chapter has been written, to the cemetery of Westhausen. A section of this cemetery is known as the Cimitero di Guerra Italiano, where 4,788 Italian men, women and children were buried. They died between 1943 and 1945, either from illness, starvation, exhaustion, or during hostilities and air raids. A number of them had come to Germany in the 1930s as workers and were interned for forced labour in 1943 after Italy had changed sides in the war; many were soldiers, and had been captured as IMIs, others were partisans, political prisoners or victims of deportation. It still happens that a family discovers the name of a grandfather, a sister or a cousin who had been missing for decades. If they wish, the Italian Consulate General organizes for the remains to be transferred back home. A plate with the inscription ‘rimpatriato’ is then attached to the tombstone.

The conviction that the horrors of the past must be overcome has inspired many ambitious projects, a common and unified Europe being amongst the most important. Germany and Italy have contributed to this European success for more than 60 years. To continue to do so is an obligation that goes beyond positive law.