I. Jurisdictional Immunities, or a Formally Strong German Position

On the international plane, Germany has as strong a position as one could wish for. In its 2012 Jurisdictional Immunities Judgment, the International Court of Justice (ICJ) in unambiguous terms found Italy responsible for a threefold violation of the customary principles of state immunity vis-à-vis the Federal Republic of Germany: by allowing civil claims against Germany in the first place; by taking measures of constraint against Villa Vigoni, which serves a non-commercial government purpose; and by declaring enforceable in Italy decisions of Greek courts upholding civil claims against Germany.Footnote 1 Nevertheless, in two of the judgment’s 139 paragraphs the ICJ voiced ‘surprise’ and ‘regret’ that ‘Germany decided to deny compensation’ to the great majority of Italian World War II (WWII) Military Internees (IMIs) and pointed out that claims arising from their treatment ‘could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue’.Footnote 2 Legally speaking, however, the position taken by the Court was so clear that several commentators saw a missed opportunity for allowing future developments of the law of state immunity in cases of grave breaches of human rights.Footnote 3

The ICJ did not stop here. By fourteen votes to one it found that ‘the Italian Republic must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which the Federal Republic of Germany enjoys under international law cease to have effect’.Footnote 4 Neither under the ICJ Statute nor under general international law can Italy invoke provisions of its internal law as justification for its failure to conform with the judgment. This would run counter to the customary rule codified in Article 27 of the Vienna Convention of the Law of Treaties, according to which a state ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. Some scholarly creativity notwithstanding, there can be little doubt that Sentenza 238/2014 is in clear contradiction to Italy’s obligations under the ICJ Statute, thus adding to the violation of the principle of state immunity itself.Footnote 5

Theoretically, Germany could therefore appeal a second time to the ICJ in order to challenge the 2014 judgment by the Corte Costituzionale.Footnote 6 While the ICJ in 2012 expressly rejected Germany’s claim for a guarantee of non-repetition, as it saw no indication that Italy would not comply with the judgment,Footnote 7 the Court could probably be less reluctant this time. Germany might even ask the ICJ for an ‘equitable satisfaction’. Though unprecedented, it seems at least arguable that the Italian Constitutional Court’s express order not to respect the 2012 judgment corresponds to the situation provided for in Article 30 of the European Convention on Dispute Settlement, namely that one party’s municipal law does not fully permit the execution of an ICJ judgment. A point of conjecture is how the ICJ would assess the fact that there is less a dispute between the German and Italian governments than between both respective governments and the Italian judiciary.Footnote 8 However, as long as Germany’s immunity from enforcement measures is still respected by Italian authorities, the lack of clear damage requiring ‘equitable satisfaction’ might turn this into a moot point altogether.

II. Trapped in Contradictions, or the Ambivalence of Dualism

Even if Germany could successfully claim satisfaction before the ICJ, and even if it were to distribute said satisfaction to the victims of German WWII atrocities as a sign that it does not oppose compensation as such, the question remains whether such a move seems at all advisable. Because of its own dualist stance towards international law, Germany is trapped in what one might call the ‘ambivalence of dualism’.

The Corte Costituzionale based its act of disobedience on basic tenets of the Italian Constitution (the so-called dottrina dei controlimiti), especially its guarantee of human rights and access to justice.Footnote 9 Both, however, are also foundational elements of the German constitutional order—protected by Article 79(3) of the Basic Law even against constitutional amendments.Footnote 10 This has, in fact, been the legal basis for the Federal Constitutional Court’s (FCC) Solange saga: since Germany could never transfer public authority to the EU in a manner violating the Constitution’s core ‘identity’, the Bundesverfassungsgericht remains competent, in principle, to control Acts emanating from the EU on their compatibility with fundamental rights guarantees.Footnote 11 That this might result in disregarding obligations from EU law is part and parcel.

While this conflict might have appeared solved since the Solange II armistice between the FCC and the European Court of Justice (ECJ),Footnote 12 recent decisions clearly show that the Bundesverfassungsgericht is still prepared to disobey international and supranational obligations on the basis of internal constitutional principles. On 15 December 2015 the Court infamously accepted an unconditional ‘treaty override’ by the German Parliament, based on an ‘absolute’ interpretation of the democratic principle (an exception was made, however, for human rights treaties);Footnote 13 even more pertinent is a decision, from the very same day, concerning the execution of a European arrest warrant.Footnote 14 Here, the FCC amended its Solange jurisprudence. It argued a competence and even a duty of German courts to assess whether the accused will be inhumanely treated in the member state demanding extradition, according to the standard of Article 1(1) of the Basic Law. Should such treatment be reasonably expected, the extradition is not to be granted. As the case at hand concerned convictions in absentia, the FCC stressed that fundamental principles of due process directly derive from human dignity and could thus trump any supranational obligation to extradite. It makes no real difference that the FCC superficially avoided the conflict with the ECJ by stating that a correct application of EU law would lead to the same conclusion:Footnote 15 the ‘correct’ application of EU law being in open contradiction to the ECJ’s—admittedly flawed—Melloni judgment of 2013.Footnote 16

Since the aforementioned case and that of Sentenza 238/2014 are unrelated,Footnote 17 Germany would not be formally estopped from challenging before the ICJ a legal position it takes itself within the context of EU obligations; Germany would, however, be at least trapped in a principled contradiction (Wertungswiderspruch) should it attack on the international plane Sentenza 238/2014 as disregarding the ICJ’s judgment.Footnote 18 Like Italy, Germany takes the position that international—and even supranationalFootnote 19—obligations must be disregarded should they collide with basic constitutional principles of domestic law; like Italy, Germany takes the position that due process is one of the grounds that justifies this kind of disobedience. To make this contradiction even more palpable: the European arrest warrant under German scrutiny had been issued—ironically—by Italy.Footnote 20

III. Germany and the Law & Politics of History

Germany is trapped in yet another contradiction: while German foreign policy has traditionally favoured a mildly progressive path in international law, laying special emphasis on the importance of human rights,Footnote 21 the Distomo and Ferrini cases forced Germany into the role of an advocate of old-school interstate law.Footnote 22 For obvious reasons, Germany tries to keep its history out of foreign courtrooms. That the Federal Government, when declaring acceptance of the ICJ’s compulsory jurisdiction according to Article 36(2) of the Statute in 2008, included the—admittedly widely used—limitation to ‘disputes arising after the present declaration’ does not therefore come as a surprise.

It would be a misrepresentation to see this as an unwillingness to bear responsibility for atrocities committed by Germans during the Nazi period. At a political level, Germany is generally prepared to accept that responsibility, not only symbolically but financially also.Footnote 23 From 1956 to the end of 2013, Germany paid a total of €71 billion in reparations to surviving victims of National Socialism (NS).Footnote 24 However, the patchwork of instruments set up soon after the foundation of the Federal Republic of Germany (which understood itself—contrary to the German Democratic Republic—as successor to the German Reich, and thus accepted legal responsibility) was very much characterized by selectivity.Footnote 25 Lobbyists, pressure groups, or a lack thereof, and the rise of the Cold War left their mark on the outcome.Footnote 26 The central element of the diverse set of reparation instruments, the Federal Compensation Act (Bundesentschädigungsgesetz) of 1956 and amended in 1965, excluded foreign NS victims (with a later exception for Jewish emigrants from eastern Europe). Their reparation was primarily left to the interstate level. Individual titles to reparation could be introduced by way of national legislation, but only if the Federal legislator chose to do so. This position has been upheld in recent years by the FCC when dealing with—eventually unsuccessful—claims of former forced labourers and war crime victims.Footnote 27

While this jurisprudence conforms well to the traditional and still prevailing view in public international law,Footnote 28 reparation at the interstate level has had its flaws, too.Footnote 29 In order to support the Federal Republic of Germany in its political and economic recovery, its western partners agreed in Article 5(2) of the London Agreement on German External Debts to defer the ‘[c]onsideration of claims arising out of the second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich and agencies of the Reich (…) until the final settlement of the problem of reparation’.Footnote 30 This clause was widely understood as a moratorium on claims against Germany until the conclusion of a peace treaty.Footnote 31 However, only some of the states that could have claimed reparation were represented in the negotiations.Footnote 32

During the 1960s, Germany concluded lump sum agreements on reparations with 11 western European countries, among them Italy. Payments to Italian citizens who were subjected to NS persecution were covered by a bilateral treaty of 2 June 1961Footnote 33 on the basis of which Germany paid at that time DM (Deutsche Mark) 40 million to Italy. It has been the position of the German government until today that this treaty was meant to cover all individual claims, even though hundreds of thousandsFootnote 34 of IMIs and other victims of German wartime action were by definition excluded from the notion of ‘persecution’.Footnote 35 Without going into detail, given the wide-reaching mediatisation of the individual in international law in 1961, it would be reasonable to argue that with this treaty both states agreed to limit the circle of beneficiaries, for whose suffering Italy would demand and receive compensation from Germany, to those groups covered by the 1961 treaty. It has to be borne in mind that in Article 77(4) of the 1947 Peace Treaty with the Allied Powers,Footnote 36 Italy—also on behalf of its citizens—had already waived all potential rights to compensation against Germany concerning ‘claims for loss or damage arising during the war’. In another bilateral treaty of 2 June 1961, the so-called Globalabkommen, Italy agreed vis-à-vis the Federal Republic of Germany to waive all claims related to the period between 1 September 1939 and 8 May 1945 (Article 2)—against payment of a further DM40 million.Footnote 37 On the surface, the situation seems settled between Germany and Italy.

IV. Unsettling Settlements: Growing Discontent

Yet, over the last 15–20 years, there has been a growing discontent with this final settlement, or Schlussstrich approach, for three reasons. Firstly, there are the inherent limitations of the 1961 treaty that excluded IMIs from the notion of ‘victim’. Though their treatment might not formally have been in violation of the laws applicable in the 1940s, their fate at least prompted—or even necessitated—a change to these laws in the 1949 Geneva Conventions: for example, Article 4A(3) of the Third Geneva Convention, in granting prisoner-of-war status for ‘Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power’, was explicitly meant to address the situation of IMIs.Footnote 38 So there is a strong moral claim by those victims to be included in any given compensation scheme, even though, legally, the principles of non-retroactivity of international legal obligations and of mediatisation of the individual through its national state prove to be gatekeepers to the sphere of law.

Secondly, there is a change to international law. The last 25 years have witnessed a shift in perspective: the formerly state-centred system has gradually opened up to include the individual and their rights. As a parallel development, the traditional concept of interstate responsibility has come under pressure to recognize the right of individuals to reparation for human rights violations. This has found expression in the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, adopted by the UN General Assembly in December 2005.Footnote 39 Claims for reparation do not only concern recent cases of human rights violations; on numerous occasions there have been attempts to redress historical injustices by way of compensation claims filed with national and international courts alike.Footnote 40

This leads to the third reason for growing discontent. While, again, the principles of intertemporal law and the arguably ‘soft’ character of the UN Principles of 2005 shield Germany from claims based on international law, Germany has in some cases agreed to set up compensation schemes—though only for certain groups of victims, mostly due to political pressure. Before 1990, it had been only the Jewish Claims Conference, backed by Israel and the US, that had managed as early as 1952 to secure payments from the Federal Republic of Germany. After 1990, the victims of forced and slave labour in German companies during WWII managed to get their claims accepted. In order to avert the impending threat of judicial proceedings in the US, the Federal Government together with German trade and industry associations set up the Foundation ‘Remembrance, Responsibility and Future’ (Erinnerung, Verantwortung und Zukunft), with a funding figure of DM10 billion.Footnote 41 However, on the basis of a controversial distinction, Italian forced labourers were by and large excluded from that scheme. Keeping this in mind, it must have come as another setback that in 2015 Germany agreed to a voluntary payment to surviving former Soviet prisoners of war.Footnote 42 Though only symbolic in amount (a mere €2,500 per victim), this at least signals a willingness on Germany’s part to accept responsibility and to recognize the recipient as a victim. Such a recognition was belatedly extended in 2016 to IMIs—in the form of a memorial site and an exhibition sponsored by the German government.Footnote 43 Without wanting to criticize these well-designed and thoughtful mementos, other than their fellow sufferers, the IMIs still remain outside any financial compensation scheme, and crucially they have not been included in the process of deciding on the most adequate way to address the historical wrongs they experienced.

V. Unmaking History: Possible Solutions

In an answer to a parliamentary question, the German Federal Government stated in March 2016 that Italy remains obliged to observe the ICJ judgment of February 2012 and that it does not intend at the moment to institute further proceedings against Italy, while nonetheless reserving the right to do so.Footnote 44 In substance, the German government repeated its position that, as far as Italian citizens are concerned, all matters of compensation had been dealt with comprehensively in the 1961 Treaties. Legally speaking, this position is sound. Sometimes, however, relying on law—or a certain legal framing of a problem—misses one of the law’s central objectives: to settle disputes. Behind the legal concepts of state immunity, ius cogens, mediatisation, and intertemporality lies a yet unresolved conflict: that of the WWII victims ‘in oblivion’. The IMIs and others that suffered from German wartime action have been doubly denied recognition as victims: diachronically, in that their suffering has been treated as lawful under the rules applicable during WWII while it would be illegal today under the amended Geneva rules—the injustices of non-retroactivity; synchronically, by excluding them from the notion of ‘victims’ in the 1961 treaty; and again, by not offering them a compensation scheme, which was done, for example, for other forced labourers and the former Soviet prisoners of war—the injustices of differentiation. While formally applied correctly, the rule of non-retroactivity of law(s) turns out to be too one-dimensional for legally assessing the historical past. While it certainly has a reasonable moral basis in cases of criminal accountability (namely, the principle nulla poena sine lege praevia), in cases of state responsibility it is unable to grasp that when raising historical claims, the claimants do not mean history but the present. They are not arguing for correcting a historic record for historiography’s sake. The question is how today’s law accommodates the needs of those who still suffer from historic legal discrimination—or even legal annihilation. Once these exclusionary rules have been overcome, they should no longer determine the legal position of those who suffered from them.

I do not intend to argue for the opening of Pandora’s box by allowing individual claims for compensation based on historical wrongdoings. There are inherent dangers in such a concept. Judges are not historians; they are, to quote Robert Cover, ‘people of violence’ whose decrees on historical truth might turn out even more exclusionary and difficult to revise than historical narratives outside the courtroom.Footnote 45 What is more, adjudicating history might prove bottomless once one goes further back, with claims relating to early colonialism and beyond. However, in most of the recent cases of ‘history taken to court,’ compensation is but a secondary aim, the primary aim being to make the voice of the victims heard, allowing space for them to ‘tell their own story’ as a counter-narrative to the hegemonic discourse of the former oppressors.Footnote 46 Courts are turned into fora to make one’s story heard—and this process is used as leverage to exert pressure on the political system to listen.

If the law is to solve conflicts and serve justice, it should provide means to address this need. Elsewhere, and in the context of German colonial history, I have suggested an obligatio de negotiando following from the breach of fundamental ethical principles of law in force already at the time of the original violation.Footnote 47 In our case, this could be the Martens clause, with its appeal to the ‘laws of humanity and the dictates of public conscience’.Footnote 48 The treatment of ‘military internees’, the killing of members of resistance movements and of hostages has surely shaken the public conscience, paving the way for the amendments to the Geneva Conventions in 1949Footnote 49—a prime example of Durkheim’s colère publique in action.Footnote 50 Arguably, even if not formally violating specific provisions of the law of warfare in force at the timeFootnote 51 (different from other atrocities committed by Germans during WWII), the treatment of IMIs at least constituted a violation of fundamental ethical principles incorporated through the Martens clause into the sphere of legal obligations. From these ‘soft’ obligations one might derive not a strict obligation to compensate but a procedural obligation to engage in negotiations as a means of satisfaction. These negotiations are open-ended, that is, they might not necessarily lead to financial compensation, but could also lead to setting up a commemorative scheme like the one introduced in 2016. This, however, should not be decided over the heads of the victims themselves.

If one takes this approach seriously, the victims have to be included in these negotiations, especially since Italy in 1947 and 1961 was prepared to waive their interests.Footnote 52 That, generally, violations of humanitarian law and principles do not give rise to individual claims for reparation could be disregarded once the responsible state decides to lift the veil of mediatisation for some groups of victims by setting up reparation programmes for individual claimants (the above-mentioned ‘injustice of differentiation’). That we are dealing with past wrongs and injustices does not alter the fact that the decision (not) to enter into serious talks about the most adequate form of compensation is to be taken in the present. This decision has to conform to today’s moral and legal standards.Footnote 53 Non-retroactivity of the law is one of those standards (standards of present-day justice, that is). However, that its undifferentiated use might undermine the law’s capability of solving present-day disputes, which—like practically all disputes—are rooted in the past, has hopefully been made plausible in this chapter.

Is Germany then legally obliged to open negotiations? Certainly not on the basis of a traditional reading of international and constitutional law. If one is prepared, however, to accept the idea of procedural rights and obligations following from violations of ‘ethical-legal’ norms and how they are being addressed today, Germany is, in fact and in law, obliged to offer serious talks to victims. For its participation in the historical wrongs—at this late point, merely mentioning Mussolini’s Repubblica di Salò will have to suffice—and for its waiver of rights of Italian citizens, Italy ought to be included in the negotiations and in any compensation scheme.Footnote 54 In following this path, the law would better live up to its claim of settling conflicts by addressing injustices.