The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

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As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

Insofar as the customary international law norm on sovereign immunity found by the ICJ extends jurisdictional immunity to States against actions for damages resulting from such crimes the Court has refused to accept it into the Italian legal order (para 3.5). The Court’s reasoning presumably would also cover the question, which was not however before it, of Germany’s immunity in the exequatur proceedings instigated by Greek plaintiffs. In contrast, although this issue was also not before the Court, its reasoning might allow to stand Germany’s immunity from execution concerning the Villa Vigone as determined by Jurisdictional Immunitiesas this determination is based on the non-commercial use of the villa. It therefore does not exclude an execution against other (commercial) objects. Also, the villa has a cultural purpose which the Court might accept as a legitimate restriction of the plaintiffs’ position.

The Court’s reasoning and conclusion are of course disputed by some Italian lawyers (cf. eg Filippo Fontanelli, here and here, who also discusses international law issues, and with whom I mostly agree). However, I am neither interested in those questions of municipal Italian law nor in the least competent to have an opinion about them. For me, it is Roma locuta – but is the causa finita, has the dust settled?

Hardly. From the view-point of international law, the Court has done no more than to close one way, albeit the one chosen by the Italian government, to implement Jurisdictional Immunities. Italy’s international law obligation to implement the ICJ’s judgment remains unaltered by the Court‘s decision; indeed, municipal law, including constitutional law, is generally not apt to affect a State’s obligations under international law. But that implementation may well have become more burdensome, for Italy, by the Court’s decision.

 Ways still open to Italy to implement the ICJ judgment

So what ways stand now open to the Italian government? An Italian colleague suggested to me that it could try to overturn the Court’s decision by a constitutional amendment, a course of action which however might raise the spectre of the Court’s declaring the constitutional amendment contrary to the principles of the constitution – a power which at least the (similarly situated) German Federal Constitutional Court has claimed to possess since long ago (here, at p. 235). In the alternative, Italy could presumably enact a law substituting itself for Germany in the court proceedings in question. Such a course of action would meet the requirements of both Jurisdictional Immunities and the Court’s decision: the plaintiffs would have their day(s) in court, and Germany’s immunity would be respected. However, it would have the (more than slightly) perverse effect that Italy would have to pay for Germany’s war crimes, and, even more perverse, presumably also for those crimes dealt with in the Greek decisions underlying the Italian exequatur cases.

 Consequences of an Italian inaction

What if the Italian government decides to do nothing? The Italian civil courts will then most likely proceed with the numerous actions against Germany. Those proceedings will be so many internationally wrongful acts in themselves. Indeed, the Court acknowledges that its decision contravenes present international law. (It is one of the rather strange features of this ongoing saga that key participants – Germany, the Court – are quite contrite over their actions but insist nevertheless on their positions which can be deemed correct only in the respective legalistic framework.) Thus Germany might resort to countermeasures (reprisals). It might also try to bring Italy before the Security Council under article 94 (2) of the UN Charter. Both courses of action, of course, are not very likely to be taken between close allies.

In any case, Germany would presumably have a claim against Italy to be indemnified against claims from judgments rendered in proceedings having violated Germany’s international law claim to immunity. In the event of an execution of such judgments Germany also would have a rather clear claim to corresponding reparations under customary international law as codified in art. 31 of the draft articles on State responsibility (here). In this way, Italy might again have to pay, in the final analysis, for Germany’s war crimes against Italian and Greek citizens. Indeed, it is hard to conceive of the ICJ, should Germany bring a new case for damages before it, as denouncing Jurisdictional Immunities and, in effect, following the Constitutional Court, even if the latter’s judgment may correspond better to modern human rights sensibilities.

 An equitable solution?

Is there a way out of this conundrum? The German and Italian governments could rely on Germany’s far reaching immunity from execution and keep fingers crossed that no court will deny that immunity in the case of claims for reparations for war crimes and crimes against humanity. They could also try to negotiate a settlement providing for an equitable indemnification of the different categories of plaintiffs, again hoping that no court would refuse the negotiated result in favour of higher indemnities. It is not clear that the Court’s decision has strengthened the hand of the Italian government in such negotiations, seen the perverse results that might obtain without a negotiated settlement. In any case, the dust cannot be expected to settle anytime soon on this matter. One is somewhat reminded of another famous saga in which a supreme court refused to follow the ICJ: the LaGrand (here) and Avena (here and here) judgments of the ICJ in actions brought by different States against the US, and the US Supreme Court’s decisions refusing (here) to follow them which have been called by Bruno Simma (in Essays in Honour of Christian Tomuschat) a “never ending story”. However, the way out of that story finally chosen by the US ie to denounce the protocol on which those actions had been based (cf The Oxford Handbook of Modern Diplomacy, p. 515-6) will not be open to Italy which cannot withdraw from, and will not likely succeed in changing, the relevant customary international norm.

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Riccardo Pavoni says

November 15, 2014

Dear Teodor, thank you for the quote... even if in my 'singular' version... and thank you for the insightful post. Perhaps, what is most controversial is your final sentence:
'the way out of that story finally chosen by the US ie to denounce the protocol on which those actions had been based... will not be open to Italy which cannot withdraw from, and will not likely succeed in changing, the relevant customary internation[al norm]' (that's how I assume the post was finishing).
Of course, you must be aware that Italy might denounce the 1957 European Convention for the Peaceful Settlement of Disputes tomorrow morning; I don't want to speculate about the potential effects of that potential denunciation, because in any case that does not appear to be an option for the current Government (well, it's actually difficult to surmise what the present Italian Executive would like to do about this all... no single word uttered so far by the Head of Government or the responsible Ministers as far as I know...).
If I am not mistaken, the 1957 European Convention is the only jurisdictional basis available to Germany for bringing Italy back before the ICJ. Italy has not accepted the compulsory jurisdiction of the ICJ under Art 36(2) Statute, despite pledges to the contrary in recent times...
On the other hand, also the US has not withdrawn from the norm regarding the right to consular assistance under the VCCR or (arguably) the corrisponding customary rule; but that's a different matter.
If we want to focus on sustantive things, then I share the view of those who underline that Medellin may be seen as the PRECISE OPPOSITE of Ferrini-Const.Ct.238/2014. Both the US and Italy have blatantly violated Article 94 UN Ch. However, whereas the US non-compliance with La Grand/Avena translates into the denial of individual rights, the Italian non-compliance with Germany v. Italy is made in the name of the protection of fundamental human rights.

filippo fontanelli says

November 16, 2014

Dear Prof. Pavoni,
Your distinction between Medellin and 238/2014 is unquestionable, although some wishes to ignore it (
However, whether disobedience militates in favour or against the protection of human rights is, in my view, a red herring.
Let me explain: this distinction is ultimately irrelevant to the establishment of international responsibility, therefore from that perspective Medellin and 238/2014 are indeed, comparable.
The HR-distinction, I presume, should contribute to distinguish disobedience dictated by a noble cause from an instance of selfish disobedience. Correct me if this was not the purpose of you evoking this distinction.
However, I believe that the nobility of the Italian judgment is vastly reduced in light of its selfishness. In fact, all costs entailed by the protection of human rights are imposed upon Germany, and Italy would suffer no direct cost from its declaration of principle.
Since Socrates's story, we have been taught that civil disobedience compels respect when the subject is ready to suffer the consequences of the breach. In this case, Italy is imposing the consequences of its breach on Germany. The HR-distinction is incidental, but the judgment is as selfish as Medellin was.

Riccardo Pavoni says

November 17, 2014

Dear Filippo (if I may), I am sure you are aware that what you are positing here is something that has not been finally adjudicated by the Italian courts: "In fact, all costs entailed by the protection of human rights are imposed upon Germany, and Italy would suffer no direct cost from its declaration of principle". This goes to the merits, and Germany's firm position is that, in any case, Italy must hold Germany harmless from civil claims/pecuniary damages arising from WWII claims (the story of the 1961 Agreements, etc)... Let me then paraphrase your sentence: in this story all the costs have so far been imposed upon the victims. And this is simply unacceptable. I think all can be said about the Constitutional Court's decision, except that it exhibits selfishness; as far as the specific case is concerned, the message to the Executives is: please, if you really want to come back to the negotiating table, do that quickly and in a meaningful way, not as you've done so far (such as with promises of monuments to the IMIs etc, come on...). More broadly, and more strikingly, we have the following civilising (in my view) message: no grants of immunity for grave breaches of human rights will pass constitutional scrutiny in Italy when the victims have not been afforded an alternative, effective means of redress. If this selfish? Not to me, unless by selfishness one simply means disobeying the ICJ, but then I would not evoke Socrates...

filippo fontanelli says

November 17, 2014

Dear Professor,

You are right: the victims have so far borne all costs. Now, with this decision, nothing has yet changed: you note correctly that Italian judges have not delivered yet any civil judgment against Germany.

Nonetheless, it's only a question of time before they will, because the CoCo has clearly ordered Italian judges to disregard immunities. The only plausible outcome is a series of orders of compensation against Germany.

As such, the CoCo has only instructed judges to proceed against Germany. The ultimate irony is that the proceedings will go nowhere at the enforcement stage - presumably, but correct me if I am wrong.

As a result, and without speculating about what the government is likely to do to solve the equation, the current scenario is:
1. Victims had no redress before. Now they are given a hollow hope to obtain some, and are forced to sink more resources in proceedings that would go nowhere when it comes to secure effective restoration. So much for the "effectiveness" of remedies.
2. Even if everything could go according to the CoCo's ruling, and Germany were naif enough to disseminate attachable assets on the Italian territory, Germany would have to pay upfront.

If Italy will pay for those orders somehow, charging upon itself the pecuniary burden, I will of course agree with you on the self-defeating import of this declaration of principle. However, nothing in the CoCo's judgment suggests that Italy is expected to take upon itself this burden, nor there is there any suggestion that the judgment is somewhat instrumental to further negotiation.
Simply, the CoCo cannot pronounce of either of these issues.

I had not considered before the vicarious liability of Italy to refund the costs incurred by Germany because of Italian future judgments. If this were indeed the realistic course of action, I wonder whether it would not have been easier and less disruptive for the CoCo to acknowledge that in this specific case the Italian Government is directly responsible for compensation to Italian victims, and that this State assurance of adequate remedy makes immunities ultimately compatible with access to justice. I guess the problem there would have been to decide which claims are meritorious, for which "a day in court" is probably the only why to decide.

Theodor Schilling says

November 27, 2014

Dear Riccardo,
thank you for your insightful comments. You don’t want to speculate about the potential effects of a potential denunciation of the 1957 European Convention for the Peaceful Settlement of Disputes by Italy. It seems to me that under Article 40 (2) of the Convention, a denunciation would have no effect on facts or situations prior to the date of the denunciation, and therefore on the questions discussed, provided that the dispute is submitted to the appropriate procedure within one year after the denunciation. On the substantive side, I agree that the US action resulted in a denial of individual rights whereas the judgment of the Constitutional Court was in the defence of human rights, and also that it was not a selfish act, considering the international law obligation of Italy to indemnify Germany against judgment claims resulting from a violation of its immunity. However, I doubt whether it is a successful strategy to prioritise substantive issues, even human rights issues, over procedural ones. The disrespect of procedural issues has a tendency to come back to haunt you in sometimes unexpected ways. The ECJ undermined, by its substantively very welcome, indeed necessary Kadi judgment, its own position on the priority of EU law vis-à-vis national law. The Constitutional Court's judgment is another child of Kadi. At the very least, it is likely to diminish Italy's ability to rely on future ICJ judgments in its favour. It also weakens the ICJ's position in general.