The Federal Republic of Germany today instituted proceedings before the International Court of Justice (“The Court”) against the Italian Republic because Italy continues to allow victims of Nazi war crimes to claim compensation from the German state even after an earlier ruling of the Court that such claims violated international law. In many of these cases, domestic courts in Italy have ordered Germany to pay compensation. To satisfy the claims in two such cases, Italian courts are trying to seize properties in Rome owned by the German state.
The Application of Germany contains a request for the indication of provisional measures. In its request, Germany asks the Court, inter alia, to order Italy to ensure that German properties indicated in the Application are not subjected to a public auction pending a judgment by the Court on the merits.
In its Application, Germany recalls that, on 3 February 2012, the Court rendered its Judgment on the issue of jurisdictional immunity in the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Applicant indicates that, notwithstanding the pronouncements in that Judgment, Italian domestic courts, since 2012, have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.
Germany refers in particular to Judgment No. 238/2014 of 22 October 2014 of the Italian Constitutional Court, whereby the latter acknowledged the duty of the Italian judge to comply with the ruling of the ICJ of 3 February 2012 but, nevertheless, subjected that same duty to the fundamental principle of judicial protection of fundamental rights under Italian constitutional law, which it read to permit individual claims by victims of war crimes and crimes against humanity to be brought against sovereign States.
Germany argues that Judgment No. 238/2014 of the Italian Constitutional Court, “adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations, had wide-ranging consequences”. It adds that, since the delivery of the Judgment, at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II.
In its Application, Germany asks the Court to adjudge and declare that:
“(1) Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, including, but not limited to, in 25 proceedings, listed in Annex 6 [to the Application], instituted against Germany since the judgment of the Italian Constitutional Court of 22 October 2014.
(2) Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy, including against the Deutsches Archäologisches Institut Rom (German Archaeological Institute Rome), the Goethe Institut Rom (German Cultural Institute Rome), the Deutsches Historisches Institut – 2 – Rom (German Historical Institute Rome), and the Deutsche Schule Rom (German School Rome).
(3) Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect, including but not limited to, the 15 decisions listed in Annex 7 [to the Application].
(4) Italy is required immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.
(5) Italy is required to make full reparation for any injury caused through violations of Germany’s right to sovereign immunity, including but not limited to, compensating Germany for any financially assessable injury resulting from proceedings conducted, and measures of constraint taken, in violation of Germany’s sovereign immunity.
(6) Italy is required to offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated.” As the basis for the jurisdiction of the Court, Germany invokes Article 36, paragraph 1, of the Statute of the Court and Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, to which both States are parties.
The dispute over World War Two compensation claims started in 2008 when Italy’s highest court ruled that Germany should pay around 1 million euros to families of nine people who were among 203 killed by the German army in Civitella, Tuscany in 1944. A number of similar compensation claims followed.
Germany has argued it has already compensated for World War Two injustices in extensive peace and reparations treaties with affected countries, paying out billions of euros since the war ended with the Nazi regime’s defeat in 1945.