Alessandro Bufalini (Università degli Studi della Tuscia)

Introduction

In its judgment rendered on 3 February 2012, the International Court of Justice (ICJ) decided that Italian judiciary’s decisions and measures infringing Germany’s immunity from jurisdiction «must cease to have effect» and that «the effects that have already been produced by those decisions and measures must be reversed», thus restoring the status quo ante (para. 137). The ICJ also explicitly acknowledged that its own decision could «preclude judicial redress for the Italian victims concerned», and therefore envisaged «further negotiations involving the two States» to settle the dispute.  In other words, the ICJ has insisted on the need of «resolving the issue» and providing compensation to Italian nationals whose claims «have allegedly not been settled» (para. 104).

Without much hesitation, Italian judges essentially followed the ICJ’s decision. In 2013, the Italian Parliament also took action and passed a new law on the review of Italian decisions that contravene an ICJ’s judgment (see Nesi). However, as is well-known, the Italian Constitutional Court (ItCC), in its decision No. 238/2014, upheld that customary law on State immunity – as identified by the ICJ – could not enter the Italian legal order, since it would be incompatible with Articles 2 and 24 of the Italian Constitution, which protect fundamental rights and the right of access to justice. Relying on the principles established by the ItCC’s decision, the creditors have thus sought both to enforce Italian decisions ordering Germany to compensate for Nazi crimes and to enforce foreign judgments on the same matter. As a result of these proceedings, on 29 April 2022, Germany has filed a new application against Italy before the ICJ, thus reopening the dispute.

At the very same time, the Italian government has adopted Article 43 of the Italian Decree-Law No. 36 of 30 April 2022, which was later enacted into law by the Parliament with Law No. 79 of 29 June 2022. Essentially, this legislative measure precludes any continuation or institution of enforcement proceedings stemming from judgments that condemning Germany to compensate Italian victims of Nazi crimes. Furthermore, Italian Law No. 79/2022 establishes a special fund for the purpose of granting compensation to those Italian victims (or victims of crimes committed in Italy) who have obtained or will obtain a final judgment against Germany as a result of a claim filed by 28 June 2023 (originally claims should have been brought within 180 days from the publication of the Decree Law – thus, by the end of November 2022 – but this time-limit has been lately extended by Article 11-ter of Law 14/2023 of 24 February 2023) (for comments on the main issues raised by the establishment of the fund see Berrino, Boggero, Caroli, Franzina, Gradoni, Pavoni, Rossi). In view of its restrictions to the individual right of access to (executive) courts, the question of the compatibility of Article 43 of the Law No. 79/2022 with the Italian Constitution has already been raised by the Tribunal of Rome and is now under review by the ItCC (Tribunale di Roma, order 154/2022).

This post does not deal with the question of constitutionality raised by the Italian judges. Rather, it aims to assess the extent to which the new Italian legislation complies with the ICJ’s judgment on Jurisdictional Immunities of the State or, in any event, is capable of putting an end to the pending dispute between Italy and Germany. In fact, as I will try to show, the ICJ’s judgment seems to have had at least two effects on the new Italian legislative initiative, thus contributing to the possible settlement of the dispute: one concerns the exercise of Italian jurisdiction over Germany and the other relates to the interpretation of the waiver clauses contained in one of the two Bonn Agreements of 1961 – two of the lump-sum reparation agreements concluded by Germany with eleven Western European countries in the Sixties.

A Partial non-compliance with the ICJ, but still a settlement of the dispute?

Article 43 of Law No. 79/2022 does not explicitly address the main international law issue at stake in the dispute between Italy and Germany, namely the content and scope of customary international law on State immunity. However, the legislative measure clearly has an impact on the exercise of Italian adjudicative and executive jurisdiction against Germany.

In fact, under Article 43, judicial decisions condemning Germany grant victims access to the fund and are therefore not deprived of any effect, as required by the ICJ in 2012. Since these judgments entitle the victims to access the fund, the exercise of adjudicative jurisdiction is not only secured by the new legislation, but somehow encouraged (at least till the end of June 2023). Italy thus continues to act in breach of its obligations to respect Germany’s sovereign immunity and to implement the ICJ’s judgment. However, the new law also immediately bars any current or future enforcement proceedings against Germany. In this respect, it fully complies with the ICJ’s judgment.

It is not yet clear whether the measures taken by the Italian Parliament will lead Germany to discontinue the proceedings before the ICJ. Following the adoption of Law No. 79/2022, Germany has indeed dismissed its request for provisional measures, acknowledging that the Italian legislative initiative «addresses the central concern» of that request. However, in its application instituting the new proceedings before the ICJ, Germany had also insisted on the «fundamental importance» of sovereign immunity as «a central tenet of peaceful inter-State relations governed by international law» (para. 29). As a matter of principle, Germany may seek full compliance with this fundamental principle and may legitimately claim that the Italian legislature is at odds with the full recognition of its immunity from adjudication (and, more concretely, with its renewed request for assurances of non-repetition, see Gradoni). Nevertheless, it can also be assumed that the prevention of enforcement proceedings is currently the main German concern in the whole dispute and that the new legislation will eventually lead Germany to drop the case. At any rate, should the case continue, the ICJ may attach some relevance to Italy’s attempt to find an equitable and definitive settlement of the dispute.

Germany’s position may also depend on the forthcoming decision of the ItCC. If the ItCC declares Article 43 of Law No. 79/2022 to be constitutional, Germany may be inclined to accept that for almost a year Italian judges have been encouraged to exercise their adjudicative jurisdiction against it, provided that no enforcement of these judgments is ever granted. The time-limit set by the Italian Parliament is clearly intended to reassure Germany that no further claims will be brought against it in Italian courts after that date. However, the question of constitutional legitimacy of this bar to the exercise of adjudicative jurisdiction may be raised in the future, as this limitation is hardly in line with the principles established in the decision No. 238/2014 of the ItCC. In this sense, it can be assumed that Germany’s discontinuation of the case before the ICJ will also depend on whether the time-limit imposed by the Italian legislature will effectively put an end to the flow of cases against Germany before the Italian courts.

Currently, the main concern of the victims no longer seems to lay in the time-limit, but in the inertia of the executive branch in establishing the criteria for the functioning of the fund. In fact, according to Article 43 of Law No. 79/2022, the Minister of Economy and Finance, together with the Minister of Foreign Affairs and the Minister of Justice, should have established the procedures and modalities of access to the fund within six months from the Decree Law (i.e. by the end of November 2022). However, the Italian Ministers have not yet adopted the necessary implementing decrees. 

In adopting Article 43 of Law No. 79/2022, the Italian political authorities opted for a pragmatic solution, relying on the fact that depriving adjudicating proceedings of any executive effect would lead Germany to discontinue the case. And this may indeed still occur: if it is true that the legislative measure adopted by the Italian Parliament is only a partial execution of the ICJ’s judgment and could, in principle, lead to a new condemnation of Italy, it is hard to deny that the establishment of the fund is also an attempt to grant an alternative (non-judicial) way to compensate Italian victims and to settle the international dispute, shielding Germany from any measure of constraint. Albeit not in the form of a negotiation between the two States, as suggested by the ICJ, the establishment of the fund certainly pursues the same goals.

The interpretation of the waiver clauses contained in the Bonn Agreements of 1961: Italy gets closer to the ICJ (and to Germany)

Article 43 of the Italian Law No. 79/2022 is not only an attempt by the Italian political authorities to put an end to the dispute with Germany over the question of immunity. It also attempts to settle another controversial issue between the two States: the question of reparations owed by Germany to Italy for the acts committed by Nazi-Germany during World War II.

The interpretation of the waiver clauses contained in the Bonn Agreements of 1961 has indeed been one of the controversial issues in the long-lasting German-Italian dispute. Before the ICJ, Germany maintained that all questions of reparations with Italy were definitively settled by the general waiver clause contained in the 1947 peace treaty between Italy and the Allied Powers (Reply of the Federal Republic of Germany, 5 October 2010). Italy contended instead that the peace treaty of 1947 «refers merely to economic relations» and that the Bonn agreements, and the waiver clauses enshrined therein, simply «do not cover claims for serious violations of IHL» (Rejoinder of Italy, 10 January 2011).

Remarkably, Article 43 of the Italian Law No. 79/2022 states that the establishment of the fund aims at securing continuity («assicurare continuità») with the 1961 Bonn Agreement between Germany and Italy concerning the “Settlement of Certain Property-Related, Economic and Financial Questions”. As some scholars have already emphasized (Boggero, Gradoni, Pavoni), the meaning of this reference to one of the two Bonn Agreements is quite clear: Italy is complying with its obligation to indemnify Germany for any effects of Italian judiciary decisions stemming from individual claims related to Nazi crimes. In Article 2, paragraph 2, of the bilateral agreement, Italy had in fact committed to indemnify Germany for any further reparation claims. According to the Italian Government, therefore, the fund for victims clearly aims at indemnifying Germany for all claims brought against it by Italian nationals. All this means that Italy now considers that the Bonn agreements were designed to definitively settle the issue of reparations, by covering any future claims of Italian nationals against Germany, including those stemming from serious breaches of international humanitarian law. In clarifying the reasons for the adoption of the Article 43 of the Decree Law No. 36/2022, the Italian Government now appears to be converging with the German position that the issue of reparation was definitively settled – be it in 1947 (as Germany argues) or in 1961 (as the Italian Government maintains).

The Italian Government’s new position is also noteworthy for another reason. Before the ICJ, Italy put forward another – rather interesting – argument concerning the interpretation of these waiver clauses. Italy argued that these agreements should be construed consistently with jus cogens rules. A jus cogens-oriented interpretation would lead to reject a reading of the waiver clauses as excluding any obligation to make reparations for international crimes committed by the Third Reich. In other words, construing the waiver clauses in light of jus cogens norms should rule out the possibility that the two States ever agreed to exclude individuals from bringing claims for violations of international humanitarian law (Rejoinder of Italy, 10 January 2011).

In 2012, the ICJ did not addressed the issues raised by Italy concerning the interpretation of the waiver clauses. However, in a much-quoted passage of its judgment on Jurisdictional Immunities of the State, the ICJ – referring to «a century of practice» of States concluding lump-sum agreements after armed conflicts – stated that «it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community as a whole as one from which no derogation is permitted» (para. 94). The ICJ appeared to suggest that a State may exercise its right to waive reparation claims for international crimes, including on behalf of its nationals, without infringing any peremptory norm. The recent Italian legislation would confirm this general approach of the ICJ regarding the power of a State to waive individual rights to reparation in cases of serious breaches of international humanitarian law.

Concluding Remarks

Full compliance is not the only metric to assess whether a decision of the ICJ is effective and can lead to the settlement of a dispute.  A case may well be settled – and the ICJ may have played a role to this aim – even if full compliance is not ensured.  The long-lasting dispute between Italy and Germany might be such a case. The possibility of reaching a long-awaited and fair settlement of this painful saga will depend on the willingness of the different actors involved – the German Government, the Italian Government, and the Italian Judiciary – to find a balance between the need to meet both German and victims’ expectations. The ItCC will somehow have to come to terms with the idea that the existence of alternative (non-judicial) means of redress could, in certain circumstances, lead to a restriction of the individual right to access courts. The Italian executive should urgently take a decision on how to manage the fund so as to provide victims with prompt and adequate compensation, at least comparable to that which they should receive from Italian judges. Germany will have to live with a solution which is not entirely in line with the 2012 Judgment of the ICJ, but which appears to sufficiently protect its own interests.