The ruling of the International Court of Justice in 2012 about State immunity against claims arising from war crimes has been an historical sentence. In Italy it was received with a mix of disapproval and resignation. Some scholars believed that the ICJ was breaking off a possible evolution of the international law, while others admitted that the Italian court had bitten off more than it was able to chew. Yesterday, a new verdict by the Italian Constitutional Court has opened the case again and it will probably cause reactions from Germany and maybe a new ruling by the ICJ.

I am writing this post not to comment the case but to briefly explain the matter and translate in English the new Italian sentence and some of the early reactions to it.

Why a new ruling?

In 2013 the Italian government adopted a new legislation to comply with the ICJ decision and ratify the UN Convention on Jurisdictional Immunities of States (law n. 5 of 2013). This new law aborted all the reparation requests pending in the Italian courts, ruling that the Italian judges have no jurisdiction over compensation requests for Germany war crimes during the second world war.

However, in 2014, the Florence Court formally requested the Constitutional Court to evaluate the new law compliance with the Italian Constitution. According to the judge, the international immunity rule conflicted with some fundamental constitutional provisions, precisely articles 2 and 24 of the Constitution. The first states the respect of “inviolable rights of the person” while the second states the right to “bring cases before a court in order to protect the citizen’s rights under civil and administrative law”.

What the Court said.

The Constitutional Court accepted the request by the Florence Court and published its decision on Thursday.

First of all, the Court affirms its jurisdiction over the matter (paragraph 3.1 of the sentence). It states, as it already did in other decisions (sentence n. 1/1956), that its duties include the control of constitutionality of international customary law. The Florence Court did non request any evaluation of the ICJ interpretation of the immunity norm, nor the Constitutional Court wants to comment upon the ICJ decision.

Compliance of the international immunity norm to the Italian Constitution.

The Court recognizes that there is a conflict between the immunity rule and some constitutional principles, it is therefore its duty to ensure the protection of the latter. The Court explicitly states that the fundamental principles in the Constitution act as a limit to the acceptance of international customary law in the Italian judicial system. This is the “counter-limits” doctrine adopted by the same Constitutional Court to solve conflicts between EU law and the Constitution. The doctrine allows the constitutional control of the national laws that ratify the European regulations in order to preserve the fundamental principles of the Italian juridical system.

As the Court recalls, the ICJ itself declared unlawful the German actions during the war (point 104 pf the ICJ ruling), but it also stated that there is no judicial solution for them, due to the State immunity rule. The ICJ wished for a solution at the international level, through further negotiations among the members of the UN Convention on Jurisdictional Immunity of States.

Yet, the Italian Court affirms that “in a constitutional context where human rights are central (…), the sacrifice of these two fundamental rights is completely disproportionate compared to the aim to not interfering with the sovereignty of States, when the latter consists in unlawful behaviors such as war crimes”.

In the Italian juridical system the compliance with international law is guaranteed by article 10 of the Constitution which serves as a permanent and automatic reference to international customary law. International rules on jurisdictional immunity of the State are therefore introduced in the Italian system through this article. The Court rules that article 10 does not apply in this case, because of the conflict between immunity norms and the two fundamental principles of article 2 and 24. This is limited to cases of serious human rights abuses. In these cases the immunity norm shall be considered like it was never introduced in the Italian juridical system and therefore it does not produce any effect.

Compliance of the ICJ decision to the Italian constitution.

In paragraph 4 the Court considers the compliance to the constitution of the 1957 law (number 848/1957) that ratifies the UN Chart provisions. This law provides the adaptation of the Italian juridical system to the ICJ sentences. It is through this law that the 2012 ICJ decision has been ratified.

Given that the interpretation of the immunity norm by the ICJ conflicts with the above mentioned fundamental principles of the Constitution, the Court declares unconstitutional the article 1 of the 1957 law, limited to the part that obligates the Italian judges to apply the 2012 ICJ decision.

Compliance of the 2013 ratification law.

In paragraph 5 the Constitutional Courts verifies the compliance with the constitution of the 2013 law that ratifies the ICJ decision. The law states that every judge shall declare the lack of jurisdiction over cases where the ICJ confirmed the soundness of the foreign state immunity norm. The judgements  already passed can be  contested and revoked.

According to the Court the law is unconstitutional because it obligates the judge to deny his jurisdiction in compensation lawsuit for crimes against humanity committed by a foreign state on the Italian territory. It therefore conflicts with the two constitutional provisions already mentioned.

So what?

The new ruling greatly differs from the original 2006 Ferrini case. The Constitutional Court does not try to demonstrate the evolution of the international immunity norm, as the Court of Cassation did in 2006, and it accepts the interpretation of the norm adopted by the ICJ. However, this interpretation conflicts with some fundamental principles of the Italian constitution and the Court believes that the sacrifice of these principles is not proportionated with the aim of complying with international law. When the foreign state commits unlawful acts, war crimes and human rights abuses in particular, the right of access to judicial remedy can not be denied to the Italian citizen, even if the acts committed by the foreign state are covered by immunity.

The Court transposes the entire matter on the national level, it does not challenge the international norm nor the ICJ decision. It addresses the conflict between the foreign state immunity and the Italian Constitution.

The Court uses the principle of proportionality in evaluating the derogation from the right of access to judicial remedy, just like indicated by many human rights treaties. The acknowledgment of the war crimes by the German government and the recognition of the absence of a judicial remedy by the ICJ both support the Court’s reasoning. Yet, it is a unilateral decision. Germany probably won’t recognize the Italian court jurisdiction over the matter, like it previously did.

This time, however, it will be more difficult for Germany to challenge the Italian Court’s ruling, because the matter is now all internal to the Italian judicial system. Even a new appeal before the ICJ will be difficult, because the ultimate authority over the Italian constitution is the Constitutional Court and not the ICJ.

This does not mean that Germany will pay the compensation in the lawsuits it will eventually loose. Its immunity from executive jurisdiction still remains, and it is not addressed in the new ruling.

We are waiting for the German reaction.

 

 

Photo by Greg Willis / CC BY. Gargoyle from the façade of the Constitutional Court Palace in Rome.

 

 

 

Questo post è disponibile anche in: Italian