Jurisdictional Immunity to the Holocaust? A continuous strife between Germany and Italy

It has been almost 77 years since the Nazi holocaust but the damage, destruction and devastation caused by it is still a cause of action for cases being filed before the International Court of Justice (“ICJ”). Recently, Germany filed a case against Italy before the ICJ as Italy’s highest court i.e. Supreme Court of Cassation passed several orders accepting and admitting claims of compensation for the violations of international humanitarian law committed by the German Reich between 1943 and 1945, arising due to Nazi-war crimes. The rulings of the Supreme Court of Cassation have been in favor of awarding these compensation claims and as a result the properties which are owned by Germany, but territorially located in Rome, have been seized by the Government of Italy to provide the monetary relief arising out of Nazi-war crimes. This is a major setback for Germany as these properties have cultural, social and historical value and hence sale of these building are expected to have a detrimental impact on Germany, due to which Germany has now decided to pursue action against Italy before the Highest Court of the United Nations. One of the reliefs that was sought for by the state of Germany is to put a hold on the auction of these buildings as otherwise the whole purpose of filing a case against Italy will be defeated. The decision of the ICJ is awaited in this 2022 case, however, it is intriguing as a similar case had already been adjudicated by the ICJ in 2012 involving Germany and Italy.

The 2012 judgment in the famous ‘The First Jurisdictional Immunities Case’ (2008-2012) was developed basis a series of events back in 2008, wherein the Supreme Court of Cassation adjudicated upon this exact same issue and ruled that Germany is liable to pay an approximate amount of 1 million euros to the families of people who were exterminated during the World War II1. On the basis of an application initiated by Germany, the ICJ delivered its decision in 2012 in favor of Germany. The decision of the ICJ was rooted in the International Customary Law which provides for the principle of state immunity. The court, though cognizant of the grave violations of International law, was of the opinion that this is no ground to deny the state immunity as there is no legal basis for such a denial either in the treaty-based law or the International Customary Law. Italy accused Germany of violating jus cogen norms which are preemptory in nature and have an overriding effect in the International law regime. Basing its arguments on the violation of jus cogen norms, Italy asserted that Germany is not entitled to any state immunity under International Customary Law. The Court agreed to the extent that acts of Germany during Nazi-war crimes were in absolute violation of jus cogen norms, against which there are no exceptions also, however, the same cannot be the basis for denying immunity to Germany as in legal sense this is nowhere provided for.

It has been close to a decade since Italy has almost awarded compensation in lieu of Nazi-war crimes in as many as 25 cases. Despite an unequivocal ruling of the ICJ on the exact subject-matter, Italy has gone ahead and awarded compensation to the victims in accordance with their claims. Pursuant to the application filed by Germany before the International Court of Justice, a decree law was published in the Italian Official Journal which if not transposed into law by the Italian Parliament, it would stand invalid since the time of its creation2. The decree law was created with an aim to address the claims asserted by Germany and to protect itself from not violating the orders of ICJ. As per the decree law, a fund has been created and financed by the Italian Government to provide reparation to the victims of the holocaust. This measure adopted by Italy serves twin goals of ensuring sovereign immunity to Germany and providing justice and reparation to those whose human rights had been violated.

In the present case filed by Germany, it will be noteworthy to see whether the action of Italy subsequent to the filing of application by Germany is enough to let ICJ adjudicate upon the merits of the case, and decides otherwise or will ICJ stand by its previous ruling and ask the United Nations Security Council to step in and take appropriate measures against Italy for violating the ICJ ruling.

By - Rishika Jain, and Priyanshi Aggarwal

  1. https://www.internationalcrimesdatabase.org/Case/1231
  2. Article 77 of the Constitution of the Italian Republic, 1947.