The International Court of Justice later this year will hear a lawsuit filed by the Federal Republic of Germany against Italy. In the suit, Germany claims Italian courts have illegally assumed jurisdiction by rewarding damage claims to citizens harmed by Germany’s occupation of Italy during World War II.
Christian Tomuschat, professor of law emeritus at Humboldt University in Berlin, spoke about the case at the Eck Hall of Law February 7. Tomuschat, a former member of the United Nations Human Rights Committee, is a member of the legal team representing Germany in its lawsuit at the International Court of Justice at Hague.
Germany claims that states enjoy sovereign immunity in courts of other states concerning human rights violations. The most important case was the Ferrini decision, decided in 2004, when an Italian court ruled that Italy held jurisdiction in cases in which Italian plaintiffs submit damage claims for mistreatment by the German military in World War II.
The mistreatment included deportment to Germany, where people were subjected to forced labor in the German armament or agricultural industries, and civilian atrocities by German troops in Italy.
Since the Ferrini case, Italian courts have rewarded more damage claims, and Germany fears that even more will be rewarded in the future. Many of the cases were filed by descendents of the victims.
Tomuschat said that, although the acts committed by the German army were horrific and illegal under international law, Italian courts do not have the authority to reward damage claims for specific cases. The Italian courts ruled that the acts were so terrible that Germany waived its right to sovereign immunity.
“Immunity comes into place specifically when a state has committed internationally tortful acts,” Tomuschat said.He said that arguing horrific acts are an implicit waiver of state immunity “does not exist in reality.”
Tomuschat acknowledged that sovereign immunity is not absolute, and can be forfeited in isolated or individual cases.
“To say that they were private acts is not a possible interpretation of the situation,” he said. “[One] can’t privatize or individualize the costs of war.”
Tomuschat said the international community has accepted that Germany has already paid an enormous amount of reparations for the horror of World War II.
He cited the Potsdam Conference of 1945, in which the victorious Allies seized German foreign assets and redistributed German industrial goods, forcibly relocated the German population to the west, and stripped Germany of about one quarter of its territory.
Although the German population did not view the agreement as binding since they had no representation and did not consent to the terms of the agreement, they accepted the loss of over 1,100 square kilometers of their eastern territory as a major reparation for World War II when Germany unified in 1990, Tomuschat said.
In 1961 Germany signed a treaty with Italy, in which Italy withdrew all claims to reparation against Germany.
The German legal team is arguing that the International Court of Justice has jurisdiction in the case because Article I, Section B of the European Convention for the Peaceful Settlement of Disputes states than any question of international law is under the ICJ’s jurisdiction.
Germany’s claim is that Italy’s courts violated international law by assuming jurisdiction over civil cases filed against Germany for illegal acts committed during World War II. Tomuschat said Germany hopes to render existing rewards void and prevent future claims from being heard by Italian courts in the future.
Italy’s courts are an independent body. The Italian and German governments have cooperated by settling the matter in the ICJ.
Tomuschat taught for 22 years and was the director of the Institute for International Law at the University of Bonn, has authored books on international human rights, and argued for the Lisbon treaty at the German Constitutional Court.
The event was sponsored by the Center for Civil and Human Rights and the Nanovic Institute for European Studies.
Mickey Gardella can be contacted at mgardell@nd.edu. He does not like jokes. Or fawns.
