By Hans-Jürgen Schlamp
It sounds like a paradox: Germany takes Italy to court and wins -- and Rome is secretly pleased with the ruling. In addition, several other governments around the world are breathing a sigh of relief on Friday. After all, had the International Court of Justice (ICJ) ruled differently, people in Afghanistan or Ethiopia, in the Balkans or in Libya, would have been able to take countries to court whose soldiers committed war crimes on their soil. It is a situation that governments everywhere wanted to avoid.
And now they have. The ICJ ruling threw out a 2008 decision by the highest Italian appellate court which sought to force Germany to pay reparations to the families of victims of World War II-era war crimes. "The action of Italian courts in denying German immunity ... constitutes a breach of the obligation owed by the Italian state to Germany," said Hisashi Owada, president of the United Nations court.
Human rights organization Amnesty International said in a statement that the ruling was a "great step backwards in the protection of international human rights." The group said that the ICJ placed countries' interests above the protection of human rights.
The case focused specifically on the June 29, 1944 murder of 250 Italian civilians in and near the Tuscan town of Civitella at the hands of German troops belonging to the Herman Göring Division. It was an act of revenge taken in response to a partisan assault on German soldiers a few days earlier resulting in three deaths. More than forty years later, family members of the victims of the civilian massacre sued Germany in an Italian court in the hopes of receiving reparations.
Furious Politicians in Berlin
Among the plaintiffs was Luigi Ferrini, a native of Tuscany. He was taken into custody by German soldiers and transported to a concentration camp where he was tortured and made to perform forced labor. In 2008, the Italian appellate court, known as the Cassation, ruled in favor of the plaintiffs, finding that individuals whose human rights had been violated could sue for individual damages. Politicians from both sides of the aisle in Berlin were furious.
That, though, wasn't the only reparations case against Germany that had been winding its way through the courts. In Greece too, descendents of victims of a German revenge attack sued for reparations. On June 10, 1944, SS units assembled 218 women, children and elderly in Distomo, a village not far from Delphi, and murdered them. The Greeks pursued their case through the various levels of the German court system before ultimately being rebuffed by the European Court of Human Rights. Countries, the court decided at the time, are "immune" to lawsuits filed by "natural persons." The ruling was consistent with a long-held tenant of human rights.
The plaintiffs from Distomo, however, found success in Greece -- in the courtroom at least. The country's highest court, the Areopag, awarded them €28 million in reparations, but the Germans simply declined to pay. Attempts to confiscate and sell property belonging to the German state in Greece failed due to objections lodged by the government in Athens. They were wary of openly confronting Berlin.
But when the Greek plaintiffs learned of the 2008 ruling in the Cassation, they joined the case. The Rome court decided that descendents of the victims of the Distomo massacre were allowed to claim German property in Italy as collateral if Berlin continued its refusal to pay. The Italian government, however, was no more eager than the Greek when the plaintiffs requested that Rome auction off a German-owned villa on Lake Como. It didn't take long for Chancellor Angela Merkel to convince her Italian counterpart, Prime Minister Silvio Berlusconi, to block the sale. Both the Italians and the Greeks, after all, have some questionable human rights chapters of their own in their pasts that they would like to avoid paying reparations for.
Plenty of Compensation?
Indeed, governments across the globe were far from distraught when Berlin decided to challenge the Italian court's ruling at the International Court of Justice in 2008. After all, even if Germany's property had not been confiscated in Greece and Italy, the plaintiffs had still been granted reparations.
Germany's position was clear. On the one hand, in 1961, the country had already made a lump sum reparation payment to Italy of 40 million marks. In addition, the country founded the Foundation "Remembrance, Responsibility and Future" in 2000 in order to compensate forced laborers from Eastern Europe. Germany had agreed to further payments at peace conferences or as part of treaties with other countries. The government said it wasn't prepared to do more. And no court has the jurisdiction to force a foreign country to pay reparations, no matter what the transgression. In short, the Italian ruling violated international rules on foreign state immunity on human rights cases.
Most legal scholars agree. "Were one to deny foreign state immunity in this and other similar cases," wrote human rights professor Andreas Zimmermann recently in the German daily Die Tageszeitung, "then Georgian courts, for example, could pass judgement on Russian behavior during the 2008 conflict." And vice versa. Such a situation would be untenable, say scholars.
As such, Friday's ICJ ruling did not come as a surprise. The Italian verdict against Germany granting victims of Nazi-era crimes reparations breaches international law. Claiming property owned by the German state as collateral is likewise not allowed. Indeed, Italy, the court ruled, should never even have allowed a case to be filed against Germany by a private individual. Reparations negotiations can be engaged in by countries, but individuals have no right to file suit.
International law, in other words, has remained unchanged. And in the future, the families of Afghan, Iraqi or Ethiopian victims of human rights abuses perpetrated by foreign countries will have no more legal recourse than did the Italians and Greeks in the case decided on Friday in The Hague.