Arnauld, Andreas von

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Do 11 Mai2017German concerns after Sentenza 238/2014: Possiblereactions – possible solutions verfassungsblog.de /german-concerns-after-sentenza-2382014-possible-reactions-possible-solutions/Andreas von Arnauld Do 11 Mai 2017Jurisdictional Immunities, or: A Formally Strong German PositionOn the international plane, Germany has as strong a position as one could wish for. In its 2012 JurisdictionalImmunities judgment, the ICJ in unambiguous terms found Italy responsible for a threefold violation of thecustomary principles of state immunity: by allowing civil claims against Germany in the first place; by takingmeasures of constraint against Villa Vigoni which serves a non-commercial government purpose; and bydeclaring enforceable in Italy decisions of Greek courts upholding civil claims against Germany. The Court alsoexpressly obliged Italy to “ensure that the decisions of its courts and those of other judicial authorities infringingthe immunity which the Federal Republic of Germany enjoys under international law cease to have effect.” Therecan be little doubt that sentenza 238/2014 is in clear contradiction to Italy’s obligations under the ICJ Statute,thus adding to the violation of the principle of state immunity itself.Trapped in Contradictions, or: The Ambivalence of DualismEven if Germany could, with all probability, successfully appeal to the ICJ a second time in order to challengesentenza 238/2014, the question is whether such a move seems advisable. Because of its own dualist stancetowards international law Germany is trapped in what one might call the ‘ambivalence of dualism’.Like the Corte Costituzionale, the Federal Constitutional Court (FCC) sees basic tenets of the Germanconstitutional order as protected even against conflicting international legal obligations. This has beenunderlined just recently by two decisions of December 15, 2015: concerning a ‘treaty override’ by the federallegislator and, even more pertinent, concerning the execution of a European arrest warrant. Here, the FCCassumed a competence and even a duty of German courts to assess whether in the member state demandingextradition the accused will be inhumanely treated, according to the standard of art. 1, para. 1 Basic Law. In caseof a danger of such a violation, the extradition must not be granted.So long as the cases are unrelated, Germany would not be formally estopped to challenge before the ICJ a legalposition it takes itself within the context of EU obligations; Germany would, however, be at least trapped in aprincipled contradiction (Wertungswiderspruch), should it attack sentenza 238/2014 on the international planebecause of non-compliance with the ICJ’s judgment. Like Italy, Germany takes the position that international(and supranational) obligations must be disregarded should they collide with basic constitutional principles ofdomestic law; like Italy, Germany takes the position that due process is one of the grounds to justify this kind ofdisobedience. To make this contradiction even more palpable: the European arrest warrant under Germanscrutiny had been – ironically – issued by Italy.Germany and the Law & Politics of HistoryGermany is trapped in yet another contradiction: while its foreign policy traditionally favours a mildly progressivepath, laying special emphasis on the importance of human rights, the Distomo and Ferrini cases forced Germanyinto the role of an advocate of old-school inter-state law. Why forced? For obvious reasons, Germany tries tokeep its history out of the courtrooms.It would be a misrepresentation to see this as an unwillingness to bear responsibility for atrocities committedduring the Nazi period. On a political level Germany is generally prepared to accept that responsibility, not onlysymbolically, but also financially. From 1956 to the end of 2013, Germany paid a total amount of 71 billion Euroas reparation to surviving NS victims. However, the patchwork of instruments set up soon after the foundation of1/3the Federal Republic of Germany excluded foreign NS victims whose compensation was left to a series of non-comprehensive bilateral lump-sum agreements with other European states.Payments to Italian citizens who were subjected to NS persecution were covered by a bilateral treaty of June1961. According to the German government this Globalabkommen was meant to cover all individual claims,even though the 600,000 so-called Italian military internees (IMI) and other victims of German wartime actionwere by definition excluded from the notion of “persecution”. Without going into details, given the still wide-reaching mediatisation of the individual in international law in 1961, it is well arguable that with this treaty bothStates agreed to limit the World War II victims for whose suffering Italy would demand compensation fromGermany to those groups covered by the 1961 treaty. On the surface, the situation seems settled betweenGermany and Italy.Unsettling Settlements: Growing DiscontentOver the last 15 to 20 years, there has been a growing discontent with this final settlement, or Schlussstrichapproach – for three reasons:– Firstly, there are the inherent limitations of the 1961 treaty. Those excluded from the notion of “victim” hadsuffered a fate that might have been formally legal according to the law applicable in the 1940s, but whichprompted (or even necessitated) a change of these laws in the 1949 Third and Fourth Geneva Conventions.– Secondly, there is a change of international law. The last 25 years have witnessed a shift of perspective fromthe formerly state-centred system to the inclusion of the individual and their rights. As a parallel development, thetraditional concept of inter-state responsibility has come under pressure to recognise the individual’s own right toreparation for human rights violations, witnessed by the UN “Basic Principles and Guidelines on the Right to aRemedy and Reparation for Victims of Gross Violations of International Human Rights Law and SeriousViolations of International Humanitarian Law” of December 2005.– Thirdly, Germany has in some cases agreed to set up compensation schemes – but only for certain groups ofvictims, and mostly due to political pressure. Recent examples are the victims of forced and slave labour (2000)and former Soviet prisoners of war (2015).Unmaking History: Possible SolutionsIn an answer to a parliamentary question, the German Federal government stated in March 2016 that Italyremains obliged to observe the ICJ judgment of February 2012 and that it does not intend at the moment toinstitute further proceedings against Italy while reserving the right to do so. In substance, the Germangovernment repeated its position that, as far as Italian citizens are concerned, all matters of compensation hadbeen dealt with comprehensively in the 1961 treaty. Legally speaking, this position is sound. Sometimes,however, relying on law (or a certain legal framing of a problem) misses one of law’s central objectives: to settledisputes.Behind the legal concepts of state immunity, jus cogens, mediatisation and intertemporality lies a conflict yetunresolved: that of the World War II victims ‘in oblivion’. The IMI and others that suffered from German wartimeaction have been doubly denied recognition as victims:(1) diachronically, in that their suffering has been treated as legal in their time while it would be illegal under theamended Geneva rules – the injustices of non-retroactivity,(2) synchronically, by excluding them from the notion of victims in the 1961 treaty; and again, by not offeringthem a compensation scheme as has been done e.g. for the forced labourers or the former Soviet prisoners ofwar – the injustices of differentiation.This does not argue for opening Pandora’s box by allowing individual claims for compensation based onhistorical wrongdoings. There are inherent dangers in such a concept. Judges are no historians, andadjudicating history might prove bottomless once one goes further back, with claims relating to colonial times2/3and even beyond. However, in most cases of ‘history taken to court’, compensation is but a secondary aim, theprimary being to make the voice of the victims heard and to ‘tell one’s own story’ as a counter-narrative to thehegemonical discourse of the former oppressors.If law wants to solve conflicts and serve justice, it should provide means to address this need. A possible startingpoint for the conflict at hand could be the famous Martens clause (Preamble to the IVth Hague Convention of1907) with its appeal to the “laws of humanity and the dictates of public conscience”. The treatment of the‘military internees’, the killing of members of the resistance movement and of hostages surely has shaken publicconscience and paved the way for the 1949 Geneva Conventions. Thus, it constitutes a breach of an ethical-legal norm which should entail state responsibility in the form of an obligation to engage in negotiations.If one takes this approach serious the victims should be included in these negotiations. A possible legalargument could be derived from Germany’s decision to include some groups of victims in recent compensationprogrammes while excluding the IMI. This decision, made today, has to conform with standards of equaltreatment as enshrined, inter alia, in article 3, para. 1 Basic Law. Of course, this right only guarantees equality“before the law”, and Germany is not legally obliged to compensate even those groups of victims included inrecent schemes. This is not, however, about an equal right to compensation but about an obligation to statereasons for treating groups of victims differently which have hitherto been ‘forgotten’. If the difference is just theamount of pressure on German authorities we might consider sentenza 238/2014 as part of such a campaign forrecognition. In this case, equal treatment would at least entail to officially recognise the suffering of the ItalianWorld War II victims and to offer them a forum to make their stories told and heard.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  von Arnauld, Andreas: German concerns after Sentenza 238/2014: Possible reactions– possible solutions, VerfBlog, 2017/5/11, http://verfassungsblog.de/german-concerns-after-sentenza-2382014-possible-reactions-possible-solutions/.3/3

German concerns after Sentenza 238/2014: Possible reactions – possible solutions

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German concerns after Sentenza 238/2014: Possible reactions – possible solutions

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