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Old May 2nd, 2022 #1
alex revision
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Default Berlin puts Italy under pressure by appealing to international justice over "Nazi crimes

BOCAGE INFO - Berlin puts Italy under pressure by appealing to international justice over "Nazi crimes"

(Translation)

BOCAGE INFO - Dépêche No 151/2022

2 may 2022

For Berlin, there are "too many" trials on Nazi massacres in Italy, prompting Berlin to sue Rome. For the procedure: the International Court of Justice, which has announced the opening of the litigation activated by the German government. The objective of Berlin is to stop the new claims for damages from Rome that Germany contests from our country.

The Court of Justice, it should be emphasized, has nothing to do with the International Criminal Court - also in The Hague - which we have been talking about these days. In fact, the Court is in charge of settling disputes between UN member countries and, in this case, the dispute concerns the massacres perpetrated during the German occupation of the Italian peninsula during the Second World War. The solution of the case, however, could also have repercussions in the future for similar cases, for example for the devastation caused by the Russian army in Ukraine.

The issue between Italy and Germany is thorny, also from a legal point of view. The claims that come from our country are based on the Civil Code: they concern the "reparation" of damages caused to Italian citizens by unlawful or criminal behavior carried out by "organs" or authorities of the German state at the time. Berlin counters: it argues that Rome should not continue to allow victims - or their descendants - to seek reparation from the German state, or rather, challenges Rome's continuing to do so even after an earlier Court ruling that such claims violate "international law."

This "law" invoked by Germany refers to the principle of "functional immunity" of the State, which is recognized, albeit with very specific limitations. The principle, customary and then transposed in doctrine and jurisprudence, is that acts performed by individual organs of another State in the exercise of its public functions are exempt from the jurisdiction of a foreign State. The limits, however, are there, and they would concern precisely the criminal behavior committed on the territory of another. And in Italy, the judges with their interpretation have widened the net. A first ruling of the Court intervened and the case was then settled by Italian law and finally by a ruling of the Consulta (Italian Constitutional Court).

In its appeal, Germany recalls that the Hague Court ruled in 2012, but that "Italian courts have granted a significant number of new claims against Germany." The subsequent 2014 Consulta ruling would indeed have recognized the Italian judge's "obligation" to comply with the international verdict, but would also have subjected that obligation to the protection of "fundamental rights" under Italian constitutional law, to allow victims of crimes to bring individual claims against states. At least 25 new cases were subsequently brought against Germany in Italian courts, and in at least 15 cases our judges allegedly "passed on" claims against Germany in relation to the conduct of the "Reich" during the war.

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