Journal Article

‘The Times they are A-Changing’ — the Italian Court of Cassation Denies Germany Immunity from Execution to Allow Compensation to War Crimes’ Victims

Micaela Frulli

in Journal of International Criminal Justice

Volume 9, issue 5, pages 1129-1142
Published in print November 2011 | ISSN: 1478-1387
Published online November 2011 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqr051
‘The Times they are A-Changing’ — the Italian Court of Cassation Denies Germany Immunity from Execution to Allow Compensation to War Crimes’ Victims

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On 12 January 2011, the Italian Court of Cassation rejected an appeal brought by the Federal Republic of Germany (FRG) against the decision by the Court of Appeals of Florence to allow the exequatur of decision no. 137/97 issued by the Greek Tribunal of Leivadia granting compensation to the victims of the Distomo massacre that occurred during the Second World War. According to this decision, execution shall be granted on the basis of Article 64 of Italian Law No. 218/1995 (regulating conflict of laws), because the grant of compensation to the victims does not violate Italian ‘public order’. However, in order to reach this conclusion, grounded in private international law, the Italian Court of Cassation revisits many of the public international law arguments on which it relied upon in previous cases to deny foreign state immunity from adjudicative jurisdiction in cases concerning serious international crimes. As is well known, since the 2004 Ferrini case, the Court of Cassation delivered several rulings upholding the rules protecting fundamental rights over customary international rules providing for state immunity from the jurisdiction of foreign courts. In the decision commented upon here, the Court further elaborates this line of reasoning. The Court takes into account several arguments and addresses them as pieces of a picture that add up to only one viable conclusion: the denial of foreign state immunity. The Italian Court of Cassation dwells on the possible applicability of the tort exception, on the abuse of sovereignty theory and on the question of the hierarchical superiority of jus cogens norms over immunity rules. This article addresses the merits and pitfalls of the main arguments developed by the Court in this decision, taking into account that some of these arguments were recently discussed at length before the International Court of Justice in the Jurisdictional Immunities case by the two states involved in this dispute, the FRG and Italy. On a final note, the author sets out some tentative reflections on the unsettled relationship between state immunity and human rights.

Journal Article.  7249 words. 

Subjects: Criminal Law ; International Law

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