A Plea for Legal Peace

This contribution advocates legal peace between Germany and Italy as the most sensible and appropriate way to deal with the aftermath of Sentenza 238 of the Italian Constitutional Court and its declaration of unconstitutionality of the 2012 ICJ Jurisdictional Immunities decision. This plea does not only arise from frustration with the current impasse, but also from the suspicion that the public good of legal peace has never seriously been canvassed by the Italian and German Governments. Section 2 takes stock of the legal developments relating to the dispute between Germany and Italy since Sentenza 238 was delivered in October 2014. It especially focuses on the attitudes of the Governments concerned both in the context of the ongoing proceedings before Italian courts and elsewhere. It finds such attitudes opaque and unduly dismissive of the necessity to devise legal peace in the interest of the victims and of the integrity of international law. Section 3 highlights how the behaviour of the Governments so far is at odds with the successful outcome of intergovernmental negotiations concerning reparations for World War II (WWII) crimes, a process which is still ongoing, as evidenced by the 2014 Agreement between the US and France on compensation for the French railroad deportees who were excluded from prior French reparation programmes. The US/France Agreement and all previous similar arrangements were concluded under the mounting pressure of litigation before domestic courts against the States (and/or their companies) which were responsible for unredressed WWII crimes, thus in a situation resembling the current state of the dispute between Germany and Italy. It is telling that that litigation ended when the courts took cognizance of the conclusion of intergovernmental agreements establishing fair mechanisms for compensating the plaintiffs and victims. Such practice is therefore essentially in line with the proposition that State immunity (for human rights violations) is conditional on effective alternative remedies for the victims. This and other controversial aspects of the law of State immunity – such as the nature of State immunity, the North American remedies against immunity for State sponsors of terrorism, the persistent dynamism of the relevant practice – are revisited in Section 4. The purpose is to suggest that the certainty about the law of international immunities allegedly flowing from the 2012 ICJ decision is more apparent than real and that this consideration should a fortiori urge the realization of legal peace in the Germany v Italy affair