Un difficile dialogo tra Corte internazionale di giustizia e Corte costituzione

This article comments on the decision of the Italian Constitutional Court, No. 238 of 2014, which barred the enforcement in Italy of the 2012 judgement of the International Court of Justice in the Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) case, ordering Italy to ensure that domestic courts do not allow lawsuits against Germany based on claims for damages for the Nazi crimes committed during World War II. To that end, not only did the Italian Court find the Italian legislation enforcing the ICJ decision unconstitutional, but it also applied the same assessment with regard to Art. 94, para. 1, of the UN Charter, for the same purpose. The Constitutional Court argued that the recognition of sovereign immunity in the case in hand would conflict with the fundamental right to a fair trial as enshrined in Art. 24 of the Italian Constitution. It is here maintained that in so deciding the Court fell short of an appropriate balance between the right to a fair trial and compliance with international law, also required under the Constitution. It is lamented that the Court has not given due importance to the possibility for it to require from the executive action aimed at meeting the right to access to justice by equivalent means, including indemnification procedures, possibly after the pursuit with Germany of an agreement to that effect. The internationally wrongful character of the judgment in hand is here emphasized – including the undermining of the principle of legality in international relations – together with its short and long term negative impact on Italian foreign policy interests. Finally, while statutes of limitations may not apply to crimes of war and crimes against humanity, the question is raised as to whether the same should apply – and if so, for how long – to civil claims for damages thereto against the State of nationality in cases of joint and several responsibility.