Compensation Without Recognition

The German-Italian dispute over civil liability for Germany’s crimes during World War II has developed into a veritable saga. This saga, however, might come to an end soon. By passing the Decree-Law of 30 April 2022, No. 36, the Italian government has temporarily blocked the distraint of properties of Germany located in Rome. Furthermore, the Decree-Law has established a fund through which the Italian government aims to definitively close the issue by paying compensation to the victims in place of Germany. Even if in the future Germany decides to contribute to those compensations, such a solution would fail to acknowledge that historical justice is not just about financial compensation. It is about listening and recognition.

The criminal prosecution of German war crimes in Italy

After just a small number of post-war trials had been held, in 1960 the Italian Military Prosecutor General, Enrico Santacroce, illegally concealed 695 files documenting Nazi-Fascist war crimes and hid them in the infamous Armoire of Shame from the public (Caroli, 70 ff.). It was only in 1994 that the Armoire was discovered by accident, leading to the reopening of hundreds of criminal proceedings. Between 2002 and 2013, the Italian Military Courts imposed around 60 life sentences on German citizens for war crimes committed in Italy during World War II (Caroli, 78 ff., De Paolis/Pezzino). With two exceptions, they were all held in absentia. Most importantly, only three of those criminals – who were living outside Germany – were then imprisoned. As for those living in Germany, while German prosecutors collaborated with the Italian authorities during the trials, in the following phase the German authorities refused to surrender the accused, mainly based on the inadmissibility of the trials in absentia in the German legal system. Despite several attempts to initiate new trials in Germany, none of the war criminals served a single day of sentence: all of them were confirmed dead in 2021.

A few months later, Marco De Paolis, the military prosecutor in those belated trials, was awarded the Bundesverdienstkreuz by the President of the Federal Republic of Germany.

Civil liability and the confrontation between the ICJ and the Italian Constitutional Court

The new judicial phase that (slowly) began after the discovery of the Armoire of Shame brought most of the German war crimes before a judge for the very first time. In this context, a new judicial issue was raised that had never come into question in the few post-war trials: the possibility to summon a foreign State (i.e. Germany) for civil liability for damages caused by international crimes. Germany’s liability was first affirmed in 2004 by the Court of Cassation in a civil trial in case of forced labour (cf. Gattini, De Sena/De Vittor). Meanwhile, after the Constitutional Court admitted the possibility for the injured party to pursue civil action in a military criminal trial by participating as parte civile, the request to summon Germany for civil liability was presented in criminal trials as well, starting in 2006 during the trial for the massacre of Civitella Val di Chiana before the Military Court of La Spezia (cf. Ciampi). After both the Italian civil and criminal courts acknowledged the admissibility to summon Germany, the political relationship between Italy and Germany became tense. In 2008, the German Chancellor Angela Merkel and the Italian Prime Minister Silvio Berlusconi agreed on a first political response: the establishment of a mixed Italian-German Historical Commission, followed by Germany’s decision to finance initiatives for the enhancement of the Italo-Germanic memory of the war (see the Atlas of the Nazi and Fascist massacres).

Meanwhile, Germany resorted to the International Court of Justice (ICJ), claiming a violation of the principle of State immunity. In 2012, the ICJ decided in favour of Germany. In 2014 the Italian Constitutional Court declared the rules of domestic law that prevented judges from holding another state liable for acts violating both international law and the fundamental rights guaranteed by the Constitution unconstitutional (ex plurimis De Santis di Nicola, Fontanelli, Meloni, Palchetti, Peters, Pin, Schilling, Tams). Yet, while the Italian courts continued to condemn Germany, those decisions could not be enforced through distraint and sale of properties of the Federal Republic of Germany located in Italy. The main obstacle for that was the international law immunity for the assets for public use, such as embassy buildings for instance (see Boggero/Oellers-Frahm, Chechi). Moreover, in order to avoid a major crisis with Germany, the Italian legislator disposed that the bank accounts of foreign States that are intended for the performance of public functions, cannot be subject to enforcement measures. Therefore, in order to block the enforcement of a decision, to Germany it was sufficient to declare that a specific property was intended for the performance of public function.

Recently, however, another attempt was made by distraining various assets in Rome owned by Germany: the German Archaeological Institute, the Goethe Institute, the German Historical Institute and the German School (Scuola Germanica). Although Germany opposed the seizure, pointing to the object’s public destination, the Court of Rome unexpectedly applied the principles of the Constitutional Court’s decision to the enforcement phase and set the hearing for the authorization of the auction on 25 May 2022. As a consequence, on 29 April Germany instituted proceedings before the ICJ and requested provisional measures.

The 2022 Decree-Law

The day after the submission of the Application to the ICJ by Germany, the Italian government issued the Decree-Law No. 36, which entered into force on 1 May. Article 43 of the Decree-Law provides for the establishment of a fund, with an endowment of 20,000,000 euros for the year 2023 and 11,808,000 euros for each of the years from 2024 to 2026; the fund serves for the compensation of the damages suffered by the victims of war crimes, crimes against humanity, and for the violation of the inviolable rights of the person, committed either on Italian territory or in any other case to the detriment of Italian citizens between 1 September 1939 and 8 May 1945. The Decree-Law sets two prerequisites for accessing the fund: 1) a final judgment for the liquidation of damages issued in a proceeding started either before the entry into force of the Decree-Law or within the next 30 days (i.e. 31 May 2022) or 2) an out of court settlement between the victim and Germany.

Another effect of the Decree-Law is to block the distraint proceedings – including the hearing on 25 May – by allowing distraints only on the basis of a final decision against Germany and not while the appeal is pending.

In the Italian legal system, the Decree-Law is an urgent legislative measure that must be converted into a Law by the Parliament within 60 days. Meanwhile, Germany withdrew its request for interim measures, while the main proceedings before the ICJ remain pending.

Is this the end?

The intent of the Italian government is clearly to close the game once and for all, inviting the victims to present their lawsuits within a very short time and then to pay compensations in place of Germany.

Nonetheless, some challenging questions remain, leading to a number of possible future scenarios (ex plurimis Gradoni, Franzina, Berrino, Boggero).

First of all, some judges might challenge the constitutionality of the Decree-Law and any following conversion law: is it permissible to establish a deadline to access the fund or does this represent a violation of the right to judicial remedy or of the principle of equality envisaged under Article 3 of the Constitution? Is this Decree-Law against international law? In fact, it is widely accepted that international crimes cannot be barred from prosecution due to the statute of limitation; but does this imply the same rule for civil actions for the damages caused by international crimes? Is this a jus cogens norm as well?

Secondly: will the Italian State actually pay compensation to the victims of German crimes in Italy or could this gesture of Italy stimulate Germany to find an economic agreement in order to contribute to this fund? (Cf. already Fontanelli). The latter case, however, would not qualify as reparation. The 2021 precedent with Namibia supports this possible outcome, with the unpleasant effect of “reinforcing the relationship between ‘saviors’ and ‘supplicants,’ where the former act pursuant to a noblesse oblige” (cf. Imani/Theurer/Kaleck).

More importantly, however, none of these possible outcomes serves justice to the claims of the victims. As the documentary Lo stato d’eccezione shows, the prosecution was extremely important for the affected communities to tell their stories before a judge. While the Nazi crimes took the form of an “absolute cancellation of the life of the polis […] What emerged from the Italian judicial experience therefore placed the national community before a request of listening […] a sort of ‘poetic-narrative retribution’” (Speranzoni, 340). The fact that all the accused – mainly responsible for killing unarmed civilians, mostly women and children, in a punitive logic against the Italian population as a whole – deliberately chose not to be physically present at the hearings – which is a legitimate choice in the Italian legal system – was a major disappointment for the victims. This was later followed by the lack of surrender of the accused precisely on the basis of their free choice not to attend. Therefore, a victims’ claim that was never about money, but mainly about listening and recognition, was turned into a claim for money because all the other roads were closed.

It is only possible to speculate on the reasons why German prosecutors have waited for the outcome of the Italian trials – since the prosecutors were well aware that those trials were held in absentia. While crimes committed in concentration camps have been prosecuted also in more recent times (at least after the Demjanjuk trial), it could be argued that prosecutors were not equally willing to prosecute war crimes and crimes against humanity. But most importantly, this saga highlights the weakness of politics, both in Italy and in Germany. When the Armoire of Shame was discovered in 1994, many of the perpetrators were still alive. Nonetheless, the Italian ruling class did not create the necessary conditions for a dealing with the judicial emergency that had arisen following the discovery of the Armoire. At the same time, the two governments did not reflect on the possible consequences of trials against dozens of German elderly men who had committed war crimes decades before and were living peacefully in freedom in another EU Country. The responsibility of this belated transitional justice experience was laid on the judiciary alone, maybe secretly confiding that the old age of the perpetrators would lead to a “natural solution” of the problem. Could this saga not have been the opportunity for a shared path of reckoning with the past – even if one would accept to give up on punishment of elderly perpetrators – with both Germany and Italy engaging in a Truth and Reconciliation Commission or another Transitional Justice mechanism? Maybe sixty years after the facts, criminal justice was not the only and the best option. It is widely known that Transitional Justice has developed many mechanisms that could have provided individual accountability of the perpetrators and given space to the victims without actually sending the perpetrators to jail. The notorious South African example comes to mind, where the state’s temporary waiver of prosecuting political crimes of the apartheid had to be completed by a voluntary acceptance of the confession-amnesty exchange procedure, which was taking place on national TV and which included the participation of the victims.

Yet, this would have required a strong political initiative of both Italy and Germany, which, however, was missing on both sides. The long saga of the civil damages once again shows that both the Italian and the German governments intervened only when urged by the activism of the judiciary. In general terms, politics refused to take responsibility for this belated transitional justice experience.

One final observation is necessary. This new judicial phase has reopened the public discussion in Italy surrounding war crimes with Italians being victims. Yet, fascist crimes and the crimes committed abroad by the Italian army against civilian populations both in the colonies and in countries like Spain, Yugoslavia, Albania, Greece (Caroli, 47), are still a taboo.