Comments of Germany on Italy's written reply to the question put by Judge Simma
and on Greece's written reply to the question put by Judge Cançado Trindade
at the public sitting held on 16 September

Observations of Germany concerning Italy's response to the question asked by Judge Simma

Germany makes the following observations with regard to Italy's response to the question asked by

Judge Simma:

Italy's response confirms that only in 2000, a:fter the establishment by Germany of an ex gratia
compensation scht:;rnefor former civilian forced labourers, did Italy request that Italian rnilitary

internees be included in this ex gratia scheme. The Italian demarches from the year 2000 and

thereafter were limited to this groupof former Italian rnilitary internees. The issue of reparations was
i
not affected. No reference was made to victims of massacres.

For the period i~4 7o 1961 Italy ·refers in general terms to the two 1961 Agreements and to a
Memorandum of the German Government to the German Parliament. The two Agreements regulated

in a final manner specifie property-related, economie and fmancial questions on the one hand, and

compensation for Italian nationals subjected to National Socialist measures of persecution on the

other, and provided for ex gratia lump sum payments to Italy. The two Agreements were without

prejudice to the general waiver clause of Article 77 of the Peace Treaty. At the time, Italy held the
view that the reparations chapter was closed. Thisis confirmed byitaly's subsequent ratification of the

London Agreement on German External Debts. Article 5, paragraph 4 of that Agreement stipulates

that claims against Germany by former Allies of the German Reich shaH be dealt with in accordance

with the provisions made in the relevant treaties. For Italy this was an endorsement of the waiver

clause in Article 77 of the Peace Treaty. Italy has accordingly not made any representations

concerning allegedly outstanding reparations.

The explanatory Memorandum of the German Government referred to by Italy and quoted in

paragraph 5.56 of Italy's Counter-Memorial (at p. 109) only clarifies that the waiver clause of the

Peace Treaty does not constitute a prohibition for Germany to make ex gratia payments on the basis of

the relevant German domestic legislation, i.e. the Federal Compensation Act
(Bundesentschadigungsgesetz) and the Federal Restitution Act (Bundesrückerstattungsgesetz). It

cannat be interpreted as undermining the Peace Treaty's waiver clause by entering into a new

international obligation towards Italy.

In her concluding remarks Italy argues that diplomatie inaction and the lapse oftime were irrelevant

since "war.crimes .aren<?tsubject to any statute of limitations, either within national legal arder or at
the internationaleve!" (paragraph 21). It is interesting to note that this assertion is not supported by

the decisions of the Italian courts. On the contrary, Italian courts have, in a number ofjudgements that

disregarded Germany's state immunity, dismissed actions brought by Italian former military internees

precisely because the limitation period under Italian law had already expired.Observations of Germany concerning Greece's response to the .question asked by Judge
Cançado Trindade

Germany makes the following observations with regard to Greece's response to the question asked by

Judge Cançado Trindade:

Article 100 paragraph 1 of the Greek Constitution stipulates:

"A Special Supreme Court shaH be established, the jurisdiction 9fwhich shaH comprise:

f)The settlement of controversies related to the designation of rules of International Law
as genera ~ccypted ..."

Article 54 paragraph 1 of Greek Law No. 345/1976 regarding the Special Supreme Court, promulgated

on 9 June 1976, reads as follows:

"The judgment ofthe Special Supreme Court will apply to ali."

With regard to this provision the Special Supreme Court has stated in its ruling of 8 October 2003

(case 13/2003):

"...Furthermore, according to Article 54 paragraph 1 of the Law regarding the Special
Supreme Court, the judgment of the Court settling disputes on characterising rules of

International Law as generally accepted "will apply to ali". According to the meaning of

this provision, the judgment of the Special Supreme Court, which settles disputes on

characterising concrete rulesof International Law as generally accepted and the relevant

finding,is binding upon not only the court which referred the case to the Special Supreme

Court or the parties, which filed the respective motion, but also upon any court or organ

which bas to deal with the same legal question, that is the dispute, whether, at the same

stage of evolution of International Law, the same rules cau be characterised as generally

accepted (see Special Supreme Court 46/1991).... "

Since the Special Supreme Court's decision of 17 September 2002 in the case 6/2002 ("Margelles")

no Greek court has issued a judgment disregarding Germany's state immunity for actsjure imperii

during World War II and no measures of execution in the Distomo case have been taken. In its

judgments 1857/2007 of 1 October 2007 and 853/2009 of 6 April 2009 the Areios Pages followed the

jurisprudence of the Special Supreme Court according to which the rule of jurisdictional immunity

stands unaffected even in cases the subject matter of which are allegations of serious violations of

international humanitarian law.