Comments of Italy on Germany's written reply to the questions put by Judge Cançado Trindade at the public sitting held on 16 September 2011

INTERNATIONAL COURT OF JUSTICE

JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY V. ITALY; GREECE INTERVENING)

COUR INTERNATIONALE DE JUSTICE

IMMUNITES JURIDICTIONNELLES DE L'ETAT-
(ALLEMAGNE C. ITALIE ; GRECE (INTERVENANT))

ITALY'S OBSERVATIONS ON REPLIES PROVIDED BY GERMANY

30 September-2011

Italy would call the Court's attention to the following comments relating to the answers given by

Germany to the questions posed by Judge Cançado Trindade.

A.- In answer to Judge Cançado Trindade's first question, Germany stated:

"The Court's Order of 6 July 2010 determines the relevance of the Peace Treaty of 1947
and the two 1961 Agreements between Germany and Italy for the current proceedings.
Reference is made, in particular, to paragraphs 27 and 28 of the Order. Germany has

always held the position that the question of whether reparations related to World War II
are still due or not is not the subject matter of the proceedings before the Court"

Germany then observed, in rèsponseto Judge Cançado Trindade's third question:

"ln accordance with the Court's Order of 6 July 2010, Germany has always held the
positionthat the question of whether reparations related to World War II are still due or

not is not the subject matter of the proceedings before the Court"

Italy would offer the following comment regarding the foregoing passages.

The paragraphsof the Order of 6 July 2010, cited by Germany, refer to the reasons underlying the

Court's conclusion that Italy's counter-claim feil outside the scope ratione temporis of the
Court's jurisdiction. However, this conclusion was strictly limited to the issue of the admissibility
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""· ,..~~;J.~of Italy's counter-claim. As it emerges clearly from paragraph 13 of the said Order, it does not

affect the solution of the question raised by Germany's main claim (see also Italy's Rejoinder,

paragraphs 1.1-1.3). It therefore remains for the Court to consider and evaluate Italy's arguments
on the merits of Germany's main claim. These include, in particular, the argument according to

which the violation of the obligation to make reparation for war crimes has, in the circumstances

of the instant case, specifie implications with regard to the application of the principle of

jurisdictional immunity of the State.

B.- In the Reply provided by Germany to question n. 3 by Judge Cançado Trindade it is stated

that:

"The reparations scheme which was set up for World War II was a classic inter-State

reparation scheme and was comprehensive"

This statement does not withstand doser examination. Germany has admitted, both in the written
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submissions as well as in the oral pleadings/ that reparations made with regard to Italian victims
of war crimes were only 'partial'. The 1961 indemnity agreement (the only agreement on war

crimes reparations made between Germany and Italy) provided for reparation only for victims of

persecution. Renee, the statement contained in Germany's Reply to the third question by Judge
Cançado Trindade, where it is affirmed that the reparation scheme was "comprehensive", can

hardly be accepted as accurate, in particular as far as Italian victims ofwar crimes are concemed.

Moreover, the very arguments used by Germany to explain its position make it clear that no
reparation has been made for numerous Italian victims ofwar crimes. Germany's refusai to make

such reparations was grounded on the argument (challenged by Italy in these proceedings) that it
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had been relieved ofresponsibility by the waiver clause of Article 77 of the 1947 Peace Treaty.
Italy has shown that such a waiver clause did not and could not cover war crimes reparation

clairils.

Finally, in this regard the main argument advanced by Germany to justify why Italian victims of

war crimes did not receive compensation is that, until 8 September 1943, Italy had been an ally of
Germany. However, as Italy clarified in the course of the oral proceedings, this argument is

flawed because it confuses the regime of responsibility for violations of jus ad bellum with the

1See GR, para. 33, at p. 19.
2See CR 2011/20, paras. 9-10, at p. 12-13 (Wasum-Reiner)
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See GR, para. 33, at p. 19, and CR 2011120,para. 23-, at p. 26 (Tomuschat).
4See CM paras. 5.47-5.56, at pp. 105-109, Rejoinder paras. 3.7-3.16, at pp.14-21 and CR 2011/18, paras. 4-25, at pp.

25-33 (Zappalà).
5Ult. Loc. cit.

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·-~____ :..consequences of violations of the provisions ofjus in bello, and in particular it ignores the special
regime ofresponsibility for serious breaches of international humanitarian law.

C.- Germany's response to Judge Cançado Trindade's third question

"Victims who believe they have a claim against Germany can _ïnstitute proceedings before
the German courts. The European Court of Human Rights (EéHR) bas confirmed that the
application of national and international law by the Germari courts in this regard is not

arbitrary and does not does [sic] violate Article 6, paragraph 1, of the Convention for the
Protection of Human Rights and Fundamental Freedoms, which guarantees the right of
access to justice. References to the relevant jurisprudence are provided in the submissions
of Germany."

In this regard, Italy would submit the following observation.
The fact that Italian victims had access to German courts does not mean that they were given an
effective legal avenueto obtainreparation.As has been shown in the Italian Counter-memorial (pp.

19-25), German laws - and in particular the Federal Compensation Law of 1953 - imposeda
number ofunduly restrictive requirements for Italian victims to receive compensation. Because
these restrictions, lawsuits of victims having foreign nationality were generally dismissed by
German courts. In this respect, the reference made by Germany to the jurisprudence of the
European Courtuman Rights (ECHR) is inapposite,as this jurisprudence is based on the
assumption thatConvention imposes no specifie obligation on the Contracting States to
provide redress for wrongs or damage caused prior to their ratification of the Convention"
(Associazione Nazionale Reduci dalla Prigionia dall'Internamento e dalla Guerra di Liberazione
and 275 Others v. Germany, No. 45563/04, decisionof4 September 2007, para.l). Moreover, the
cases brought against Germany by victimsich were mainly grounded on the right
to property as providedle 1 of Protocol No. 1, and the ECHR considered those cases
inadmissible because the facts at issue did not fall within the ambit ofthat rule (see Associazione

Nazionale Reduci dalla Prigionia, cit.; Sfountouris and Others v. Germany, No. 24120/06,
decision of 31 May 2011; Ernewein and Others v. Germany, No. 14849/08, decision of 12 May
2009).
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