Access to justice and its pitfalls : reparation for war crimes and the Italian constitutional court

Abstract

In spite of commendable efforts towards addressing the issue of reparation for victims of Nazi crimes during the Second World War, Judgment No. 238, which was handed down by the Italian Constitutional Court, reveals inherent limitations within its approach. The reasoning set out by this judgment is based entirely on the constitutional right of access to justice prevailing over the rule of jurisdictional immunity of the state, as interpreted by the International Court of Justice in the 2012 decision in Germany v. Italy. The historical failure to provide reparation to a whole class of victims of Nazi crimes as they were deemed to fall outside all reparation schemes agreed at the international level, demonstrates that domestic judicial remedies cannot fill this historical and legal ‘black hole’. In the end, the residual immunity from execution will most likely prevent the attachment of a foreign state’s funds necessary for adequate compensation of the victims or their successors. This article argues, on the one hand, that the road to a solution of this historical injustice lies in a negotiated settlement between Italy and Germany. On the other hand, the Italian government and parliament should fulfil their part in providing interim compensation to the victims pending such an international settlement. The Italian Republic owes a heavy debt to such victims for their contribution to the moral and political emancipation of the country from its alliance with Nazi Germany and building a new state founded on the 1947 Constitution.