Guest Post: The Italian version of Medellin v. Texas? Or, a new hope after Kiobel?

by Giacomo Pailli

[Giacomo Pailli is a PhD in comparative law at University of Florence, Italy]

Many readers will recall the judgment of the International Court of Justice in Germany v. Italy, where the Court upheld Germany’s claim of immunity under international law vis-a-vis Italy’s exercise of jurisdiction over certain Nazi crimes that had occurred during World War II. The decision received a lot of commentary, e.g., by Ingrid Wuerth on this blog and by Paul Stephan on Lawfare. Following the decision, the Italian Corte di cassazione, which previously found that immunity could not lie when crimes of such gravity were concerned, had no choice but to bend its head (see, e.g., its decision no. 32139 of 2012, also here, and no. 4284 of 2013). The story seemed settled and closed.

On October 22, 2014, however, the Italian Corte costituzionale wrote a new and surprising chapter with its decision no. 238. Upon referral by the Tribunale di Firenze, and faced again with claims against Germany by victims of Nazi’s crimes committed during WWII, the Constitutional court found that the ICJ holding in Germany v. Italy is contrary to fundamental principles of the Italian Constitution (namely, articles 2 and 24) in that it deprives victims of crimes against humanity of the possibility, altogether, to seek justice and redress for the torts suffered. Thus, the Constitutional court found that no effect to the ICJ decision can be given in the Italian legal system; Italian jurisdiction continues to hold and the Tribunale is free to proceed with hearing the merits of the dispute.

Technically, the Constitutional court applied a long established but (to my limited knowledge) seldom used constitutional doctrine.  It declared that the two Italian laws in question, one ratifying the UN Convention on States’ Immunity of 2004 (art. 3 of the law 14 January 2013, no. 5) and the other the UN Charter (art. 1 of the law 17 August 1957, no. 848) are partially unconstitutional to the extent they would require Italy to abide by the decision of the ICJ, which would force Italy to deny its jurisdiction vis-à-vis crimes against humanity.

I should stress that, as far as the law no. 848 of 1957 is concerned, the effect of this most recent decision is expressly and surgically limited to prevent the ICJ’s holding of 3 February 2012 from having effects within the Italian legal system; otherwise, the law is left completely untouched.

5 Responses

  1. Medellin did not rule on whether the Constitution prevails as such (other cases have) and the result left Article VI, cl. 2 of the Const. in its rightful place — leaving the need for the state of Texas to implement treaty law as supreme law of the land (Art. VI. cl. 2 expressly requires such a result with respect to “all” treaties). see
    The Italian case seems to have relied on the Const. trumping alleged int’l law.

  2. Dear Jordan, thank you for your clarification – of course the title is only meant to establish an ideal connection between the Italian case and the experience of experienced readers of this blog.

    You are right, the Italian court took a Kelsenian view, according to which at the top of the hierarchy of norms there is the Constitution (the real Supreme Law of the land of Italy).
    In case of contrast between the Constitution and International law, the latter being hierarchically inferior to the former, the Constitution prevails.

    However, it is still quite impressive and surprising to see a practical application of this principle. My feeling is that the Italian court was courageous, but perhaps did not fully consider the broader implications of its decision.

  3. Actually the Italian Court did not affirm the supremacy of the constitutional right of access to justice respect to the customary rule of the State immunity, but stated that the latter, when incorporated in the italian Constitution through article 10, cannot be interpreted as preventing the access to justice for the victims of international crimes. That is why the Court rejected the first question posed by the Tribunale di Firenze about the compliance of the rule of State immunity to the Constitution.
    Such an “artifice” allowed the Court not to contend the formal supremacy of the Constitutional
    law respect to (the general rules of) international law, unlike the EU Court of Justice did in its famous Kadi judgement of 2008. In my opinion, that is the real “Kelsenian” leading case.

  4. I am surprised by the fact that the Kiobel decision is called into play.
    The effects of the decision are limited to situations affected or potentially affected by the ICJ decision. It is further worth observing that the Constitutional Court while reaching the conclusion that article 2 and 24 of the Constitution prevail over the rule of international law granting sovereign States immunity for acta jure imperii, made it clear that its reasoning was referred to war crimes and crimes committed on Italian soil (Paras 4.1 and 5 of the decision).
    This said, what relevance can we expect the decision of the Italian Constitutional Court will have for extraterritorial claims? What new hope for those disappointed by Kiobel? Sincerely I cannot imagine Italy becoming the new right forum in which claim for alien torts or even Markovic reinstate its claims in Italy.

  5. Dear Nicola, thank you for specifying what doctrine the Court used. I am more a proceduralist than a constitutional or public international law scholar, and interpreted it as a Kelsenian exercise (still, it looks a bit Kelsenian to me anyway).

    Jean Paul, my reference to Kiobel is due to the consideration that the Italian Court adds its voice to the chorus of those supporting a broader access to justice for the victims of heinous crimes, in a direction that is opposite to that taken by the US Supreme Court and well exemplified by Kiobel. In terms of global movement toward access to justice in these cases, this is an important decision.

    I surely agree that I do not see Italy as a new ATS forum, for many reasons that I would be happy to discuss with you.

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