20 Mar Individual Compensatory Claims for WWII Atrocities in the Final Report of the Hellenic Parliamentary Committee on Reparations: Anything New Under the Sun? Part I
[Dimitrios Kourtis is a PhD cand. at the Aristotle University of Thessaloniki, Greece and former national expert to the Hellenic Parliamentary Committee on WWII Reparations. This is the first part of a two-part posting.]
As already known, between the Hellenic Republic and Germany there is a long standing and unresolved dispute regarding WWII reparations arising –among others– from individual compensatory claims [ICCs] belonging to private persons (civilians) targeted with belligerent reprisals perpetrated within the forum’s jurisdiction and by the Reich’s military forces. Some seventy years after the war, the Final Report [FR] (see the official Greek version here) of a Parliamentary Committee with a mandate to investigate–inter alia– the legal basis and substance of the said ICCs came to pass. In the present post we will try to assess the Committee’s findings regarding the legal significance of ICCs and its attempt to utilize the FR to promote a solution of the dead-end caused by the ICJ’s 2012 ruling [Part I]. Finally, we will discuss the judicial remedies proposed by the FR and their legal pertinence [Part II].
Understanding the Role of the Committee
The Inter-party Parliamentary Committee for the Vindication of German Arrears [the Committee] is considered an intra-parliamentary ad hoc ancillary organ entrusted with the examination of a serious national issue of general interest on points of history, law, and policy. The Committee was constituted on December 4, 2015 and –unlike its predecessors, the 2014 and 2015 Reparation Committees– it finally managed to submit a report on July 27, 2016. The FR is considered legally non-binding and possesses an advisory status (Article 44(2) of the Standing Orders of the Hellenic Parliament) concerning the issues addressed by the majority and the dissenting opinion. It must be noted that all further references to the FR correspond to the majority opinion.
The FR’s Contribution to ICCs’ Vindication
The importance of the Committee’s FR for the clarification of Greece’s position vis-à-vis ICCs against Germany for atrocities committed during the Axis Occupation is paramount, given that the FR is the only policy document containing legal arguments and drafted by Hellenic authorities subsequent to the delivery of ICJ’s judgment in the 2012 Jurisdictional Immunities of the State Case, to which Greece successfully intervened.
Surprisingly enough, the FR [pp. 74-75] avoids all criticism against the Hellenic Special Supreme Court’s ruling in the Margellos Case (Judgment 6/2002). The said court is entrusted with the competence to solve erga omnes major disputes on points of law between the ordinary supreme courts or their chambers. In the aforementioned judgment the Special Court upheld the jurisdictional immunity of Germany, while overriding the normative hierarchy theory adopted by the plenary session of the Areios Pagos, the Supreme Court of Civil Cassation, in its Judgment 11/2000 concerning the Distomo Case. In a likewise manner, the FR approaches quite descriptively the ICJ’s majority opinion in the Jurisdictional Immunities Case, without reference to the merits of the judgment.
However, this conspicuous silence should be taken with the proverbial grain of salt. It is fairly evident that the Committee tried to instrumentalize its FR in order to provide the other constitutional authorities (the Government and –most certainly– the Judiciary) with somewhat of a saving (or escaping) clause in order to overcome the stagnation caused by the Margellos doctrine and the ICJ’s authoritative distinction between procedural conditions, such as the jurisdictional immunity of the defendant State, and the merits of the case, even if the contested affair involves grave violations of jus cogens norms.
The Sentenza 238/2014 à la greca Proposal and Hellenic Monism
To elaborate, the majority opinion took great pains [see FR, pp. 75-76] to highlight the similarities between the Hellenic and the Italian legal order, while endorsing unconditionally the position adopted by the Constitutional Court of Italy in its celebrated Sentenza 238/2014 (nullifying as unconstitutional a municipal law binding domestic courts to follow the ICJ’s ruling in the Jurisdictional Immunities Case). The FR seems to encourage the national courts to follow in the footsteps of the Italian Constitutional Court by urging the judiciary to play a certain part in the enforcement of Germany’s obligation to provide reparation; according to the FR’s own wording [p. 76]:
[a]fter more than seventy years since the perpetration of the Nazi-fascist atrocities in our country, the need for substantive justice remains topical. […] the Hellenic legal order should […] act as an enforcement branch of the fundamental rules of the international legal order.
It is important to point out that the FR adopts a monistic and Kelsenian approach towards the relationship between international and municipal law. Although doubtlessly supportive of the (strictly dualistic) arguments of the Italian Constitutional Court, the Committee understands the vindication of ICCs through domestic judicial mechanisms as a decentralized enforcement procedure upholding fundamental international norms. Implicitly, the Committee seems to embrace the so-called ‘theory of consubstantiality’, which advocates that even if nominally the domestic tribunals assert the application of municipal law, the only thing that actually matters is whether the content of the applicable norm effectuates a solution in accordance with international law.
The FR and jus cogens beyond Treaty Law
Additionally, the FR contributes greatly to the process of clarification of the Hellenic Republic’s position on the function of peremptory norms beyond treaty law. To the author’s knowledge, the Committee’s report appears to be the only Greek authoritative statement defining peremptory norms within the context of restorative justice and mass atrocity law. To the FR [p. 74, citing the author’s expert opinion], international peremptory law, on which the ICCs are founded, consists of
substantive principles and norms, which –by their nature, position, and function– are of primary importance for the survival of the international system, while their application, possessing an overruling effect against all contrary legal acts, is so fundamental that it cannot be simply entrusted to the goodwill of the interested States.
To sum up the FR deems the relevant ICCs existent on points of law and fact, recognizes as their legal basis norms of jus cogens beyond treaty law, and promotes the idea that some kind of Sentenza 238/2014 à la greca is highly needed in order to overcome the Jurisdictional Immunities and Margellos doctrines of judicial inertia. Even so, the Committee was mandated to compose and present a ‘roadmap’, i.e. a plan for action, regarding the claims falling within its investigatory competence. These roadmap proposals will be addressed next [Part II].
Response…Well … Would the learned author care to explain how Kelsenian monism is compatible with, or even conducing to, an invitation to municipal courts to decide in defiance of a judgment of the ICJ whose decision on international law is binding, according to that monism, on them?
Dear Professor Schilling,
This is a cogent question. I will try to explain what was the point based on the majority opinion’s findings.
Why it is argued that for the majority opinion the relationship between international and domestic law is that of Kelsenian monism? Because, according to the Committee’s FR the applicable law is a unitary system with hierarchical relations between the respective norms, international & domestic; certainly, international legal rules are hierarchically superior to domestic norms, while all relevant controversies should be addressed by reference to international law’s superior status as both the ‘constitutional law’ of the nations and the supreme law of the land.
Concerning the encouragement of domestic courts to follow the Italian Constitutional Court’s example: Greece, according to the Committee’s understanding, bears no legal obligation to comply with the dispositif of the ICJ’s ruling in Jurisdictional Immunities, since it intervened as a third party (Art. 62 ICJ Statute), thus remaining a non-litigant (cf. El Salvador/Honduras: Nicaragua,  ICJ Rep. 92, 135-136, para 120). Consequently, compliance with the aforementioned ICJ judgment is –strictly speaking– not considered an incumbent obligation of the State in question.
Even so, we may argue (on cogent reason) that the legal issue resolved by the ICJ in its 2012 ruling (the relationship between sovereign immunity as a procedural requirement and violations of jus cogens norms pertaining to the merits of the case) touches upon legal obligations stemming from other sources (customary in their nature), thus binding Greece, regardless of its third party intervention and the inapplicability of the res judicata rule (viz. Arts. 59 ICJ Statute & 94(1) UN Charter). As a result (or so the argument goes) if the Committee had been a devotee of Kelsenian monism, then these obligations would have been respected in its FR. Let us address this argument in further detail: The Committee understands domestic law as an instrument of international law’s enforcement (and this is also a Kelsenian-monistic approach). However, it considers that international peremptory norms (among them, certain fundamental human rights, such as the right to an effective remedy) impose positive obligations to the interested State, namely to grant an effective remedy to victims of mass atrocities. These obligations can -inter alia- be enforced through domestic law and/or via the national courts. This option is open (or so the FR argues) not because… Read more »
Concerning the conflict between the said obligation and the obligation to respect sovereign immunities of the defendant State, the Committee seems to accept the primacy of fundamental human rights. Given the fact that there is not a general obligation to regard ICJ as the ‘constitutional court’ or the ‘court of final appeal’ of the world at large, the monistic view cannot be altered simply when a State organ disagrees with some of the ICJ’s conclusions. These are the grounds for submitting that the FR’s position seemingly accepts a Kelsenian and monistic approach on the relations between the international and the domestic sphere. Even so, the FR advocates for a different (compared to the one adopted by the ICJ) taxonomy in the hierarchical order, where fundamental rights (given the fact that the FRG seems unwilling to open diplomatic negotiations, as indirectly proposed by the ICJ in its 2012 judgment), especially the right to an effective remedy, should not be rendered meaningless, while the victims of past atrocities should –at least– be granted the opportunity to present the merits of their claim. For my own critique to the FR’s arguments and proposals (and on whether it’s possible to overcome the fact that… Read more »