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IL RISARCIMENTO DA GUERRA: L’IMMUNITÀ DALLA GIURISDIZIONE CIVILE NELLE CONTROVERSIE SULLE COMPENSAZIONI TRA GERMANIA E ITALIA DEL DANNO

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Public canonical key

radar:r-a3f2c5da729cd4543cfdbbdcdd04864a

Authors

Guella, Elena

Reported year

2025

Reported language

it

Source type

Text

First detected

2026-11-13T08:39:02.163951+00:00

Last metadata observation

2026-11-13T08:39:02.163951+00:00

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Institutions reported by the source

Universität Bremen

Documentary abstract — original language

This doctoral thesis examines the dispute between Italy and Germany concerning the jurisprudential trend initiated by the Italian Supreme Court in 2004; a new orientation that has allowed for the civil adjudication of war damages suffered by private individuals during the Second World War, resulting in the finding of liability – according to the categories of civil tort law – of the occupying State. However, damages caused during military operations are characterized by evident peculiarities, and their legal regime has therefore traditionally been delineated on the basis of special rules (generally defined at the level of public international law, in peace treaties or in agreements that put an end to open conflicts). Nevertheless, this type of damage remains, in its structure, a case of “unjust” loss that can be ascribed to the broader theme of “unjust” injury, violating the general principle of neminem laedere; the aggrieved parties are affected in their person or their property by harmful actions etiologically ascribable to the foreign State, which acted through its armed forces, and all the objective elements of liability are present. Instead, it is by the choice of national legal systems that redress is traditionally provided by means of indemnities, established by special rules of public law by which both the classes of beneficiaries and the amount due are identified. As a result of negotiations between States in peace agreements, or by the unilateral decision of the State (by means of instruments of voluntary compliance), war damage compensation may be less satisfactory than civil law remedy. In fact, it is possible that some classes of injured persons are not compensated at all (because, for example, the redress of their losses is not considered a priority for national reconstruction, as is the case for property damage not related to productive or residential assets) or that the amount of compensation does not correspond to the amount of damage actually suffered (because of the need to contain public expenditure, which is insufficient to cover the considerable damage that a war event brings without binding the defeated State to very long-term reparation plans, which would themselves constitute an element of instability in international relations). Faced with this context, legal systems – both international and national – have consistently accepted a sacrifice of the interests of injured citizens, who have yielded in the balancing against the political needs of reconciliation; a balancing transparently defined by the instruments of international public law and domestic public law, which set rules and limits for the compensation of war damage. This balancing, however, has at times faced a crisis when applied to peculiar categories of war damage, i.e. when the harmful event was connected not to the activity of armed forces in accordance with the ius ad bellum and the ius in bello, but to gross violations of humanitarian law and human rights. In this context, the demand for civil protection has re-emerged for the actual redress of the individual’s losses; this, in particular, due to the peculiarity of war damage to the person (but sometimes also to property) that can be considered a civil consequence of international crimes, and as a consequence of the – occasional, but systemic – failure to compensate precisely these classes of injured parties through ad hoc indemnities based on rules of public law. From 2004 to 2023, the Italian legal system was engaged – at the level of the legislation so as at the level of ordinary and constitutional levels – in searching for innovative solutions to meet the demand for justice by the victims of deportations and arbitrary killings by occupying German troops during the Second World War, where the claims of these victims were not already redressed otherwise (through the indemnities that had been repeatedly provided over the years). The Peace Treaty, together with other international agreements and subsequent specific national legislation, had in fact provided for both reparations between States and compensation for individuals. First, transfers of resources from Germany to Italy had been arranged as compensation for war damage, with which resources the Italian Republic then made its own indemnification choices; at the same time, however, Italy provided – in favour of Germany – a waiver of further claims, not only in its own right in relations between States, but also for claims arising from its own citizens as individuals. Second, the German legal system also intervened after reunification with additional funds, aimed not only at compensating individuals (with mechanisms governed by German public law) but also at implementing other reconciliation policies. Nevertheless, this framework of special measures left some deportees unprotected (military internees not officially qualified as prisoners of war) and some victims (who often died on Italian territory rather than in concentration camps, or as part of isolated episodes rather than collective exterminations). Starting from the observation of this lack of remedy, since 2004 a new trend has emerged in Italian case law, aimed at exploring the possibility of providing – to those who have not benefited from any other remedy – protection through the ordinary forms of civil law. In this sense, war damage has once again become – as is the nature of any fact objectively qualifiable as damage – an object of interest for the civil legal system, and no longer merely a matter of public international law. In other words, we have witnessed an attempt to “civilise” the treatment of these particular war damages, when they are so serious as to be linked to crimes against humanity, and provided that – despite their seriousness – they have escaped the political choices that defined public remedy mechanisms. It should also be noted that this new tendency in Italian jurisprudence does not represent an absolute novelty in the comparative panorama but is linked to the experiences of so-called Holocaust litigation developed in the US legal system (where, however, case law was subsequently cautious in taking this re-expansion of general civil protections to its extreme consequences). On the other hand, such an orientation – precisely because of its innovativeness, and because it created tension with other principles (such as respect for State sovereignty, in the form of immunity) – sparked a vigorous debate on the subject, giving rise to a long evolution of procedural solutions. This debate did not remain at an academic level, but developed into judicial orientations confirming the Italian leading case of 2004, which was subsequently challenged by Germany before the International Court of Justice; a claim decided against Italy, setting a precedent that seemed to have put an end to this attempt at direct actionability of individuals’ claims against the occupying State. In fact, the (evolutionary) orientations of the Italian courts of merit, and the (conservative) trend taken by the international Court instead, have started a path of extreme interest for both constitutional and private law profiles. If the Italian legislature in 2013 sought to accept the position of the International Court of Justice by adhering to the UN Convention consolidating customary immunity (and by introducing special measures designed to stop pending trials and enforceable titles already formed against Germany), on the other hand, the Constitutional Court in 2014 opted to uphold the attempt of the Italian civil courts to challenge the prevalence of immunity over the need to protect the rights of the injured parties (which, as victims in the context of a violation of human rights and humanitarian law, are also particularly qualified under international ius cogens). The Italian Constitutional Court has thus reopened the question of the possibility for war-damaged individuals (or rather, for qualified classes of victims) to pursue civil litigation for compensation, consequently creating a situation of objective tension with the international legal system (which is prevented, in this single regard, from entering the Italian legal system). To provide a solution to this decisive outcome, the Italian legislator has recently intervened by authorising the “civilisation” of remedies for war victims not previously compensated through public mechanisms, but subject to a strict statute of limitations for the action to ascertain the damage (which had previously been argued to be imprescriptible). Moreover, in the balance between the need to protect the human rights of the injured party and the respect for foreign sovereignty (which cannot be subjected to judicial action outside its forum for acts iure imperii), the legislator chose to replace civil coercive enforcement against the debtor’s assets, with an indemnity (charged to the budget of the Italian Republic). In this way, the Italian legal system holds Germany harmless from consequences exceeding the amount of the reparations established in previous international agreements, but at the same time in no way sacrifices the entitlement of the private individuals (who are granted the full amount already ascertained by the courts). The Constitutional Court has upheld this last solution, representing a partial civilisation of the mechanism of protection for “qualified” and not previously compensated war damages, which combines different needs through a sort of atypical expromission – of a public nature – whereby Italy acts as guarantor for the debtor (Germany). The entire affair has left behind a new and complex experience, with multiple impacts on the general categories of constitutional and public international law, and – as regards the interests in light of the true object of the claims – on the institutions of national civil law and private international law. It is an event that demonstrates once again how civil law represents the heart of the legal system, with a re-expansive capacity to fill the voids left unprotected by the legal system; a capacity to be a residual rule that demonstrates its nature as a body of law designed for the granular protection of the individual, even where the special instruments of public law fail or prove deficient.

Identifiers

DOI

10.26092/elib/6450

Documentary context

Documentary family

unknown

Source-reported types

Text

Publishers

"Staats- und Universitätsbibliothek (SuUB) Bremen"

Entity mentions are not evidence of legal recognition. Jurisdiction studied is separate from author affiliation country.

Sources

DataCite · Record 1

• Document · https://media.suub.uni-bremen.de/handle/elib/25380

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