The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case Relating to the Second World War

摘要

On 21 October 2008, the Italian Court of Cassation affirmed that Italian courts have jurisdiction over claims for compensation against the Federal Republic of Germany (FRG) brought by victims of war crimes and crimes against humanity committed during Germany's occupation of Italy in the Second World War (WWII). A former member of the Hermann Göring Division, Max Josef Milde, has been convicted and sentenced to life imprisonment in the same proceedings. The Court took the view that when a conflict arises between the customary rule of state immunity from foreign courts and the principle of protection of fundamental human rights, the latter must prevail. According to the Court, this includes the victims’ judicially enforceable right to seek reparation. The author discusses the specificities of the Civitella case and the implications of the Court's reasoning for this, as for future cases. She argues that, notwithstanding the Italian Government's initial reaction and the institution by Germany of proceedings before the International Court of Justice (ICJ), the Court's ruling represents a welcome development.