War Crimes Ruling: Human Rights Take a Back Seat to Sovereignty

Published on Spiegel Online International, by Hans-Jürgen Schlamp, February 3, 2012.

An international court ruled on Friday that Germany cannot be held liable for paying reparations to the descendents of victims of a massacre perpetrated during World War II in Italy. The verdict has implications far beyond Nazi-era war crimes, and was welcomed by countries far and wide.

It sounds like a paradox: Germany takes Italy to court and wins — and Rome is secretly pleased with the ruling. In addition, several other governments around the world are breathing a sigh of relief on Friday. After all, had the International Court of Justice (ICJ) ruled differently, people in Afghanistan or Ethiopia, in the Balkans or in Libya, would have been able to take countries to court whose soldiers committed war crimes on their soil. It is a situation that governments everywhere wanted to avoid … //

… Plenty of Compensation?

Indeed, governments across the globe were far from distraught when Berlin decided to challenge the Italian court’s ruling at the International Court of Justice in 2008. After all, even if Germany’s property had not been confiscated in Greece and Italy, the plaintiffs had still been granted reparations.

Germany’s position was clear. On the one hand, in 1961, the country had already made a lump sum reparation payment to Italy of 40 million marks. In addition, the country founded the Foundation “Remembrance, Responsibility and Future” in 2000 in order to compensate forced laborers from Eastern Europe. Germany had agreed to further payments at peace conferences or as part of treaties with other countries. The government said it wasn’t prepared to do more. And no court has the jurisdiction to force a foreign country to pay reparations, no matter what the transgression. In short, the Italian ruling violated international rules on foreign state immunity on human rights cases.

Most legal scholars agree. “Were one to deny foreign state immunity in this and other similar cases,” wrote human rights professor Andreas Zimmermann recently in the German daily Die Tageszeitung, “then Georgian courts, for example, could pass judgement on Russian behavior during the 2008 conflict.” And vice versa. Such a situation would be untenable, say scholars.

As such, Friday’s ICJ ruling did not come as a surprise. The Italian verdict against Germany granting victims of Nazi-era crimes reparations breaches international law. Claiming property owned by the German state as collateral is likewise not allowed. Indeed, Italy, the court ruled, should never even have allowed a case to be filed against Germany by a private individual. Reparations negotiations can be engaged in by countries, but individuals have no right to file suit.

International law, in other words, has remained unchanged. And in the future, the families of Afghan, Iraqi or Ethiopian victims of human rights abuses perpetrated by foreign countries will have no more legal recourse than did the Italians and Greeks in the case decided on Friday in The Hague. (full text).

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