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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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Making Peace with the Past

Making Peace with the Past

The Federal Republic of Germany’s Accountability for World War II Massacres Before the Italian Supreme Court: The Civitella Case

Chapter:
(p.215) 10 Making Peace with the Past
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Duramy Benedetta Faedi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0010

Abstract and Keywords

The German army terrorized several Italian villages and cities between 1943 and 1945. Some of these involved retaliations against partisan attacks, whiles others were part of a war against civilians that aimed at intimidating and terrorizing the entire population. This chapter examines the untold story of the massacres of Civitella, Cornea, and San Pancrazio based on the testimonies of survivors and the relatives of the victims. It also analyses the war crimes trial before both the Italian Military Court of La Spezia and the Italian Supreme Court.

Keywords:   Civitella, Cornea, San Pancrazio, war crimes trial, Italian Military Court of La Spezia

(I) Introduction

During World War II, the Hermann Göring Division settled in Civitella in Val di Chiana, a small village in Tuscany. Partisan groups also surrounded the area. On 18 June 1944, four German soldiers went to Civitella’s town centre for a drink. Among the other customers were some Italian partisans who suddenly opened fire on the soldiers. Two soldiers died instantly, while a third died later. The German command threatened retaliation against the local population within twenty-four hours if they did not reveal the names of the partisans. Most of the inhabitants of Civitella and the nearby villages of Cornea and San Pancrazio hastily left their homes, fearing reprisals.

On 19 June, Wilhelm Schmalz, chief of the German command, invited civilians to return to their houses, assuring them that no retaliation would follow. However, on 29 June—the Saint Peter and Paul public holiday—three German squadrons suddenly stormed the crowded Civitella church, attacking the worshippers who had come from the nearby countryside to attend Mass. The death toll reached 244 civilians, including many women and children.

The massacres of Civitella, Cornea and San Pancrazio were forgotten until 10 October 2006, when the Italian Military Court of La Spezia convicted Max Josef Milde, a sergeant from the Hermann Göring Division, for his role in the massacre. Two years later, in October 2008, the Italian Supreme Court ruled that the Federal Republic of Germany had to pay one million dollars in reparations to the families of the victims.

(p.216) This chapter examines the untold story of the Civitella, Cornea and San Pancrazio massacres as revealed in the testimony of survivors and the relatives of the victims. The chapter also provides a detailed analysis of the much-anticipated war crimes trial before both the Italian Military Court of La Spezia and the Italian Supreme Court.

(II) Italian Massacres at the end of World War II

Between 1943 and 1945 several Italian villages and cities suffered massacres at the hands of the German army. Some of these were ruthless retaliations against partisan attacks, whiles others were part of a war against civilians that aimed at intimidating and terrorizing the entire population.1 Slaughters were often carried out using a specific method. German soldiers would arrive at the villages very early in the morning, burst into the houses, drag all the men out of their beds, and then shoot them one by one in the main square.2 In many cases, the true reason for the massacre was not always clear, leaving survivors haunted by the search for meaning and someone specific to blame.

According to several studies on the memories of Italian wartime massacres, the victims’ families often identified local partisans as scapegoats.3 Indeed, well known by the local community because of their renowned resistance to the fascist regime, partisans were best suited to being placed in the scapegoat role. For example, Contini reported that the son of one of the victims of the Civitella massacre declared: ‘I can never forgive the partisans who have determined the massacre, but if I got to see the German who killed my father, I would forgive him today’.4 Although in some cases massacres were carried out in response to the partisans’ killing of German soldiers, in many other incidents the slaughter of civilians, including women and children, was not preceded by any partisan attacks.

Some historical circumstances may explain the cause of Italian wartime massacres. By the summer of 1943, the coalition of Germany, Italy and Japan was confronting the prospect of defeat.5 Following the landing of British and American troops in Sicily in September 1943, Italy decided to break its military alliance with Germany. The Italian capitulation was viewed as an act of betrayal by the German army, thus fostering the idea that all Italians, both disarmed soldiers and civilians, were traitors to Germany.6 Explicit orders demanded and approved retaliatory measures against civilians that engendered a series of massacres throughout Tuscany and in Rome.

(p.217) In particular, in the case of Civitella, the German action was likely motivated by the strategic location of the village.7 Indeed, by the late spring of 1944, Allied troops were advancing through the valleys surrounding Civitella toward Rome, which they liberated on 4 June. Breaking through the German defences in the area thus became strategically important for the Allied march. As it turned out, the hills around Civitella endured numerous confrontations between the British and the German forces during the first two weeks of June. Such historical analysis may thus explain the ruthless reprisals of the German army toward the population of Civitella and the nearby villages and farms.

(III) The Massacre of Civitella

After the massacre itself, survivors reported that they were so terrified that they decided to hide themselves in the forests nearby to avoid German retaliation. One witness to the massacre reported:

[M]‌y brother in law...informed us that the partisans had killed two Germans and seriously wounded another…Terrified about the consequences, we took a few belongings and, in a heavy rainfall, we used a ladder to get out over the city walls. Many other people from Civitella were with us. Through the woods, we arrived at the house of a farmer and we stayed there for five days in great anxiety. Later people told us that the two nearby command posts had said that we could return without fear and we did so.8

Indeed, on 19 June, Wilhelm Schmalz, chief of the German command, issued his invitation. Many townspeople did not believe him and decided to stay away from their houses for a few days. After several days had passed without any retaliatory actions from the Germans, on 29 June—the Saint Peter and Paul public holiday—the population finally returned to their towns to celebrate the feast day and go to church.

At that point, the Göring Division surrounded the village and advanced through the town gates. Moving from house to house, the German soldiers broke down doors and opened fire on the men as they leaped from their beds. The widow of one of the victims of the massacre recalled:

On the morning of 29 June 1944, I was home dressing my youngest daughter to take her to mass. My two other children had already left for church and my husband had gone to get mushrooms in the woods. Around 7 o’clock I thought I heard gunshots. I went to the door with my little daughter to see what was going on. I saw the villagers horrified, running from all sides shouting: ‘The Germans are killing all the men!’.9

(p.218) Survivors reported that the German soldiers primarily targeted the men. Some of them were brutally massacred on their doorsteps in front of their families. After killing all the townsmen they could find, the soldiers looted and burned their houses. A survivor remembered:

The Germans banged on the door enough to break it down. I summoned up my courage and went to open the door. My husband had stayed in the bedroom with the children. When I opened the door, there were four Germans armed with rifles and grenades on the threshold. Two of them came into the kitchen and the other two went upstairs. I said to them: ‘Don’t go up. Sick child. You frighten.’ They answered ‘Child, no!’ A moment later I heard two shots…When I got to the bedroom, I saw that they had aimed at my husband’s head and that he was taking his last breath. My son was already dead. They had killed him with a bullet in the head. My God! Where did I find my strength! I took a handkerchief and wiped his face where the wound was. I called him several times, but he showed no sign of life. I didn’t know if I was dreaming or if it was true. I opened the window of my bedroom and started calling for help but people were running around madly and no one was listening to me. When I realised that flames were rising from the floor below I did not know what to do. I was no longer conscious of anything…I remember that two women passing by told me: ‘Get out! Your house is on fire!’10

A widow of one of the victims of the massacre also recalled the torment of that morning:

[T]‌he terror began. Shots, bursts of machine gun fire, wild shouting, pounding on doors. And we three, there, completely terrorised, hugging one another until the moment we heard someone climb the stairs…and so my husband said: ‘This time, it’s our turn. Who knows what they will do to us?’ At that moment, our bedroom was entered by a man—a demon—I couldn’t say which—covered from head to toe with grenades, and ammunition, and a rifle in his hand. Frightening to see! He signalled my husband to get up. Then I went up to him and begged him to leave my husband alone. I told him he was sick and couldn’t get up. I asked him if he had a heart inside him, to have pity on me and my child whose father he wanted to take away. I asked him if he had a mother and whether he remembered her now. But neither my begging nor my tears had any effect. He started to shout ‘Raus! Raus!’, howling so violently and savagely that I still hear it in my ears. Then my husband said to me: ‘Give me my clothes, you see there’s nothing to be done.’ He was so upset and so pale that he couldn’t even get dressed…Finally, I had to help my husband so he could go out and get killed.11

When they reached the main square, the three German squadrons suddenly stormed the crowded Civitella church, attacking the worshippers who had come from the nearby countryside to attend Mass.12 A widow of one of the victims recalled:

[W]‌hen the mass was over, our priest turned toward the parishioners and said, ‘My children, I think that this morning is going to be a bad morning. Give them whatever they ask of (p.219) you so that nothing may happen. Courage!’ Then the church filled with Germans. Germans stationed themselves behind the priest. Papa, Mama, myself and others hid behind an altar where we considered ourselves safe. But a German came, saw us, and told us to get out. Outside, people were yelling and many were already dead and the houses were starting to blaze. I placed myself between Papa and Mama, begging for mercy, my hands raised. They brought us to the middle of the square and Papa could no longer stand up…The square was filled with machine gunfire, flames were already coming out of the houses, dead bodies were lying in the streets.13

Sparing women and children, the German soldiers lined up all the men, including the parish priest—who cried out in vain: ‘Kill me, but save the lives of my people’14—and shot them to death. Survivors reported that, after the slaughter, the Germans hid the bodies inside the houses and then burned all of the dwellings. In the end, the town of Civitella was completely destroyed.

Meanwhile, most of the women and children hastily left town, headed toward the nearby village of Poggiali, where some of them found shelter in the orphanage. Others took refuge with relatives or friends in the surrounding countryside. Following the slaughter in Civitella, the German squadrons moved aggressively into the surrounding villages of Burrone, Cornia, Gebbia, and San Pancrazio.15 As was the case in Civitella, the German soldiers spared women and children in Gebbia and San Pancrazio, but killed all the men by shooting them in the head. In Cornia, by contrast, the action devolved into a wild massacre, with women and children being murdered along with the men. Ultimately, the death toll in the massacres reached approximately over 250 civilians.16

Over the following days, some women returned to Civitella to recover and bury the bodies of their loved ones. They remembered being ‘among women alone’ and ‘giving each other a helping hand’.17 One of them reported: ‘I don’t know how we had enough strength, we women, to do what we did; we transported our dead to the church all cooperating and helping one another.’18 Another of the widows recalled:

It was I, his wife, who made him his coffin and when his coffin was made as best as possible we took a cart on which we placed my husband and two other men and we took them to the cemetery where I dug his grave myself.19

During the following years, Civitella became a ghost town, primarily inhabited by women who had lost their men in the tragedy and orphaned children.20 Having (p.220) the disadvantage of being a hill town, with no skilled men left and all the women traumatized by the death and war, Civitella faced a long period of economic struggle. Survivors reported that, initially, everybody wanted to leave the town and start their lives again somewhere else. Eventually, thanks to the women’s resilience, Civitella was rebuilt. Nevertheless, the massacre left behind deep scars in the collective memory. People continued to remember the atrocities by sharing events that they had witnessed or accounts that others had experienced with one another.21 By engaging continuously in a struggle against forgetting, survivors attempted to overcome the past and helped build a living memory of the traumatic events.

Local remembrance began to develop on 16 July 1944, when American and British troops finally liberated Civitella.22 After the German ravages and the Allied bombardments, the town was a pile of ruins and burned dwellings. Arriving at the scene, an English military commission began a special investigation into the causes of the massacre.23 Hundreds of surviving witness testimonies were compiled into a massive dossier of inquiry, which was sent to Rome but promptly disregarded by the transitional government. Some of the surviving widows’ accounts were published in 1946 in Florence by the novelist Romano Bilenchi and others were published later in France.24 In contrast, efforts to reconstruct the German side of the massacre failed due to the lack of records and documentation of the events, as well as the lack of testimony from the perpetrators.25

(IV) Accountability for the Massacre of Civitella before the Italian Supreme Court

Aside from a few historians’ analyses and some commemorative monuments, the massacres of Civitella, Cornea and San Pancrazio, as well as their victims, have been forgotten for decades.26 Only on 10 October 2006, did the Italian Military Court of La Spezia convict Max Josef Milde, a sergeant from the Hermann Göring Division, for his role in the massacre and sentence him to life imprisonment.27 In the same ruling, the court also upheld the petitions for compensation for material and moral damages28 as well as the legal expenses filed by the relatives of the victims, who had intervened in the criminal trial as a civil party.29 In so doing, the Military (p.221) Court of La Spezia held that the defendant and the Federal Republic of Germany were jointly and severally liable to pay reparations of about one million euros to the victims of the massacre.

According to Italian criminal procedure, civil claims can be brought within a criminal proceeding if the victim of the crime or any of the successors thereof asks for restitution in their capacity as a civil party. The eventual obligation to compensate the victims rests with the defendant and any other person the court might hold civilly accountable for the damage caused by the crime. Both the defendant and the person held civilly responsible are liable for paying the full amount, including material and moral damages as well as any legal expenses. The victim of the crime and any successors thereof may recover all the damages from either of them in accordance with the principle of joint and several liability.

Following the decision of the Military Court of La Spezia, the Federal Republic of Germany objected to the judgment on the grounds that it violated the international commitments undertaken by Italy under the Peace Treaty of 1947 and the Bonn agreements between Germany and Italy of 1961, as well as the ‘jurisdictional immunity of Germany as a sovereign state’.30 On 18 December 2007, the Italian Military Court of Appeal confirmed the previous decision, thus holding the Federal Republic of Germany and the defendant Max Joseph Milde jointly and severally liable to pay reparations to the victims of the massacre.31 Finally, on 21 October 2008, the Italian Court of Cassation (as the court of last instance) rejected the appeal filed by the Federal Republic of Germany against the decision of the Military Court of Appeal, providing inter alia a pivotal interpretation of the principle of state immunity.32

It should be noted that the Civitella case is the first Italian case involving a civil action against a foreign state and its officials within a criminal proceeding.33 In a previous case, the applicant, Luigi Ferrini, an Italian citizen who was captured by German troops near Arezzo and deported to a German slave labour camp in 1944, brought civil claims against the Federal Republic of Germany requesting compensation for physical and psychological harm due to inhumane treatment and forced labour.34 However, Ferrini petitioned for restitution against the Federal Republic of Germany in a civil proceeding, rather than bringing a civil claim within a criminal trial. In the Civitella case, the victims of the massacre as civil parties specifically initiated a civil action for restitution against both the defendant and the Federal Republic of Germany within the context of a criminal prosecution of the wrongdoers.

(p.222) (V) The Italian Supreme Court’s Notion of the Principle of State Immunity

In the Civitella case, the Italian Supreme Court faced the question of whether the customary norm of international law that acknowledges the jurisdictional immunity of states for acts committed in the exercise of their sovereignty should also be applied in the event of conduct that amounts to an international crime.35 The traditional position of the Italian courts recognized the customary international law principle of ‘restrictive and relative immunity’, meaning that foreign states are exempted from civil jurisdiction with respect to acts committed in the exercise of their state sovereignty (iure imperii acts), but not with respect to acts carried out by the state in a private capacity, independent of its sovereign power (iure gestionis or iure privatorum acts).36

This traditional position on the doctrine of state immunity had already been overturned by the Italian Supreme Court in the Ferrini judgment (no 5044 of 11 March 2004).37 In that case, the Civil Plenary Session of the Court held that the principle of restrictive immunity should be subject to limitation in the event that state conduct, even if related to the exercise of sovereign powers (such as those performed in the course of war operations), constitutes such a serious violation of human freedom and dignity that it qualifies as an international crime. Indeed, the Court acknowledged that the protection of human rights is a fundamental principle of international law, thus decreasing the significance of other principles, including the recognition of state immunity from any foreign civil jurisdiction. Therefore, the customary norm of international law that obligates states to abstain from exercising their jurisdictional power over foreign states is not absolute, insofar as it does not grant them total immunity from civil jurisdiction in the case of serious violations of universal values and fundamental human rights norms.38

Based on that reasoning, the Italian Supreme Court overturned the decisions of both the Tribunal of Arezzo and the Court of Appeal in Florence, which had dismissed Ferrini’s petition on the ground that Italian courts had no jurisdiction over acts committed by foreign states in the exercise of their sovereign authority.39 The Court went on to acknowledge Italian jurisdiction with respect to the civil (p.223) claims brought against the Federal Republic of Germany by Ferrini, holding that Ferrini’s deportation and subjugation to forced labour should be considered war crimes under international law.40

In addition to mentioning the Ferrini precedent in its reasoning in the Civitella case, the Italian Supreme Court referred to other rulings that confirmed the pivotal juncture marked by Ferrini itself.41 In particular, the Supreme Court made reference to its own ruling in the Lozano case, which held that servicemen who commit war crimes amounting to severe breaches of international humanitarian law while performing official duties cannot enjoy functional immunity from foreign criminal courts.42 The Court thus concluded that a sufficiently unambiguous trend has emerged in the previous years, one that excluded the immunity of foreign states from civil jurisdiction with respect to international crimes.43 The Court expressed its full support for this hermeneutical position, holding that the customary principle of jurisdictional immunity of states is not absolute, and does not apply in cases of conflict with the principle of customary international law that permits judicial remedies for damages caused by international crimes arising from serious breaches of human rights.44

The Federal Republic of Germany objected to this conclusion, arguing that, according to various rulings of numerous national supreme courts, the principle of state immunity from civil jurisdiction was an absolute value that could not be subject to any limitation, including in the case of international crimes. In its view, the Italian Supreme Court’s position on the doctrine of state immunity under the Ferrini decision and subsequent rulings did not conform to international practice and did not comply with the international norm effectively in force among states.45 In response, the Court insisted that it had already conducted an accurate analysis of foreign courts’ decisions, both those upholding the principle of state immunity and those where courts held that the principle of jurisdictional immunity could not paralyse the exercise of judicial remedies for international crimes arising from the violation of fundamental human rights.46

The Italian Supreme Court also emphasized that the solution to the issue could not be found merely through a quantitative analysis, nor could it depend solely on tallying the number of decisions that support one position or the other. The examination of foreign states’ case law, it acknowledged, is indeed an important tool for ascertaining the effectiveness of customary norms of international law. Nevertheless, (p.224) the Court pointed out that the function of the interpreter cannot be reduced to an arithmetic calculation of data obtained from international practice. Instead the interpreter must grapple with verifying the real existence of customs and norms, their qualitative consistency, the interrelationships among them, as well as the practical nexus of their interdependence and hierarchical collocation within the range of values generally accepted by the international system.47

Considering the above, the crucial question before the Court was whether the principle of jurisdictional immunity of foreign states constituted an unconditional and unlimited rule, or whether other customary norms protecting the supreme values of human beings should ultimately prevail. The complexity of answering such a question arises from the coexistence of diverse customary norms of international law, whose different areas of application should be coordinated by ascertaining whether they are compatible or whether the application of one should prevail over the other.48 In fact, the principle of jurisdictional immunity of states represents a customary norm generally recognized by the international community in relation to activities that constitute a direct externalization of sovereign powers. Likewise, it is indisputable that customary norms aimed at protecting the freedom and dignity of human beings have long been considered to be fundamental values and inalienable rights within the international system.49

It follows that the violations of human rights protected by such customary norms constitute international crimes, which must be prosecuted and punished by any state inasmuch as they undermine the primary interests of the international system. Of particular concern within the categories of international crimes are crimes against humanity, whose connotations include the following: they entail a serious violation of human dignity and severe humiliation of one or more civilians; they are not occasional or isolated incidents, but rather constitute a systematic practice of atrocity; and they must be prosecuted and punished equally if committed during armed conflict or if committed in peacetime.50 In the words of the Court, the norms protecting fundamental human rights convey the supremacy of the fundamental principle for the respect of human dignity, whose violation also marks a tolerable breaking point for state sovereignty. Therefore, the principle of the sovereign equality of states must not apply in the event of crimes against humanity or in the case of serious criminal actions that constitute an abuse of state sovereignty.

The Court further acknowledged that the coexistence in the same case of international customary norms regarding, on the one hand, the immunity of the states from jurisdiction and, on the other hand, the restitution of serious violations of fundamental human rights requires their respective coordination in order to ascertain which norms should prevail. Such a conflict of norms can only be resolved by balancing interests, giving precedence to the ius cogens principle, thus ensuring that the most serious crimes against human freedom and dignity will not remain unpunished.51

(p.225) If it is true that the customary norms protecting fundamental human rights are based on universal and binding principles recognized by the entire international community, the internal coherence of the system requires that the violation of such fundamental values should be followed by an effective reaction on the part of both the international system and the victims themselves. As the Court noted, it would make no sense to proclaim the primacy of fundamental human rights and then restrict access to justice, thus preventing the victims from resorting to the remedies that are indispensable to ensure the effectiveness and primacy of those fundamental rights.52

Finally, the Italian Supreme Court acknowledged that, in accordance with Article 10 of the Italian Constitution, the Italian legal system complies with the norms generally recognized under international law.53 It also clarified that Italy’s internal legal system must automatically and continuously conform to the customary rules and general principles accepted by the international community.54 However, the Court also emphasized that such compliance cannot infringe the essential foundations of the Italian legal system, which are essential to the current constitutional structure, absolutely binding, and thus unchangeable. Fundamental human rights are among such constitutional principles and cannot be derogated by international norms.55

(VI) Developments Following the Italian Supreme Court’s Decision in the Civitella Case

Following the decision of the Italian Supreme Court in the Civitella case, on 23 December 2008 the German government instituted proceedings against Italy before the International Court of Justice, contending that ‘through its judicial practice…Italy has infringed and continues to infringe its obligations toward Germany under international law’.56 The Federal Republic of Germany argued that since the Ferrini judgment of 11 March 2004, ‘Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State’.57 It also stressed that subsequent to the Ferrini judgment, victims of World War II had instituted numerous other proceedings before Italian tribunals. The German government expressed concern that many additional legal actions might similarly follow the Civitella decision.58

(p.226) In light of the above, the German government argued that ‘the recourse to the International Court of Justice represent[ed] the only remedy available to Germany in its quest to put a halt to the unlawful practice of the Italian courts, which infringes its sovereign rights’.59 In particular, the Federal Republic of Germany sought to obtain a decision from the International Court of Justice stating that the claims related to the serious violations committed by German troops against Italian civilians during World War II constitute a breach of international law and agreements between the two countries. Indeed, Germany argued that, according to the Peace Treaty signed in Paris on 10 February 1947, between Italy and the Allied Powers, Italy waived on its own behalf and on behalf of its nationals all claims against Germany in relation to compensation for damages incurred during World War II.60

Furthermore, Germany contended that the Italian claims were inadmissible by virtue of the Bonn agreement concluded on 2 June 1961 between Italy and the Federal Republic of Germany, which settled all outstanding claims of Italian nationals based on rights violations and other incidents that occurred between 1 September 1939 and 8 May 1945.61 It is interesting to note that the Italian Supreme Court held that the 1947 Peace Treaty should not apply because the Federal Republic of Germany was not a signatory party to the treaty itself. Moreover, in relation to the Bonn Agreement of 1961, the Italian Supreme Court reasoned that because the agreement applied only to the disputes that were already pending at the time of signature, it did not settle claims that had not been instituted at that date, as was the case for Civitella.62

In its application, Germany lamented that a special team of lawyers had to be appointed to deal specifically with such complaints, requiring burdensome financial and intellectual expenditures. Furthermore, Germany claimed that, through its judicial practice, Italy has been infringing Germany’s jurisdictional immunity, thus breaching the principle of sovereign immunity and sovereign equality under international law.63 In concluding its application, the Federal Republic of Germany urged the International Court of Justice to recognize the international responsibility of Italy, to declare that its judicial decisions in relation to the claims brought by Italian nationals should remain unenforceable, and to ensure that no future legal actions based on similar claims will be pursued by Italian courts against Germany.64

On 29 April 2009, Italy filed its counter-claim, asking the International Court of Justice to reject the claims presented by Germany and to recognise its international responsibility for denying Italian victims adequate and effective reparations for the crimes committed during World War II by German troops.65 Two years later, on 13 January 2011, Greece filed an application before the International Court of (p.227) Justice requesting permission to intervene in the proceedings.66 Indeed, following the claims brought by Italian nationals against Germany for crimes committed during World War II, Greek nationals attempted to ‘enforce in Italy a judgment obtained in Greece on account of a similar massacre committed by German military units during their withdrawal in 1944 (Distomo case)’.67 In filing the application, the Hellenic Republic thus sought to inform the International Court of Justice that the legal rights and interests of Greek nationals could be affected by the decisions of the Court in relations to the claims advanced by Germany.68

(VII) Conclusion

On 3 February 2012, the International Court of Justice found that Italy violated its obligation to respect the Federal Republic of Germany’s immunity under international law by allowing civil claims to be brought against it based on violations of international law committed by the German regime during World War II.69 Moreover, it held that Italy had to ensure, by enacting appropriate legislation or by resorting to other methods of its choosing, that the decisions of its courts and those of other judicial authorities infringing the immunity of the Federal Republic of Germany ceased to have effect.70 According to the International Court of Justice, in other words, the Italian Supreme Court’s decision in the Civitella case was incompatible with international law and represented a breach of international agreements between the two countries, making the Italian courts’ decisions unenforceable. Indeed, the International Court of Justice clarified that, ‘under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict’.71 A similar conclusion thus appertains to Greece’s attempt to protect legal claims and interests of its nationals for massacres committed by Germany during the conflict.

Human rights organizations protested that the International Court of Justice ruling represented a great step backwards for international law by placing state sovereignty above the protection of international human rights. Despite the unfavourable outcome, the Italian Supreme Court’s decision in the Civitella case constitutes a significant attempt to restrict the principle of sovereign immunity with respect to serious violations of international law. Indeed, the judgment suggests that, in the event of egregious breaches of international law, a human rights exception should (p.228) apply, preventing the responsible state from enjoying jurisdictional immunity. If the International Court of Justice had concluded that the Federal Republic of Germany was liable for the damages caused to the victims of the Civitella massacre, customary norms protecting fundamental human rights and freedoms would have prevailed in case of conflict with the principle of state immunity and thus would have qualified as peremptory norms under international law.72

Notes:

(1) Johan Foot, Italy’s Divided Memory (Basingstoke: Palgrave Macmillan, 2009), 125–46.

(2) Foot, above n 1, 125.

(3) Giovanni Contini, ‘Memorie in conflitto,’ l’impegno, 2 (agosto 2001).

(4) Contini, above n 3.

(5) Elizabeth Zimmermann (2004), ‘German war crimes in Italy,’ World Socialist Web Site, <http://www.wsws.org/articles/2004/oct2004/germ-o07.shtml> (accessed 25 February 2013).

(6) Foot, above n 1, 125.

(7) Victoria de Grazia and Leonardi Paggi, ‘Story of an Ordinary Massacre: Civitella della Chiana, 29 June, 1944,’ Cardozo Studies in Law and Literature, 3 (1991), 153–69.

(8) Accounts from Anna Cetoloni, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature,3 (1991), 171–95.

(9) Accounts from Ada Sistini, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 173.

(10) Accounts from Giuseppa Marsili, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 179.

(11) Accounts from Uliana Merini, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 174–5.

(12) De Grazia and Paggi, above n 7.

(13) Accounts from Maddalena Scaletti, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 176–7.

(14) Accounts from Maria Assunta Menchetti, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 193.

(15) Michael Geyer, ‘Civitella delle Chiana on 29 June 1944,’ in Hannes Heer and Klaus Naumann (eds), War of Extermination: The German Military in World War II 1941–1944 (Oxford and New York, NY: Berghahn Books, 2000), 176.

(16) De Grazia and Paggi, above n 7, 154.

(17) De Grazia and Paggi, above n 7, 163.

(18) Accounts from Lucia Treppi, ‘The Witnesses of Civitella,’ Cardozo Studies in Law and Literature, 3 (1991), 190.

(19) Treppi, above n 18.

(20) De Grazia and Paggi, above n 7, 160.

(21) Francesca Cappelletto, ‘Memory of Extreme Events: From Autobiography to History,’ Journal of Royal Anthropological Institute, 9 (2003), 241–60.

(22) De Grazia and Paggi, above n 7, 155.

(23) Contini, above n 3.

(24) Geyer, above n 15, 177.

(25) Geyer, above n 15, 178.

(26) Foot, above n 1, 128.

(27) Max Josef Milde was found guilty of ‘violence with murder against civilian enemies’ under Article 185 of the Italian Military Criminal Code Applicable in Time of War, which provides for the crime of violence of members of Italian military forces against civilian enemies, in combination with Article 13 that extends the applicability of such a provision to crimes committed by members of enemy armed forces against the Italian State or individuals.

(28) Under civil law, moral damages are designed to compensate the physical or mental suffering and any similar harm unjustly caused to a person.

(29) Tribunale Militare di la Spezia, Judgment no. 49 of 10 October 2006.

(30) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy)—Application of the Federal Republic of Germany, 23 December 2008.

(31) Corte Militare di Appello, Judgment no 72 of 18 December 2007.

(32) Corte Suprema di Cassazione, sez. I penale, Judgment no 1072 of 21 October 2008, Rivista di diritto internazionale 92 (2009).

(33) See Annalisa Ciampi, ‘The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case Relating to the Second World War,’ Journal of International Criminal Justice, 7 (2009), 597–615.

(34) Tribunale of Arezzo, Judgment no 1403/98 of 3 November 2000.

(35) Corte Suprema di Cassazione, sez. I penale, Judgment no 1072 of 21 October 2008, [3]‌.

(36) Corte Suprema di Cassazione, above n 35.

(37) Corte Suprema di Cassazione, sezioni unite civili, Judgment no 5044 of 6 November 2003, Ferrini, Rivista diritto internazionale 87 (2004), 539. See also Pasquale De Sena and Francesca De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case,’ The European Journal of International Law, 16 (2005), 89–112; Carlo Focarelli, ‘Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision,’ International Comparative Law Quarterly, 54 (2005), 951–8; Andrea Gattini, ‘War Crimes and State Immunity in the Ferrini Decision,’ Journal of International Criminal Justice, 3 (2005), 224–42; Andrea Gattini, ‘Ferrini’, in Antonio Cassese et al (eds), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), 668–70.

(38) Ferrini, above n 37.

(39) See Tribunale di Arezzo, decision no 1403/98 of 3 November 2000; and Corte d’Appello di Firenze, decision no 41/02 of 14 January 2002.

(40) Corte Suprema di Cassazione, sezioni unite civili, Judgment no 5044 of 6 November 2003; Ferrini, above n 37.

(41) Corte Suprema di Cassazione, Sezioni Unite Civili, Judgment no 14199 of 6 May 2008, ‘Repubblica Federale di Germania v Amministrazione Regionale of Vojotia’, in Rivista di diritto internazionale, 92 (2009), 594. With this decision, the Italian Supreme Court recognised in Italy the civil judgment of the Greek Special Supreme Court against the Federal Republic of Germany in relation to a massacre committed by the German troops in Greece during World War II.

(42) Corte Suprema di Cassazione, Judgment no 31171/2008 of 24 July 2008. For a critical comment on the Court’s decision, see Antonio Cassese, ‘The Italian Court of Cassation Misapprehends the Notion of War Crimes,’ Journal of International Criminal Justice, 6 (2008), 1077–89.

(43) Corte Suprema di Cassazione, sez. I penale, Judgment no 1072 of 21 October 2008.

(44) Corte Suprema di Cassazione, above n 43.

(45) Corte Suprema di Cassazione, above n 43[4]‌.

(46) Corte Suprema di Cassazione, above n 43.

(47) Corte Suprema di Cassazione, above n 43.

(48) Corte Suprema di Cassazione, above n 43, [5]‌.

(49) Corte Suprema di Cassazione, above n 43.

(50) Corte Suprema di Cassazione, above n 43.

(51) Corte Suprema di Cassazione, above n 43, [6]‌. See also Corte di Cassazione Sezione I, Lozano, 19 June 2008.

(52) Corte Suprema di Cassazione, sez. I penale, Judgment no 1072 of 21 October 2008, above n 43, [7]‌.

(53) See the Italian Constitution, Article 10.

(54) Corte Suprema di Cassazione, sez. I penale, Judgment no 1072 of 21 October 2008, above n 43, [7]‌.

(55) Corte Suprema di Cassazione, above n 43.

(56) United Nations Sixty-fifth Session, Report of the International Court of Justice, 1 August 2009–31 July 2010, A/65/4, 37.

(57) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy)—Application instituting proceedings filed in Registry of the Court on 23 December 2008, 4.

(58) Germany v Italy, above n 57.

(59) Germany v Italy, above n 57.

(60) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy)—Counter- Claim, 6 July 2010, 4.

(61) Germany v Italy, 5.

(62) Ciampi, above n 33, 612.

(63) Ciampi, above n 33, 18.

(64) Ciampi, above n 33.

(65) United Nations Sixty-fifth Session, Report of the International Court of Justice, 1 August 2009–31 July 2010, above n 57, 39.

(66) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy)—Greece requests permission to intervene in the proceedings, 13 January 2011.

(67) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy)—Application instituting proceedings filed in Registry of the Court on 23 December 2008, 16.

(68) Germany v Italy, above n 67.

(69) International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening)—Judgment of 3 February 2012.

(70) Germany v Italy, Greece Intervening, n 69 above.

(71) Germany v Italy, Greece Intervening, n 69 above, 37.

(72) Francesco Moneta, ‘State Immunity for International Crimes: The Case of Germany versus Italy before the ICJ—Jurisdictional Immunities of the State (Germany v Italy),’ The Hague Justice Portal, 3.