“Plus Ça Change, Plus C’est la Même Chose”: State Immunity and International Crimes in Judgment No. 20442/2020 of the Corte di Cassazione

The  Corte di Cassazione,  with judgment No. 20442/2020, faced again the issue of German compensations for the victims of international crimes perpetrated by the Third Reich, ruling that immunity of Germany cannot be recognized in claims brought by the victims, or by their heirs, before the Italian courts. At first reading, the decision seems not to have added anything new to the domestic case law in Italy following judgment No. 238/2014 of the Corte Costituzionale. However, an in-depth analysis shows that there are two key points expressed by the Corte di Cassazione: the due effect of judgment No. 238/2014 and the overlap of the arguments used in the Italian judgments after 238/2014 and those prior to ICJ Judgment of 3 February 2012. At any rate, the problem of German compensation is still far from being resolved. The only way to reach the longed-for diplomatic solution would be a judgment similar to 238/2014 on the immunity of States’ properties from measures of constraint.

1 Michele Toldo is one among those who, by order of Hitler, could not benefit from the status of prisoners of war at the time of their detention by the German authorities, as they had been called as Italian Military Internees (imis). Such individuals did not benefit from the compensation allocated by Germany for the victims of National Socialism, as the compensation system excluded prisoners of war. Post-war German authorities deemed in fact that the status of prisoners of war had never ceased for imis because the Third Reich had unilaterally denied it, in violation of international law. See ex multis Hammermann, Gli internati militari italiani in Germania 1943-1945, Bologna, 2004 In compliance with Art. 41 (1) of the Italian Code of Civil Procedure, the regolamento preventivo di giurisdizione allows each party to a proceeding to request that the issues relating to jurisdiction, among which the acknowledgment of the Italian jurisdiction, be decided in advance by the Sezioni Unite of the Corte di Cassazione, rather than by the court where the proceeding was filed. 3 The decision is one of the thirteen orders, all adopted by the Corte di Cassazione  The decision was based on the trend expressed by the Corte di Cassazione in the well-known Ferrini judgment of 2004, which stated that the immunity of States from foreign civil jurisdiction granted by a customary rule of international law is not absolute, i.e. immunity cannot be invoked in case a State had such a serious misconduct as to constitute an international crime (the so-called delicta imperii), since it is prejudicial to the universal values of respect for human dignity that transcend the interests of individual States.4 However, the Tribunale di Firenze accepted the German preliminary objection and declared the claim for damages as inadmissible in its judgment No. 1086 of 28 March 2012.
The reasons had to be found in the judgment of the International Court of Justice ("icj") Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) of 3 February 2012 (hereinafter, "2012 icj judgment"), which accepted the German appeal claiming the Italian Court's infringement of the customary rule on immunity from civil jurisdiction starting from Ferrini judgment onwards. In short, the icj stated that the international custom has always acknowledged immunity in case of acta iure imperii, even if they resulted in serious violations of fundamental human rights.5 The Corte di Appello di Firenze confirmed the decision of the Tribunale with its judgment No. 2945 of 17 December 2014, decreeing that the trend of the Corte di Cassazione had changed, after the adoption of Article 3 of Law No. 5 of 14 January 2013,6 approved to enforce the 2012 icj judgment at national level, and that such trend acknowledged the immunity vis-à-vis foreign States in the event of acta iure imperii. Paolo Toldo then filed an appeal to the Corte di Cassazione. According to the plaintiff, it was no longer possible for the Italian legal system to acknowledge the immunity of a foreign State in case it committed international crimes, by virtue of the subsequent judgment of the Corte Costituzionale No. 238 of 22 October 2014 (hereinafter "judgment No. 238").7 As it is known, in fact, the Tribunale di Firenze, within the framework of suits similar to that brought by Mr. Toldo, raised three issues of constitutional legitimacy, relating to the compatibility with Articles 2 and 24 of the Constitutionthe inviolable human rights and the right of access to justice, respectively -(i) of the rule created in the Italian law system by means of transposition, provided for by Article 10 (1) of the Constitution,8 of the international customary rule on State immunity from foreign jurisdiction, in the part in which -pursuant to the 2012 icj judgment -it imposes on the Italian judges to deny their jurisdiction in the actions for damages arising from war crimes and crimes against humanity perpetrated iure imperii by the Third Reich, at least partly in Italy; (ii) of Article 3 of Law No. 5 of 2013 and (iii) of Article 1 of Law No. 848 of 1957 (transposing the UN Charter in the Italian law system), in the part in which they imposed on the Italian judges, in compliance with the 2012 icj judgment, to deny the national jurisdiction in the above mentioned actions.
As to the first issue, the Corte Costituzionale stated that the mechanism of transposition provided for by Article 10 (1) of the Constitution does not operate if the international customs clash with the supreme principles of the same Constitution, in application of the theory of counter-limits.9 The international rule on immunity, as interpreted by the icj, conflicts with the supreme principles included in Articles 2 and 24 of the Constitution; therefore, such rule could apply in the Italian law system only in its non-conflicting part. Thus, the Court declared the first issue as ill-founded, adopting a sentenza interpretativa di rigetto,10 given that the clashing portion of the international custom never became part of the Italian legal system. As to the second and third issue, the Court issued two pronouncements of unconstitutionality on the basis of the same conflict with the supreme principles, by declaring the thorough illegitimacy of Article 3 of Law No. 5 of 2013 and the partial illegitimacy of Article 1 of Law No. 848 of 1957, in the part in which such rule binds the Italian judges to conform to the icj judgment and thus to acknowledge the immunity of a foreign State that perpetrated international crimes.
The Corte di Cassazione, in its judgment No. 20442/2020, overturned the Appeal judgment, pointing out how the Corte di Appello had not taken into account the judgment No. 238 and the subsequent trend of the Corte di Cassazione, which both denied the immunity of foreign States from the Italian civil jurisdiction provided for acta iure imperii in case of international crimes.11

3.2
The "Eloquent Silence" of the Corte di Cassazione The judgment of the Corte di Cassazione at issue had been really longed for in the Italian legal system.
Despite four years had elapsed since judgment No. 238 and the fact that, in the meantime, the Italian case law had consolidated its denial of foreign States' immunity from jurisdiction in the case of serious violations of fundamental with the Italian Constitution can be identified. Therefore, the issue of constitutional legitimacy raised by the referring judge is declared as ill-founded under the terms set out by the Corte Costituzionale. According to Palombino, the decision-making technique of interpretazione con rigetto acquired a new dimension in judgment No. 238: the Court did not in fact identify what meaning should be attributed to the customary rule examined, but defined the limits within which the Italian legal system complied with it. PALOMBINO, "Quale futuro per i giudizi di costituzionalità delle norme internazionali generali? Il modello rivisitato della sentenza interpretativa di rigetto", Rivista di diritto internazionale, 2015 The Corte di Cassazione, Sezioni Unite was therefore expected -at least ideally -to face again the pros and cons on immunity in case of State international crimes, thus fulfilling its nomophylactic function.
Instead, the prima facie impression one gets while reading this pronouncement is that expectations have been disappointed. The Court merely made a full reconstruction of the evolution of the relationship between the rule on immunity and fundamental human rights in the Italian legal system14 and confirmed the loss of immunity if such rights had been violated, without adding any further considerations, in the light of its consolidated case law and of the judgment No. 238. Someone deems that the Corte di Cassazione missed an opportunity to clarify on which grounds the immunity of a State from foreign jurisdiction should be denied in case it perpetrated international crimes. 15 However, the Court's omission could suggest more than one can see at first. In my opinion, the strength of the judgment lies just in the fact that the Corte di Cassazione had not brought the issue of immunity into sharper focus once again: it did not face either the grounds for the existence or not of the customary rule, as interpreted by the 2012 icj judgment, in the Italian legal system, or its extent when a State violates fundamental human rights.
This stance of the Corte di Cassazione sent a very clear message: there is no room for manoeuvre in the Italian legal system to reopen the debate on the operation of immunity in case of serious violations of fundamental human rights and the issue was closed once and for all.
To demonstrate this, it should be noted that the judgment seems to contain almost a "sharp reproach" to the Corte di Appello di Firenze,16 which, in the Corte di Cassazione's view, "did not take into the least account" the "now consolidated trend of the Corte di Cassazione and the following judgment of the Corte Costituzionale"; it grounded its decision "on an outdated approach and merely dissented from the arguments supporting the issues of constitutionality raised by the Tribunale di Firenze, which instead were accepted with a decision issued well four years earlier than the judgment challenged here".17 Two different implications arise from the minimalist but at the same time granitic stance of the Corte di Cassazione: the scope of judgment No. 238 as sentenza interpretativa di rigetto and the ultimate meaning of the Corte di Cassazione's judgment.

3.3
Destiny of "a sentenza interpretativa di rigetto" The judgment of the Corte di Cassazione at issue defined, once and for all, the scope of judgment No. 238 of the Corte Costituzionale in the Italian legal system, by providing an answer to a question that scholars had been wondering about for some time.
In fact, after judgment No. 238, the extent of the two pronouncements of unconstitutionality was undoubted; instead, there were many who wondered about the effects of the sentenza interpretativa di rigetto. In particular, they wondered whether such pronouncement would have been binding only upon the referring judge, as it was "technically" meant to be, or if this would have had a wider scope, to be extended to all the Italian judges.18 The follow-up of the sentenza interpretativa di rigetto was in that case particularly awkward, due to the 2012 icj judgment, to which the Corte Costituzionale had de facto disobeyed.19 This gave rise to a real "dilemma"20 for the Italian judges: whether to abide by the decision of the icj or that of the Corte Costituzionale.
The Corte di Cassazione seems to have answered this question once and for all, by stating that: "Given the cumulative declaration […] of rigetto con interpretazione (binding, on the judge's opinion, to prevent the repetition of the unconstitutional interpretation, [ pronouncements stating the constitutional illegitimacy. This must be done regardless of the technical value of the sentenza interpretativa di rigetto, which, according to the Court, merely provides for the Italian judges' obligation, other than the referring judge, not to apply the interpretation of the rule non-compliant with the constitutional principle.
By carrying out an organic reading of judgment No. 238, the effect of the same -or better, of all the three different pronouncements which are part to the same -could only be binding upon all the Italian judges to deny the immunity of foreign States in case they committed serious violations of fundamental human rights.22 If it is true, in fact, that the subject-matter of the three pronouncements was different, like the decision-making typologies were, it is true also that the underlying ratio was the same.23 This ratio must be appreciated and accepted by all the Italian judges, just like those who questioned the enforcement of the customary rule on immunity after judgment No. 238 did.24 In the instant case, the sentenza interpretativa di rigetto produced an atypical effect, as it acquired a quid pluris able not only to direct the Italian judges, but also to be binding on them all,25 just thanks to the juxtaposition of the pronouncements of unconstitutionality.26 22 Contra Lamarque, according to whom "there is still room […] to argue that the two declarations of unconstitutionality simply authorize or invite ordinary Italian courts to deny immunity to Germany, but they alone cannot impose this solution. The judges other than the referring judge have only to comply with the ultimate effect of the decision (the denial of immunity for delicta imperii). However, being the pronouncement a mere sentenza interpretativa di rigetto, they do not necessarily have to embrace the same argument of the Corte Costituzionale, as they may choose a different one that it is compatible with the Constitution (save that they introduce again the issue of constitutional legitimacy).

Changing Perspective Does Not Change the Result
The second implication arising from the judgment of the Sezioni Unite is linked to the aspect just referred to above, that is, the lack of any obligation for the Italian judges to stick to a specific argument while denying immunity to foreign States which perpetrated international crimes.
This aspect has been well understood and transposed by the Corte di Cassazione in its judgment.
As said above, the Corte di Cassazione merely grounded its decision on the latest case law, by expressly referring both to the judgment No. 238 and to its own pronouncements following the latter.
The similarities, as well as the differences, between the approach of the Corte Costituzionale and that of the Corte di Cassazione are well known. Both disavow immunity in case of international crimes by referring to the need to protect fundamental rights. However, the Corte Costituzionale takes on a view based exclusively on internal constitutional law without challenging the scope of the rule on immunity as interpreted by the 2012 icj judgment, while the judges of the Corte di Cassazione, though constantly referring to the judgment No. 238, tend to take again the viewpoint of international law, by (re)interpreting the customary rule that clashes with the interpretation of the icj. Therefore, the Corte di Cassazione seems to have highlighted in its decision (recalling both the judgment of the Corte Costituzionale and the following trend of the former) that, whatever the theoretical approach may be adopted in the Italian law system on the relationship between immunity and serious violations of fundamental human rights committed on the Italian territory, the result, from a practical point of view, is the same: immunity must always be disavowed.27 The irrelevance of the theoretical approach chosen would be also revealed by the reverse logical order in which the judges of the Corte di Cassazione mentioned what the Corte di Appello di Firenze did not take into account in its decision; they in fact mentioned first the "consolidated trend of the Corte di Cassazione", and only after "the judgment of the Corte Costituzionale".28 This way, the Corte di Cassazione revealed that the judgment No. 238 merely legitimated the trend already existing in the Italian legal system from Ferrini judgment to 2012 icj judgment,29 from a theoretical and formal viewpoint. In fact, it did not distinguish between its own trend post Ferrini-ante icj and its trend post No. 238, clearly stating that: "the case law of the Thus, the stance taken by the Sezioni Unite seems to answer an issue raised by scholars after judgment No. 238.
Some scholars argued that the stance adopted by the Corte Costituzionale could prejudice any changes to the rule on immunity of customary law at international level;31 this also because the Court, focusing on domestic law, disrupted a consolidated Italian practice, that had continued almost interruptedly since 2004, which disavowed immunity by embracing an international law perspective.32 The continuity remarked by the Corte di Cassazione between its own post Ferrini-ante icj and post No. 238 case law seems, however, to cancel or at least downsize the concern expressed. The Italian judges, in fact, have clearly realized what was evident to all: despite the Corte Costituzionale had expressly declared to abide by the interpretation of the rule on immunity of the icj,33 it had a negative opinion of the same and claimed to contribute to the progressive development of 238 the basis to reaffirm and even radicalise in some cases their previous line of thinking starting from the Ferrini case. salerno, "Le norme di diritto internazionale «generalmente riconosciute» nella prospettiva della Corte Costituzionale", Rivista di diritto internazionale, 2020, p. 291 ff., p. 293. 31 Focarelli states that "the Corte Costituzionale developed no argument to make its case credible and potentially acceptable to the courts of other States. In particular, the judgment has not attempted to clarify why or to what extent other States and their courts should follow its example, so as to achieve an 'evolution' of customary international law […]". The theses proposed by the Corte Costituzionale and the Corte di Cassazione, even if not perfectly identical, began at least to overlap.36 Therefore, the change of the customary rule establishing the immunity of States from foreign civil jurisdiction if they commit international crimes seems not to have been prejudiced at international level.37 The attempt of the Italian case law to change the customary rule goes on relentlessly, thanks to the same arguments that the Italian judges had set forth since the Ferrini trend and that had been prohibited by the icj.38 In the judgment at issue, the Corte di Cassazione underlined that an obligation had arisen for the Italian judges from the "cumulative" reading of the three pronouncements constituting the judgment of the Corte Costituzionale No. 238/2014: regardless of the formal issue grounding the decisions, immunity must always be denied to a foreign State in case it perpetrates international crimes in the territory of the State of the forum.39 The problems arising from the stance of the Italian case law are well known.40 Among them, the fact that in the proceedings involving Germany and the compensation for damages for the Second World War, as in the instant case, it is really difficult, almost impossible, to ensure an effective satisfaction to the beneficiaries of the above compensations, once immunity has been denied and the foreign State condemned.
Germany refuses in fact to abide by the sentences, and their enforcement is very hard to implement. The first reason is the customary international rule applicable in these cases, which establishes that the properties of a State cannot be subjected to foreign measures of constraint if they are meant for government non-commercial purposes -pursuant to the 2012 icj judgment -without exceptions.41 The second reason is the impossibility to identify German properties located on the Italian territory without such destination of use. 39 To the best of the writer's knowledge, after judgment No. 238/2014, no judge recognised immunity in cases similar to the one at issue. The judgment issued by the Corte di Appello di Firenze cannot be considered a significant precedent to the contrary for the reasons already explained (see supra note 13). 40 Among the various problems, it is of fundamental relevance the violation of international law and of the 2012 icj judgment, that Italy perpetrated through the reiteration of its denial of immunity. In this respect, Focarelli criticized judgment no. 20442/2020 of the Corte di Cassazione, as it did not make any remarks about the above infringements. Focarelli, cit. supra note 7, p. 40. 41 Germany also asked the icj to declare Italy's violation of the customary rule that prohibits measures of constraint on properties used for government non-commercial purposes; all the above, in Germany's opinion, without exception, even in case a State committed international crimes. According to Germany, Italy had perpetrated such violation by raising a mortgage on Villa Vigoni, a German property located close to Lake Como, premises of a cultural centre aimed at promoting cultural exchange between Germany and Italy. Several times, in case law and among scholars, an extrajudicial composition of the Italian-German issue has been sought for. 42 However, until now, this outlook is hardly looming on the horizon, due to the attitude of Germany and, even more, of the Italian Government.
If, as Torretta remarks, Germany and Italy have shown for decades their incapability or unwillingness to adequately manage the issue of compensations due to victims,43 the situation seems to have even worsened after judgment No. 238.
As it is known, immediately after the decision of the Corte Costituzionale, the Embassy of Germany sent a note to the Italian Ministry of Foreign Affairs.44 The note, in which Italy was requested to comply with the 2012 icj judgment, stated that the decision of the Corte Costituzionale could not affect in any way the contents and scope of the judicial immunity defined by the icj; it also underlined how the principle of immunity could not be limited by the internal law of the State, not even by the fundamental principles of the Constitution.45 For this reason, the Germany asked the Italian Government to be thoroughly informed, as soon as possible, of the way it intended to abide by the international obligations arising from the judgment of the icj, in order to avoid any further disputes. 46 Furthermore, Germany stopped appearing and standing up for defence in many proceedings as a defendant before the Italian courts, as it deemed that such proceedings were brought up in infringement of international law.47 This plus ça change, plus c'est la même chose The Italian Review of International and Comparative Law 1 (2021) 374-391 also happened in the instant case, where the defendant challenged the plaintiff's claims before the Tribunale and Corte di Appello, but did not stand up for its defence before the Corte di Cassazione.
As for the Italian Government, it could side with the Italian judges; as a matter of fact, it made its best efforts to thwart the decisions and effects of jurisprudence, thus indirectly responding to the request made by Germany in its diplomatic note. 48 First of all, the Italian Government, immediately after the judgment of the Corte Costituzionale, adopted the Decreto Legge No. 132/2014, whose Article 19 bis establishes that the sums deposited in bank or post office accounts in the name of foreign States cannot be attached, under penalty of nullity also ex officio, if they have been allocated solely for the performance of public functions, as the diplomatic representatives of the foreign State in Italy declared to the Ministry of Foreign Affairs.49 Moreover, the Avvocatura dello Stato (Government lawyers) went on defending Germany in many proceedings brought up against the latter by the Italian victims of international crimes or their heirs.50 It seems that the stance of the Italian Government,51 clashing with that of the judges, stressed the scholars' concern about the lack of uniformity of Italian practice in the enforcement of the customary rule on immunity, by triggering thus a sort of "short circuit" between these two institutions.
As I pointed out elsewhere, although a diplomatic solution would be, in abstract terms, preferred to the judicial one,52 in the case at issue it seems that, does not participate in these proceedings that are contrary to international law and rejects the illegal notification of the proceedings, usually without taking note of the content of the application. We are currently aware of 38 pending proceedings". 48 Some scholars blame the Corte Costituzionale for not having included in judgment No. 238 a formula to urge the Italian Government to take actions to protect the victims. See ex multis Salerno, "Giustizia costituzionale versus giustizia internazionale nell'applicazione del diritto internazionale generalmente riconosciuto", Quaderni costituzionali, 2015, p. 33 ff., pp. 37-39; Palchetti, cit. supra note 42, p. 57. 49 The Decreto Legge "Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell'arretrato in materia di processo civile" was converted into Law of 10