Una promessa di giustizia alle vittime di crimini di guerra che l’ordinamento italiano non poteva mantenere : un dramma in cinque atti

The aim of this paper is to reconstruct the long story of the compensation of victims of war crimes during the Second World War in the light of the recent Constitutional Court ruling 159 of 4 July 2023. The case will be analysed through a five-act drama aimed at proving one thesis: that the promise of justice that the Ferrini Judgment had raised could not be fulfilled after the decision of the Hague Court of Justice. First, it starts with the Ferrini Judgment and its disapplication of the 1961 Treaty rules. Then the decision of the International Court of Justice and its unequivocal condemnation of the interpretation on the immunities of States offered by the Italian judges (the humanitarian exception doctrine) and supported by the Italian Government is analysed. Next, the complex argumentation made by the Constitutional Court in its judgment 238/2014 declaring invalid, on the basis of the violation of counter-limits that identify Italian Constitution (the counter-limit doctrine), the legal provisions that applied the Hague Court’s judgment is provided. Furthermore, a short summary of the legal provision establishing the “compensation fund” for victims is offered. The drama closes with the Constitutional Court’s ruling 159, which saves the provision from a possible declaration of unconstitutionality for violation of what the Constitutional Court allegedly ruled in 238/2014. The conclusion offers some philosophical-legal reflections on the role of jurists and of judges in particular in the formulation of the humanitarian exception and the counter-limits doctrine, and some arguments in favour of introducing the dissenting opinion in Italian Constitutional court.