Kriegsverbrechen im Diskurs nationaler Gerichte

The German Federal Constitutional Court's ruling in Distomo brings an end to a decade-old litigation and closes one of the last open chapters of Germany's judicial handling of World War II. Survivors and descendants of victims of a 1944 massacre in Greece carried out by German troops in obvious violation of humanitarian law even of the day had sued Germany for compensation in Germany's domestic courts. After the rejection of all claims by both state and federal courts the claimants had referred the case to the Federal Constitutional Court. The Court, however, in its present decision refused to hear it and confirmed the recent jurisprudence of Germany's lower courts. The legal setting of the claims, the judges argued, is that of 1944, not today's; as a consequence, the claimants could not establish an individual cause of action under public international law, nor could they successfully rely on domestic law, being understood that at the time domestic law did not cover claims resulting from a breach of humanitarian law.The Court's reasoning, for all its scarcity, raises a number of important issues. Methodically, it turns to the question of inter-temporality in international and domestic law; in substance it addresses the highly controversial issue of individual rights under international law; and, by avoidance rather than reflection, it touches one of the most precarious topics of current debates: the legal process of individualising international law by bringing it to the fora of municipal courts. What resembles a maze of legal problems, was treated by the Court, oddly enough, as a simple exercise of restating long-known and clear-cut conceptions of national and international jurisprudence. This article attempts to do what the Court has not; it takes up the challenge to investigate into that maze and to explore where classical conceptions and certainties have lately become cavernous.