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Please send in any articles note worthy on the subject illegal
property seizures.
Further information, please contact:
Ms. Alexandra Mareschi
Email: alexandra.mareschi(at)projusticia.net
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Subject: 15.01.2003
Sender: Alexandra Mareschi, Secretary-General, ILOG
Contact: www.projusticia.net
Email
In view of the modest, if not non-progress in property restitution cases one has to wonder whether post WW II governments really make an effort to redress past crimes against humanity in accordance with international law or do they simply prefer to take advantage of a complex situation for their own benefit.
With regard to claims in Croatia and Slovenia (former Federal Republic of Yugoslavia) one can easily assume that the diverse Italian Governments in the past have not been particularly interested in resolving this issue adequately. It is even doubtful whether the former governments took full advantage of the legal possibilities which were at their disposition at the time.
In 1945, despite the fact that Fascist Italy had long since been overthrown (1943) and did not pose a threat anymore, the Litorale Adriatico, under the command of Tito’s troops, was infested by a ruthless wave of ethnic cleansing and confiscations (singular de facto expropriations are known to have taken place way before 1945), (cf .Prof. Italo Gabrielli, Dove L’Italia non poté tornare, p.11; Luigi Papo de Montona Istria the last 3000 years p.42 seq). As a consequence about 80% of Italians had already lost control over their properties in Istria, Zara, Fiume, Pola etc. before the Paris Peace Treaty in 1947 was signed.
Confiscations in context with physical expulsions violate general principles of international law (ius cogens violation) and constitute a conduct recognised as criminal by international standards (cf. Article 6c and 6b of the resolution of the Nuremberg International Military Tribunal, 08.08.1945, see also Prof. Dr. Dieter Blumenwitz’s report regarding crimes against Germans in Yugoslavia 1944-1949, University of Würzburg). Resolution 95 (I) of the UN General Assembly of 11 December 1946, expressly affirms that these principles are and were part of customary international law.
Moreover, the seizures were committed on Italian territory by an occupational force. Consequently, the Hague Convention on Warfare 1907 also applies. According to Art. 46 private property cannot be confiscated.
Apparently, the diverse Italian governments never seemed to have raised this objection.
Unlike the latter, those who were responsible for drafting of the Paris Peace Treaty (1947) were strikingly aware of international law implications and therefore attempted to redress these grave injustices in accordance with common international law, (cf. Annex XIV No. 9 seq. Paris Peace Treaty), stipulating thus that Italian private property must be respected.
The Federal Republic of Yugoslavia however, did not comply with these provisions breaching thus its obligations under a multilateral treaty. According to customary laws on treaties Italy had two options at its disposition, namely to terminate the reparation payments or to attempt to invoke the conciliation procedures under the Paris Peace Treaty, Art. 86 seq.
Italy, inconceivably, decided instead to renegotiate the matter with the Federal Republic (should elements of coercion played a role in this decision, it is for historians and legal scholars to prove beyond doubt that it is so). In subsequent bilateral treaties, namely the 1949 Treaty, the Rome Treaty 1950 and the Belgrade Treaty 1954, the parties agreed to compensate the properties in the ceded territories instead of returning the latter to the rightful owners like the Paris Peace Treaty had stipulated.
Apart from being rather doubtful, whether in cases where there has been a ius cogens violation a lump sum payment (i.e. 130 miliardi di lire) worth only 65% of the seized immovable property can be deemed to be a reasonable amount (cf. Prof. Dr. Wilfried Fiedler, Die Europäische Menschenrechtskonvention und der Schutz des Eigentums, EuGRZ 1996 p. 354 seq.; Prof. Dr. Dieter Blumenwitz, Standards for the political handling of dealings concerning property after World War II, p. 20), the validity of the aforementioned compensation treaties per se appear to be somewhat questionable.
It appears that both governments intended to legalise an unlawful situation from which both States would undoubtedly profit from; namely in that nobody would effectively have to pay anything or hardly anything.
Viz. contrary to the Paris Peace Treaty (Article 79 para.6 f) both governments agreed to deduct the property payments from the reparation payments including interests. In return Italy promised to compensate its citizens. But instead of distributing the 130 miliardi di lire the government had “acquired on paper” the Italian Government, by deducting the reparation payments as well as interests, only disbursed 45 miliardi di lire (i.e. less than a ¼ of the actual value of the properties). Approx. 69 miliardi di lire were needed allegedly for reparation payments and about 16 miliardi di lire were required to buy back Trieste. (Data: Beni e Diritti dei Cittadini Italiani nei Territori Ceduti alla Jugoslavia ai Terminin del Trattao di Pace, compiled by the Federazione delle Associazione degli Esuli Istrani Fiumani e Dalmati).
The fact that the Governments negotiated these treaties in all secrecy in order to avoid any public debate, no doubt implies a certain desire to covertly try to legalise an internationally wrongful act. In terms of common international law it is dubious whether such treaties can be deemed legal. Should the compensation treaties be illegal, then Italy and Yugoslavia (respectively its successors) would have to restore the status quo ante, viz. fulfil the provisions of the Paris Peace Treaty.
In respect to the Osimo Treaty (1975) one basically comes across the same issues as in the aforementioned compensation treaties.
The settled compensation sum in exchange for Zone B (i.e. 110 million US $ -by dividing dollars by square meters of the territory results in a ridiculous evaluation of 21 cents/sq. km for the indemnity of land, houses, palaces, shops, workshops, shipyards, farms etc.) can hardly be deemed to be an amount reasonably related to the value of the properties.
Furthermore, the secretive circumstances under which the Treaty was yet again negotiated gives rise once more for speculations whether the parties simply wanted to try to legalise an internationally wrongful act, which in itself would be illegal (see above).
According to the Rome Agreement 1983 the payments agreed upon in the Osimo Treaty were envisaged to begin as from the 1st January 1990 in 13 instalments. However, only two payments were made (17 million US $) before the Federal Republic of Yugoslavia disintegrated.
These debts however, are allocated to the successor of territory (see above and cf. Vienna agreement between the successor states of the SFRY regarding the financial liabilities under the agreement concluded between the SFRY and Italy in 1983 on the final settlement of reciprocal, 2001). The debt though has still not been settled by Croatia nor Slovenia.
On balance the whole issue is hopelessly intertwined because politicians on both sides have only looked out for their own interests, ignoring thereby constantly the rights of the victims.
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