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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
the existence of a ‘definite practice’ as referred to by the ICJ in the
Jurisdictional
Immunities
case.
The
Jurisdictional Immunities
case was initiated by Germany due to certain
decisions of Italian courts (in the
Ferrini
case, see above) allegedly violating its
sovereign immunity. The Italian courts allowed civil claims against Germany for acts
committed under the Nazi occupation during the Second World War and decided
in favor of reparation, which resulted in several measures of constraint being taken
against German property located in Italy in order to enforce the judgment. In the
proceedings before the ICJ, Italy made two primary submissions, one of which
was that Germany could not rely on sovereign immunity since the acts in question
had violated peremptory norms of international law.
69
This argument was brought
in the context of an assertion that those acts seriously breached the international
rules governing armed conflicts and that the claimants had been denied all forms
of redress. The Court noted 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”
70
and went on as follows:
93. This argument therefore depends upon the existence of a conflict between
a rule, or rules, of jus cogens, and the rule of customary law which requires one
State to accord immunity to another. In the opinion of the Court, however, no such
conflict exists. Assuming for this purpose that the rules of the law of armed conflict
which prohibit the murder of civilians in occupied territory, the deportation of
civilian inhabitants to slave labour and the deportation of prisoners of war to
slave labour are rules of jus cogens, there is no conflict between those rules and the
rules on State immunity. The two sets of rules address different matters. The rules
of State immunity are procedural in character and are confined to determining
whether or not the courts of one State may exercise jurisdiction in respect of another
State. They do not bear upon the question whether or not the conduct in respect of
which the proceedings are brought was lawful or unlawful. …
The ICJ thus clarified the relationship of
jus cogens
and State immunity by
distinguishing between two categories of international norms. However, the
Judgment was accompanied by the dissenting opinions of three judges, of which
Judge Cançado Trindade’s one is particularly worth citing:
129. In my understanding, what jeopardizes or destabilizes the international
legal order, are the international crimes, and not the individual suits for
reparation in the search for justice. …When a State pursues a criminal policy of
murdering segments of its own population, and of the population of other States,
it cannot, later on, place itself behind the shield of sovereign immunities, as these
69
Another one was related to the “territorial tort principle”. See Counter-Memorial of Italy, submitted on
22 December 2009, and the Judgment, paras. 61 ff.
70
Judgment, para. 91.