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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
latter were never conceived for that purpose. Grave breaches of human rights
and of international humanitarian law, amounting to international crimes,
are not at all acts jure imperii. They are anti-juridical acts, they are breaches of
jus cogens, that cannot simply be removed or thrown into oblivion by reliance on
State immunity. This would block the access to justice, and impose impunity. It
is, in fact, the opposite should take place: breaches of jus cogens bring about the
removal of claims of State immunity, so that justice can be done.
71
Finally the position of the ICTY in the
Furundzija
case should be mentioned.
This case did not primarily address the question of State immunity, but rather the issue
of the individual criminal responsibility of a former commander for acts against the
Muslim community in Bosnia. However, certain statements of the Tribunal referred
indirectly to the topic discussed in this paper. While confirming the peremptory
status of torture prohibition, the Tribunal held that if the violations of
jus cogens
occur “the victim could bring a civil suit for damage in a foreign court, which would
therefore be asked
inter alia
to disregard the legal value of the national authorizing
act”.
72
Though the wording “the national authorizing act” was probably intended
by the Tribunal to address the granting of amnesty to the perpetrations, there is no
reason the same principle should not be applied to the granting of State immunity.
73
IV. Arguments towards the coexistence of both
1. The normative hierarchy
The normative hierarchy theory stipulates that, despite the absence of a formal
hierarchy among the sources of international law, there is nonetheless a kind of
hierarchy between its norms; more precisely, certain norms,
i.e.
those having
a peremptory status, enjoy superiority and overrule the others.
74
Accordingly,
the norms of
jus cogens
have an invalidating effect upon every contrary rule. This
follows from the very nature of
jus cogens
as a non-derogable norm, recognized as
such by the entire international community.
75
The International Law Commission
has emphasized that peremptory norms possess not “mere priority”, since it is not
“simply a rule of precedence”. Rather, it is a rule that renders any other conflicting
rule “not only non-applicable, but wholly void, giving rise to no legal consequences
whatsoever”.
76
This applies both to treaties, the UN Charter included, and to general
71
ibid.
, para.129.
72
Judgment, para. 155.
73
See also an opinion of Orakhelashvili, A.,
State Immunity and Hierarchy of Norms
, p. 968: “In empirical
terms the Tribunal did, as a matter of fact, point out that when an individual has been tortured and
cannot get remedies in the country in which he has been tortured, he can go to another country to
claim remedies”.
74
Generally on the discussion on the normative hierarchy see
e.g.
Shelton, D., Normative Hierarchy in
International Law. In 100
AJIL
(2006), pp. 291-323. De Wet, E. – Vidmar, J. (eds.),
The Hierarchy in
International Law: The Place of Human Rights
. Oxford University Press, 2012.
75
See Art 53 and Art 64 of the VCLT, cited
supra
.
76
ILC, Report on Fragmentation, para. 365.