CYIL Vol. 4, 2013

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.