CYIL Vol. 4, 2013

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.