CYIL Vol. 4, 2013

ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND JUS COGENS While recognizing that the breaches of peremptory norms do not attract immunity, the Greek courts employed this argument in the Prefecture of Voiotia case. 96 4. The qualification argument 97 The qualification argument relies on the distinction between acta jure imperii and acta jure gestionis : it maintains that acts of State violating jus cogens cannot be seen as sovereign acts of State and therefore are not linked to immunity. 98 On the weakness of this argument, Knuchel explains 99 that “the abuse of sovereign prerogatives … does not in itself transform sovereign acts into acta jure gestionis ; such abuse is still performed in pursuance of the State’s governmental authority”. The jurisprudence, however, is not so definite: the ICJ in Arrest Warrant case excluded certain conduct, amounting to an international crime, from the category of official acts susceptible to immunity. 100 5. The “last resort” argument The last resort argument, usually employed in combination with one of previous ones, purports to prevent violations of jus cogens from going unpunished and unsettled. The rationale of this argument was well formulated by Italy in the Jurisdictional Immunities case. In its Counter Memorial, Italy argued that, under those circumstances where all remedies were unavailable to victims or had been refused, the Italian courts could not overlook the necessity of avoiding impunity, and that therefore the exercise of jurisdiction was “necessary as a measure of last resort”. 101 The ICJ, however, understood this argument as relating to the general obligation to make reparation and concluded: 100. … whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation. Pavoni suggests: 102 It is submitted that a reasonable balance between the competing interests … is achieved when it can be shown that the victims of gross violations of human rights may be or have been granted remedies and reparation for the damage sustained. This seems an inescapable imperative of contemporary international law. Hence, a grant of State immunity should be conditional upon the existence of … remedies alternative to those available in the forum state.

96 At p. 595, 599. And also Lord Millett in Pinochet case , p. 279. 97 A term used by Knuchel, p. 164. 98 See Knuchel, p. 164, Caplan, pp. 774-775. 99 Knuchel, ibid ,, p. 165. 100 Arrest Warrant case , paras. 227, 228. 101 Counter-Memorial of Italy, para. 6.26; see also Judgment, para. 80.

102 Pavoni, R.: Human Rights and the Immunities of Foreign States. In De Wet, E. – Vidmar, J. (eds.): Hierarchy in International Law: The Place of Human Rights . Oxford University Press, 2012, at p. 91.