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2015
Three months ago the Italian Constitutional Court decided that it would infringe the fundamental rights of Italians to follow the International Court of Justice and uphold state immunity as a barrier for individual claims of war crime victims (decision no. 238 of 2014). First commentators have pointed out the conflict between the two courts and the regime collision between international and domestic law. Germany’s possible reaction to the Italian breach of international law has also been taken into consideration. Finally, the possible role of the Italian Constitutional Court’s reasoning in the further development of international law with regard to state immunity in cases of serious human rights violations, which amount to the breach of a jus cogens rule, has been the focus of some contributions. I would suggest making a fresh start in this debate. What we need right now are procedural mechanisms to harmonize for the future, as far as possible, the claim of sovereign immunity and access to the courts, in case a state happens to be in a better position to settle the dispute at the international level in the interests of the victims.
The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule.
Journal of International Criminal Justice
‘Time Will Tell Who Just Fell and Who’s Been Left Behind. On the Clash between the International Court of Justice and the Italian Constitutional Court’2016 •
Also available at http://verfassungsblog.de/italian-concerns-after-sentenza-2382014-possible-reactions-possible-solutions/, this paper makes some proposals for sorting out from the current deadlock in the relations between Germany and Italy with regard to the dispute over immunity/reparation.
The Italian Constitutional Court's judgment no. 238 of 2014 holds that Italy cannot comply with the ICJ's judgment in Germany v. Italy and therefore all domestic measures implementing it are unconstitutional. This is the most spectacular instance of open dualism this side of Medellin.
The Law and Practice of International Courts and Tribunals
The Law of State Immunity in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy2014 •
This article considers the jurisdictional immunity of States in respect of proceedings before the forum State's court in which a foreign State claims immunity for actions of its armed forces. In Jurisdictional Immunities of the State (Germany v. Italy) the International Court of Justice held that Germany is entitled to immunity before Italian courts for acts of its armed forces committed during the Second World War, even though it considered the German acts as displaying a complete disregard for the " elementary considerations of humanity ". The World Court decided that a breach of jus cogens rules does not amount to a denial of immunity. State immunity is procedural in nature and therefore it is not in conflict with peremptory rules of international law, since the two sets of rules operate at different levels. The thesis advanced in this article is that State immunity protects substantive principles of international law and therefore it cannot be regarded only as a procedural rule. The paper focuses also on other aspects of Jurisdictional Immunities of the State, including the tort exception to State immunity and a right to individual compensation under Article 3 of the Hague Regulations., the members of the Bukowina International Law Group. All errors are solely mine.
The response of Italy to the International Court of Justice (ICJ) judgment of 3 February 2012 on the jurisdictional immunities of the state has been prompt and comprehensive. The Italian judiciary obeyed ç contrary to what other national judges do ç the ICJ decision either on the basis of a joint interpretation of Article 94 of the UN Charter and Articles 10 and 11 of the Italian Constitution; or by stressing the authoritativeness of the ICJ decision and denying ex officio the jurisdiction of the Italian judge; or by taking note of the isolation of the Court of Cassation on the principle of immunities of the state in cases where jus cogens was violated. Moreover, on 21 December 2012, the Italian Parliament adopted a new law that modifies the Code of Civil Procedure in order to introduce a mechanism aimed at automatically reviewing any decision of Italian courts that is contrary to a ICJ judgment. However, in light of ICJ observations on the treatment of Italian military internees during World War II and the conduct of the parties afterwards, it is advised Germany and Italy should conduct negotiation aimed at resolving the still pending issue of compensation to those military internees. Arguably, and in keeping with the Court's invitation, an appropriate settlement through meaningful reparation to the numerous victims is the only way to ensure a fair and just solution.
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