Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice (ICJ) of 3 February 2012 inJurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2013 ◽  
Vol 14 (9) ◽  
pp. 1817-1850 ◽  
Author(s):  
Hermann-Josef Blanke ◽  
Lara Falkenberg
Keyword(s):  
Human Rights ◽  
War Crimes ◽  
The State ◽  
Federal Republic Of Germany ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Compensation Claims

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.

I. INTERNATIONAL COURT OF JUSTICE: JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v ITALY) JUDGMENT OF 3 FEBRUARY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 741-752
Author(s):  
J Craig Barker
Keyword(s):  
Armed Forces ◽  
The State ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
Vexed Question ◽  
German Reich

The vexed question of State immunity and the extent and application thereof has once again found its way to the International Court of Justice (the Court) in the form of the Case Concerning Jurisdictional Immunities of the State (Germany v Italy).1 On this occasion, the precise question concerned the so-called ‘territorial tort exception’ to State immunity and involved an assessment of the immunity to be granted to Germany, by Italy, in relation to compensation claims brought in Italy by Italian claimants against German armed forces and the organs of the German Reich during the Second World War.2

State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State

2012 ◽  
Vol 13 (6) ◽  
pp. 773-782 ◽  
Author(s):  
Paul Christoph Bornkamm
Keyword(s):  
Human Rights ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Legal Proceedings ◽  
State Immunity ◽  
Court Of Justice ◽  
European Court ◽  
International Court

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)

2014 ◽  
Vol 16 (1) ◽  
pp. 123-137
Author(s):  
Stefania Negri
Keyword(s):  
War Crimes ◽  
The State ◽  
Customary Law ◽  
International Human Rights Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Peremptory Norms

Abstract In the judgment delivered in the case concerning Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice held that under the present state of international customary law State immunity encompasses all acta jure imperii, regardless of whether they are unlawful. Following the ruling that States are entitled to jurisdictional immunities before foreign courts even if their sovereign acts amount to violations of peremptory norms, the Court found that Italy had violated Germany’s immunity from jurisdiction and enforcement. In rendering such a conservative judgment, the Court missed a double opportunity: to contribute to the development of international law by interpreting the rule on sovereign immunity in harmony with international human rights law and its dynamics, and to finally serve justice for the victims of war crimes.

Judgment No. 238 – 2014 (IT. Const. Ct.)

2015 ◽  
Vol 54 (3) ◽  
pp. 471-506
Author(s):  
Alessandro Chechi
Keyword(s):  
The State ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Constitutional Legitimacy

On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 753-769 ◽  
Author(s):  
Mads Andenas ◽  
Thomas Weatherall
Keyword(s):  
Human Rights ◽  
International Law ◽  
Universal Jurisdiction ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

scholarly journals State Immunity Before the International Court of Justice: Jurisdictional Immunities of the State (Germany v Italy)

2013 ◽  
Vol 44 (1) ◽  
Author(s):  
Matthew McMenamin
Keyword(s):  
World War Ii ◽  
Armed Forces ◽  
The State ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Jus Cogens

The International Court of Justice recently gave judgment in Jurisdictional Immunities of the State. The case concerned German state immunity from civil claims brought in Italian courts by victims of serious violations of international humanitarian law committed by German armed forces during World War II. The Court offered a valuable clarification of the relationship between state immunity and jus cogens norms at customary international law. The conservative reasoning was thorough and extensive and the decision is likely to ossify the evolution of state immunity.

The Subject Matters: The ICJ and Human Rights, Rights of Shareholders, and the Diallo Case

2011 ◽  
Vol 24 (3) ◽  
pp. 607-625
Author(s):  
ANNEMARIEKE VERMEER-KÜNZLI
Keyword(s):  
Human Rights ◽  
International Court Of Justice ◽  
Corporate Rights ◽  
Doing Business ◽  
Court Of Justice ◽  
Foreign Countries ◽  
International Court ◽  
The Icj ◽  
The Subject

AbstractOn 30 November 2010, the International Court of Justice issued its decision in the merits phase of the Ahmadou Sadio Diallo case. This decision turned on the questions of whether the DRC had violated Mr Diallo's human rights and his rights as a shareholder and manager in two corporations he owned in the DRC. This paper analyses the decision of the Court in the light of the choices it made and the methodology it applied, and demonstrates that both issues raise fundamental questions. The Court's decision on Mr Diallo's human rights is often ambitious to the detriment of clarity, whereas the part of the judgment dealing with corporate rights does not seem to move beyond its 1970 predecessor in Barcelona Traction. While understandable, this is also regrettable and the consequences for individuals doing business and/or residing in foreign countries may be substantial.

II. INTERNATIONAL COURT OF JUSTICE, CASE CONCERNING AHMADOU SADIO DIALLO (REPUBLIC OF GUINEA V DEMOCRATIC REPUBLIC OF THE CONGO) JUDGEMENT OF 30 NOVEMBER 2010

2011 ◽  
Vol 60 (3) ◽  
pp. 810-819 ◽  
Author(s):  
Mads Andenas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
Political Rights ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Republic Of The Congo ◽  
Opening Paragraph

This is the first time in its history, to the best of my knowledge, that the International Court of Justice has established violations of the two human rights treaties at issue, together, namely, at universal level, the 1966 UN Covenant on Civil and Political Rights and, at regional level, the 1981 African Charter on Human and Peoples' Rights, both in the framework of the universality of human rights.This is the opening paragraph of Judge Cançado Trindade's Separate Opinion in the Diallo case. The ICJ's judgment is a remarkable decision contributing to the widening and deepening of international law and has consequences for several fundamental questions, including the role of the ICJ and international law in making human rights effective, erga omnes and jus cogens rules, customary law, evidence, and several substantive rules. In bringing the transformation of international law one step further, the Diallo judgment develops the ICJ as ‘the principal judicial organ of the United Nations’1 at the top of an open international law system. To achieve this, the Court had to overcome a series of jurisdictional and procedural hurdles.2 All the permanent judges of the ICJ agreed that Congo had violated the prohibition on arbitrary detention and expulsion and that the violations gave rise to a right of compensation. The ICJ's use of sources from other international and regional bodies as sources of authority, indicates solutions to fragmentation problems.

The Contribution of the International Court of Justice to the Promotion and Protection of Human Rights

2018 ◽  
Author(s):  
Dominika Švarc Pipan
Keyword(s):  
Human Rights ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Protection Of Human Rights ◽  
Individual Human ◽  
Peace Treaties

Dominika Švarc explores the way in which the interstate International Court of Justice (ICJ) deals with individual human rights and international humanitarian law. She argues that ever since the Interpretation of Peace Treaties case in 1950, the ICJ has taken an increasingly strong role in recognizing, interpreting, and developing these two disciplines. The Court relies on the cooperation with regional human rights courts and global human rights treaty bodies.

Inside Out or Outside In? Examining Human Rights in Situations of Armed Conflict

2007 ◽  
Vol 9 (1) ◽  
pp. 33-58 ◽  
Author(s):  
Elspeth Guild
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
The State ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Inside Out

AbstractWhat duties do states have to individuals who suffer as a result of armed conflict? While the International Court of Justice has stated that the protection offered by human rights conventions does not cease in case of armed conflict, it has not provided any clarity on how this is to be interpreted. This article examines how the European Court of Human Rights has interpreted the duty of a state to guarantee human rights to persons in whose territory the state is engaged in armed conflict.

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