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(R)evolution of State Immunity Following Jurisdictional Immunities of the State (Germany v Italy) – Winds of Change or Hot Air?
JARRAD HARVEY [∗]
Abstract
While the 2012 case of Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) was thought by many to be the opportunity for the International Court of Justice (‘ICJ’) to make a positive pronouncement on the development of an exception to immunity when a state breaches jus cogens or peremptory norms, the majority simply entrenched its position on the immunity from jurisdiction that states enjoy in those circumstances. This article will examine the majority’s examination of state practice which it considered did not reflect an emergent exception to immunity when a state breaches jus cogens or peremptory norms. Further, it will consider ways in which past (and potentially future) jus cogens arguments have been or could be framed. Finally, the article will consider the future utility of the forum of ‘last resort’ argument proposed by Italy in Germany v Italy. While the ICJ was adamant regarding the present non-existence of an exception to immunity upon breaches of jus cogens by states generally, and more specifically, where victims of such breaches are left without viable ‘avenues for redress’, it is recommended that states who are disenchanted with the decision in Jurisdictional Immunities of the State continue to pass laws and decide cases withholding state immunity following breaches of jus cogens norms. Such actions will contribute to the state practice that future courts will be unable to ignore when posed with the question again of the development of an exception to immunity when a state breaches inviolable jus cogens norms.
State immunity is not supposed to operate as a bar to jurisdiction in circumstances such as those prevailing in the present case. ... It is not to stand in the way of the realization of justice. ... There can be no prerogative or privilege of state immunity in cases of international crimes ... these are grave breaches of absolute prohibitions of jus cogens, for which there can be no immunities.[1]
State immunity refers to the ‘prerogative or privilege’[2] of states to enjoy immunity from jurisdiction in foreign municipal courts.[3] State immunity is a well-entrenched principle of customary international law;[4] it is said to buttress contemporary international law by recognising the sovereign equality of states,[5] helping to maintain workable international relations,[6] as well as implicitly recognising the territorial sovereignty of all states.[7]
However, the principle has not escaped criticism.[8] Indeed, respected writers in public international law including Richard Garnett,[9] and especially Hersch Lauterpacht,[10] have even called for the complete abolition of state immunity. As long ago as 1951, Lauterpacht observed that state immunity is an ‘archaic and cumbersome doctrine of controversial validity and usefulness ...’[11] Such criticism is of little surprise as immunity from jurisdiction has meant that in the past, and even still today, states are potentially able to use the ‘shield’[12] of state immunity to screen themselves from full liability and accountability for wrongful conduct if such acts are seen to be committed within sovereign authority.[13] Thus, immunity has often been said to coincide with impunity.[14]
State immunity has undergone a transformation from being a rule of absolute application[15] – completely exculpating states from any liability they would otherwise owe[16] – to a principle of restricted application to sovereign acts (acta jure imperii),[17] and which is characterised by increasing exceptions to immunity.[18] This transformation over the past century has coincided with discourse that the power of states should not be unlimited.[19] Contemporary exceptions to state immunity have included the abrogation of immunity when a state owes liabilities arising out of its commercial dealings (acta jure gestionis),[20] when a state commits torts on a foreign territory,[21] and for acts of state-sponsored terrorism (in the United States’ case).[22]
It is against this backdrop of the development of exceptions to state immunity,[23] that there has been increasing debate regarding the consolidation of a new customary exception to immunity – a general exception to immunity in circumstances where a state violates jus cogens norms (known as peremptory norms),[24] and alternatively, the abrogation of state immunity when victims of breaches of jus cogens norms are left without any viable avenues for redress,[25] thus protecting victims’ right to access justice.[26] The viability of a jus cogens exception generally, and in the alternative, an exception when there are no other forms of obtaining redress for victims, will be the subject of this article. These two exceptions are of particular relevance following the much anticipated decision of the International Court of Justice[27] in Jurisdictional Immunities of the State (Germany v Italy).
In Jurisdictional Immunities of the State, Germany initiated proceedings in the ICJ alleging that Italy had violated Germany’s right to immunity from Italian jurisdiction.[28] The ICJ found that: (1) Italy had breached its obligation to respect German immunity by allowing civil claims to be brought against Germany for violations of International Humanitarian Law[29] committed against Italian Military Internees[30] by the forces of the Third Reich between 1943-45 (12 votes to 3).[31] Many of the atrocities committed by Germany violated jus cogens norms including prohibitions on committing crimes against humanity, war crimes, genocide and torture.[32] The Court found that Germany was entitled to immunity as state practice did not reflect a widely-held exception to state immunity when a state violates jus cogens norms.[33] The Court also found that the IMIs could not have their claims heard in the Italian civil jurisdiction simply because it was their ‘last resort’ for obtaining compensation.[34]
This article will argue that an exception to state immunity ought to be recognised when states commit grave violations of jus cogens norms so as to allow individual victims to claim reparations, and in the alternative, that immunity be withdrawn when victims of such violations have no other means for obtaining a remedy other than invoking the civil jurisdiction of municipal courts.[35] Both of these arguments were forwarded by Italy off the back of decades of debate regarding the emergence of a new exception to state immunity when states commit grave violations of jus cogens norms,[36] as well as contemporary discourse regarding the removal of immunity to uphold victims’ ability to access to justice.
In Part II, consideration will be given to whether the majority in Jurisdictional Immunities of the State was justified in finding that state practice did not yet reflect an exception to immunity when a state has committed grave violations of international law, IHL and breaches of jus cogens norms.[37] Part III will analyse how a new exception for breaches of jus cogens norms might be facilitated, including analysis of how a jus cogens exception to state immunity has been litigated in the past as a guide to the success of such arguments in future civil litigation.[38] Part IV will consider a narrower version of a general jus cogens exception to state immunity; that is, in the alternative that a general jus cogens exception cannot succeed, can state immunity be abrogated by municipal courts so as to hear civil compensation claims when victims of breaches of jus cogens norms by states have no other avenues for obtaining redress?[39] This alternative, more ‘limited and workable’[40] version of a general jus cogens exception is said to enable access to justice for victims.[41]
Thus, the question is contemplated: following Jurisdictional Immunities of the State, what is the current status of a general jus cogens exception to state immunity in customary international law, and alternatively, the status of an exception to immunity when victims have no other means to seek redress? Are these nascent exceptions riding the winds of change, or is talk of new exceptions to immunity simply hot air?
This article predominantly takes the form of a doctrinal analysis. Parts II and IV analyse and account for the current state of the law – state immunity’s ‘objective reality’[42] – in order to determine whether further developments in the law of state immunity are foreshadowed. However, Parts III and the Conclusion adopt a largely law reform methodological approach.[43] In Part III, a resounding question is how an exception to state immunity for breaches of jus cogens norms might be facilitated, amidst discussion of new approaches to interpreting traditional state immunity. This also includes consideration of the normative imperatives of why the law should change.[44] Finally, the Conclusion will reflect upon the current state of the law just discussed, and consider how the law on state immunity ought to operate – an exercise de lege ferenda.[45]
This Part will consider whether it was both logical and juridically feasible for the ICJ to reach its decision that a general exception to state immunity for breaches of jus cogens norms was not (yet) realisable to afford it the status of a norm of customary international law.
In his dissent, His Excellency Judge Cançado Trindade was overtly critical of what he considered was the majority’s formalist approach to quantifying state practice to determine whether a jus cogens exception to state immunity had crystallised into a norm of customary international law, before considering whether a custom acquired the required opinion juris.[46] Yet it cannot be underestimated that these two elements are essential to the determination of norm-creation in international customary law.[47]
A custom will develop when it is generally practised amongst the international community.[48] It involves an exercise of quantitatively analysing the adoption of norm-creating behaviour in different jurisdictions to adduce a settled practice.[49] This contrasts with the value-driven methodology adopted by the dissenting Judge who preferred to pay less attention to state practice,[50] but justified a jus cogens exception based on the normative arguments of jurists and scholars arguing that jus cogens norms should not be side-lined by states’ customary right to immunity.[51] Following the analysis of state practice, complementary consideration must also go to whether a custom acquires the necessary opinio juris; that is, whether belief exists that an action was carried out by an actor because it was a legal obligation.
In determining whether an exception had indeed developed, the majority in Jurisdictional Immunities of the State considered whether such an exception was supported by necessary state practice.[52] However, the majority ought to have better acknowledged examples of state practice which it excluded from its judgment, or which the majority oversimplified with the intent to exclude it.[53] Indeed, such an allegation somewhat marred the judgement of the United Nations’ highest court.[54] The following discussion focuses on examples of state practice which ought to have received greater consideration when the Court considered whether a jus cogens exception to immunity had developed.
In the landmark decision of Ferrini,[55] in September 2008 applicant Luigi Ferrini filed a suit against Germany seeking damages for his capture and subsequent deportation to be used as forced labour by the Third Reich in 1944.[56] On appeal, the Italian Court of Cassation reversed the earlier finding that Italian courts had to respect the immunity of Germany for its commission of sovereign acts,[57] concluding that ‘Germany is not entitled to claim immunity from Italian jurisdiction’.[58] The Court considered that deportation and forced labour were war crimes that were ‘recognised and accepted by all civilised nations ...’[59] – jus cogens norms of which no derogation could be permitted to uphold immunity.[60]
Indeed, Ferrini planted the seed for Italian litigation against Germany for similar claims, thus it is unsurprising that the majority put little emphasis on the case.[61] The case of Mantelli[62] bore similar facts to its predecessor, Ferrini. In Mantelli, the applicant sought damages against Germany in Italian courts for acts of deportation and forced labour during World War II (‘WWII’).[63] The Court of Cassation in Mantelli concluded that states that are accused of international crimes cannot invoke immunity from municipal courts.[64] Notwithstanding the Court’s acknowledgement of the state practice mounted against the Ferrini jurisprudence,[65] Mantelli affirmed the reasoning of that earlier Court regarding the superiority of jus cogens rules which ought to override procedural rules of state immunity.[66]
Likewise, Lozano[67] further entrenched Ferrini-style reasoning relating to violations of jus cogens norms by acts of a state.[68] Interestingly, whilst state immunity was upheld in the case of Lozano (since the subject acts were not war crimes), the Court posited in obiter dictum that a ‘State agent who commits international crimes while acting in his official capacity may lose immunity for both himself and the state for which he was an agent’.[69] Thus, the Court affirmed a crucial point in Ferrini – breaches of jus cogens norms shall no longer result in impunity for states who commit such wrongful and inhumane acts.[70]
Finally, the Italian case of Milde[71] further applied the reasoning in Ferrini.[72] The Court of Cassation relied greatly on its reasoning in Ferrini, concluding that even if violations of jus cogens norms are still acts committed acta jure imperii (sovereign acts), the perpetrating state shall not be immune.[73] Rather than quantitatively analysing state practice, the value-oriented reasons underlying why immunity should be withheld following breaches of jus cogens norms were considered,[74] including the normative superiority of jus cogens norms along with notions of justice.[75]
It is little known why the ICJ failed to consider entrenched Italian practice regarding a jus cogens exception to state immunity, compared to the Court’s detailed analysis of state practice negativing such an exception. Yet, the effect of this omission was an impartial and incomplete analysis of relevant law which has continued to draw criticism of the majority’s decision.
Along with Italy, Greek case law has experienced momentary success for a jus cogens exception to state immunity.[76] In Distomo[77] – a decision momentarily referred to by the ICJ majority,[78] the Hellenic Supreme Court (Areios Pagos) upheld an earlier decision by the Greek Court of First Instance (Protodikeio) of Leivadia,[79] to award approximately US$30 million to survivors and relatives of the victims of the Distomo massacre,[80] concluding that a state that breached jus cogens norms could not enjoy immunity.[81] However, a Special High Court was later formed which found that Germany could in fact enjoy immunity as there was not yet a valid customary legal exception for the withholding of state immunity for breaches of jus cogens norms.[82] However, even in the later Greek case of Margellos, a noted dissent advocated for such a jus cogens exception, suggesting a thread of activism in this unsettled area of law.[83]
Nevertheless, Distomo should not be completely disregarded as Greek authorities have continually said that later Greek decisions would ‘not alter the outcome in the Distomo case’.[84] Likewise, it has been suggested that the Distomo decision was not enforced due to political pressures on the Greek Minister of Justice to recognise that an exception for breaches of jus cogens norms did not yet exist,[85] in line with widespread continental European practice.[86] Thus, whilst the decision may prove somewhat isolated in Greek jurisprudence,[87] the merits of that case ought to have still received greater consideration, especially given the politicised nature of the Greek Special High Court’s back-stepping in the later Margellos, and indications of the unique status of the earlier decision in Distomo.
Similarly, the ICJ majority judgment has been criticised for its omission of United States legislation and judicial practice on the subject of an exception for breaches of jus cogens norms.[88]
There have been increasing attempts in American practice to establish a jus cogens exception to state immunity, predicated on the implied waiver argument to withholding immunity.[89] As will be explored later, the implied waiver argument posits that if a state commits grave breaches of human rights, IHL or peremptory norms, it will implicitly waive its entitlement to state immunity privileges.[90]
For example, in the case of Siderman de Blake v Republic of Argentina,[91] the District Court found ‘that Argentina had waived its immunity by implication ...’[92] Whilst reversed on appeal, and what appeared to be to the disdain of the Court,[93] this was because the US Congress had not included or intended a jus cogens exception to state immunity within the Foreign Sovereign Immunities Act of 1976.[94] However, the Court expressed concern that there is an ‘inconsistency ... [between] the national legislation [FSIA] with international law by stating that under international law, the peremptory status of jus cogens norms would render immunity inapplicable.’[95]
Similarly, in the case of Princz v Federal Republic of Germany,[96] involving allegations by an American Jewish Holocaust survivor of deportation and forced labour in Nazi concentration camps, German immunity was upheld once more, since the FSIA did not include a specific jus cogens exception, as well as rejecting the argument that Germany implicitly waived its immunity due to the peremptory character of the rules it violated.[97] However, Judge Wald in Princz provided a stirring dissent upholding the argument that Germany implicitly waived its immunity.[98]
These examples suggest a strand within American jurisprudence supporting an emergent jus cogens exception to state immunity. Indeed, the omission of consideration of such case law by the majority in Jurisdictional Immunities of the State was disappointing while forsaking completeness.[99]
American legislation has further broadened the jurisdiction enjoyed by states over matters where traditional state immunity would have prevailed.[100] This is through the Antiterrorism and Effective Death Penalty Act of 1996[101] which amended the original FSIA, permitting the abrogation of state immunity when a state-sponsor of terrorism commits acts contrary to jus cogens norms (like torture) inter alia.[102] Inopportunely, the majority in Jurisdictional Immunities of the State was quick to cast aside this law for having ‘no counterpart in the legislation of other states,’[103] and thus having little utility in contributing to the state practice required to create a new customary norm.
The majority ought to have reflected upon the state-sponsors of terrorism exception in the FSIA – a provision that generally reflects states’ admonition of violations of jus cogens norms – along with the so-called renegade case law of Italy and Greece, to consider the reality of movement in the area of a jus cogens exception to state immunity.
Thus, it is unfortunate that the ICJ did not consider American case law particularly regarding the implied waiver argument, as well as the Antiterrorism and Effective Death Penalty Act of 1996 exception.[104] This is especially the case considering the bellwether role of American practice in guiding the development of international law generally.[105]
Whilst judicial consideration of Italian, Greek and American practice would have been expected,[106] the reality is that this sampling, even if thoroughly considered, still would have failed to quantitatively add to the widespread state practice required to create a new customary norm of international law.[107]
Despite the aforementioned examples of isolated state practice, the maintenance of immunity even when a state has violated jus cogens norms seems to be widespread.[108]
Decisions across continental Europe have reflected this entrenched rule of customary international law.[109] For example, regarding claims by victims for breaches of jus cogens norms by states, French courts have consistently upheld German immunity. In Bucheron,[110] the plaintiff sought damages as a result of his deportation to Germany for the purpose of forced labour during WWII. Unceremoniously, the French Court of Cassation observed that the imposition of forced labour was ordered under the governmental authority of the Third Reich,[111] thus Germany did not forfeit its jurisdictional immunity. This reasoning has been the mainstay of future French decisions.[112]
Additionally, Slovenian,[113] Polish,[114] and controversially, Greek courts,[115] have all reached similar conclusions. Ironically, Israel has also upheld state immunity for breaches of jus cogens norms by states.[116] Finally, the common law jurisdictions of United Kingdom,[117] New Zealand,[118] and Canada[119] have also upheld immunity for breaches of jus cogens norms.
While fora such as the Inter-American Court of Human Rights have been more progressive in upholding a jus cogens exception to state immunity, similar regional courts have proven defiant on the question of such an exception to immunity.
In particular, the oft-cited jurisprudence of the European Court of Human Rights[120] has continually upheld the view that state immunity cannot be abrogated for breaches of human rights,[121] as seen in Al-Adsani.[122] However, it is disappointing that the majority in the Jurisdictional Immunities of the State chose not to consider the minority judgments in Al-Adsani,[123] which based its decision on the argument that the normative weight of jus cogens rules should operate to exclude state immunity due to their higher status as community-endorsed peremptory rules; an argument that will be explored in more detail shortly.[124] Nevertheless, the practical reality is that the ECtHR has not picked up the Al-Adsani minority’s jus cogens ‘conflict rationale’ in subsequent cases. For example, in the ECtHR case of Kalogeropoulou,[125] the case brought in relation to the refusal of the Greek Government to permit enforcement of the Distomo judgment, the Court denied the emergence of such an exception for breaches of jus cogens norms.[126]
Whilst the methodological approach of the ICJ to analysing state practice in Jurisdictional Immunities of the State is not without question, the result of such omissions or oversimplification of important case law is unequivocal – state practice does not reflect a widespread exception regarding the ability of municipal courts to withhold immunity in civil claims by victims alleging a state’s breach of jus cogens norms.[127] This is not to say that this will permanently be the case; indeed, the cases cited earlier have foreshadowed a time when increasing pressures to remove immunity will be matched by more widespread state practice.[128] Nevertheless, following Jurisdictional Immunities of the State and the above cited cases, continued activism in this area by domestic judiciaries (and legislatures) shall prove difficult.[129]
This Part shall consider how a jus cogens exception to state immunity could be facilitated.[130] This will involve an analysis of arguments litigants have used in municipal, regional and international courts to exclude state immunity when a state allegedly commits grave violations of international law, contrary to jus cogens norms.
One of the most pervasive arguments used in litigation for an exception to state immunity for breaches of jus cogens norms has been the argument that jus cogens norms are of such a character that they ought to eclipse any inferior international legal rules,[131] including rules regulating state immunity which are of an hierarchically-inferior status,[132] being informed by custom and not jus cogens.[133] This argument has been made in response to the positivist ‘procedure-substance’ divide argument relied on by defendant states, and maintained by Courts,[134] which asserts that state immunity is simply a procedural and preliminary matter which is determined before consideration of whether a state has breached rules of a jus cogens character.[135]
As discussed in Part II, various courts have ‘played the jus cogens card’[136] when seeking to justify the denial of State immunity. Notoriously, the Court of Cassation in Ferrini chose to deny Germany immunity predicated on the argument that jus cogens norms enjoy a superior status in the normative hierarchy of international rules.[137] Unsurprisingly, similar arguments were cited in Mantelli,[138] Lozano,[139] and later in Milde,[140] explaining why the post-Ferrini Italian jurisprudence has been labelled by some as troublesome.[141] Likewise, although the Greek decision in Distomo was later overturned, the District Court of Leivadia first held that the peremptory status of rules prohibiting war crimes defeated any immunity that Germany may have otherwise enjoyed.[142] Finally, whilst in Al-Adsani the majority rejected the proposition that breaches of the jus cogens rule on the prohibition of torture compelled a denial of state immunity,[143] the superior quality of jus cogens rules featured more prominently in the joint dissenting opinion of the six judges.[144]
The possibility of state immunity being withheld for breaches of peremptory norms would require further judicial pronouncement on the superior normative status of jus cogens norms,[145] acting to override any inferior rules such as customary law rules regarding state immunity. This would involve a departure from the strict positivist procedure-substance divide,[146] upon realisation that jus cogens norms ought to operate to preclude state immunity which is merely a procedural rule of law.[147] This would facilitate the attainment of justice for individuals to obtain reparations as well as increasing the accountability of states who commit such wrongful and repugnant acts.[148]
However, as mentioned, proponents for maintaining the status quo have argued that no possible conflict between jus cogens norms and rules regulating state immunity exists.[149] It is argued that these are two separate sets of rules whereby consideration of immunity – as a time-proclaimed preliminary matter[150] – is considered before the merits of a case and whether there has been a violation of jus cogens norms.[151]
The majority in Jurisdictional Immunities of the State seemed wary of overcomplicating what it perceives is a simple distinction.[152] State immunity, as it understands, is a preliminary matter as to whether a forum state may exercise jurisdiction.[153] That is a matter of procedure that once decided, will then allow for issues regarding substantive rights (like violations of jus cogens norms) to be heard. The Court contended that no conflict between these rules is conceivable as ‘the two sets of rules affect different matters’ in the course of litigation.[154] As writer Emmanuel Voyakis argues, ‘[t]alk of any sort of ordering amongst legal rules makes sense only if those rules are in conflict at the level of substance.’[155] This point was also emphasised by Professor James Crawford at a recent address on the topic,[156] and is immortalised in past ICJ jurisprudence.[157]
Thus, if jus cogens rules contained a procedural obligation mandating municipal jurisdiction (or removing immunity) upon a breach of a jus cogens norm – in addition to the substantive prohibitions jus cogens rules currently stipulate – only then would there be a genuine conflict between, on the one hand, a jus cogens rule mandating municipal jurisdiction and the withholding of immunity, and a customary norm to uphold state immunity – even for breach of jus cogens norms by states.[158] Alexander Orakhelashvili is a key proponent of jus cogens rules containing a ‘package’[159] of peremptory obligations including the obligation to enforce jus cogens rules.[160] However, since the existence of a custom for states to enliven their civil jurisdictions to hear allegations of breaches of jus cogens norms is doubtful,[161] a fortiori, a peremptory obligation to assume civil jurisdiction for breaches of jus cogens norms does not exist.[162]
Thus, the grim reality is that state immunity as a preliminary matter to be considered by courts seems fairly entrenched.[163] The only way that a genuine conflict could exist between peremptory norms and customary rules of state immunity, is if jus cogens norms contained the aforementioned ‘cluster’ of obligations mandating that domestic courts withhold a state’s immunity following breaches of jus cogens norms.[164] However, this quality of jus cogens norms which mandates civil jurisdiction has not yet been accepted judicially,[165] with the result of ‘de facto impunity for the most serious human rights violations ...’[166]
Another way to litigate an exception to state immunity for breaches of international law and peremptory norms specifically, relates to the laws of state responsibility.[167] The complicity argument is that if a state refuses to exercise jurisdiction for violations of international law, the state which grants immunity to the state that breaches jus cogens norms – ’violations of [the] ... ordre public’[168] – shall in turn violate international law and engage its international responsibility.[169]
This argument is anchored in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts,[170] which emphasise the duty of states not to recognise violations of peremptory norms or assist a state in breach of such inviolable norms. This complicity argument was noted by the Courts as a reason to deny immunity to Germany in Distomo[171] and later in Ferrini.[172]
Notwithstanding the merits of this argument, as Knuchel notes, ‘[a] subsequent decision on adjudication, however, can hardly be considered an active participation in that wrongful act.’[173] This same reasoning was applied by the majority in Jurisdictional Immunities of the State;[174] that is, a state which upholds another state’s immunity despite breaches of jus cogens norms cannot be seen to be acting unlawfully. This is because state immunity is a preliminary matter determined before a Court goes on to consider whether there has been a breach of jus cogens norms.[175] Likewise, the majority in Jurisdictional Immunities of the State stood firm in its position that merely applying current customary law is not unlawful and thus cannot attract the international legal responsibility of states who uphold such immunity.[176] This defiance suggests little hope for the future success of the complicity argument, at least in the ICJ.
Further, it has been argued that to give rise to an exception for beaches of jus cogens norms, courts ought to lessen their attachment to categorising acts committed with sovereign authority as either being acts jure imperii (public acts of a state committed with sovereign authority) or acts jure gestionis (private non-official acts of states). The argument is that since the commission of such acts against jus cogens norms offends the collective conscience of the international community which has decided those norms,[177] those breaches cannot possibly be seen as acts committed under sovereign authority and thus deserving of state immunity.[178] Such acts would preclude a state from receiving immunity,[179] such is the current case when a state enters private commercial relationships.[180]
However, the fatal aspect to such an argument is that despite a state’s commission of grave breaches of peremptory norms, the illegality of breaching jus cogens norms does not miraculously transform those breaches into acta jure gestionis, or private acts, thereby disentitling a state to immunity.[181]
The most likely conclusion, though unsettling, is that although the international community does not consider breaches of jus cogens norms to be acts committed as official state acts – a position provisionally argued by Italy at paragraph 86 of the judgement – sovereign acts do ‘not have to be lawful to attract immunity ...’[182] This was confirmed by the majority in Jurisdictional Immunities of the State.[183]
Another way of facilitating an exception for breaches of jus cogens norms has been through the ‘implied waiver’ argument;[184] that is, if a state commits grave breaches of human rights, IHL or peremptory norms, it shall implicitly waive its immunity.[185]
Currently, a state waiving its immunity is a valid exception allowing a forum state to enliven its municipal jurisdiction.[186] However, this pre-existing system of waiving immunity requires a clear and discernible intention of the impugned state to do so.[187] The argument that states waive their immunity following breaches of jus cogens norms is an extension of the argument that breaches of jus cogens norms cannot be conceived as being sovereign acts and therefore not entitled to receive immunity.[188]
This argument has been met with mixed support in various municipal courts.[189] This implied waiver argument was upheld in Distomo,[190] yet despite the Court’s final decision regarding jus cogens norms, was rejected in Ferrini.[191] In Ferrini, the judges posited that it was implausible for a state to waive its immunity without any clear and apparent intention to do so.[192] Likewise, the implied waiver theory saw some approval in the United States before being sharply rejected based on a similar rationale in Ferrini;[193] that is, a state will only waive its immunity if it expresses a ‘discernible intention’ to do so,[194] and not because a breach of a jus cogens norm ipso facto mandates the removal of immunity.[195]
Courts have repeatedly stated that simply because certain acts committed under sovereign authority are in breach of jus cogens rules, does not mean the state authorising such acts necessarily waives its immunity.[196]
In Jurisdictional Immunities of the State, dissentient Judge Cançado Trindade spent a great deal of his opinion suggesting how the law of state immunity has evolved so as to prohibit state immunity being used by states to shield themselves from liability.[197]
As Judge Cançado Trindade observed, individuals should be the ultimate beneficiaries of reparations and compensation in post-war settlements,[198] and too often history has precluded compensation to such individuals.[199] His Excellency argues that victims of war crimes should be able to receive compensation for these breaches of peremptory norms,[200] and that recognising an exception for breaches of jus cogens norms ought to include greater access of individuals to civil remedies.[201]
However, the majority in Jurisdictional Immunities of the State feared the effect that allowing an exception for breaches of jus cogens norms would have on traditional interstate, post-war compensation mechanisms.[202] As Chris Tomuschat has written, following an armed conflict, the most practical way to deal with compensation is through interstate negotiations which have been a settled practice of bygone decades.[203] This proposition coincides with the idea that the most ‘essential aspect of post-war treaties is oblivion and indemnity ...’,[204] namely, a sense of finality that is required to restore working relations amongst states without the fear of continued private litigation.[205] The majority also noted the difficulty faced by municipal courts, like Italian courts, in deciding under what circumstances those interstate mechanisms for determining compensation had failed.
Thus, the disappointing reality is that to avoid a ‘floodgates’ post-war scenario characterised by potentially millions of claimants seeking redress in national courts,[206] it is unfeasible for states to depart from the state-centric approach to determining compensation for individuals following violations of jus cogens norms.[207] In Jurisdictional Immunities of the State, the majority entrenched the post-World War I norm of state actors of war using lump-sum payments to restore international relations and to bring closure to future compensation claims by victims.[208]
Whilst some of the arguments used to litigate a general jus cogens exception to state immunity were examined, as it was shown, such arguments have generally failed to generate nothing more than academic debate or momentary instances of judicial success. This is often the result of ingrained judicial thinking[209] seen, for example, in courts’ attachment to the procedure-substance lens to viewing state immunity.[210] Until the merits of such arguments are met with greater judicial support, they are likely to continue to fail, resulting in the inability of victims of breaches of jus cogens norms to access remedies in municipal courts.
However, it is a more interesting situation when specific claimants, even after state-negotiated compensation schemes, have still been denied a form of remedy.[211] This situation was manifested in Italy’s dubious ‘last resort’ argument in Jurisdictional Immunities of the State,[212] and will be further explored in Part IV.
In Part III, the need for Courts to reconfigure their view of state immunity as not exclusively state-oriented, but which considers the fundamental human rights of individual victims was discussed.[213] This would allow for aggrieved victims of breaches of IHL and jus cogens norms to claim individually and bypass traditional interstate compensation arrangements.[214] However, a fear of allowing individual compensation is the countless private claims that may result,[215] amounting to what has been called judicial ‘chaos’.[216]
In this final Part, analysis will be undertaken of the legitimacy of an alternative, more focused exception to state immunity for breaches of jus cogens norms in response to the above ‘floodgates’ fear; that is, can state immunity be withheld by municipal courts to hear victims’ compensation claims in the ‘exceptional circumstances’[217] of a state’s failure to pay reparations to those victims for its acts in breach of jus cogens norms, and where there exist no other remedies for the victims?[218] This is said to uphold victims’ right to access justice. Rephrased, can the right to access justice (including access to a remedy) be used to deny a state’s immunity when victims initiate civil litigation in municipal courts as a last resort?
Fundamentally, immunity should be withheld when there are no other means to obtain redress for victims so as to ensure that victims are able to enjoy their right to access justice and to receive a remedy for their loss (such as reparations).[219] As His Excellency Judge Yusuf explained in his dissent:
[T]he use of state immunity to obstruct the right of access to justice and the right to an effective remedy may be seen as a misuse of such immunity.[220]
The argument supposes that all individual victims of breaches of jus cogens norms are, or ought to be entitled to claim compensation or reparations for the loss or harm they have sustained.[221] Such compensation has usually occurred at the interstate level,[222] rather than at the behest of individual litigants as the majority in Jurisdictional Immunities of the State confirmed.[223] However, in the instance that victims have ‘fallen through the cracks’[224] of traditional post-war compensation schemes, they ought to be able to enliven the jurisdiction of their municipal courts to hear their civil compensation claims.[225] This would protect victims’ right to access justice including a right to an ‘effective remedy’[226] (such as reparations or compensation).
Though not binding on states, the right to access justice, including ‘effective and prompt reparation for harm suffered’, is protected in articles 11 and 12 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.[227] Further, international legal instruments such as the European Convention on Human Rights[228] and American Convention on Human Rights,[229] inter alia, have reflected this right to access justice such as the right to fair trial possibly resulting in the awarding of damages to aggrieved victims of violations of peremptory norms.[230] The right to access justice has also been proclaimed at the judicial level.[231]
Consequently, cases in national courts have been decided where state immunity has been withheld in the face of grave violation of human rights, and in response to the repeated failure by the responsible state to provide the victims with a remedy, like compensation.[232] Ferrini exemplified this as the Court of Cassation did not want to deny Italian claimants’ access to justice when the IMIs were left without any form of redress.[233]
If the Italian courts were to uphold German immunity, Italian victims would have been denied access to a remedy (reparations) and thus denied access to justice.[234] This sits comfortably with other cases whereby a decision to maintain state immunity was upheld as there existed other means to secure a remedy and thus the claimants were not being denied their right to access justice.[235] For example, in Arrest Warrant[236] – a case concerning the official immunity of an incumbent Minister of Foreign Affairs from criminal prosecution by a foreign Court – the ICJ upheld the immunity of the Congolese Foreign Minister, Abdoulaye Yerodia Ndombasi, finding that other avenues for prosecution existed to address allegations that the Minister committed war crimes, crimes against humanity and genocide during the 1994 Rwandan genocide.[237] This would prevent a situation of impunity; that is, a situation whereby the Minister would be completely exculpated for his alleged criminal acts. Similarly, the Amsterdam Court of Appeal has upheld state immunity,[238] precluding families of the victims of Srebrenica from being heard as there existed other means of securing reparations, thus not violating victims’ right to access justice.[239]
The jurisprudence of regional courts has also championed the right to access justice over traditional immunity.[240] The Inter-American Court of Human Rights[241] has been noted for its commitment to the protection of the right to access justice including a right to a remedy.[242] Disappointingly, regarding the possibility of abrogating state immunity so as to uphold victims’ right to access justice, the majority in Jurisdictional Immunities of the State did not analyse such important international case law. Indeed, the majority missed an opportunity to further clarify the scope and limit of exceptions to traditional state immunity.[243] In Jurisdictional Immunities of the State, Italy cited the IACtHR authority of the Case of Goiburú et al v Paraguay in its Counter-Memorial to furnish its argument that the right of access to justice should not be frustrated by the maintenance of state immunity following a breach of a jus cogens norm.[244] In that case, it was held that if a breach of a substantive rule is of a jus cogens character, access to justice will also acquire jus cogens status as a necessary complement.[245] This was also affirmed in the decision of La Cantuta v Perú of the IACtHR.[246] Though this point does not reflect widespread state practice;[247] that is, that a breach of a jus cogens rule will mean that victims’ right to access justice is also of a jus cogens character, the IACtHR has generally championed the ‘essence of the right of access to justice’, rather than being concerned with its limitations[248] – the current approach of the ECtHR.[249]
Whilst access to justice has been used in isolated cases to withhold immunity,[250] the pragmatic conclusion upon an analysis of state practice is that although victims’ rights to access justice by upholding state immunity is compromised, this is not done in an unlawful or unacceptable manner, but in fact, such restrictions are an inherent part of the right to access justice itself.[251]
In Al-Adsani, the Grand Chamber of the ECtHR dismissed the argument that granting state immunity would prevent access to a fair trial (and thus a potential remedy) under Article 6(1) of the ECHR.[252] The Court emphasised that the right to access justice was constrained by limitations which are proportionate to a ‘legitimate aim’.[253] This enabled the Court to conclude that the granting of state immunity cannot be seen as a disproportionate restriction on Article 6(1) as the abrogation of immunity following a state’s breach of jus cogens norms was not yet a customary norm.[254] Similarly, in Kalogeropoulou, the ECtHR reaffirmed its earlier decision in Al-Adsani,[255] confirming that the maintenance of state immunity as required by customary international law represented a ‘permissible restriction on the exercise of the relevant right ...’ [to access a court].[256]
Similar courts have followed the methodology of the ECtHR to suggest the legitimacy of a grant of state immunity,[257] even if it encroaches on a right to access courts or access justice, including potential access to a remedy. [258]
For example, in Margellos, the Greek Special Supreme Court was influenced by the previous decisions of the ECtHR that upholding state immunity would not represent an affront to a victim’s access to a court or justice.[259] Similarly, in Jones, the House of Lords equally adopted the reasoning in Al-Adsani regarding Article 6(1) of the ECHR;[260] that is, an exception to state immunity had not yet arisen for breaches of jus cogens norms,[261] and thus there was not an unreasonable departure from victims’ right to access a court, justice and a remedy.
The force of ECtHR jurisprudence has been felt farther afield than continental Europe.[262] A year following Al-Adsani, the Canadian decision of Bouzari v Islamic Republic of Iran held that state practice did not widely reflect a customary rule that immunity could be abrogated upon breaches of jus cogens norms.[263] This decision was upheld on appeal.[264]
Finally, in Jurisdictional Immunities of the State, the majority held that state immunity does not depend on whether there exists an alternative means for redress for victims of breaches of jus cogens norms.[265] In this vein, the majority implicitly denied that access to justice including access to a court and the securing of a remedy (reparations) could be used as an exception to immunity.[266] To add insult to injury, the majority in Jurisdictional Immunities of the State concluded that, in any event, individuals themselves are unable to personally seek compensation.[267] This conclusion is made despite nascent indications that victims of war crimes may be able to claim compensation personally, as it has been pronounced in international legal instruments[268] and case law.[269]
The pitiable comments of the majority in Jurisdictional Immunities of the State that it is with ‘great surprise and regret’[270] that the Italian victims had not yet received any compensation helped furnish the Court’s suggestion that the issue of outstanding reparations be subject to ‘further negotiations’[271] at the traditional interstate level.[272] This is because individual victims will not have an actionable compensation claim upon breaches of jus cogens norms,[273] and further, victims are unable to have state immunity withheld if they are using municipal courts as a forum of last resort.[274]
Whilst the last century saw increased emphasis placed on notions of human rights and justice following the atrocities of two World Wars,[275] the doctrine of state immunity operates as a fatal reminder that the aspirations of human rights and justice are not being fully supported by many national and international courts.[276]
Abrogating state immunity for breaches of jus cogens norms generally, or alternatively, withholding immunity when victims of jus cogens violations have no other form of redress, has its benefits. However, removing state immunity will undoubtedly risk impinging upon the offending state’s sovereign equality, dignity and entitlement to non-intervention into its internal affairs.[277] Nevertheless, it is argued that these values are legitimately compromised at the behest of achieving justice, accountability and the protection of individual rights.[278] Courts are being faced with a clear tension – on the one hand, the choice to entrench the status quo that breaches of jus cogens norms should not be cause to abrogate state immunity, and on the other hand, withholding state immunity to ensure the accountability of states, the prevention of impunity, and victims’ access to justice.[279]
While Jurisdictional Immunities of the State was thought to be the opportunity of the ICJ to make a positive pronouncement on a jus cogens exception to traditional state immunity,[280] the majority’s decision continued that bias in favour of the interests of states.[281]
In relation to a jus cogens exception to immunity generally, the majority controversially held that state practice did not support this exception to enable it to pronounce on the development of a new custom.[282] In any event, the majority affirmed its position in Arrest Warrant – immunity is a preliminary matter of procedure which comes before the consideration of the substance of a dispute such as whether jus cogens norms have been violated.[283] Regarding the removal of immunity to enable victims’ access to justice, the majority concluded that individuals are not entitled to claim against states personally,[284] and that resort should be had to traditional interstate compensation mechanisms following armed conflicts.[285] The majority also rejected the ‘last resort’ argument enabling victims to utilise municipal courts.[286]
Conversely, impassioned dissentient Judge Cançado Trindade concluded that when determining whether a jus cogens exception to state immunity should be consolidated as a customary rule, the normative imperatives of ensuring state accountability, preventing impunity and protecting individuals’ right to access justice should be considered over quantitatively analysing fractured and largely unsettled state practice on immunity.[287]
In his dissent, His Excellency Judge Yusuf mediated the two extremes of the majority and Judge Cançado Trindade. His Excellency suggested that following violations of jus cogens norms by states, immunity should be withheld in the ‘exceptional circumstances’[288] when victims have no remaining options to obtain redress.[289] This conclusion sits comfortably with the ICJ’s decision in Arrest Warrant.[290] Removing state immunity when there are no other means of redress for victims still recognises the role of post-war compensation negotiations, yet ensures that victims who are left without a remedy still receive some form of compensation.[291]
In this author’s opinion, there are several obstacles to the consolidation of a jus cogens exception to state immunity generally, and an exception when there are no other forms of redress specifically.[292]
Arguably, the most enduring hurdle to the creation of a jus cogens exception to state immunity is courts’ unwillingness to move beyond seeing immunity as a purely procedural matter which comes before the substantive assessment of the merits of a case.[293] Courts favouring such conservatism ought to reconsider their perception of state immunity as a purely preliminary matter; recognising that when grave breaches of superior jus cogens norms are alleged, offending states should be disentitled to immunity.
It is recommended that states who are dissatisfied with the decision in Jurisdictional Immunities of the State continue to pass laws and decide cases withholding state immunity following states’ breaches of jus cogens norms.[294] If activist domestic courts continue to withhold immunity for breaches of jus cogens norms, the collective force of these determinations will serve as the winds of change in which the ICJ and other regional courts will be unable to deny that state practice reflects a jus cogens exception to immunity.[295] Such state practice continuing to entrench a jus cogens exception may even be sufficient to add an exception in a Protocol to the United Nations Convention on Jurisdictional Immunities[296] – such an exception originally omitted from the final Convention as it was not considered ‘ripe enough’.[297]
Furthermore, regarding the more nuanced exception to state immunity when victims of breaches of international law have no other means of redress, the case law suggests that first a general exception to immunity for breaches of jus cogens norms must be settled upon.[298] This conclusion is unequivocal. But until a general jus cogens exception is recognised, the ‘last resort’ argument – allowing victims’ access to justice) – to succeed, requires conservative judiciaries to reposition individuals’ rights and interests above that of states.[299] This would allow for a finding by courts that upholding state immunity does indeed come at a disproportionate and illegitimate cost to victims’ access to justice.[300]
Thus, regarding currently disenfranchised victims, such individuals must continue to rely on their domicile governments to negotiate compensation in their best interests.[301] This is a depressing conclusion since states, as it has been seen, have so often excluded individuals from these interstate compensation schemes. However, there is some hope for both states and individuals; in post-war compensation negotiations, if states act in good faith and ensure that all victims of wrongful acts receive (or are apportioned) some form of direct compensation, then this would ameliorate the plight of victims and provide a level of surety to states that victims will not initiate private claims in municipal Courts to seek redress.[302] This conclusion is evident from the majority in Jurisdictional Immunities of the State which implied that the raft of Italian case law and the current ICJ proceedings would not have occurred but for the failure of Germany to ensure all victims of breaches of jus cogens norms received some form of redress.
[∗] BBA-LLB(H1) Macq MIR candidate Syd I am currently working in international affairs in Sydney, Australia. The views expressed in this article are my own and do not represent the views of any third parties.
[1] Judge Cançado Trindade, Jurisdictional Immunities of the State: Jurisdictional Immunities of the State (Germany v Italy) (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 87–8, [314]–[316] (Judge Cançado Trindade) (‘Jurisdictional Immunities of the State’).
[2] Ibid 82–3, [292] (Judge Cançado Trindade).
[3] R v Bow Street Metropolitan Stipendiary Magistrate and Ors; Ex parte Pinochet Ugarte (No. 3) [1999] UKHL 17; [2000] 1 AC 147, 201 (Lord Browne-Wilkinson) (‘Pinochet (No. 3)’); Gillian D Triggs, International Law – Contemporary Principles and Practices (LexisNexis Butterworths, 2006) 380–1.
[4] Report of the Commission to the General Assembly on the work of its thirty-second session’ [1980] II[2] Yearbook of the International Law Commission 147, [26]; Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 24, [56].
[5] Martin Dixon, International Law (Oxford University Press, 2007) 174–7; Stefen A Riesenfeld, ‘Sovereign Immunity in Perspective’ (1986) 19 Vanderbilt Journal of International Law 1, 1. Riesenfeld comments that state immunity is ‘rooted in two bases of international law, the notion of sovereignty and the notion of the equality of sovereigns.’; Jasper Finke, ‘Sovereign Immunity: Rule, Comity or Something Else?’ (2011) 21(4) European Journal of International Law 853, 866. Finke argues that traditionally, state immunity’s protection of sovereign equality was reflected in the maxim par in parem non habet imperium (an equal does not have power over an equal).
[6] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3, 21–2, [53]–[54] (‘Arrest Warrant’); Steffen Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v Belgium Case’ (2002) 13(4) European Journal of International Law 877, 882.
[7] Dixon, above n 5, 174.
[8] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 6, [26] (Judge Yusuf). In his dissenting opinion, His Excellency Judge Yusuf likens State immunity as being ‘as full of holes as Swiss cheese.’
[9] Richard Garnett, ‘Should Foreign State Immunity be Abolished?’ [1999] AUYrBkIntLaw 10; (1988) 20 Australian Yearbook of International Law 175.
[10] Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 British Yearbook of International Law 220, 247.
[11] Ibid.
[12] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 6–7, [16] (Judge Cançado Trindade).
[13] See also Finke, above n 5, 858.
[14] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 6–7, [16] (Judge Cançado Trindade); Stefan Talmon, ‘Jus Cogens after Germany v Italy: Substantive and Procedural Rules Distinguished’ (Research Paper No 4/2012, University of Bonn Institute for Public International Law, 2012) 3.
[15] Ben Clarke and Jackson Maogoto, International Law (Thomson Reuters, 2009) 139; The Parlement Belge [1880] UKLawRpPro 10; (1880) 5 PD 197, 217.
[16] For a discussion of the history and scope of absolute State immunity, see Ernest K Bankas, The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts (Springer, 2005) Chapter 1 – The Origins of Absolute Immunity of States.
[17] See generally Peter Butt (ed), Concise Australian Legal Dictionary (LexisNexis Butterworths, 2004) 243; See also Finke, above n 5, 858.
[18] For a discussion of the history and scope of restrictive state immunity, see generally Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff, 1997) 17–9; Helen Dickinson, ‘Immunity v Accountability: Considering the Relationship between State Immunity and Accountability for Torture and other Serious International Crimes’ (Report, The Redress Trust, 2005) 21–39.
[19] See generally Lee Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 758.
[20] Ruth Donner, ‘Some Recent Caselaw Concerning State Immunity before National Courts’ (1994) 5 Finnish Yearbook of International Law 388, 390–1; See also Butt (ed), above n 17; PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33. Interestingly, the High Court of Australia recently held that the commercial transactions exception to state immunity in s 11(1) of Australia’s Foreign States Immunities Act 1985 (Cth) not only enables litigation for states’ engagement in commercial dealings, but also allows for the prosecution of states by public authorities (such as the Australian Competition and Consumer Commission (ACCC)) for engaging in anti-competitive conduct.
[21] Kimberley N Trapp and Alex Mills, ‘Smooth Runs the Water where the Brook is Deep: The Obscured Complexities of Germany v Italy’ (2012) 1(1) Cambridge Journal of International and Comparative Law 153, 155–9; See generally Judi L Abbott, The Noncommercial Torts Exception to the Foreign Sovereign Immunities Act (1985) 9(1) Fordham International Law Journal 134.
[22] Foreign Sovereign Immunities Act of 1976, Pub L No 94-583, 90 Stat 2891 (codified as amended at 28 USC §§ 1330, 1602-1611 (2006)). See specifically, 28 USC § 1605A; Miša Zgonec-Rozej, No Reparation for the Victims of Nazi War Crimes – The Judgement by the International Court of Justice (ICJ) in Germany v Italy, Greece Intervening (2012) <http://ilawyerblog.com/no-reparation-for-the-victims-of-nazi-war-crimes-the-judgement-by-the-international-court-of-justice-icj-in-germany-v-italy-greece-intervening/> .
[23] Cf Garnett, above n 9, 175–6. Garnett argues that fragmentary state practice and increasing exceptions have undermined the role of contemporary state immunity, rather than adding to its depth as an entrenched principle of customary international law.
[24] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 34–39, [81]–[97]; Butt provides a useful definition of jus cogens norms based upon the definition found in the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 53: ‘Compelling law. A rule of international law that has the status of jus cogens is one that is ‘accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. ... Also known as ‘peremptory norm[s]’’; Butt, above n 17, 244; The terms ‘jus cogens’ and ‘peremptory norms’ are used interchangeably throughout this paper. These norms have come to include acts such as prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, slavery, genocide, torture and apartheid.
[25] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 42, [138] (Judge Cançado Trindade).
[26] Ibid 28, [6]–[7] (Judge Yusuf). His Excellency observes in his dissenting opinion: ‘In today’s world, the use of state immunity to obstruct the right of access to justice and the right to an effective remedy may be seen as a misuse of such immunity.’
[27] Hereinafter referred to as the ICJ.
[28] See ObiterJ, ‘International Court of Justice: Germany v Italy (Greece Intervening)’ on Watching the Law (20 February 2012) <http://watchingthelaw.blogspot.com.au/2012/02/ international-court-of-justice-germany.html> .
[29] Herein referred to as IHL.
[30] Herein referred to as IMIs.
[31] The ICJ also found that Italy had violated Germany’s right to state immunity by: (2) adopting measures of constraint against German property in Italy (14 votes to 1); and (3) enforcing Greek decisions in Italian courts involving similar civil litigation by Greek civilians for war atrocities committed by the Third Reich during World War II (14 votes to 1). Italy was ordered by the ICJ to ensure the decisions of Italian courts violating the state immunity of Germany ceased to have any effect (14 votes to 1).
[32] The majority in Jurisdictional Immunities of the State observed:
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 ...
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 38, [93].
[33] Ibid 37, [91].
[34] Ibid 41, [101].
[35] Paul Christoph Bornkamm, ‘State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice in Jurisdictional Immunities of the State’ (2012) 13 German Law Journal 773, 782.
[36] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 22, [52]. It should be noted that Germany repeatedly acknowledged the unlawfulness of the war crimes committed by the Third Reich between 1943–5, and the ‘untold suffering inflicted on Italian men and women ...’
[37] Gilles Cuniberti, ‘Hess on Germany v Italy’ on Conflict of Laws – News and Views in Private International Law (21 February 2012) <http://conflictoflaws.net/2012/hess-on-italy-v-germany/> . Cuniberti (inter alia) questions the methodological approach adopted by the ICJ to selecting and analysing state practice.
[38] See generally Sévrine Knuchel, ‘State Immunity and the Promise of Jus Cogens’ (2011) 9(2) Northwestern Journal of International Human Rights 150.
[39] ‘Counter-Memorial of Italy’, Jurisdictional Immunities of the State (Germany v Italy), International Court of Justice, General List No 143, 3 February 2012, 122, [6.26]. Italy called this the ‘last resort’ argument in the ICJ proceedings in Jurisdictional Immunities of the State.
[40] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 14, [58] (Judge Yusuf).
[41] See generally Miša Zgonec-Rozej, ‘Germany v Italy: The right to deny state immunity when victims have no other recourse’ (Position paper, Amnesty International, 2011); See generally David Boyle, ‘The Rights of Victims: Participation, Representation, Protection, Reparation’ (2006) 4(2) Journal of International Criminal Justice 307.
[42] Terry Hutchinson, Researching and Writing in Law (Thomson Reuters, 2010) 37.
[43] See generally Ruth Deech, ‘Law Reform: the choice of method’ (1969) 47 The Canadian Bar Review 395.
[44] Hutchinson, above n 42, 63–4.
[45] Butt (ed), above n 17, 113. De lege ferenda concerns ‘a law which should be proposed or passed’. This contrasts to de lege lata which merely concerns ‘a law which has been proposed.’
[46] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 83, [293] (Judge Cançado Trindade).
[47] North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3, 44, [77] (‘North Sea Continental Shelf’); Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Rep 1985, 29–30, [27].
[48] As the Court observed:
It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of states, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 23, [55] quoting Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Rep 1985, 29–30, [27].
[49] But see North Sea Continental Shelf [1969] ICJ Rep 3, 43 [74]; But see International Committee of the Red Cross, Customary IHL Database (2012) <http://www. icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin#Fn38> . The ICRC comments that adducing state practice is not exclusively a quantitative process, but also involves a qualitative exercise of considering which states follow a certain practice.
[50] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 83, [293]–[294] (Judge Cançado Trindade).
[51] See also Benjamin Wittes, ‘Paul Stephan on ICJ Decision in Jurisdictional Immunities of the State (Germany v Italy)’ on Lawfare – Hard national security choices (5 February 2012) <http://www.lawfareblog.com/2012/02/paul-stephan-on-icj-decision-in-jurisdictio nal-immunities-of-the-state-germany-v-italy-2/> .
[52] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 34–41, [80]–[104].
[53] Cuniberti, above n 37.
[54] Trapp and Mills, above n 21, 154.
[55] Ferrini v Federal Republic of Germany, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in ILDC 19 (IT 2004), 11 March 2004 (‘Ferrini’).
[56] For a further analysis of the factual background in Ferrini and the proceedings in Italian courts, see generally Carlo Focarelli, ‘Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision’ (2005) 54(4) The International and Comparative Law Quarterly 951, 951–2; See generally Pasquale De Sena and Francesca De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’ (2005) 16 European Journal of International Law 89.
[57] Xiaodong Yang, ‘Jus Cogens and State Immunity’ [2006] NZYbkIntLaw 7; (2006) 3 New Zealand Yearbook of International Law 131, 168.
[58] Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004, [12].
[59] Ibid [7.2].
[60] Ibid [9.1].
[61] Cf Christian Tomuschat, ‘The International Law of State Immunity and Its Development by National Institutions’ (2011) 44 Vanderbilt Journal of Transnational Law 1105, 1131. Tomuschat says that it ‘must be noted that the Ferrini jurisprudence of the Italian Corte di Cassazione remains isolated. No other foreign courts have followed the Italian example.’; Andre Gattini expresses a similar view to Tomuschat in Andrea Gattini, ‘War Crimes and State Immunity in the Ferrini Decision’ (2005) 3 Journal of International Criminal Justice 224, 233-241.
[62] Germany v Mantelli and ors, Corte di Cassazione [Court of Cassation], No 14201/2008, reported in ILDC 1037 (IT 2008), 29 May 2008 (‘Mantelli’).
[63] See generally Natasha Marusja Saputo, The Ferrini Doctrine: Abrogating State Immunity for Civil Suit for Jus Cogens Violations (2011) <http://works.bepress. com/natasha_saputo/1> , 4.
[64] Mantelli, Corte di Cassazione [Court of Cassation], No 14201/2008, reported in ILDC 1037 (IT 2008), 29 May 2008, [11].
[65] Saputo, above n 63, 4. Saputo comments that the Court engaged in its own analysis of state practice regarding an exception to immunity for breaches of jus cogens norms and concluded that although such an exception was not yet a customary norm, ‘such an exception was in the process of emerging.’
[66] The normative superiority of jus cogens norms and its intersection with procedural rules of immunity will be discussed in Part III(A).
[67] Lozano v Italy, Corte di Cassazione [Court of Cassation], No 31171/2008, reported in ILDC 1085 (IT 2005) 24 July 2008 (‘Lozano’).
[68] Saputo, above n 63, 5–6.
[69] Ibid 5.
[70] Lozano, Corte di Cassazione [Court of Cassation], No 31171/2008, reported in ILDC 1085 (IT 2005), 24 July 2008, [14].
[71] Italy v Milde, Corte di Cassazione [Court of Cassation], No 1072/2009, reported in ILDC 1224 (IT 2009), 13 January 2009 (‘Milde’).
[72] In Milde, Germany was joined civilly to an action against Max Joseph Milde for the massacre committed at the Italian town of Civitella on 29 June 1944.
[73] Milde, Corte di Cassazione [Court of Cassation], No 1072/2009, reported in ILDC 1224 (IT 2009), 13 January 2009.
[74] See also Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 83, [293]–[294] (Judge Cançado Trindade). His Excellency Judge Cançado Trindade adopted a similar value-oriented approach to conclude that there should be an exception to state immunity for breaches of jus cogens norms.
[75] Annalisa Ciampi, ‘The Italian Court of Cassation Asserts Civil Jurisdiction Over Germany in a Criminal Case Relating to the Second World War: The Civitella Case’ (2009) 7 Journal of International Criminal Justice 597, 603, cited in Saputo, above n 63, 7.
[76] But see Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 33, [76]. The majority observed that ‘Greek State practice taken as a whole actually contradicts, rather than supports, Italy’s argument.’ But see Carlo Focarelli, ‘Federal Republic of Germany v Giovanni Mantelli and Others’ (2009) 103 American Journal of International Law 122, 125–27; But see, Yang, above n 57, 163.
[77] Prefecture of Voiotia v Federal Republic of Germany, Areios Pagos [Supreme Court] No 11/2000, reported in ILDC 287, 4 May 2000, translated in 129 ILR 513 (The ‘Distomo’ case).
[78] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 35, [83]. The majority in Jurisdictional Immunities of the State devotes one paragraph to the Distomo case regarding a jus cogens exception to state immunity concluding that ‘[a]part from the decisions of the Italian courts ... there is almost no state practice which might be considered to support the proposition that a state is deprived of its entitlement to immunity in such a case.’
[79] Prefecture of Voiotia v Federal Republic of Germany, Protodikeio [Court of First Instance of Leivadia], No 137/1997, 30 October 1997; See generally Elena Vournas, ‘Prefecture of Voiotia v Federal Republic of Germany: Sovereign Immunity and the Exception for Jus Cogens Violations’ (2002) 21 New York Law School Journal of International & Comparative Law 629.
[80] Ilias Bantekas, ‘Prefecture of Voiotia v Federal Republic of Germany, Case No 137/1997, Court of First Instance of Leivadia, Greece, 1997’ (1998) 92 American Journal of International Law 765.
[81] See, eg, Dickinson, above n 18, 31.
[82] Federal Republic of Germany v Margellos, Anotato Eidiko Dikastirio [Special Supreme Court], No 6/2002, 17 September 2002, translated in 129 ILR 525 (‘Margellos’).
[83] Ibid 535 (Judges Rizos, Kroustalakis, Simonopolous, Prasos and Gyftakis).
[84] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 33, [76]. The majority recognised that although Margellos reversed the conclusion of the Court in Distomo by finding that Germany did enjoy state immunity from Greek civil jurisdiction, the majority in Jurisdictional Immunities of the State acknowledged the Greek government’s decision to leave the outcome of the earlier Distomo unaffected.
[85] See generally Erika De Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law (2004) 15 (1) European Journal of International Law 97, 109–10.
[86] Focarelli, above n 76.
[87] Ibid.
[88] See generally, Wittes, above n 51; Trapp and Mills, above n 21, 168. Trapp and Mills also comment on the superficial analysis of much of the majority’s decision.
[89] Foreign Sovereign Immunities Act of 1976, 28 USC § 1605(a)(1) (1976). § 1605(a)(1) provides that ‘[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.’; See also David J Bederman, ‘Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in US Human Rights Litigation’ (1995-1996) 25 Georgia Journal of International and Comparative Law 255, 272–279; Thora A Johnson, ‘A Violation of Jus Cogens Norms as an Implicit Waiver of Immunity under the Federal Sovereign Immunities Act’ (1995) 19 Maryland Journal of International Law and Trade 259, 284-287; Adam C Belsky, Mark Merva and Naomi Roht-Arriaza, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365, 399.
[90] Yang, above n 57, 154; Jonathan Siegel, ‘Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment’ (2003) 52 Duke Law Journal 1167, 1184–1185.
[91] Siderman de Blake v Republic of Argentina, [1992] USCA9 1398; 965 F 2d 699, 717–9 (9th Cir, 1992) (‘Siderman de Blake’).
[92] Dickinson, above n 18, 31.
[93] The Court recognised that whilst there was indeed movement in this area of customary international law regarding a jus cogens exception to state immunity, it was compelled to consider only state immunity (and its exceptions) as intended by Congress within the Foreign Sovereign Immunities Act of 1976, than general customary international law. This restrictive (and highly-criticised) approach to viewing state immunity was established in Argentine Republic v Amerada Hess Shipping Corporation, 488 US 42 (1989); See also Republic of Austria v Altmann, 541 US 667 (2004); See also Dole Food Co. v Patrickson, [2003] USSC 3090; 538 US 468 (2003).
[94] Siderman de Blake[1992] USCA9 1398; , 965 F 2d 699, 719 (9th Cir, 1992). The Court concluded that ‘[i]f violations of jus cogens committed outside the United States are to be exceptions to immunity, Congress must make them so.’ The Foreign Sovereign Immunities Act of 1976 will herein be referred to as the FSIA.
[95] Ibid 718.
[96] Princz v Federal Republic of Germany, [1994] USCADC 292; 26 F 3d 1166 (DDC, 1994) (‘Princz’).
[97] Cf Christina M Cerna, ‘Hugo Princz v Federal Republic of Germany: How Far Does the Long-Arm Jurisdiction of
US Law Reach?’ (1995) 8 Leiden Journal of International Law 377, 390.
[98] Princz[1994] USCADC 292; , 26 F 3d 1166, 1180 (DDC, 1994); See also Matthias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1995) 16 Michigan Journal of International Law 403.
[99] Tomuschat, above n 61, 1127.
[100] Gibson Dunn, Amendment to Foreign Sovereign Immunities Act Makes It Easier for Victims to Recover Damages from State Sponsors of Terrorism (2008) <http://www.gibsondunn.com/publications/Pages/Amendment-ForeignSovereignImmuni tiesAct.aspx> Ibid, 1126.
[101] Antiterrorism and Effective Death Penalty Act of 1996, Pub L No 104-132, § 221, 110 Stat 1214, 1241 (2006). Section 1605A of the FSIA mandates that state immunity will be withheld if a foreign state allegedly commits acts of torture, extra-judicial killing, aircraft sabotage, hostage-taking, or materially supports such acts, and the foreign state has been designated as a ‘sponsor of terrorism’ by the United States government.
[102] For more information on the operation of the state-sponsors of terrorism exception, see Jeewon Kim, ‘Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse under the Foreign Sovereign Immunities Act’ (2012) 22(3) Berkeley Journal of International Law 513, 523. Kim observes that: ‘The seven countries designated by the U.S. State Department as state sponsors of terrorism are Sudan, Cuba, Iran, Iraq, North Korea, Syria, and Libya.’
[103] The majority opined:
The Court notes that this amendment has no counterpart in the legislation of other states. None of the states which has [sic] enacted legislation on the subject of state immunity has made provision for the limitation of immunity on the grounds of the gravity of the acts alleged.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 36, [88].
[104] However, it should be noted that the majority in Jurisdictional Immunities of the State is not alone in criticising the Antiterrorism and Effective Death Penalty Act of 1996; Hazel Fox, ‘State Immunity and the International Crime of Torture’ (2006) 2 European Human Rights Law Review 142, 151. Lady Fox has criticised the Antiterrorism and Effective Death Penalty Act of 1996 as being ‘partisan’ and consequently a poor precedent for other states to adopt a similar exception to state immunity.; Andrea Gattini, ‘The Right of War Crime Victim [sic] to Compensation before National Court [sic]’ (2005) 3 Journal of International Criminal Justice 224, 230. Andrea Gattini has similarly scrutinised the value of the state-sponsors of terrorism exception due to its ‘unilateral nature and political overtones.’; Rosanne van Alebeek, The Immunities of States and their Officials in International Criminal Law (Oxford University Press, 2008) 355. Professor Roseanne van Alebeek argues that the US’s state-sponsors of terrorism exception is actually in violation of the US’s obligations under international law, thus a poor model for a new exception to traditional state immunity.
[105] Tomuschat, above n 61, 1127. Interestingly, Agent for Germany in Jurisdictional Immunities of the State, Christian Tomuschat conceded that ‘[although] it stands to reason that an individual piece of U.S. legislation is not able to change international customary law ... U.S. approaches to contentious international issues often provide guidance to the development of the law.’
[106] Michele Potestà, ‘State Immunity and Jus Cogens Violations: The Alien Tort Statute Against the Backdrop of the Latest Developments in the ‘Law of Nations’ (2010) 28 Berkeley Journal of International Law 571, 586.
[107] Tomuschat, above n 61, 1131.
[108] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 39, [96]. The Court observed: ‘It follows, therefore, that the judgments of the Italian courts which are the subject of the present proceedings are the only decisions of national courts to have accepted the reasoning on which this part of Italy’s second argument is based.’
[109] Ibid 35, [85].
[110] Bucheron, Cour de Cassation [French Court of Cassation], 02-45961, 16 December 2003 reported in (2003) Bull civ no 258, 206 (‘Bucheron’).
[111] This conclusion affirms the traditional non-applicability of state immunity to sovereign acts of states (acta jure imperii); See also Finke, above n 5, 858.
[112] See, eg, The ‘X’ case, Cour de Cassation [French Court of Cassation], 03-41851, 2 June 2004 reported in (2004) Bull civ no 158, 132; La Réunion aérienne v Libyan Arab Jamahiriya [French Court of Cassation], 09-14743, 9 March 2011 reported in (2011) Bull civ no 49, 49.
[113] Vrhovno sodišče Republike Slovenije [Supreme Court of Slovenia], No Up-13/99, 8 March 2001.
[114] Natoniewski v Federal Republic Germany, Sąd Najwyższy [Polish Supreme Court], IV CSK 465/09, 29 October 2010; See generally Marcin Kałduński, ‘State immunity and war crimes: the Polish Supreme Court on the Natoniewski case’ (2010) 30 Polish Yearbook of International Law 235.
[115] Margellos, Anotato Eidiko Dikastirio [Special Supreme Court], No 6/2002, 17 September 2002, translated in 129 ILR 525, 531–2.
[116] Orith Zemach et al v Federal Republic of Germany, District Court Tel Aviv-Yafo, 2143-07, 31 December 2009.
[117] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2006] UKHL 26; [2007] 1 AC 270 (‘Jones’).
[118] Fang v Jiang [2007] NZAR 420.
[119] Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675 (Court of Appeal for Ontario) (‘Bouzari’).
[120] Herein referred to as the ECtHR.
[121] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 37, [91]–[92]. The Court observed that: ‘The European Court of Human Rights has not accepted the proposition that states are no longer entitled to immunity in cases regarding serious violations of international humanitarian law or human rights law.’
[122] Al-Adsani v United Kingdom (2001) 34 EHRR 273 (‘Al-Adsani’). It is important to note that the European Court of Human Rights decided Al-Adsani by a slim majority of 9 votes to 8.
[123] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 37, [90]. The majority simply admitted that Al-Adsani was decided by a ‘narrow majority’, but did not proceed to analyse the dissenting opinions in that case. The majority’s analysis of the dissenting opinions in Al-Adsani would have been expected given the great emphasis given to the minority opinions of Al-Adsani by advocates for a general jus cogens exception to state immunity.
[124] The joint dissentients concluded:
Due to the interplay of the jus cogens rule on prohibition of torture and the rules on state immunity, the procedural bar of state immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal effect.
Al-Adsani (2001) 34 EHRR 273, [3] (Joint dissenting opinion of Judges Rozakis and Caflisch, as joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić); See generally, The Redress Trust, ‘The Impact of Al-Adsani v The United Kingdom’ (Report, The Redress Trust, 2002).
[125] Aikaterini Kalogeropoulou et al v Greece and Germany (European Court of Human Rights, Grand Chamber, Application No 59021/00, 12 December 2002) translated in 129 ILR 537 (‘Kalogeropoulou’).
[126] Ibid.
[127] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 37, [91].
[128] See, eg, Kalogeropoulou (European Court of Human Rights, Grand Chamber, Application No 59021/00, 12 December 2002) translated in 129 ILR 537.
[129] Carlos Espósito, ‘Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist’ (2012) 21 Italian Yearbook of International Law 1, 15.
[130] See generally, Knuchel, above n 38.
[131] Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal 1467, 1501–1505; Jodi Horowitz, ‘Universal Jurisdiction and Sovereign Immunity for Jus Cogens Violations’ (1999-2000) 23 Fordham International Law Journal 489, 522–3; Jennifer A Gergen, ‘Human Rights and the Foreign Sovereign Immunities Act’ (1995-1996) 36 Virginia Journal of International Law 765, 791; Jonathan I
Charney, ‘Progress in International Criminal Law?’ (1999) 93 American Journal of International Law 452, 457.
[132]See, eg, Distomo, Areios Pagos [Supreme Court] No 11/2000, reported in ILDC 287, 4 May 2000, translated in 129 ILR 513, 521. In Furundzija, the International Criminal Tribunal for the former Yugoslavia (ICTY) held that jus cogens norms occupy:
[A] higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by states through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
Prosecutor v Anto Furundzija (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-17/1, 21 July 2000), [153]; See, eg, Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 American Journal of International Law 291.
[133] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 24, [56]. But see Yang, who theorises:
Since the whole [conflict] argument is perched precariously upon the notion that state immunity is not, or should not be, a jus cogens norm, it would collapse if state immunity could be shown also to be a jus cogens norm.
Yang, above n 57, 147.
[134] See, eg, Arrest Warrant [2002] ICJ Rep 3, 25, [60]; Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 24–25, [58].
[135] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 24–25, [58].
[136] Rebecca Zaman, ‘Playing the Ace? Jus Cogens Crimes and Functional Immunity in National Court’ [2010] AUIntLawJl 3; (2010) 17 Australian International Law Journal 53, 54. Zaman eponymously refers to the use of the jus cogens exception to immunity as the ‘jus cogens ace’.
[137] Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004, [7], [7.2].
[138] Mantelli, Corte di Cassazione [Court of Cassation], No 14201/2008, reported in ILDC 1037 (IT 2008), 29 May 2008, [11].
[139] Saputo, above n 63, 5–6.
[140] Ciampi, above n 75.
[141] Jones [2006] UKHL 26; [2007] 1 AC 270, [22] (Lord Bingham of Cornhill). See also Tomuschat, above n 61, 1137.
[142] See, eg, Dickinson, above n 18, 31.
[143] Knuchel, above n 38, 159.
[144] The dissentients held that:
In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule.
Al-Adsani (2001) 34 EHRR 273, [1] (Joint dissenting opinion of Judges Rozakis and Caflisch, as joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić).
[145] Elton Tan Xue Yang, ‘The Jurisdictional Immunities Case: Between Immunity and Impunity’ (2012) 1 Oxford University Undergraduate Law Journal 32, 35. However, this seems unlikely given the majority’s ‘strict demarcation between procedural and substantive rules in international law.’
[146] Ibid. The author continues that the majority’s reliance on the ‘procedure–substance’ divide ‘may well be too severe.’; Lorna McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’ (2008) 19(5) European Journal of International Law 903, 911. McGregor scrutinises the distinction between procedural rules of state immunity and substantive rules of jus cogens norms for its ‘excessive formalism’; Alexander Orakhelashvili, ‘Peremptory Norms as an Aspect of Constitutionalisation in the International Legal System’, in Morly Frishman and Sam Muller (eds), The Dynamics of Constitutionalism in the Age of Globalisation (Asser Press, 2010) 165. Orakhelashvili calls the procedure–substance dichotomy a ‘purely theoretical construct ...’; Phillip Wardle, ‘Zhang v Zemin (2008) 251 ALR 707’ (2009) 15 Australian International Law Journal 277, 279–80. Cf Stefan Talmon who comments:
The criticism of the ‘substantive–procedural’ distinction in international law as too formalistic and technical may be answered by noting that law, by its very nature, is formalistic and technical. These traits contribute to clarity, certainty and predictability – also ‘values’ not to be discarded lightly.
Talmon, above n 14, 31–32.
[147] McGregor, above n 146, 907; Yang, above n 57, 142.
[148] Yang, above n 145, 36. Indeed, Yang explains that ‘[t]he concept of jus cogens, no longer new in international law, cannot for long remain nascent and tentative in application if individuals are to obtain justice for wrongs suffered under state-sanctioned violence.’
[149] See, eg, Hazel Fox, The Law of State Immunity (Oxford University Press, 2nd ed, 2008) 156. Lady Fox argues that state immunity ‘does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different mode of settlement.’
[150] See, eg, Arrest Warrant [2002] ICJ Rep 3, 25, [60]; Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 24–25, [58].
[151] Cf Yang, above n 145, 36.
[152] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 34, [82].
[153] The majority commented that:
Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is, therefore, necessarily preliminary in nature. Consequently, a national court is required to determine whether or not a foreign state is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established.
Ibid 34, [82].
[154] Ibid.
[155] Emmanuel Voyiakis, ‘Access to Court v State Immunity’ (2003) 52(2) International and Comparative Law Quarterly 297, 320; Ian Brownlie, Principles of International Law, (Clarendon Press, 6th ed, 2003) 490. Brownlie theorises that if a state uses force to protect its (or another state’s) self-determination, then these two jus cogens norms would be in genuine conflict as they are rules existing on the same substantive jus cogens plane.
[156] James Crawford, ‘State Immunity, War Crimes and Human Rights’ (Speech delivered as part of the International and Asia-Pacific Law Events series (Sydney Law School), Federal Court, Sydney, 27 September 2012).
[157] Arrest Warrant [2002] ICJ Rep 3, 25, [60]; See also Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment) (International Court of Justice, General List No 136, 4 June 2008) 244, [196].
[158] See, eg, Kerstin Bartsch and Björn Elberling, ‘Jus Cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al. v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 486–88, cited in Knuchel, above n 38, 160.
[159] Alexander Orakhelashvili, State Immunity and International Public Order (2002) 45 German Year Book of International Law 227, 258.
[160] But see Bouzari (2004) 71 OR (3d) 675 (Court of Appeal for Ontario), [94]. The Ontario Court of Appeal held that ‘[t]he peremptory norm of prohibition against torture does not encompass the civil remedy contended for by the appellant.’
[161] As Yang observes:
Thus what we need at present is actually TWO norms: one prohibiting violation and the other denying immunity to the state committing such violation. The procedural rule of denial of immunity cannot be distilled from the substantive jus cogens rule of ban on torture and can only be developed separately outside the ban.
Yang, above n 57, 153.
[162] Jones [2006] UKHL 26; [2007] 1 AC 270, [27] (Lord Bingham of Cornhill); Bucheron; Cf Orakhelashvili, above n 159.
[163] Yang, above n 57, 153. Argues that the ‘[t]he greatest merit of this theory consists, not in its legal tenability, but in affording a strong moral basis for arguing against immunity for violations of human rights.’
[164] Ibid.
[165] Knuchel, above n 38, 162.
[166] Talmon, above n 14, 3; See also Alexander Orakhelashvili, ‘State Immunity and International Public Order Revisited’ (2006) 49 German Yearbook of International Law 327, 361. As Orakhelashvili argues: ‘The so-called distinction between ‘substantive’ and ‘procedural’ norms which prevents the relevant jus cogens norms from operating as norms must be rejected as necessarily leading to impunity.’
[167] Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge University Press, 2011) 38–9.
[168] Ibid 37.
[169] Knuchel, above n 38, 163.
[170] Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN GAOR, 56th sess, 85th plen mtg, Supp No 49, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001) annex (‘Responsibility of States for Internationally Wrongful Acts’); Knuchel, above n 38, 163.
[171] Aust, above n 167, 155–6.
[172] Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004, [9].
[173] Knuchel, above n 38, 163.
[174] The majority observed:
For the same reason, recognizing the immunity of a foreign state in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in maintaining that situation, and so cannot contravene the principle in Article 41 of the International Law Commission’s Articles on State Responsibility.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 38, [93].
[175] Aust, above n 167, 41.
[176] See especially Jones [2006] UKHL 26; [2007] 1 AC 270; See especially Bouzari (2004) 71 OR (3d) 675 (Court of Appeal for Ontario).
[177] Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19(3) The European Journal of International Law 491, 495. Bianchi argues that jus cogens are ‘projections of the individual and collective conscience.’
[178] In Prefecture of Voiotia, Protodikeio [Court of First Instance of Leivadia], No 137/1997, 30 October 1997, the District Court of Leivadia held that a state’s violations of jus cogens were unable to qualify as sovereign acts as the acts were so far removed from what could be considered to be acts within sovereign authority; Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 53, [184] (Judge Cançado Trindade). His Excellency labels ‘international crimes in breach of jus cogens ...’ as ‘delicta imperii’ (crimes committed by the state).
[179] Interestingly, the point should be made that, in relation to individual immunities of officials, case law particularly from the United States (Hilao v Estate of Ferdinand Marcos, [1994] USCA9 1938; 25 F 3d 1467 (9th Cir, 1994)), Israel (Attorney-General of the Government of Israel v Adolf Eichmann, Beit HaMishpat HaElyon [Supreme Court of Israel], 29 May 1962, translated in 36 ILR 277) and notably the dissenting opinion of Lord Hutton and Lord Browne-Wilkinson Pinochet (No. 3) [1999] UKHL 17; [2000] 1 AC 147, indicate that such violations and human rights abuses cannot be within the scope of the official’s sovereign authority.
[180] See generally Bröhmer, above n 18.
[181] Thomas Giegerich, Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?, in Christian Tomuschat and Jean-Marc Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Brill, 2006) 224; See, eg, Saudi Arabia v Nelson, [1993] USSC 33; 507 US 349 (1993).
[182] Knuchel, above n 38, 166. Indeed, whether the violation of a jus cogens norm constitutes an official, sovereign act is a complex question warranting a more detailed analysis.
[183] The majority commented that:
[a]lthough the present case is unusual in that the illegality of the acts at issue has been admitted by Germany at all stages of the proceedings, the Court considers that this fact does not alter the characterization of those acts as acta jure imperii.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 25, [60].
[184] Caplan, above n 19, 774.
[185] Contra Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 113, [43]. The Court noted that a state is able to waive its immunity by its choice – manifested in a clear and unambiguous intention to do so.; Hari M Osofsky, ‘Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches’ (1998) 11 New York International Law Review 35, 44; Jack Alan Levy, ‘As between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus Cogens Violators’ (1997-1998) 86 Georgetown Law Journal 2703, 2710; Niranjini Vivekananthan, ‘The Doctrine of State Immunity and Human Rights Violations of Foreign States’ (1996) 8 Sri Lanka Journal of International Law 125, 147.
[186] Caplan, above n 19, 774.
[187] United Nations Convention on the Jurisdictional Immunities of States and Their Property, GA Res 59/38, Annex, UN GAOR, 59th sess, Supp No 49, UN Doc A/RES/59/38 (2 December 2004) art 7 (‘UN Convention on Jurisdictional Immunities’).
[188] Knuchel, above n 38, 166.
[189] Caplan, above n 19, 775. The little support the argument has received is unsurprising as Caplan argues, the ‘implied waiver argument’ is based on a ‘fiction ... resulting from a misunderstanding of the true nature and operation of the doctrine of foreign state immunity.’
[190] Maria Gavouneli and Ilias Bantekas, ‘Case Report: Prefecture of Voiotia v Federal Republic of Germany’ (2001) 95 American Journal of International Law 198, 200.
[191] Knuchel, above n 38, 167.
[192] Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004, [8.2]. The Court commented that ‘[a] waiver cannot be conceived of in the abstract, but can only established in concreto if the facts ascertained make it possible to describe specific conduct as “abdicative”.’
[193] See, eg, Sampson v Federal Republic of Germany, [2001] USCA7 271; 250 F 3d 1145, 1150 (7th Cir, 2001). See, eg, Ye v Zemin [2004] USCA7 448; (2004) 383 F 3d 620, 627 (7th Cir, 2004).
[194] Knuchel, above n 38, 166.
[195] Ibid.
[196] Pinochet (No. 3) [1999] UKHL 17; [2000] AC 147, 217 (Lord Goff of Chieveley). His Honour argued that significant ‘international chaos’ could ensue if municipal courts were to impute from the actions of other states that they implicitly waived their entitlement to immunity; Smith v Socialist People’s Libyan Arab Jamahiriya[1997] USCA2 106; , 101 F 3d 239, 242 (2nd Cir, 1996).
[197] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 16, [52] (Judge Cançado Trindade). His Excellency commented that ‘[i]t is nowadays generally acknowledged that criminal state policies and the ensuing perpetration of state atrocities cannot at all be covered up by the shield of state immunity.’
[198] Ibid 18, [58] (Judge Cançado Trindade).
[199] Ibid 41, [104]. The majority commented that ‘[i]n coming to this conclusion [awarding immunity to Germany], the Court is not unaware that the immunity from jurisdiction of Germany in accordance with international law may preclude judicial redress for the Italian nationals concerned.’
[200] Contra Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 38, [94]. The majority concluded that ‘it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of states.’
[201] Ibid 86–87, [310] (Judge Cançado Trindade).
[202] Ibid 41, [102].
[203] Tomuschat, above n 61, 1120.
[204] Crawford, above n 156.
[205] Ibid.
[206] Jewish World, Germany, Italy at odds over WWII damages (2011) <http://www.ynetnews.com/articles/0,7340,L-4121360,00.html> . The author comments that ‘[s]ince the Ferrini case, dozens more claims have been filed in Italy, and about 80 cases are pending in the courts.’
[207] Cf Dickinson, above n 18, 53–5.
[208] Tomuschat, above n 61, 1120.
[209] Yang, above n 145, 35.
[210] Riccardo Pavoni, ‘Human Rights and the Immunities of Foreign States and International Organizations’, in Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (Oxford University Press, 2012) 75.
[211] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 20, [65] (Judge Cançado Trindade). This was the case for the Italian victims of war crimes the subject in Jurisdictional Immunities of the State.
[212] Ibid 34, [80].
[213] Refer to Part III(E).
[214] Tomuschat, above n 61, 1120.
[215] Cf Dickinson, above n 18, 53–4.
[216] Ibid; Pinochet (No. 3) [1999] UKHL 17; [2000] AC 147, 217 (Lord Goff of Chieveley).
[217] As dissenting Judge Yusuf opines:
The assertion of jurisdiction by domestic courts in those exceptional circumstances where there is a failure to make reparations, and where the responsible state has admitted to the commission of serious violations of humanitarian law, without providing a contextual remedy for the victims, does not, in my view, upset the harmonious relations between states, but contributes to a better observance of international human rights and humanitarian law.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 14, [59] (Judge Yusuf).
[218] Ibid.
[219] See Eva Storskrubb and Jacques Ziller, ‘Access to Justice in European Comparative Law’, in Francesco Francioni (ed), Access to Justice as a Human Right (Oxford University Press, 2007) 178–180.
[220] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 6–7, [28] (Judge Yusuf).
[221] Cf His Excellency Judge Koroma, who in a separate opinion in Jurisdictional Immunities of the State observed:
[whilst] Greece is correct in stating that international humanitarian law now regards individuals as the ultimate beneficiaries of reparations for human rights violations ... It does not follow, however, that international law provides individuals with a legal right to make claims for reparation directly against a foreign state.
[222] Tomuschat, above n 61, 1120.
[223] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 41, [102].
[224] Ibid 13, [55] (Judge Yusuf); Following WWII, Germany made several attempts to pay reparations to victims of forced labour (inter alia) by the Third Reich. In 2000, a German Federal Law was passed to establish the Foundation – ‘Remembrance, Responsibility and Future’. Importantly, under s 11(3) of the Federal Law, victims who acquired the status of prisoner of war (POW) were not to be compensated. This meant that the Italian victims who initiated civil litigation in the aforementioned Italian case law – the Italian Military Internees (IMIs) – were disentitled from receiving any reparations from the Foundation. This was because as at 2000, the German government considered those IMIs to have POW status. Nevertheless (and with great irony), this POW status was not recognised between 1943–45, meaning Germany failed to treat the IMIs during WWII with the rights attached to POWs under international law, yet were treated as having POW status decades later, thus disentitling the IMIs under the 2000 German Federal Law. As His Excellency Judge Cançado Trindade lamented:
In my understanding, it is regrettable that the “Italian Military Internees” were actually precluded from obtaining reparation on the basis of a status which they were de facto denied. This was precisely one of the many violations committed by Nazi Germany against those persons: the denial of their right, under international law, to be treated as prisoners of war. Relying on this violation to commit yet another violation, ⎯ the denial of reparation, ⎯ amounts to, as Italy puts it, “a Kafkaesque black hole of law”, and amounts to a double injustice.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 75, [267] (Judge Cançado Trindade).
[225] See, eg, Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004.
[226] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 13, [55] (Judge Yusuf).
[227] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN GAOR, 60th sess, 64th plen mtg, UN Doc A/RES/60/147 (16 December 2006) arts 11, 12. (‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’).
[228] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) art 6(1) (‘ECHR’).
[229] American Convention on Human Rights, opened for signature 20 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) arts 8, 25 (‘ACHR’).
[230] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 7, [30] (Judge Yusuf).
[231] His Excellency Judge Yusuf observed:
The assessment of whether, in the present case, immunity should have been granted ... cannot exclude ... the general principles underlying human rights ... such as the right to an effective remedy, [and] the right to compensation for damages suffered as a result of breaches of humanitarian law ...
Ibid (Judge Yusuf).
[232] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012), 73–6 (Judge Cançado Trindade). His Excellency provides a comprehensive recount of German attempts to compensate and make reparations to Italian victims of war crimes committed by the Third Reich, yet explains how certain Italian victims of war crimes were still excluded from those initiatives.
[233] With reference to Ferrini, the Italian Counter-Memorial observed:
Clearly, the judges had the feeling that by applying a purely procedural principle in the face of the gravity of crimes for which no reparation has yet been made, they would create a typical situation of denial of justice.
‘Counter-Memorial of Italy’, Jurisdictional Immunities of the State (Germany v Italy), International Court of Justice, General List No 143, 3 February 2012, 120, [6.16].
[234] Ibid.
[235] Fox, above n 149. However, it is important to recognise the shortcomings of Fox’s argument; namely, what if the victims have exhausted all available means for obtaining redress? This was the exact situation in Jurisdictional Immunities. This author respectfully contends that it is these unique circumstances which should give rise to the workable exception submitted by Italy in its ‘last resort’ argument, and extrapolated by Judge Yusuf.
[236] Arrest Warrant [2002] ICJ Rep 3, 25, [60]–[61].
[237] See generally Fox, above n 149.
[238] Association of Citizens Mothers of Srebenica v The Netherlands, Appeal Court in the Hague (Commerce section, first civil law section), No 200.022.151/01, 30 March 2010.
[239] Fox, above n 149. This decision accords with Fox’s position that immunity may be upheld if there other means for victims to obtain a remedy
[240] See generally Claudia Martin, ‘Catching Up with the Past: Recent Decisions of the Inter-American Court of Human Rights Addressing Gross Human Rights Violations Perpetrated During the 1970–1980s’ (2007) 7(4) Human Rights Law Review 774.
[241] Herein referred to as the IACtHR.
[242] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 61–63, [214]–[220] (Judge Cançado Trindade).
[243] See generally Trapp and Mills, above n 21, 168.
[244] ‘Counter-Memorial of Italy’, Jurisdictional Immunities of the State (Germany v Italy), International Court of Justice, General List No 143, 3 February 2012, 76–7, [4.94].
[245] The judges of the IACtHR commented:
[G]iven the nature and gravity of the facts, particularly since they occurred in a context of systematic human rights violations, the need to eliminate impunity establishes an obligation for the international community to ensure interstate cooperation to this end. ... Access to justice is a peremptory norm of international law and, as such, gives rise to obligations erga omnes for the states to adopt all necessary measures to ensure that such violations do not remain unpunished.
Case of Goiburú et al v Paraguay (Merits, Reparations and Costs), Inter-American Court of Human Rights (IACtHR), Series C No 153, 22 September 2006, 83, [131].
[246] Case of La Cantuta v Perú (Merits, Reparations and Costs), Inter-American Court of Human Rights (IACtHR), Series C No 162, 29 November 2006, 107–8, [225].
[247] Al-Adsani (2001) 34 EHRR 273; Cf Kalogeropoulou (European Court of Human Rights, Grand Chamber, Application No 59021/00, 12 December 2002) translated in 129 ILR 537. Indeed, ECtHR jurisprudence has maintained that state immunity can be a legitimate reason to depart from victims’ right to access justice, including access to a remedy.
[248] See also Bornkamm, above n 35, 775.
[249] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 62, [218] (Judge Cançado Trindade). The dissentient is critical of the ECtHR’s approach to balancing the right to access justice against the interests of upholding state immunity (thus preventing access to justice). His Excellency observes: ‘The ECtHR could have reached a similar conclusion, had its majority developed its reasoning ... [based] on the essence of the right of access to justice, rather than on its permissible or implicit ‘limitations’.’; It is worth noting that His Excellency Judge Cançado Trindade was a former President of the IACtHR between 1999–2003. This arguably explains the dissentient’s strong determination to import the IACtHR’s approach to protecting the right to access justice into the jurisprudence of the ICJ.
[250] See, eg, Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004.
[251] Al-Adsani (2001) 34 EHRR 273, [54].
[252] Ibid [56];Cf Al-Adsani (2001) 34 EHRR 273, [3] (Joint dissenting opinion of Judges Rozakis and Caflisch, as joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić). The dissenting judges concluded otherwise; that is, the ‘applicant was deprived of his right to have access to the English court to entertain his claim of damages for the alleged torture suffered by him in Kuwait, and Article 6 § 1, has, in our view, been violated.’
[253] Cf Voyiakis who criticises the upholding of state immunity to achieve legitimate aims such as comity, good relations and respect of sovereignty. Voyiakis argues that:
The concept of ‘legitimate aim’ has generally been used to denote policy objectives pursued by national Governments, such as public safety, national security, the protection of public health and economic well-being of the country, or the rights of other individuals.
Voyiakis, above n 155, 310.
[254] Al-Adsani (2001) 34 EHRR 273, [66].
[255] Roger O’ Keefe, ‘State Immunity and Human Rights: Heads and Walls, Hearts and Minds’ (2011) 44 Vanderbilt Journal of Transnational Law 999, 1014.
[256] Ibid; Cf Voyiakis, above n 155.
[257] O’ Keefe, above n 255, 1013. Roger O’ Keefe has argued that ‘the case law of the ECtHR ... exerts an influence that goes beyond the forty-seven member states of the Council of Europe.’
[258] Ibid 1014. Whilst O’ Keefe correctly asserts the role of ECtHR jurisprudence in influencing the decision-making of domestic judiciaries, one cannot ignore the jurisdictions which have actively abrogated state immunity in order to protect victims’ rights to access justice. For example, the IACtHR was mentioned for its progressive approach to upholding this right. Cf Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 61–63, [214]–[220] (Judge Cançado Trindade).
[259] O’ Keefe, above n 255, 1015.
[260] Jones [2006] UKHL 26; [2007] 1 AC 270, [11].
[261] Ibid [24].
[262] O’ Keefe, above n 255, 1014.
[263] Bouzari v Islamic Republic of Iran [2002] OJ No 1624, Court File No 00-CV-201372 (Ontario Superior Court of Justice) 10, [55]. In the Ontario Superior Court of Justice, Justice Swinton concluded that granting immunity did not breach the right to justice and a victim’s right to a fair trial as enshrined in Article 14 of the International Covenant on Civil and Political Rights; See generally Craig Forcese, ‘De-immunizing Torture: reconciling Human Rights and State Immunity’ (2007) 52 McGill Law Journal 127, 128–9.
[264] Bouzari (2004) 71 OR (3d) 675 (Court of Appeal for Ontario).
[265] On the ‘last resort’ argument, the majority concluded:
The Court can find no basis in the state practice from which customary international law is derived that international law makes the entitlement of a state to immunity dependent upon the existence of effective alternative means of securing redress.
Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 41, [101].
[266] See Trapp and Mills, above n 21, 162–3.
[267] See also Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 2, [9] (Judge Koroma). See also ibid 7, [18] (Judge Keith). In his separate opinion, Judge Keith agreed with the majority regarding the inability of individuals to seek compensation through individual means. His Excellency commented that compensation negotiated at the interstate level has been the historical norm which ‘deal[s] with [such] claims of loss on a general footing, often on a reciprocal basis and not by way of individual claims, whether based on fault or not.’
[268] Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War of Land, opened for signature 18 October 1907, [1910] ATS 8, annex art 23(b) (entered into force 26 January 1910). Art 3 provides: ‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts forming part of its armed forces.’; See, eg, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) art 91.
[269] See, eg, Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 4, [15] (Judge Yusuf). His Excellency comments that various cases stemming from the atrocities of World War II were characterised by claims of individual victims seeking compensation. These included civil claims in Japanese courts by victims and relatives of torture victims, ‘comfort women’ and slave labourers. Also, in the United States, civil litigation was initiated by the Holocaust Restitution Movement on the behalf of ‘labour slaves’. See also the Italian, Greek and American case law discussed in Part II(B).
[270] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 45, [99].
[271] Ibid 41, [104].
[272] Tomuschat, above n 61, 1120.
[273] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 41, [101].
[274] Ibid.
[275] See generally ibid, 13, [40] (Judge Cançado Trindade).
[276] Ibid.
[277] Dickinson, above n 18, 47. The various rationales for state immunity and the risks of removing it are complex issues requiring detailed analysis in their own right. However, Dickinson argues that these negative effects on these core interests of international law, should states be able to withhold immunity for breaches of jus cogens norms, are simply ‘listed in rote’ without any explanation of how these interests will be negatively affected.
[278] See, eg, Al-Adsani (2001) 34 EHRR 273; See, eg, Kalogeropoulou (European Court of Human Rights, Grand Chamber, Application No 59021/00, 12 December 2002) translated in 129 ILR 537.
[279] As Trapp and Mills observe of the majority’s judgement in Jurisdictional Immunities of the State:
Confronted with what has been a greatly contested issue of law and policy, they faced the dilemma of choosing between judicial activism, perilous to the Court’s consensual jurisdiction, or conservative positivism, risking reinforcing the status quo and stultifying development of the law.
Trapp and Mills, above n 21, 168.
[280] Yang, above n 145, 32.
[281] Ibid. As Yang comments: ‘The Court’s positivist approach to its examination of the effect of jus cogens violations on the assertion of state immunity rendered a decision that was little more than a return to orthodoxy.’
[282] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 37, [91].
[283] Ibid 25–6, [58]. See also Arrest Warrant [2002] ICJ Rep 3, 25, [60].
[284] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 38, [94].
[285] Ibid.
[286] Ibid 41, [101].
[287] Ibid 11, [32] (Judge Cançado Trindade).
[288] Ibid 10, [42] (Judge Yusuf).
[289] Ibid (Judge Yusuf).
[290] Arrest Warrant [2002] ICJ Rep 3, 26–7, [60]–[61]. The immunity of the Congo’s incumbent Minister of Foreign Affairs was upheld only after the Court noted that other avenues for prosecution existed.
[291] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 10, [42] (Judge Yusuf).
[292] See generally Knuchel, above n 38.
[293] Yang, above n 145, 33.
[294] The pronouncements of the various municipal, regional and international courts discussed in this paper have mostly held that such an exception to state immunity for breaches of jus cogens norms is not yet emergent. This is simply a reflection upon current state practice; See, eg, Ferrini, Corte di Cassazione [Court of Cassation], No 5044/2004, reported in IDLC 19 (IT 2004), 11 March 2004, [12]. The Court of Cassation acknowledged that a jus cogens or human rights exception to state immunity was not yet a settled custom, but emergent.
[295] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 11, [44]–[45] (Judge Yusuf). His Excellency refers to Holubek v Government of the United States of America (1962) 40 ILR 73 – a case ‘which may have been one of the first decisions to recognize the notion of [a] tort exception to state immunity.’ His Excellency ponders the fate of the tort exception to state immunity had the ‘Austrian judgement been found to be in violation of the law of state immunity by an international judicial body in the mid-sixties.’ With the tort exception in mind, Judge Yusuf argues that the decisions of Italian and Greek courts regarding a jus cogens exception ‘may be viewed as part of a broader evolutionary process’ of crystallising a new customary exception to state immunity for breaches of jus cogens norms; Chimène I Keitner comments:
The ICJ’s decision reinforces the observation that, just as successful revolutions vindicate themselves with hindsight, international law-breakers only become international law-makers when their legal “transgressions” attract a sufficient following to establish a new rule of customary international law.
Chimène I Keitner, ‘Germany v Italy: The International Court of Justice Affirms Principles of State Immunity’ (2012) 16(5) American Society of International Law (ASIL Insights) 1, 4.
[296] Yang, above n 57, 131, has also argued that ‘human rights advocates should work under and build upon existing international treaties, rather than depend on a dubious and self-defeating hypothesis’. Yang is referring to the normative hierarchy and implied waiver arguments discussed in Part III(A) and Part III (D); If a Protocol was to be added to legislate a jus cogens exception in the UN Convention on Jurisdictional Immunities, a result would arise similar to that in Pinochet (No.3) [1999] UKHL 17; [2000] 1 AC 147; that is, state immunity would be unable to be invoked since the UN Convention on Jurisdictional Immunities would contain an obligation for parties to deny state immunity to wrongdoer states who have committed violations of jus cogens norms.
[297] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 36–7, [89].
[298] See, eg, Al-Adsani (2001) 34 EHRR 273; See, eg, Kalogeropoulou (European Court of Human Rights, Grand Chamber, Application No 59021/00, 12 December 2002) translated in 129 ILR 537; See, eg, Bouzari (2004) 71 OR (3d) 675 (Court of Appeal for Ontario).
[299] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 18, [58] (Judge Cançado Trindade).
[300] As reflected in the jurisprudence of the IACtHR and contrary to the current approach of the ECtHR.
[301] Jurisdictional Immunities of the State (Judgment) (International Court of Justice, General List No 143, 3 February 2012) 41, [104].
[302] See, eg, Bornkamm, above n 35, 782.
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