Both state immunity and the protection against atrocities can be considered as being expressions of two conflicting general principles of international law, such as the sovereign equality of states and the protection of inviolable human rights. By the latest decision published on 21 July the Italian Constitutional Court reaffirmed that hierarchy of customary international law puts the right to claim damages for grave breaches of fundamental human rights in front of state immunity. The decision also enables the transfer of state responsibility for war crimes balancing the state-to-state obligations regarding reparations and greater certainty of national compensation mechanisms.
Similar legal opinion was already issued following the famous Ferrini case in decision 238/2014, where the Court found that axiological or value based considerations define the priority of the right to seek redress in the court and that state immunity cannot cover state actions that amount to grave breaches of international law rules, particularly of jus cogens rules.
The decision came in contrast to the assessment made in 2012 by the ICJ in case Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court then held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations. The recent decision leaves the impression of balancing the two principles. It reiterates, on one hand, that even the most recent practice, including the decisions of the Ukrainian Constitutional Court, cannot be considered the expression of a new international custom capable of modifying that of the immunity of foreign States from jurisdiction, with respect to acts iure imperii, even for ‘gross violations’ of human rights. However, stated the Court, the state immunity does not shield the Government from jurisdiction of foreign courts in cases of gross violations of human rights. The doctrine protects the state assets if these are related to activities iure imperii, and therefore they are not attachable in the context of an enforcement procedure. If on the other hand they are assets pertaining to the iure gestionis activity of the State, they are attachable as a matter of course.
No doubt the Italian decision builds on the existing international jurisprudence regarding the question of the exceptions to the customary international law rule in regard of State immunity. In 2021 the Brazilian Supreme Tribunal arrived very much to the same conclusion.
The question whether a foreign government has immunity form court jurisdiction and execution against its assets for gross violations of human rights remains in focus of scholars and practitioners defending the victims of atrocities whether in the context of claims for the occupation damages or reparations for Russian aggression in Ukraine, underlines ReLex partner Rytis Satkauskas in his column for LRT.