Ten years have passed since the International Court of Justice has delivered its judgment on Jurisdictional Immunities (Germany v Italy). As I explained earlier here, here, here, and here, the Court’s reasoning was deficient on legal as well as on moral grounds. More specifically, the Court has distorted the meaning of acts jure imperii, took a rather loose approach to the criteria of identification of the existence of customary rules of international law, and further denied that immunity should be refused to a foreign State when their grant violates peremptory norms of general international law. Substantive peremptory norms do not, according to the Court, conflict with State immunity which is merely of procedural character; even though, the same Court used in the same case the same immunity as substantive rules providing the cause of action to Germany against Italy. When it came to overriding effect of jus cogens, the same rules experienced an awkward metamorphosis and became procedural rules.
Opinions of some writers have rather enthusiastically presented the Court findings as an unquestionable articulation of the content of international law regarding State immunities (see Sender & Wood, at 581). It was further suggested that “It might be wiser to accept that not every injustice can be addressed by law, that law cannot always provide a satisfying solution, and that such solutions are sometimes better looked for and confined to the political stage” (Krieger, at 87), even though such political solutions are rather infrequent and litigation happens because the relevant governments are not willing to compensate victims. In a similar vein, in Al-Adsani v UK, decided by the European Court of Human Rights in 2001, the UK Government had refused to give diplomatic protection to Al-Adsani against Kuwaiti Government, and then submitted to the European Court of Human Rights that the exercise of diplomatic protection would have been a more suitable way of handling Al-Adsani’s situation than litigation before domestic courts (Al-Adsani v UK, paras 19, 50-51). The Jurisdictional Immunities judgment has been rather vocal that immunities should be maintained even if they lead to impunity – in this case impunity for Nazi Germany’s crimes in Italy during the World War Two.
On the basis of decisions issued by courts in a handful number of States, the International Court of Justice has endorsed the assumption that Germany enjoyed immunity for war crimes under customary international law. Germany’s case was indeed helped by Italy’s self-harming decision not to contest Germany’s point on State immunity being part of customary international law – though, as explained elsewhere, the Court was still obligated to provide the evidence of the existence of a customary law rule on which it bases its decision and holds a State responsible for violating international law – and it has failed to do so.
The ICJ has also claimed that the grant of immunity to a State violating jus cogens does not involve derogation from jus cogens. In Jones v Saudi Arabia decided by the House of Lords in the UK, Lord Hoffmann was emphatic that “the United Kingdom, in according state immunity to the [Saudi Arabian] Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity, justifying the use of torture.” That statement rang hollow, as the House of Lords’ attitude involved a prospective approval of the correctness and validity of the legal position that victims of torture in Saudi Arabia should get no remedy in the UK. Against this background, even if the peremptory prohibition of torture arguably remains generally binding on the UK and Saudi Arabia, the same prohibition is denied legal effect in bilateral UK–Saudi relations. In other words, the peremptory prohibition of torture has been derogated from through the two States’ mutual understanding expressed by the Saudi claim of immunity and the UK’s approval of that claim. Hence, Saudi Arabia can go on and torture any British or third country citizen and safely expect that no legal consequences will arise, and that the peremptory prohibition of torture will remain inoperative, in bilateral relations between Saudi Arabia and the UK.
Who needs this blanket and morally deficient approach? There is only one answer: those who find comfort in subordinating the lives of victims of human rights violations to the forum State’s good relations with States who commit relevant international crimes. This is done for reasons of trade, strategic partnership and related reasons, and is very much in line with the concept of Carl Schmitt’s total politics, now with national courts’ active participation in such process of political struggle. It is fully in line with this rather peculiar ideology, to pretend that there is a general rule on State immunity under customary international law, and then present any State that withholds granting State immunity to another State on those conditions with an undeliverable task, namely one to demonstrate that an exception from a general rule exists when that general rule is not part if customary international law at all.
This is only one of the reasons why the ICJ’s approach has failed to become the mainline approach in State practice.
In 2013, Italian Constitutional Court has refused to give effect to the ICJ’s ruling as far as Italy’s legal order is concerned. Despite criticisms of the outcome the Court reached (see Krieger, Tams and others here), the only deficiency in the Constitutional Courts’ reasoning was its recognition of State immunity as part of customary international law, which reflected the Italian Government’s own self-harming attitude before the International Court. Whether it was open to the Court to use Article 10 of the Italian Constitution and rely directly on international law to show that Italy had not violated international law by denying immunity to Germany, is an issue on which Italian international and constitutional lawyers would be in a better position to comment on. Be that as it may, however, the actual outcome reached by the Constitutional Court is not at variance of international law, because the ICJ judgment had not identified a rule on immunity whereby Italy was bound not to proceed against Germany as it did.
The matters did not end with the Italian Constitutional Court, moreover. After the ICJ has fired its shot, Swiss Federal Criminal Court, Court of Appeal in the United States, Court of Appeal in Seoul, and most recently Supreme Court of Brazil have all refused to follow the ICJ’s approach and let the Court’s 2012 findings influence the outcome of cases before them. Reliance on human rights and the impact of jus cogens has been obvious in these cases. These courts have also emphasised that ICJ’s judgments command no binding beyond the case in question and parties to it, as the ICJ Statute also confirms. In addition, the input from the Italian Constitutional Court left little intact for the ICJ judgment’s binding force even as between Germany and Italy. Furthermore, legislatures in Canada and US have removed immunity for certain terrorist activities the way that plainly contradicts the ICJ’s approach (see here p. 138 for the Court’s attitude to the US legislation in force at that time). On the whole, a prediction made by Sender and Wood that the Jurisdictional Immunities case “is, and is likely to remain for some time, the leading international case on the law on state immunity” (at 579) has not been matched by subsequent developments. After all, State practice and utilitarian ideology are not the same thing.