Today we have a fascinating decision from the International Court of Justice concerning State immunities and serious violations of international humanitarian law. The case, styled Jurisdiction Immunities of the State(Germany v. Italy: Greece Intervening), was taken by Germany against Italy in response to judicial action relating to second world war claims. Some of these originated in Greece, although they led to enforcement measures in Italy, which explains the Greek intervention.
Germany prevailed, by twelve votes to three (judges Cançado, Yusef and Gaja (ad hoc) dissenting). The judgment contains important statements about immunities. It also offers the most detailed consideration to date by the Court of the concept of jus cogens or peremptory norms and their relationship to other rules of international law.
The Court explains :
57. The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.
One of Italy’s main arguments was that there was an important exception to the general rule of immunity where serious violations of international humanitarian law – war crimes and crimes against humanity – were concerned. In a closely related argument, Italy contended that there could be no immunity because the prohibition of war crimes and crimes against humanity was a norm of jus cogens and therefore would prevail.
The Court rejected both arguments. It made an interesting observation about what it described as a ‘logical problem’ with the argument that there was no immunity to charges of war crimes and crimes against humanity
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. If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim. (para 82).
This point reminded me of claims by the Prosecutor of the International Criminal Court with respect to allegations of genocide. He has argued, I think, that special obligations exist upon States to cooperate with the Court in the Bashir arrest warrant because Bashir was charged with genocide. His contention has been that the arrest warrant is somehow energized by the addition of a genocide charge, as a result of the ruling of the Appeals Chamber.
According to the decision, ‘The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict.’ (para. 91) Although rejecting the argument that the nature of the crimes is not sufficient to eliminate immunity, the Court takes some care to distinguish its ruling from another judgment that may be in conflict, namely the Pinochet ruling of the House of Lords of 1999. It insists that ‘it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’.
The Court does not consider that the United Kingdom judgment in Pinochet (No. 3) ( 1 AC 147; ILR, Vol. 119, p. 136) is relevant, notwithstanding the reliance placed on that judgment by the Italian Court of Cassation in Ferrini. Pinochet concerned the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages. The distinction between the immunity of the official in the former type of case and that of the State in the latter case was emphasized by several of the judges in Pinochet (Lord Hutton at pp. 254 and 264, Lord Millett at p. 278 and Lord Phillips at pp. 280-281). In its later judgment in Jones v. Saudi Arabia ( 1 AC 270; ILR, Vol. 129, p. 629), the House of Lords further clarified this distinction, Lord Bingham describing the distinction between criminal and civil proceedings as “fundamental to the decision” in Pinochet (para. 32). Moreover, the rationale for the judgment in Pinochet was based upon the specific language of the 1984 United Nations Convention against Torture, which has no bearing on the present case. (para. 87)
The reference to the Pinochet case is interesting because in the Court's last major discussion of immunities, the 2002 Arrest Warrant case, it seemed to be overruling the conclusions of the House of Lords.
The Court turns to the jus cogens argument. One often hears that various rules of international law (or national law) are changed because they concern what people sometimes label ‘jus cogens crimes’. The Corut doesn’t seem very impressed It has already addressed this in earlier decisions. Today’s judgment states:
This argument therefore depends upon the existence of a conflict between a rule, or rules, of jus cogens, and the rule of customary law which requires one State to accord immunity to another. In the opinion of the Court, however, no such conflict exists. 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, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful. That is why the application of the contemporary law of State immunity to proceedings concerning events which occurred in 1943-1945 does not infringe the principle that law should not be applied retrospectively to determine matters of legality and responsibility (as the Court has explained in paragraph 58 above). 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.
95. To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition. A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application.
There are three dissenting opinions, the most detailed and elaborate of them penned by Judge Cançado. As in his earlier pronouncements, he takes a position that is very firmly underpinned by a commitment to human rights. He situates his argument principally on the basis of the rights of victims to redress.
These are preliminary impressions of a significant ruling by the International Court of Justice that is destined to impact on a range of human rights and international criminal law matters.