Suchergebnisse

607State immunity — Jurisdictional immunity — Whether Italian courts having to declare that they lacked jurisdiction where cases brought against States for conduct amounting to crimes under international law — Relevance of judgment of 3 February 2012 of International Court of Justice ("ICJ") — Change in earlier line of jurisprudence requiring courts to lift immunity when conduct of impleaded foreign States amounting to crimes under international law — Relevance of Law No 5 of 14 January 2013 — Law No 5 of 14 January 2013 giving effect to ICJ's judgment of 3 February 2012 — Conformity of Law No 5 of 14 January 2013 with Italian Constitution — Constitutionality of Law No 5 of 14 January 2013 — Law No 5 of 14 January 2013 giving effect to Article 94(1) of United Nations Charter, 1945 — Law No 5 of 14 January 2013 in turn giving effect to Article 11 of Italian Constitution — Whether Italian courts lacking jurisdictionRelationship of international law and municipal law — Decisions of international courts — Judgment of International Court of Justice regarding Italian court decisions denying immunity — Legislation to implement judgment — Whether constitutional — The law of Italy

658State immunity — Jurisdictional immunity — Claim by individual against foreign State for personal injury — Deportation to forced labour by German occupying forces during Second World War — Violation of rules of jus cogens — Whether grave violations of human rights precluding reliance on State immunity under customary international law — European Convention on State Immunity, 1972, Articles 11 and 31 — Whether entitlement to rely on immunity preserved for acts of armed forces — Whether commission of grave violations of human rights automatically implying waiver of immunity by StateInternational criminal law — War crimes — Deportation to forced labour — Article 6(b) of Charter and Judgment of Nuremberg International Military Tribunal — Provisions of Hague Convention, 1907, and Geneva Convention, 1929 — Whether recognized as declaratory of customary international law prior to outbreak of Second World War — Categorization of deportation to forced labour as international crime — Confirmation in Statutes of International Criminal Tribunals for Former Yugoslavia and Rwanda and Statute of International Criminal Court, 1998Relationship of international law and municipal law — Crimes against international law — Customary international law — Jurisdictional immunity of foreign States for acts performed jure imperii — International crimes involving serious violations of fundamental human rights — Claims for damages by individuals for loss and injury arising from commission of such crimes — Whether States entitled to rely on immunity — Practice of national and international tribunals — Whether conclusive — Whether fact that acts performed jure imperii relevant — Whether priority now accorded to protection of fundamental rights of individuals over right of States to jurisdictional immunity — Whether any parallel between functional immunity of State organs and immunity of StatesWar and armed conflict — Conduct of military operations — Whether choice of method of conducting hostilities justiciable — Whether non-justiciability preventing examination of possible commission of war crimes against individuals — The law of Italy

Article 10 of the Italian Constitution incorporates generally recognized principles of international law. Thus, State immunity from civil suit in the domestic courts of another State——a principle generally recognized in international law——would apply in Italy. However, the protection of fundamental human rights is another generally recognized principle in international law and the ostensible conflict between these two principles has resulted in a series of controversial rulings issued by the Italian Court of Cassation. These rulings allow for the abrogation of State immunity from civil suit in the domestic courts of another State for alleged violations of jus cogens or peremptory norms ——what this paper will refer to as the Ferrini doctrine. Although the central premise behind the Court''s reasoning appeals to the values underlying international law, it is by no means authoritative under the international law regime in which rules and principles are developed through consensus of what is generally recognized. As such, the Italian Court of Cassation''s decisions are not just controversial they are technically unlawful under customary international law. However, such deviation is the sole means through which customary international law changes and evolves. Were the Italian Court of Cassation to make its reasoning logically consistent and, at this initial stage, less sweeping in breadth, the Ferrini doctrine arguably has the potential to be effectively exported to other States thereby furthering a change in customary international law on State immunity. This paper will: (1) provide a brief survey of some of the Italian Court of Cassation''s controversial rulings regarding State immunity from civil suit; (2) examine the responses to the decisions from other States and academia to evaluate the validity of such a rule; (3) propose a revised version of the Ferrini doctrine which would enhance its viability and impact on customary international law; and (4) reach a conclusion as to whether such a change is advisable.

The Italian Court of Cassation has recently delivered a judgment of great interest denying State immunity to Germany for commission of crimes under customary international law on the exclusive basis of international law.