Section: Contributions and Reports
Archiv des Völkerrechts (AVR)
Archiv des Völkerrechts (AVR)
Volume 53 (2015) / Issue 1, pp. 90-120 (31)
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With sentenza Nr. 238 the Italian Constitutional Court restarted a game that many had thought finished. The ICJ's ruling in the Jurisdictional Immunities case, though unsatisfactory in its results, had none the less been seen as the final answer to the question of restrictions to the rules of state immunity, which had been the subject of a series of court cases. But even 70 years after the Second World War the crimes committed by German troops in Italy remain so horrific, that the idea of the victims going without redress seemed unbearable to the Italian judiciary. Leaning heavily on a staunchly dualistic interpretation of the Italian constitution, the Italian Constitutional Court answered the question put before it by the District Court of Florence. Weighing the core elements of the Italian constitution against the incorporation of the customary rule of state immunity via Art. 10 of the constitution, the Court found the right to a judge to be an unalienable individual right, while there was no public interest in maintaining immunity for grave breaches of international law. Therefore the customary rule of state immunity does not apply within the Italian legal order. Two additional laws were also declared partly unconstitutional on those grounds. Within Italy proceedings against Germany can now commence, while they would still constitute wrongful acts under international law. From a state-centred international law perspective the ruling can be seen as a provincial attack against the ICJ and international law in general. Taking into account the arguments and also the wording of the ruling, »attack« is in fact one of the last words to come to mind. The Court compared itself to the ECJ in the Kadi decision to show that it was favourable to international law and its institutions, but could not bare the results in this particular case. Despite its purely domestic approach the Court made a case for an international law centred more around the unalienable rights of individuals. This can be seen as a contribution to a dialectic and normative learning process between a revolutionary and emancipatory Kantian constitutional mindset and a conservative and evolutionary managerial mindset. These categories that were adapted and used by Hauke Brunkhorst to describe the historic changes in a unified Europe, seem equally apt to describe the process of change of the rules of state immunity in a less hierarchical and less confrontational manner. With regard to that change the need for individual compensation and therefore for a restriction to state immunity has been questioned. Comparisons to international criminal law have also been rejected in this regard. But both international criminal law and individual claims can be seen as part of transitional justice. Individual claims and restrictions to state immunity face some of the same arguments that international criminal law had to face. Those arguments should not be treated differently because international criminal law is becoming a non-European phenomenon, while state immunity is deeply rooted in the euro-centrism of classical international law.