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State Immunity or State Impunity? Human Rights and State Immunity Revisited in the ICJ’s Judgment on the Case of the Jurisdictional Immunities of a State

Olga Gerlich

DOI: https://doi.org/10.14746/ppuam.2013.2.13

Abstrakt


The paper aims to comment on the judgment of the International Court of Justice of 2nd February 2012 in the case of Jurisdictional Immunities of the State between Germany and Italy from the perspective of the problem of jurisdictional immunity. In its decision concerning compensation for atrocities suffered by Italian citizens during World War  II granted by Italian courts against the German State as well as the execution of the analogical decisions of Greek courts, the International Court of Justice upheld the immunity of the German State. The compensation sought by the plaintiffs in the national proceedings was to redress massacres on the civil population, deportations and forced labour. In its decision the Court analyzed the exception proposed by Italy in three strands which, according to the Respondent, cumulatively would result in an exception to the rule of state immunity. Firstly, the acts giving rise to the Italian claims constituted grave violations of humanitarian law; secondly, the rules of law violated constitute peremptory norms of international law; thirdly, no other form of redress was available rendering the exercise of jurisdiction by the Italian court to be a measure of a last resort for the victims.

Słowa kluczowe


International Court of Justice; state immunity; human rights

Pełny tekst:

Bibliografia


P. T. Stoll, State Immunity, “Max Planck Encyclopedia of Public International Law”, 2011.

A. Mills, K. Trapp, Smooth Runs the Water where the Brook is Deep:The Obscured Complexities of Germany v Italy, “Cambridge Journal of International and Comparative Law” vol. 1, 2012.

M. Karagiannakis, State Immunity and Fundamental Human Rights, “Leiden Journal of International Law” vol. 11 no. 1, 1998.

A. Orakhelashvili, State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong, “European Journal of International Law” vol. 5, 2007.

L. McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty, “European Journal of International Law” vol. 5, 2007.

A. Belsky, M. Merva, N. Roht-Ariaza, Implied Waiver undethe FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, “California Law Review” vol. 77, 1989.

L.M. Caplan, State Immunity, Human Rights and IusCogens. A Critique of the Normative Hierarchy Theory, “American Journal of International Law” vol. 97 2003.

H. Fox, The Law of State Immunity, Oxford 2005.

J. Bröhmer, State Immunity and The Violation of Human Rights, Hague 1997.

P. Webb, Human rights and the Immunities of State Officials, [in:] Hierarchy of International Law: the Place of Human Rights, ed. E. de Wet, J. Widma, Oxford 2012.

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