The Italian Constitutional Court's Ruling against State Immunity When International Crimes Occur: Thoughts on Decision No. 238 of 2014

By Longobardo, Marco | Melbourne Journal of International Law, August 2015 | Go to article overview

The Italian Constitutional Court's Ruling against State Immunity When International Crimes Occur: Thoughts on Decision No. 238 of 2014


Longobardo, Marco, Melbourne Journal of International Law


CONTENTS  I   Introduction II  The Complex History of the Italian Jurisprudential     and Legislative Approach to State Immunity III The Italian Constitutional Court's Decision No 238     regarding the Customary Norm of State Immunity IV  The Duty to Comply with ICJ Decisions and the     Italian Constitutional Judgment V   An Evaluation of the Court's Decision VI Conclusion 

I INTRODUCTION

On 22 October 2014, the Italian Constitutional Court ('the Court') rendered an historical judgment (1) about the constitutional legitimacy of the Italian legislation that has been adopted in order to implement the decision of the International Court of Justice ('ICJ') in the Jurisdictional Immunities of the State case ('Jurisdictional Immunities'). (2) According to the Court, Italian judges' duty to deny their jurisdiction in trials relating to damages caused by Nazi crimes is unconstitutional because it prevents the victims' next of kin from obtaining access to justice. In order to overcome this obstacle, the Court declared that:

(i) The Italian legal system refuses to implement the international customary rule regarding state immunity at a domestic level when it is invoked in a trial concerning international crimes;

(ii) Article 1 of Italian Law No 848 of 17 August 1957 ('Law No 848/1957') (3) is unconstitutional, so far as it concerns the execution of art 94 of the Charter of the United Nations ('UN Charter'), (4) to the extent that it obliges the Italian judge to comply with the Jurisdictional Immunities decision; and

(iii) Article 3 of Italian Law No 5 of 14 January 2013 ('Law No 5/2013'), (5) which specifically obliges judges to deny their jurisdiction in order to implement the Id's judgment, is unconstitutional and, consequently, null and void. (6)

The Court strongly affirmed that access to justice is a fundamental right, protected by the Italian Constitution, which cannot be derogated from. Consequently, when state immunity is invoked not to protect typical sovereign functions, but to prevent the justiciability of international crimes, access to justice cannot be sacrificed to state immunity.

Decision No 238, because it creates contradictions between domestic and international law, will be at the centre of an animated debate among scholars and practitioners. The Italian Government and judges are now obliged to implement the Court's judgment, despite the fact that such implementation violates the Id's decision and the rules of international law there outlined. Moreover, Germany could start a new proceeding against Italy on the grounds that the Court's judgment denies Germany state immunity. Alternatively, Germany could defer the matter to the UN Security Council, which in turn could decide to enforce the Id's decision against Italy on the basis of art 94 of the UN Charter. (7)

This case note will examine the Court's judgment and emphasise its rationale, which is based on a strong human rights approach. In doing so, it will attempt to limit as much as possible any references to the Italian domestic legal system and the subtleties of the constitutional control mechanism. (8)

II THE COMPLEX HISTORY OF THE ITALIAN JURISPRUDENTIAL AND LEGISLATIVE APPROACH TO STATE IMMUNITY

The Court's judgment can be seen as the last word in a very long and problematic legal story. For the purposes of this essay, the decision of the Corte di cassazione [Italian Supreme Court] ('Supreme Court') in Ferrini v Germany (9) ('Ferrini') is taken as the starting point of the story. In Ferrini, the Supreme Court denied state immunity to Germany for the crimes committed by the Nazi army in the north of Italy during World War II; these crimes consisted of illegal deportations and denials of the status of war prisoners. According to the Supreme Court, these actions amount to serious violations of jus cogens norms. Consequently the Supreme Court held that, since the rule on state immunity is not peremptory, it could not be invoked by Germany. …

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