No custom restricting state immunity for grave breaches ‒ well why not?

In a recent judgement (discussed here and here), the Italian Constitutional Court (CC) found that the Italian Constitution barred Italian courts from applying the ICJ’s judgement in Germany v. Italy (discussed here and here) and that the Italian laws implementing the judgement were unconstitutional. The CC did so without wandering off into the field of international law. It did however acknowledge the ICJ’s finding, that there was no customary international law exempting states from immunity in the case of grave breaches of international law. I would like to argue that this should not be the question, but rather that this ruling should be seen as an impulse to form such a customary rule. By proclaiming the access to domestic courts in order to seek compensation for grave breaches of international law as a core rule of the Italian Constitution, the CC has made a clear statement regarding the universal value of this judicial right. It underscores this belief by its willingness to take on the entire international legal order with „only“ the Italian constitution by its side, bringing up the image of David vs. Goliath. My own argument for the establishment of such a custom is based on a comparison with the established exemptions from immunity in (international) criminal law.

In his discussion of the decision, Filippo Fontanelli calls the judgement brave and I can only agree. But at the same time he questions whether there was really a need to go all in, if there was really a hard place the Court was backed up against ...

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