A Fresh Start: How to Resolve the Conflict between the ICJ and the Italian Constitutional Court

Three months ago the Italian Constitutional Court decided that it would infringe the fundamental rights of Italians to follow the International Court of Justice and uphold state immunity as a barrier for individual claims of war crime victims (decision no. 238 of 2014). First commentators have pointed out the conflict between the two courts and the regime collision between international and domestic law. Germany’s possible reaction to the Italian breach of international law has also been taken into consideration. Finally, the possible role of the Italian Constitutional Court’s reasoning in the further development of international law with regard to state immunity in cases of serious human rights violations, which amount to the breach of a jus cogens rule, has been the focus of some contributions.

I would suggest making a fresh start in this debate. What we need right now are procedural mechanisms to harmonize for the future, as far as possible, the claim of sovereign immunity and access to the courts, in case a state happens to be in a better position to settle the dispute at the international level in the interests of the victims.

State Immunity vs. Access to Courts

Both the ICJ’s and the Italian Constitutional Court’s decisions have a key element in common, which also gives rise to the troubled relationship between international law and domestic order in this case. Either court conceives remedies available under international law (especially, diplomatic negotiations between Italy and Germany), on the one hand, and access to the courts by the victims, on the other, as being mutually exclusive.

In coming to its conclusion, the ICJ acknowledges that granting immunity from jurisdiction to Germany may preclude judicial remedies for the Italian nationals concerned ...

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