In association with the International Commission of Jurists

Guest Post: Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes

19 Nov

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.] A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II. Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits. The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions. The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials. This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany. The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation.
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18 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.] According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: "the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney." So let's take a hard look at the weapons the neocons have in their arsenal these days. The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don't have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention--Afghanistan, Iraq--can be explained by not enough American force being applied.  Consider Bill Kristol's approach to ISIS: "What's the harm in bombing them at least for a few weeks and seeing what happens?" This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol's remark also speaks volumes to the neocons' stance toward international law. Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,"Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton." Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons--he, at least, chose to risk his life in the war that he praised as "just and noble".  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President's plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: "we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security."   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek "victory" in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.
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18 Nov

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation?...

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16 Nov

[Daniel Bodansky is Foundation Professor of Law at Sandra Day O'Connor College of Law, Arizona State University.] Is the US-China joint announcement on climate change a big deal? Opinions differ widely. Paul Krugman says yes, Tyler Cowan, no. Who’s right? Is the announcement a “gamechanger,” as Joe Romm thinks, or “a well-timed, well-orchestrated press release,” as Cowan calls it? In part, the different answers reflect different measures of success, a point to which I will return in a moment. But, first, a little background. Back in 2011, the parties to the UN Framework Convention on Climate Change adopted the Durban Platform, which launched negotiations to develop a new legal instrument to limit global greenhouse gas emissions post-2020. The Durban Platform negotiations are to be completed and a new agreement adopted in December 2015 at the Paris conference of the parties. A decision adopted last year in Warsaw called on states to communicate their intended national contributions to the new agreement well in advance of the Paris meeting. What the United States and China unveiled in Beijing – although generally characterized as an “agreement” or “pact” – were their intended national emission targets under the 2015 agreement. At least four metrics are relevant in evaluating the joint announcement: First, do the announced targets put us on a pathway towards limiting climate change to safe levels? Safety involves value judgments, of course, but most scientists believe that warming of more 1.5-2° C above pre-industrial levels would result in dangerous impacts – impacts that most people would wish to avoid. (The earth is already about .8 degrees warmer than pre-industrial level, so we’re almost halfway there.) Even the most ardent boosters of the US-China deal don’t claim that, by itself, it will put the world on a 2° pathway, only that it is a first step. Second, do the targets announced by the United States and China represent a significant improvement over business as usual? Or, to put it differently, will achieving them require the US and China to significantly ratchet up their level of effort? Here, opinions differ widely, because they depend on judgments about what would happen in the absence of the targets, which in turn depend on assumptions about the economy, technology, and government policies more generally – all of which are highly uncertain. Who would have predicted, ten years ago, the Great Recession and the rapid expansion of fracking, both of which have had a huge influence on US emissions? So it is perhaps not surprising that some analysts say the US-China announcement “doesn’t change things much,” while others think it represents a major advance. Climate Interactive, for example, calculates that the US-China targets, if fully implemented, would reduce carbon dioxide emissions by about 650 billion tons through 2100 – and if other countries follow suit, taking similar targets, global emissions would be reduced by about 2500 billion tons through 2100. A brief sampling of estimates of Chinese and US emissions: 
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16 Nov

Events ASIL-IEcLIG Co-Chairs, Elizabeth Trujillo (Suffolk University Law School) and Jason Yackee (University of Wisconsin Law School), are happy to announce the upcoming ASIL--International Economic Law Interest Group's Biennial Research conference, on "Reassessing International Economic Law and Development: New Challenges for Law and Policy," taking place on November 13-15, 2014. It is hosted by ASIL Academic Partner University of Denver Sturm College of Law, in collaboration with...

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13 Nov

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.] Just Security and Lawfare have published dueling AUMF reform proposals, here and here. (The proposals are not those of Just Security or Lawfare, but rather, those of the individual authors. For ease of reference, I’m calling them Just Security and Lawfare.) At...

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12 Nov

[Jean d’Aspremont is a Professor of International Law, University of Manchester and a Professor of International Legal Theory, University of Amsterdam.] The identification of customary international law is à la mode among international lawyers. Seminars, research handbooks, special symposia in scholarly journals and on-line discussions devoted to the question are mushrooming these days. Arguments and constructions heard on these occasions are sometimes admirably...

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09 Nov

I want to call our London-area readers attention to a very interesting event I'll be chairing on November 19. The event is entitled "Reinforcing International Criminal Justice: Building on the Work of the 1943-48 UN War Crimes Commission"; here is the description: As part of Centre for International Studies and Diplomacy's Research Programme on UN War Crimes Commission which was published in...

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08 Nov

[Dr Michael Kearney is Lecturer in Law at the School of Law, Politics and Sociology at the University of Sussex.] On 6 November 2014 the Office of the Prosecutor at the International Criminal Court released the report of her preliminary investigation into the Israeli army's attack on a flotilla of ships, which, in 2010, had been sailing towards Palestine with the aim of breaking Israel's naval blockade of the Gaza Strip. As a result of this investigation the Prosecutor is of the belief that during the interception and takeover of the ship, the Mavi Maramara, in which ten people were killed, Israeli soldiers committed war crimes. The Prosecutor has decided that further action by the Court is not currently feasible on the grounds that the crimes in question are not of sufficient gravity so as to warrant a full investigation. The following thoughts will address issues arising from the Report other than the actual war crimes. (Due to the manner in which the Report is formatted, and specifically the repetition of paragraph numbers, references to excerpts from the Report's Summary are cited as eg 'para Z ExecSumm'). I don’t think this is an unexpected or an unreasonable conclusion from the Office of the Prosecutor with respect the gravity aspect of a preliminary examination. What this statement should encourage however, is the immediate ratification of the Rome Statute by Palestine. The analysis demonstrates how, while distant from any possibility of alleged criminals taking to the dock in The Hague, the International Criminal Court can play a crucial role in considering Israel’s policies and practices against Palestinians through the lens of criminal justice.
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07 Nov

According to Marlise Simons at the New York Times, Comoros intends to appeal the OTP's decision not to open a formal investigation into Israel's attack on the MV Mavi Marmara. That's its right -- but it's a right without a remedy, because the judges cannot order the OTP to investigate the attack. The relevant provision in the Rome Statute is Art. 53: 1.        ...

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05 Nov

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel's attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP's conclusion but have serious problems with much of its reasoning. But I thought I'd tease tomorrow's post by noting that, despite...

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