¹ Judgment No 5044 of 11 Mar 2004, Ferrini v Federal Republic of Germany. The Italian text of the decision can be read in (2004), 87 Rivista di diritto internazionale 540–51. An English translation will be published in International Law Reports. For some comments see Ronzitti, N ‘Un cambio di orientamento della Cassazione che favorisce i risarcimenti delle vittime’, in Guida al diritto, 10 04 2004, 40 ff;Google ScholarGianelli, A, ‘Crimini internazionali ed immunityà degli Stati dalla giurisdizione nella sentenza Ferrini’, in 87 (2004), Rivista di diritto internazionale 643–84;Google ScholarBaratta, R ‘L'esercizio della giurisdizione civile sullo Stato straniero autore di un crimine di guerra’, in (2004), Giustizia civile 1203–4.Google ScholarGrattini, A ‘War Crimes and the State Immunity in the Ferrini Decision’ in (2005) 3 Journal of Int'l Criminal Justice 224–242;CrossRefGoogle ScholarBianch, A ‘Ferrini v Federal Republic of Germany’ in (2005) 99 AJIL 242–248;CrossRefGoogle ScholarDe Serra, P and De Vittor, F ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’ in 16 (2005) EJIL 89–112.Google Scholar

² The literature is vast. For a general overview and the latest developments see Bröhmer, JState Immunity and the Violation of Human Rights (Martinus Nijhoff The Hague/Boston/London 1997); A Orakhelashvili ‘State Immunity and International Public Order’ in (2002) 45 German Yearbk of Int Law 227–67;Google ScholarCaplan, Lee M ‘State Immunity, Human Rights, and Jus cogens: A Critique of the Normative Hierarchy Theory’ in (2003) 97 AJIL 741–81.CrossRefGoogle Scholar

³ For the ‘estrictive’ approach see generally Fox, HThe Law of State Immunity (OUP Oxford 2002).Google Scholar

⁴ cf the decision No 48 by the Italian Constitutional Court of 18 June 1978 in the Russel case (in C Focarelli Digesto del diritto internazionale (Editoriale Scientific Naples 2004) 1108–10, recently confirmed by the Court of Cassation in a decision of 3 Aug 2000, ibid 833–8). According to this decision international customary rules which emerged before the entry into force of the Constitution would always take precedence over constitutional norms, whereas international customary rules which emerged after the entry into force of the Constitution would take precedence over all constitutional norms except for the ‘supreme constitutional principles’ as identified by the Constitutional Court by way of interpretation. This view has been generally criticized by maintaining that all international customary rules take precedence over constitutional norms except for the ‘supreme constitutional principles’ mentioned by the Constitutional Court, without any regard to the moment in which the rule has emerged (cf B Conforti Diritto internazionale (Editoriale Scientific Naples 2002).

⁵ For the minority view that foreign State jurisdictional immunity is not the object of an international customary rule see recently Caplan, Lee MState Immunity 745–65.Google Scholar

⁶ §§2.1 and 3.

⁷ § 5.

⁸ The Court emphasized that ‘acts of war’, which were considered ‘political’ in nature and non justiciable by the Court of Cassation itself in the recent Order No 8157 of 5 June 2002 given in the Markovic case, do not preclude courts to ascertain the commission of crimes carried out during war operations on the basis of the Italian legal system (§7.1). The Markovic Order is published in Focarelli, CDigesto 299–30. For a comment seeGoogle ScholarRonzitti, N ‘Azioni belliche e risarcimento del danno’ in (2002) 85 Rivista di diritto internazionale 682–90.Google Scholar

⁹ In this regard, the Court pointed out that a previous decision given by the Court of Cassation itself (No 530 of 3 Aug 2000, above at n 4) and those delivered in the McElhinney case by the Irish Supreme Court on 15 Dec 1995 and by the European Court of Human Rights on 21 Nov 2001, all granting State immunity notwithstanding an alleged violation by the defendant State of human rights, were not relevant because of lack of the ‘extreme gravity’ typical of customary international crimes.

¹⁰ §7.

¹¹ §§ 7.2–8.3. The Court referred to the 1945 Statute of the Nuremberg Tribunal, the decision rendered by the Nuremberg Tribunal on 30 Sept 1946, the UN General Assembly Resolution No 95-I of 11 Dec 1946, the 1950 Principle No VI laid down by the UN International Law Commission, the UN Security Council resolutions No 827/93 of 25 May 1993 and No 955/94 of 8 November 1994, the 1998 Statute of the International Criminal Court, the German Law of 2 Aug 2000 providing for compensation for those who had been deported to Germany and subjected to forced labour and the Prefecture of Votiotia decision delivered on 4 May 2000 by the Greek Supreme Court. To be sure, the Court criticized the Greek Supreme Court's argument based on the ‘implied waiver’ stating that waiver cannot be ascertained in the abstract and that it is unlikely that a State accused of having committed such serious acts waives immunity (§8.2). As is well known the Prefecture of Voiotia decision was reversed on 28 June 2002 by the Greek Supreme Court itself which granted immunity from execution to Germany; cf E Vournas ‘Prefecture of Voiotia v. Federal Republic of Germany: Sovereign Immunity and the Exception for Jus Cogens Violations’ in (2002) 21 New York Law School Journal of International and Comparative Law 629–53.

¹² §9.1. The Court emphasized that international crimes ‘threaten humanity as a whole and jeopardize the very foundations of international co-existence’ to the extent that they are ‘an exceptionally serious…violation of fundamental rights of the human being whose protection is guaranteed by peremptory norms which place themselves at the top of the international legal system and override any other rules, whether they be conventional or customary’. Evidence of this would be provided, according to the Court, by the special regime governing international crimes, eg the fact that they are not covered by the statute of limitations and that they are protected through civil and criminal universal jurisdiction and their repression is made obligatory by some treaty rules such as Art 146 of the Fourth Geneva Convention on the protection of civilians in times of war. The Court also recalled Art 41 of the ILC Draft Articles on State Responsibility relating to the consequences of serious violations of international law. The gravity and special regime of international crimes are inferred by the Court by making appeal to a number of authorities and rules, including Art 40, para 2, of the ILC Draft Articles on State Responsibility, to the Furudzija and Kupreskic decisions by the Tribunal for the former Yugoslavia and to the Al-Adsani decision by the European Court on Human Rights (§9).

¹³ §9.1.

¹⁴ On this central point the Court expressly referred to the minority's view taken in the Al-Adsani case and on the Furudzija decision where the opinion was held that ‘the victim [of torture] could bring a civil suit for damage in a foreign court’ (§155). As is well known the majority in the Al-Adsani case had sustained that the Furudzija decision was not relevant as referring to State officials rather than to States as such (§61).

¹⁵ §9.2.

¹⁶ §10.

¹⁷ To this end, the Court recalled the British State Immunity Act (s 5), the Canadian State Immunity Act (s 6), the Basle Convention on State immunity (Art 11), the US Foreign States Immunity Act (s 1605, 5), the South-African Foreign States Immunity Act (s 3), the Australian Foreign States Immunity Act, as well as Art 12 of the Draft on State immunity developed by the UN International Law Commission (§10.1).

¹⁸ §10.2.

¹⁹ §11.

²⁰ §12.

²¹ Cf <http://www.courtservice.gov.uk/judgmentsfiles/j2871/jonesandmitchell-v-saudi_arabia.htm>.

²² The Court based its reasoning mainly on the fact that forced labour and deportation are provided for by statutes of international criminal tribunals, without any references to actual State practice. One could be wondering whether, as a consequence, all crimes falling within these statutes should be automatically regarded as customary international crimes having a jus cogens character.

²³ See Zimmermann, A ‘Sovereign Immunity and Violations of International Jus Cogens—Some Critical Remarks’ in (1994–1995) 16 Michigan Journal of Int Law at 437.Google Scholar

²⁴ cf n 5.

²⁵ It is hard to see what real relevance the ‘tort exception’ has in the Court's reasoning. The Court reinforced its apparently ‘absolute’ notion of jus cogens essentially by making appeal to the ‘tort exception’ provided for by some national legislation. This appeal to the ‘tort exception’ seems to be aimed at distinguishing the Ferrini case from most of the previous cases, where immunity was actually granted by other courts, and emphasizing that immunity can be denied only in specific and limited circumstances. But the reference to the principle of universal jurisdiction in order to justify the denial of State immunity for out-of-forum crimes as well (cf below, n 27) sharply contrasts with this aim. Apart from that, one would expect a jus cogens rule to prevail in all circumstances without any need to be ‘reinforced’ by some other rules. In fact, the Court itself stated that there was no need to prove the existence of a new rule, given the higher rank of jus cogens. But if this rule does not exist, or if at least this rule is not relevant to the decision of the case, a fortiori this same rule cannot be proved to be the one stemming from the ‘tort exception’. One can thus understand why the Court was reluctant to unequivocally state that the ‘tort exception’ reflects an international customary rule. In fact, the applicability of the ‘tort exception’ to acts ‘jure imperii’ is controversial. See Garnett, R ‘The Defence of State Immunity for Acts of Torture’ in (1997) 18 Australian Yearbook of Int Law 116–18, and n 29.Google Scholar

²⁶ It is true that a State organ acts on behalf of its State and that it is the State in fact which acts, as the Court emphasized to justify that the same regime should apply. However, it is one thing to deny immunity to a State official when it is no longer in office; it is another thing to deny immunity to the State as such. Actually, apart from what is provided for by statutes of international criminal tribunals, national courts do grant immunity even to State officials as long as they are in office, presumably on the very assumption that in this case it is the State, more than the individual, to be dealt with. This point has been recently emphasized in the Court of Appeal's Jones decision, §23.

²⁷ This principle traditionally applies to individuals, not to States, and the distinction between State organs and States as such is still relevant (cf n 26). Furthermore, the Court affirmed that on the basis of the principle of universal jurisdiction State immunity can be denied even if the alleged crimes were not committed in the forum State, thus contradicting the part of the decision where it stated that in the Ferrini case, unlike in other previous cases, the denial of immunity was justified because (and supposedly only because) the alleged crimes were committed in the forum State (cf n 25). Finally, jurisdiction and immunity are two different concepts and one cannot automatically infer the latter from the former: cf Bröhmer, JState Immunity 37–41 and 195, and n 30.Google Scholar

²⁸ See the considerations by Bröhmer, J, State Immunity 203–14.Google Scholar

²⁹ One might argue that an international customary rule authorizing State immunity for international crimes committed in the forum State does exist and conclude that the outcome of the Ferrini decision was correct apart from the Court's reasoning about jus cogens. In fact, in some cases involving serious crimes committed in the forum State, like in Letelier and in Liu (in 63 Int Law Reports 378–90, and 101 Int Law Reports 519–35), State immunity was denied. Besides, courts of States where provisions such as s 5 of the British State Immunity Act of 1978 are in force would presumably deny State immunity even if the alleged crime is characterized as an act performed jure imperii. However, national judicial practice denying State immunity for crimes committed in the forum State is extremely scarce and the compatibility of legislative ‘tort exceptions’, understood as applying even to acts jure imperii, to customary international law, is far from being proved. It is worth noting that the United Nations Convention of Jurisdictions and Immunities of States and their Property adopted by the UN General Assembly on 9 Nov 2004 does not explicitly provide for an exception to State immunity where the defendant State is accused of international crimes. The Ferrini decision itself supposes that a corresponding international customary law rule has not emerged, or else the whole reasoning about jus cogens would be useless. In any event, the question whether the Ferrini decision reflects existing customary inter-national law remains as regards out-of-forum international crimes.

³⁰ This point was made by the Court of Appeal in the Jones case by stating the ‘the jus cogens nature of the prohibition on torture did not mean either necessarily or (as yet) in general practice that a State should no longer be treated as enjoying immunity’ and by referring to the distinction correctly drawn by H Fox (n 3) p 525, between substantive and procedural issues as well as between jurisdiction and immunity (§17).

³¹ For a detailed analysis of international jus cogens along the lines of what is said in the text see Focarelli, CLe contromisure nel diritto internazionale (Giuffrè Milan 1994) 471–93.Google Scholar

³² cf n 11.

³³ For a critical analysis of international custom in the current culturally divided world see Kelly, J Patrick ‘The Twilight of Customary Law’ in (1999–2000) 40 Virginia Journal of International Law 449–543.Google Scholar

³⁴ Cf Spitzer, Ryan M ‘The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery?’ in (2002) 35 Vanderbilt Journal of Transnational Law at 1341.Google Scholar

³⁵ For the strong protest by Germany against the denial of immunity from execution consequent to the Prefecture of Voiotia decision of 4 May 2000, and for the subsequent reversal of this ruling, cf E Vournas Prefecture of Voiotia (n 11) at 649.