² Mike Corder, Dutch court throws out case against Israeli military chiefs, AP News (Jan. 29, 2020), https://apnews.com/1b1b9235be71f752d2baa8c43239d4e4.

³ The bombing occurred during the 2014 Gaza War as part of Israel's Operation Protective Edge. Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667, ¶ 2.2 (Neth.) (hereinafter “Air Strike”) (noting the claimant alleges that the air strike was committed in accordance with a national policy to target civilian homes and the State of Israel confirmed in a diplomatic memo that the Defendants, former military officials, did act pursuant to their official duties in carrying out the strike); Loes Witschge, Dutch court dismisses case against former Israeli generals, Aljazeera (Jan. 29, 2020), https://www.aljazeera.com/news/2020/01/dutch-court-dismisses-case-israeli-generals-200129130045920.html.

⁴ Ismail Zeyada reported that the individuals killed were “[m]y mother, Muftia Zeyada, who was 70 years old at the time of her death. My eldest brother Jamil and his precious wife Bayan. Their 12-year-old son Shaban. My two other brothers, Youssef and Omar.” Mike Corder, Dutch court throws out case against Israeli military chiefs, AP News (Jan. 29, 2020), https://apnews.com/1b1b9235be71f752d2baa8c43239d4e4.

⁵ The Court considered the Israeli Courts able to fairly adjudicate the claim, even though the Plaintiff cited evidence that a fair adjudication may not be possible. Air Strike, ECLI:NL:RBDHA:2020:667 at ¶¶ 2.3, 4.55, 4.60-4.61; Mike Corder, Dutch court throws out case against Israeli military chiefs, AP News (Jan. 29, 2020), https://apnews.com/1b1b9235be71f752d2baa8c43239d4e4; Dutch court throws out slain family damages case against Israeli military chiefs, The Times of Israel (Jan. 29, 2020), https://www.timesofisrael.com/dutch-court-throws-out-slain-family-damages-case-against-israeli-military-chiefs/; https://www.ejiltalk.org/functional-immunity-of-foreign-state-officials-in-respect-of-international-crimes-before-the-hague-district-court-a-regressive-interpretation-of-progressive-international-law/; Cedric Ryngaert, Functional Immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law, EJIL: Talk! (March 2, 2020), https://www.ejiltalk.org/functional-immunity-of-foreign-state-officials-in-respect-of-international-crimes-before-the-hague-district-court-a-regressive-interpretation-of-progressive-international-law/.

⁶ Air Strike, ECLI:NL:RBDHA:2020:667 at ¶ 4.61.

⁷ An explicit waiver from the Israeli government that consents to the jurisdiction of a foreign court to try these former military officials is not likely since Israel has already confirmed in a diplomatic memo that the officials acted per their official duties when carrying out the airstrike. Id. ¶ 2.

⁸ See generally Rome Statute of the International Criminal Court art. 8, Jul. 17, 1998.

⁹ The Plaintiff cited evidence that an adjudication before Israeli courts, even if attainable, may not be fair. Air Strike, ECLI:NL:RBDHA:2020:667 at ¶¶ 2.3, 4.60. He is quoted, saying: “[a]s a Palestinian, Israelis can kill us can destroy our houses, they can confiscate our lands, they made us refugees and there are no consequences.” Loes Witschge, Dutch court dismisses case against former Israeli generals, Aljazeera (Jan. 29, 2020), https://www.aljazeera.com/news/2020/01/dutch-court-dismisses-case-israeli-generals-200129130045920.html.

¹⁰ Zeyada has publicly said he intended to donate any damages secured from the suit to charities; as such, his motive for bringing the suit is reflected in the following statement: “I owe it to all the Palestinians who have suffered and continue to suffer the same fate, to continue this struggle to achieve what is denied to them: access to independent justice and accountability for the unspeakable crimes committed against them.” Mike Corder, Dutch court throws out case against Israeli military chiefs, AP News (Jan. 29, 2020), https://apnews.com/1b1b9235be71f752d2baa8c43239d4e4.

¹¹ Air Strike, ECLI:NL:RBDHA:2020:667 at ¶¶ 2.2, 4.5.

¹² Id. ¶ 2.3 (noting that the court's jurisdiction is premised on the claimant having Dutch citizenship and living in the Netherlands with his wife and children).

¹³ Id. ¶¶ 2.2, 4.5.

¹⁴ Id.

¹⁵ Id. (noting that Israel has confirmed in a diplomatic memo dated October 18, 2018, to the Dutch Ministry of Foreign Affairs that the air strike was “performed exclusively in [the Defendants’] official capacity . . . and in accordance with their authority under Israeli law”).

¹⁶ Id.

¹⁷ Id. ¶ 3.4.

¹⁸ Id. ¶ 4.3.

¹⁹ Infra notes 121-130 and accompanying text.

²⁰ Air Strike, ECLI:NL:RBDHA:2020:667 at ¶ 4.3.

²¹ Id. ¶ 4.22 (noting that individual responsibility is enshrined in Article 25 of the Rome Statute of the International Criminal Court).

²² Id.

²³ Infra notes 112-120 and accompanying text.

²⁴ Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction ¶ 51 (May 31, 2004).

²⁵ Air Strike, ECLI:NL:RBDHA:2020:667 at ¶ 4.35.

²⁶ Id. ¶ 4.25

²⁷ Id. ¶ 4.29; Arrest Warrant, Judgement, 2002 I.C.J. 3 (February 2002).

²⁸ Zeyada asserted that he is unable to institute proceedings in Israel because “Israeli law, as applied by the Israeli courts, raises all sorts of legal and practice obstacles to Palestinians from the Gaza Strip.” Air Strike, ECLI:NL:RBDHA:2020:667 at ¶ 2.3.

²⁹ The court recognized that the right to a fair trial is subject to limitations when a limitation has a legitimate purpose such as promoting good relations. Id. ¶¶ 4.56-4.58. Although the Court did support the assertion that Zeyada does have access to legal redress in Israel, the Court recognized that, for finding a violation of article 6, the absence of alternative legal proceedings is not required. Id. ¶ 4.60.

³⁰ Id. ¶ 4.55.

³¹ Id. ¶¶ 4.61-4.62, 4.51-4.52 (holding Zeyada to pay the costs, amounting to 7,763 euros).

³² Vienna Convention on the Law of Treaties, art 53, May 23, 1969, U.N. Doc. A/Conf. 39/27, 8 I.L.M. 679; see also S. I. Strong, Can International Law Trump Trump's Immigration Agenda: Protecting Individual Rights through Procedural Jus Cogens, 2018 University of Illinois L. Rev. Online 272, 273 (2018) (“The ‘norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.’”).

³³ Although the Convention Against Torture obligates state parties to the Convention to follow additional requirements, the prohibition of torture is a peremptory norm; therefore, even states not party to the Convention are legally bound to condemn the practice of torture. See Winston P. Nagan & Joshua L. Root, The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory, University of Florida Law Publications 375, 403 (2013); Strong, supra note 31, at 273-274 (listing the prohibition of torture as one of several jus cogens norms). Nevertheless, the scope of the obligations arising from the peremptory status of the international norm condemning torture is debated. See generally Leila Nadya Sadat, Exile, Amnesty and International Law, 81 Notre Dame L. Rev. 955, 970 (2006) (explaining that the theory of jus cogens continues to be widely debated).

³⁴ Nagan et al., supra note 32, at 402.

³⁵ Swart, Mia, Breaking the Silence: The Treatment of Ius Cogens in Zimbabwe Torture Docket and Al-Bashir, 9 Constitutional Court Review 537, 547 (2019)CrossRefGoogle Scholar (recognizing that the point where a norm of international law attains the status of a jus cogens norm is unclear). But see Strong, supra note 31, at 274 (recognizing the determination of what norms are considered jus cogens norms is a challenging task, but reaffirming a test “devised by Evan Criddle and Evan Fox-Decent . . . that a particular procedure ‘will count as jus cogens if respect for it is indispensable to the state's ability to secure legality for the benefit of all’”).

³⁶ Mia Swart, supra note 34, at 547 (“[T]he determination of ius cogens is not as subjective as being merely a matter of consulting one's conscience. There is a substantial measure of consensus on a number of ius cogens norms.”); Sadat, supra note 32, at 973 (referencing Cherif Bassiouni's suggestion that the main consideration when determining a jus cogens norm are: “the historical evolution of the crime, the number of states that have incorporated the crime into their national laws, and the number of international and national prosecutions for the crime in question and how they have been incorporated.”) (footnotes omitted).

³⁷ Mukuki, Allan, The Sacrosanct? The Challenge in Holding the United Nations Responsible for the Failure to Prevent Genocide, 4 Strathmore L. J. 109, 122 (2020)Google Scholar (explaining that, for a new rule of customary international law to crystallize, the elements of state practice and opinio juris must be satisfied, with opino juris indicating that “states exercise this practice out of a legal obligation”).

³⁸ See Swart, supra note 34, at 547 (“[J]us cogens is binding regardless of consent.”); Rebecca Zaman, Playing the Ace – Jus Cogens Crimes and Functional Immunity in National Courts, 17 Australian Int'l L. Rev. 53, 73 (2010) (“There is an intrinsically non-consensual element to a jus cogens norm, in that once a rule is established to be of that status it binds all states absolute, even persistent objectors.”).

³⁹ Restatement (Third) of the Foreign Relations Law of the United States § 702 cmt. n. (1987) (citing genocide, slavery, murder or causing the disappearance of individuals, torture or other cruel inhumane, or degrading treatment or punishment, prolonged arbitrary detention, systematic racial discrimination, or a consistent pattern of gross violations of an internationally recognized human rights as peremptory norms); M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 L. & Contemporary Problems 63, 68 (1996) (“The legal literature discloses that the following international crimes are jus cogens [norms]: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture.”) (emphasis omitted).

⁴⁰ Al-Adsani v. United Kingdom, App. No. 35763/97 Eur. Ct. H.R. 1, ¶ 61 (2001) (recognizing that the prohibition of torture is a jus cogens norm); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 2, 5 Dec. 10, 1984 (documenting that the prohibition of torture has achieved jus cogens status).

⁴¹ Convention on the Prevention and Punishment of the Crime of Genocide, art. I, IV, VI, Dec. 9, 1948 (referencing that the prohibition of genocide is a jus cogens norm). But see Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, 1951 I.C.J. 15, 23 (May 28) (highlighting that “the principles underlying the [Genocide] Convention are . . . recognized by civilized nations as binding on States, even without any conventional obligations,” signifying that the principles are binding without a treaty, but not necessarily that they are anything other than rules of customary international law).

⁴² International Law Commission, Peremptory Norms of General International Law (Jus Cogens), Draft Conclusions, A/CN.4/L.936, Draft Conclusion 23 and Annex (2019) (listing the “basic rules of international humanitarian law” as part of a “non-exhaustive list of norms that the International Law Commission has previously referred to as having [a peremptory] status”).

⁴³ Goiburu v. Paraguay, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 153, ¶ 84 (Sept. 22, 2006) (recognizing the prohibition of forced disappearances of persons as a jus cogens norm).

⁴⁴ Vienna Convention on the Law of Treaties, art 53, May 23, 1969, U.N. Doc. A/Conf. 39/27, 8 I.L.M. 679.

⁴⁵ Id. (outlining that all treaties in conflict with peremptory norms are void); Princz v. Federal Republic of Germany 26 F.3d 1166 (D.C. Cir. 1994) (citing Restatement (Third) § 102, cmt. k) (referencing that jus cogens norms preempt conflicting treaties and customary international law); Jurisdictional Immunities, 2012 I.C.J. 99, ¶ 92 (noting that jus cogens norms always prevail over any inconsistent rule of international law, whether in treaty or customary international law).

⁴⁶ See Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 153 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (referencing that jus cogens norms “enjoy a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules”); see also Mack, Eveylon Corrie Westbrook, Does Customary International Law Obligate States to Extradite or Prosecute Individuals Accused of Committing Crimes Against Humanity?, 24 Minn. J. Int'l L. 73, 92 (2015)Google Scholar (“To be a jus cogens, or peremptory, norm is to hold the highest hierarchical position among other norms and means that no derogation would ever be permitted.”).

⁴⁷ Attorney General v. Eichmann, District Court of Jerusalem, No. 40/61 ¶¶ 12, 30 (Dec. 11, 1961) (“These crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself . . . The jurisdiction to try crimes under international law is universal.”); Bassiouni, supra note 38, at 63.

⁴⁸ Prosecutor v. Furundzija, IT-95-17/1-T, Judgement (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

⁴⁹ Id. ¶ 156.

⁵⁰ Id. ¶¶ 122, 124-26, 128.

⁵¹ Id. ¶ 150.

⁵² Id. ¶¶ 153, 156.

⁵³ Id. ¶ 156. Regarding the ICTY's reasoning, it can be argued that, as an international criminal tribunal, the ICTY only intended its reasoning to apply to foreign criminal prosecutions, not civil. Id. ¶ 156 (citing the criminal prosecution of Adolf Eichmann before the District Court of Jerusalem under universal jurisdiction to emphasize the universal nature of the alleged crimes). However, as discussed below, the distinction between civil and criminal adjudications, especially when considering alleged derogations from jus cogens norms, is superficial. See infra note 130.

⁵⁴ Furundzija, IT-95-17/1-T, Judgement at ¶ 156.

⁵⁵ Kazemi Estate v. Iran, [2014] 3 S.C.R. 176, ¶ 228 (Can.) (recognizing that customary international law does not require state officials alleged to have committed torture to be granted immunity ratione materiae).

⁵⁶ Attorney General v. Eichmann, District Court of Jerusalem, No. 40/61 ¶ 12 (Dec. 11, 1961).

⁵⁷ Id.; see Sevrine Knuchel, State Immunity and the Promise of Jus Cogens, 9 Northwestern J. Int'l Human Rights 149, 169-70 (2011) (“[E]”very state is equally entitled to entitled to exercise jurisdiction over the violation, because of its universal condemnation. In these circumstances, the principle that one state will not intervene in the internal affairs of another becomes defeated by the prevailing interest of the community.”).

⁵⁸ Weatherall, Thomas, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46 Georgetown J. Int'l L. 1151, 1155 (2015)Google Scholar (explaining that the traditional bases of jurisdiction are territory, nationality, protection and passive personality, and that universal jurisdiction constitutes an additional basis of jurisdiction to cover jus cogens violations); Wuerth, Ingrid, International Law in the Post-Human Rights Era, 96 Texas L. Rev. 279, 293 (2017)Google Scholar [hereinafter Wuerth, Post-Human Rights] (demonstrating that universal jurisdiction allows States to exercise prescriptive jurisdiction in the absence of a traditional basis of jurisdiction).

⁵⁹ Both the criminal trial of Adolf Eichmann before the District Court of Jerusalem for crimes committed during the Nazi regime and the criminal prosecution of Augusto Pinochet before the U.K. House of Lords were premised on the exercise of universal jurisdiction. See generally Regina v. Bartle and the Commission of Police for the Metropolis, Ex Parte Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (hereinafter “Pinochet”) (Lorde Browne-Wilkinson); Attorney General v. Eichmann, District Court of Jerusalem, No. 40/61 ¶¶ 12, 30 (Dec. 11, 1961).

⁶⁰ Scholars have argued that jus cogens norms implicate obligations erga omnes to punish, prosecute, and prohibit. See Mukuki, supra note 36, at 125 (defining erga omnes obligations as “specifically determined obligations of which states have a legal interest in protecting towards the international community as a whole”). Compare Nagan et al., supra note 32, at 404-05 (arguing that “[w]hen a norm attains the character of jus cogens, an obligation of erga omnes is imposed on states as a whole”) and Weatherall, supra note 57, at 1155 (arguing that a legal effect of jus cogens norms is the automatic provision of universal jurisdiction over international crimes “pursuant to obligations erga omnes of States that require punishment of individual violators of jus cogens by prosecution or extradition”), with Knuchel, supra note 56, at 174 (arguing that jus cogens norms do not, in and of themselves, require the absence of state immunity before another state's national courts, and as such, jus cogens norms’ “superior rank in the emerging hierarchy of international rules does not secure an automatic access to justice to enforce their prohibitions or automatically void any procedural obstacles to adjudication”).

⁶¹ The nature of erga omnes obligations resulting from jus cogens norms has been disputed. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgement on Preliminary Objections, ICJ Reports (1996) (explicating that the obligations enshrined in the Genocide Convention are obligations erga omnes and are thus not territorially limited); Bassiouni, supra note 38, at 63 (arguing that international crimes, the prohibition of which have attained a status of jus cogens norms, impart obligation erga omnes that place upon States the obligation to not grant impunity to perpetrators of such crimes).

⁶² See generally La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162 (Nov. 29, 2006); Almonacid Arellano y otros v. Chile, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006); Barrios Altos v. Peru, Merits, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

⁶³ Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 155 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

⁶⁴ Id. ¶ 155.

⁶⁵ See generally La Cantuta, Inter-Am. Ct. H.R. (ser. C) No. 162; Almonacid Arellano, Inter-Am. Ct. H.R. (ser. C) No. 154; Barrios Altos, Inter-Am. Ct. H.R. (ser. C) No. 75.

⁶⁶ Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose,” Costa Rica, 22 November 1969.

⁶⁷ Much of the jurisprudence of the Inter-American Court of Human Rights turns on the interpretation of Article 1 of the American Convention, which obligates state parties “to ensure to all persons subject to their jurisdiction the free and full exercise of the rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose,” Costa Rica, art. 1, 22 November 1969.

⁶⁸ Barrios Altos v. Peru, Merits, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

⁶⁹ Id. ¶ 41.

⁷⁰ Id. ¶ 2.

⁷¹ Id.

⁷² Id.

⁷³ Id.

⁷⁴ See Id. (J., A.A. Cancado Trindade) (specifying that the non-derogable rights involved in the court's discussion “belong to the domain of jus cogens”).

⁷⁵ Id.

⁷⁶ Id. ¶ 41 (majority opinion) (“[A]ll amnesty provisions . . . designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations . . . all of them prohibited because they violate non-derogable rights . . . .”); see generally La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162 (Nov. 29, 2006); Almonacid Arellano y otros v. Chile, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006).

⁷⁷ Barrios Altos, Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 41.

⁷⁸ Id. (J., A.A. Cancado Trindade) (“This being so, the laws of self-amnesty, besides being manifestly incompatible with the American Convention . . . have no legal validity at all in the light of the norms of international law of human rights.”).

⁷⁹ Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162 (Nov. 29, 2006).

⁸⁰ Id. ¶ 80(10)-(14).

⁸¹ Id. ¶ 80(12)-(14).

⁸² Id. ¶ 80(62).

⁸³ Id. ¶ 80(59).

⁸⁴ Id. ¶ 160.

⁸⁵ Id. ¶ 186.

⁸⁶ Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006).

⁸⁷ Id. ¶¶ 3, 82(2).

⁸⁸ Id. ¶¶ 82(3)-(4).

⁸⁹ Id. ¶ 82(4).

⁹⁰ Id. ¶ 82(8).

⁹¹ Id. ¶ 82(11).

⁹² Id. ¶¶ 99, 104.

⁹³ Id. ¶ 114.

⁹⁴ Id. ¶ 119.

⁹⁵ Id. ¶ 129.

⁹⁶ Id. ¶ 152.

⁹⁷ Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 153 (Sept. 22, 2006).

⁹⁸ Id. ¶ 61(3).

⁹⁹ Id. ¶¶ 61(1), 61(3).

¹⁰⁰ Id. ¶ 61(4).

¹⁰¹ Id. ¶ 128 (emphasis added).

¹⁰² Id. ¶¶ 129, 131 (holding, in particular, that access to justice is a peremptory norm of international law, and thus, States are under an obligation “to adopt all necessary measures to ensure that such violations do not remain unpunished, either by exercising their jurisdiction to apply their domestic law and international law to prosecute and, when applicable, punish those responsible, or by collaborating with other States that do so or attempt to do so”).

¹⁰³ Judgement, 2012 I.C.J. 423 (July 20).

¹⁰⁴ Id. ¶ 99 (holding that the Convention Against Torture does not reflect an intention to criminalize acts of torture prior to its enactment).

¹⁰⁵ See Nagan et al., supra note 32, at 376-77 (clarifying that the customary international law principle of state immunity “has its roots in treaties, domestic statutes, state practice, and writing of juris consults”); Weatherall, supra note 57, at 1156-57 (explaining that state immunity is derived from customary international law); Wuerth, Post Human Rights supra note 57, at 290-91 (identifying the goal of state immunity “is to ensure the peaceful coexistence of states and to minimize interstate friction”).

¹⁰⁶ Jones v. United Kingdom, App nos. 34356/06 and 40528/06 Eur. Ct. H.R. 1, ¶ 188 (2014); Al-Adsani v. United Kingdom, App. No. 35763/97 Eur. Ct. H.R. 1, ¶ 54 (2001); see also United Nations Charter, Art. 2(1) (recognizing the fundamental importance of the equal sovereignty of States); Weatherall, supra note 57, at 1152 (explaining that the effect of state immunity is to shield a state from other foreign States’ exercise of jurisdiction).

¹⁰⁷ Regina v. Bartle and the Commission of Police for the Metropolis, Ex Parte Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (Lord Goff) (explicating that the principle par in parem non habit imperium is a Latin maxim applied such that sovereign States do not “adjudicate on the conduct of another”); see Ekpo, Sandra, Jurisdictional Immunities of the State (Germany v. Italy): The Debate over State Immunity and Jus Cogens Norms, 8 Queen Mary L. J. 151, 153 (2017)Google Scholar (“States have the privilege of choosing to submit or waive their immunity to a foreign jurisdiction.”).

¹⁰⁸ Mora, Paul David, The Immunities of State Officials in Civil Proceedings Involving Allegations of Torture, 23 Australian Int'l L. J. 21, 24 (2017)Google Scholar (recognizing that state immunity was “once absolute and provided States with a complete exemption to foreign legal process,” but “under the [current] restrictive doctrine is only granted in respect of sovereign acts. States remain amenable in civils suits involving acts performed a commercial or private capacity”); Ozdan, Selman, Immunity vs. Impunity in International Law: A Human Rights Approach, 4 Baku State U. L. Rev. 36, 41 (2018)Google Scholar.

¹⁰⁹ See Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgement, 2012 I.C.J. 99, ¶¶ 57-58 (February 2012) (explaining that, in the case of the United States, the foreign sovereign immunities act details several exceptions for when state immunity is waived or inapplicable); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1169 (D.C. Cir. 1994) (noting that, in the United States, state immunity does not apply for States’ commercial activities or those done in private capacities).

¹¹⁰ Knuchel, supra note 56, at 155 (recognizing there is not widespread withdrawal of state immunity in cases of breaches of peremptory norms); Ingrid Wuerth, International Law in Domestic Courts and the Jurisdictional Immunities of the State Case, 13 Melbourne J. Int'l L. 819, 829 (2012) [hereinafter Wuerth, Domestic Courts] (discussing that state immunity has been “firmly supported . . . as a requirement of customary international law even in cases alleging egregious human rights violations”); see generally Ekpo, supra note 106, at 164 (“The acceptance of a human rights exception in certain employment cases poses a further question, namely: why has this exemption not been recognized in severe jus cogens cases? Surely the gravity of these crimes should ensure redress to all victims.”).

¹¹¹ Pinochet, (no. 3) (H.L.) (Lord Goff) (“This principle [of state immunity] applies as between states, and the head of state is entitled to the same immunity as the state itself, as are the diplomatic representatives of the state.”).

¹¹² Although States can waive their officials’ immunities, this waiver must be “clearly deduced from the wording of a treaty and unequivocally demonstrate that the right to immunity has been forfeited.” Compare Mora, supra note 107, at 37, with Arrest Warrant, 2002 I.C.J. 3, ¶ 61 (February 2002) and Jacques Hartmann, The Gillon Affair, 54 Int'l & Comparative L. Quarterly 745, 753 (2005) (explaining that the ICJ implied in Arrest Warrant that immunity ratione personae could be expressly waived by treaty or implicitly “in such a way that it leaves no other possible interpretation”).

¹¹³ John Dugard, Immunity, human rights and international crimes, J. South Afr. L. 482, 484 (2005).

¹¹⁴ Arrest Warrant, 2002 I.C.J. 3, ¶¶ 53-54 (February 2002) (holding that, in addition to heads of state, ministers of foreign affairs similarly benefit from immunity ratione materiae because they are often representatives of their state in international negotiations and they benefit from the presumption that they have full powers to act on behalf of their state); Dugard, supra note 112, at 484 (“Immunity ratione personae attaches to senior state officials, such as heads of state or government or ministers of foreign affairs, while they are in office. This immunity applies even to international crimes . . . . ”).

¹¹⁵ Weatherall, supra note 57 at 1172. Although officials benefitting from immunity ratione personae cannot be prosecuted before another state's national courts during their tenure in office, they are not immune from prosecution before their home-country's national courts. Anthony J. Colangelo, Jurisdiction, Immunity, Legality, and Jus Cogens, 14 Chi. J. Int'l L. 53, 72 (2013).

¹¹⁶ Colangelo, supra note 114, at 58.

¹¹⁷ Ismayil Mahmudov, Immunity as a Main Obstacle on the Way of National Prosecution of International Crimes, 5 Baku State U. L. Rev. 83, 85-86 (2019).

¹¹⁸ Mora, supra note 107, at 25.

¹¹⁹ Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (Lorde Browne Wilkinson) (“This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attached to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions . . . .”); Arrest Warrant, 2002 I.C.J. 3, ¶ 58 (February 2002) (“It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.”).

¹²⁰ Mahmudov, supra note 116, at 85-86.

¹²¹ Arrest Warrant, 2002 I.C.J. at ¶ 53 (holding that immunity ratione personae is necessary for senior state officials such as heads of state and foreign ministers “to ensure the effective performance of their functions on behalf of their respective states”).

¹²² Ozdan, supra note 107, at 41 (explaining that once senior officials leave office, they no longer benefit from such a sweeping immunity and instead only benefit from immunity covering their official acts—immunity ratione materiae).

¹²³ Prosecutor v. Blaskic, IT-95-14, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial, ¶ 38 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 29, 1997) (referencing that functional immunity “is a well-established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since”).

¹²⁴ Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Court, 21 Europ. J. Int'l L. 815, 825 (2010) (“As this type of immunity attaches to the official act rather than the status of the official, it may be relied on by all who have acted on behalf of the state with respect to their official acts.”) (emphasis added).

¹²⁵ Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (Lorde Browne Wilkinson) (“The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed duration personal while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person . . . . This limited immunity ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private.”); Akande et al., supra note 123, at 815.

¹²⁶ Mahmudov, supra note 116, at 86 (“[Officials] possess [immunity ratione materie], since these actions are the actions of the state itself, in whose service they act. This extends to all official actions performed on behalf of the state, in the performance of his/her official duties . . . .”).

¹²⁷ Colangelo, supra note 114, at 58. Accordingly, a preliminary matter in determining whether an official benefits from immunity ratione materiae is an assessment of whether the act was carried out in an official capacity. Mora, supra note 107, at 28 (clarifying that determining whether an act was official is evaluated on a “case-by-case basis,” including examination of “the circumstances surrounding and manner in which the act was carried out”); Daniela Rosca, The Exceptions to Immunity of State Officials from Foreign Criminal Jurisdiction between the Legal Desideratum and Reality of the International Community, 21 Romanian J. Int'l L. 77, 78 (2019).

¹²⁸ Mahmudov, supra note 116, at 86.

¹²⁹ Weatherall, supra note 57, at 1176.

¹³⁰ Weatherall, supra note 57, at 1199.

¹³¹ Colangelo, supra note 114, at 84; Riccardo Pisillo Mazzeschi, The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories, 2 Questions of Int'l L. J. 3, 17-18 (2015) (identifying state practice demonstrating foreign national courts’ willingness to deny functional immunity in criminal cases).

¹³² Several domestic courts have considered functional immunity inapplicable to criminal adjudications of crimes prohibited by jus cogens norms in accordance with the rationale that criminal proceedings do not directly implead the state. Knuchel, supra note 56, at 157-58. Nevertheless, the superficial distinction between civil and criminal adjudications does not hold the same salience as it relates to prosecutions for derogations from jus cogens norms. Kazemi Estate v. Iran, [2014] 3 S.C.R. 176 , ¶¶ 209-10 (Can.) (arguing that the treatment of immunity for civil claims should not be different from that before criminal courts and that this understanding is “reinforced by the fact that many jurisdictions permit civil recovery against perpetrators in the context of criminal proceedings”).

¹³³ See generally Nagan et al., supra note 32, at 467 (“At the very core of the immunities discourse is the fact that grave harms have been done, and states must be held accountable.”); Zaman, supra note 37, at 68 (citing the normative hierarchy theory, which asserts that immunity cannot be claimed or granted without violating jus cogens).

¹³⁴ The implicit waiver theory is premised on the assertion that jus cogens violations are not official sovereign acts and “as soon as states engage in such violations they implicitly waive any immunity under international law as to that conduct.” Colangelo, supra note 114, at 78; Knuchel, supra note 56, at 166 (“States in breach of peremptory norms of international law have tacitly waived their right to immunity.”).

¹³⁵ Arrest Warrant, 2002 I.C.J. 3, ¶ 61 (February 2002); Hartmann, supra note 17, at 753.

¹³⁶ 26 F.3d 1166 (D.C. Cir. 1994).

¹³⁷ Id. (Wald, J., dissenting).

¹³⁸ Nagan et al., supra note 32, at 434.

¹³⁹ Nagan et al., supra note 32, at 434 (noting, however, that Princz was overturned only two years later on the basis that there was insufficient evidence that Germany had demonstrated a willingness to waive its immunity).

¹⁴⁰ App. No. 35763/97 Eur. Ct. H.R. 1 (2001).

¹⁴¹ Id. ¶¶ 10-14.

¹⁴² Id. (noting that the claimant's head was repeatedly held underwater with human corpses and fire was set to mattresses, resulting in 25% of his body being covered in severe burns).

¹⁴³ Id. ¶¶ 61, 66 (“The court, while noting the growing recognition of the overriding importance of the prohibition of torture, does not accordingly find it established that there is yet acceptance in international law of the proposition that states are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum state.”); see also Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Europ. J. Int'l L. 491, 501 (2008) (noting that the minority of judges in the ECHR supported the argument that the status of the prohibition of torture as a peremptory norm of international law indicated that it should “trump the conflicting rule of immunity”).

¹⁴⁴ Judgement, 2012 I.C.J. 99 (February 2012) (hereinafter “Jurisdictional Immunities”).

¹⁴⁵ Id. ¶ 99.

¹⁴⁶ App. nos. 34356/06 and 40528/06, Eur. Ct. H.R. 1 (2014).

¹⁴⁷ Id. ¶ 215. But see Mack, supra note 45, at 86 (noting the ECHR judges did acknowledge ‘“some emerging support’ in favor of an exception to immunity in civil cases involving claims of torture”).

¹⁴⁸ See Mack, supra note 45, at 86 (referencing Jones as a demonstration of “how reluctant courts are to ignore State immunity in cases brought against current government officials, even in the case of the most egregious crimes”).

¹⁴⁹ Rome Statute of the International Criminal Court art. 27(2), Jul. 17, 1998 (enshrining the principle that neither immunity ratione materiae nor immunity ratione personae precludes the International Criminal Court's jurisdiction); Prosecutor v. Al-Bashir, ICC-02/05-01/09 OA2, Judgement, ¶ 113 (May 6, 2019), https://www.icc-cpi.int/CourtRecords/CR2019_02593.PDF (“There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-a-vis an international court. To the contrary, such immunity has never been recognized in international law as a bar to the jurisdiction of an international court.”); Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, ¶ 53 (May 31, 2004) (holding, for the first time, that a sitting head of state—Charles Taylor—was not immune from prosecution under immunity ratione personae before an international tribunal).

¹⁵⁰ Taylor, Case No. SCSL-2003-01-I at ¶ 51 (explicating that state immunity derives from the equal sovereignty of States and does not apply to international criminal tribunals which are not state organs); see Weatherall, supra note 57, at 1164-65 (explaining that “[p]rosecution[s] before international criminal organs do[] not implicate the same sovereignty concerns underlying the principle par in parem non habet imperium as does prosecution by the domestic courts of a foreign state”).

¹⁵¹ But see Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (holding that the former head of state, Augusto Pinochet, did not benefit from functional immunity before the United Kingdom House of Lords).

¹⁵² Arrest Warrant, 2002 I.C.J. 3 (February 2002).

¹⁵³ Id. ¶ 54.

¹⁵⁴ Id. ¶ 61 (leaving open the possibility of jurisdiction before “certain international tribunals”).

¹⁵⁵ Id. ¶¶ 1, 12.

¹⁵⁶ Id. ¶¶ 12, 53.

¹⁵⁷ Id. ¶ 54 (citing that “even the mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally when required to do so for the purposes of the performance of his or her official functions”).

¹⁵⁸ Id. ¶ 60. But see Zaman, supra note 37, at 71 (“Permitting immunity as a procedural defen[s]e to torture implicitly establishes a hierarchy between the rules; it allows functional immunity to form a barrier tantamount to the acceptance of torture.”); Ingrid Wuerth, Foreign Official Immunity: Invocation, Purpose, Exceptions, 23 Swiss Rev. Int'l & European L. 207, 209 (2013) [hereinafter Wuerth, Foreign Official Immunity] (“Immunity does not absolve the defendant of wrongdoing, but by foreclosing suits in foreign national court it might effectively foreclose accountability entirely if there is no international forum available and if a defendant's home State refuses to prosecute and does not permit civil remedies. As a result of these limitations, civil and criminal cases brought in foreign national courts are often seen as critical to the effective enforcement of international human rights law and criminal law.”).

¹⁵⁹ Arrest Warrant, 2002 I.C.J. at ¶ 60.

¹⁶⁰ Id. ¶ 61.

¹⁶¹ Id.

¹⁶² Id.

¹⁶³ Id. ¶ 71.

¹⁶⁴ Prosecutor v. Blaskic, IT-95-14, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial, ¶ 41 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 29, 1997) (explicating that exceptions to the principle of immunity “arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”); Kazemi Estate v. Iran, [2014] 3 S.C.R. 176, ¶ 229 (Can.) (arguing that “[t]he very nature of the prohibition [of torture] as a peremptory norm means that all states agree that torture cannot be condoned. Torture cannot, therefore, be an official state act for the purposes of immunity ratione materiae”); Air Strike, Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667, fn. 65 (Neth.) (referencing the statements of the Dutch government that it does not believe the commission of international crimes can be official functions).

¹⁶⁵ Jurisdictional Immunities, 2012 I.C.J. 99, ¶ 91 (“The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.”) (emphasis added).

¹⁶⁶ Id.

¹⁶⁷ Sean D. Murphy, Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?, 112 Am. Society of Int'l L. 4, 4 (2018); International Law Commission, Immunity of State Officials from Foreign Criminal Jurisdiction, Draft Articles, 7 A/72/10 fn. 756 (2017).

¹⁶⁸ International Law Commission, Immunity of State Officials from Foreign Criminal Jurisdiction, Draft Articles, 7 A/72/10 fn. 756 (2017).

¹⁶⁹ Id.; Murphy, supra note 166, at 4-6 (highlighting that the ILC's support for an exception in respect to war crimes was six national laws that currently contain such an exception).

¹⁷⁰ Rosanne Van Alebeek, The International Crime Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back, 112 AJIL Unbound 27, 31-32 (2018). Rules of customary international law arise from widespread state practice and opinio juris. See Mack, supra note 45, at 99 (“[F]or an obligation to be one of customary international law, State practice must be consistent and widespread and must be motivated by a sense of opinio juris, not solely out of a desire to fulfill a treaty obligation or for any other reason, such as political considerations.”).

¹⁷¹ Air Strike, Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667, ¶ 4.43 (Neth.) (citing that the trend demonstrated in the Draft Article to deny immunity ratione materiae in cases of international crimes does not reflect general state practice required for a rule to crystallize into customary international law); Murphy, supra note 166, at 8 (emphasizing that the state practice referenced in the ILC's draft article “is not widespread, representative, or consistent,” and as such, “Draft Article 7 might be regarded as a proposal by the Commission for a new rule that could be embodied in a treaty, which states could choose to accept or reject. It cannot be regarded, however, as reflecting existing law”); Cedric Ryngaert, Functional Immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law, EJIL: Talk! (March 2, 2020), https://www.ejiltalk.org/functional-immunity-of-foreign-state-officials-in-respect-of-international-crimes-before-the-hague-district-court-a-regressive-interpretation-of-progressive-international-law/.

¹⁷² Air Strike, ECLI:NL:RBDHA:2020:667 at ¶¶ 4.43, 4.55.

¹⁷³ See Dugard, supra note 112, at 487 (proposing that “it is only a question of time before courts adopt a more restrictive approach to sovereign immunity in respect of governmental acts constituting international crimes in violation of jus cogens norms” since “absolute immunity in respect of commercial transactions gave way to a restrictive approach to accord with international expectations and policy”).

¹⁷⁴ See supra notes 67-77; see also Sadat, supra note 32, at 1021 (“Regional human rights courts and international human rights monitoring bodies have been unanimous in imposing an affirmative obligation on states to investigate human rights abuses.”).

¹⁷⁵ See Goiburu v. Paraguay, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 153, ¶¶ 84, 128 (Sept. 22, 2006); see also Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 155 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998 (“The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimize any legislative, administrative or judicial act authorizing torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void . . . and then be unmindful of a State say, taking national measures authorizing or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition.”) (footnotes omitted). But see Akande et al., supra note 123, at 835 (noting that there is no “recognized obligation on third states to institute criminal prosecutions, even if there may be a right to do so”).

¹⁷⁶ See also Bassiouni, supra note 38, at 65-66 (“To this writer, the implications of jus cogens are those of a duty and not of optional rights; otherwise jus cogens would not constitute a peremptory norm of international law. Consequently, these obligations are non-derogable in times of war as well as peace. Thus, recognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite, the non- applicability of statutes of limitation for such crimes, and universality of jurisdiction over such crimes irrespective of where they were committed, by whom (including Heads of State), against what category of victims, and irrespective of the context of their occurrence (peace or war). Above all, the characterization of certain crimes as jus cogens places upon states the obligatio erga omnes not to grant impunity to the violators of such crimes.”).

¹⁷⁷ Pinochet [1999] (no. 3) (H.L.) (appeal taken from a Divisional Court of the Queen's Bench Division) (Lord Millet) (“International law cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose.”); Hartmann, supra note 111, at 754 (supporting, albeit cautiously, the argument that the jus cogens norm prohibiting torture “would necessarily trump any other rule of international law, even immunity”).

¹⁷⁸ See supra notes 67-77 and accompanying text.

¹⁷⁹ Barrios Altos v. Peru, Merits, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 41 (Mar. 14, 2001); La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(59) (Nov. 29, 2006).

¹⁸⁰ Goiburu, Inter-Am. Ct. H.R. (ser. C) No. 153, ¶¶ 128, 131.

¹⁸¹ See supra notes 83-84, 100-101, and accompanying text.

¹⁸² Restatement (Third) of the Foreign Relations Law of the United States § 702 cmt. b. (1987) (“A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhumane, or degrading treatment or punishment, (3) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.” And a state can be held to have condoned such prohibited acts “if such acts, especially by its officials, have been repeated or notorious and no steps have been taken to prevent them or to punish the perpetrators.” In addition, “[i]nternational law requires a state to outlaw genocide, slavery, and the slave trade, and the state would be responsible under this section if it failed to prohibit them or to enforce the prohibition.”).

¹⁸³ Goiburu, Inter-Am. Ct. H.R. (ser. C) No. 153, ¶ 128.

¹⁸⁴ But see Akande et al., supra note 123, at 834 (arguing that state immunity does not actually conflict with jus cogens norms because it is not a jus cogens norm that states must prosecute derogations from jus cogens norms); Mack, supra note 45, at 96 (noting that jus cogens norms do not “preclude the application of another norm that may hinder enforcement of the jus cogens in the absence of a direct conflict between the two norms”).

¹⁸⁵ Impunity can be defined as “exception from penalty or punishment.” Ozdan, supra note 107, at 42 (referring to three types of immunity: strategic, structural, and political/psychological). The prevention of impunity has been interpreted to be a “crucial step towards achieving justice;” nevertheless, impunity is continues to be pervasive, and arguably, heightened by the continued recognition of immunities. Ozdan, supra note 107, at 52.

¹⁸⁶ Arrest Warrant, 2002 I.C.J. 3, ¶ 61 (February 2002).

¹⁸⁷ See Zaman, supra note 37, at 71 (“Permitting immunity as a procedural defen[s]e to torture implicitly establishes a hierarchy between the rules; it allows functional immunity to form a barrier tantamount to the acceptance of torture.”).

¹⁸⁸ See supra notes 122-131 and accompanying text.

¹⁸⁹ Wuerth, Foreign Official Immunity supra note 157, at 209 (“Immunity does not absolve the defendant of wrongdoing, but by foreclosing suits in foreign national court it might effectively foreclose accountability entirely if there is no international forum available and if a defendant's home State refuses to prosecute and does not permit civil remedies. As a result of these limitations, civil and criminal cases brought in foreign national courts are often seen as critical to the effective enforcement of international human rights law and criminal law.”). But see Dire Tiadi, Immunity in the Era of Criminalisation: The Africa Union, the ICC, and International Law, 58 Japanese Yearbook of Int'l L. 17, 25 (2015) (recognizing that immunities can pose hurdles to combatting impunity and possibly contribute to impunity).

¹⁹⁰ Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 155 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

¹⁹¹ See supra note 34.

¹⁹² Air Strike, Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667, ¶¶ 2.2, 4.5 (Neth.); Rome Statute of the International Criminal Court art. 8, Jul. 17, 1998.

¹⁹³ See supra notes 175-183 and accompanying text.

¹⁹⁴ But see Air Strike, ECLI:NL:RBDHA:2020:667 at ¶ 4.11 (framing functional immunity as a mechanism to prevent the circumvention of state immunity in the prosecution of state officials).

¹⁹⁵ Id. ¶ 4.14-4.15.

¹⁹⁶ Id. ¶ 4.15 (citing Jones v. United Kingdom, App. nos. 34356/06 and 40528/06, Eur. Ct. H.R. 1 (2014)).

¹⁹⁷ Id. ¶ 4.35.

¹⁹⁸ Id. ¶ 4.43.

¹⁹⁹ See also Sadat, supra note 32, at 1014-15 (explaining that, although the analysis of amnesties was not central to the case presented before the ICTY in Furundzija, the Trial Chamber reflected the understanding that amnesties are incompatible with the duty imposed on states to investigate torture due to the prohibition of torture being a jus cogens norms).

²⁰⁰ Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 155 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

²⁰¹ See supra notes 70-71 and accompanying text.

²⁰² See supra note 82 and accompanying text.

²⁰³ See supra note 90 and accompanying text.

²⁰⁴ La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162, ¶ 80(59) (Nov. 29, 2006); Barrios Altos v. Peru, Merits, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 2 (Mar. 14, 2001).

²⁰⁵ Contra Mora, supra note 107, at 30 (arguing that immunity does not indicate that the act at issue is legal; rather, immunity merely “serves as a bar to violations of legal wrongs being enforced in the legal systems of foreign states”).

²⁰⁶ Air Strike, Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667 ¶¶ 4.29-4.32 (Neth).

²⁰⁷ But see Knuchel, supra note 56, at 164 (arguing that a court's recognition of immunity does not amount to active participation in the wrongful act at issue).

²⁰⁸ See supra Section II.A.

²⁰⁹ See supra note 182 and accompanying text.

²¹⁰ See generally Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, ¶ 151 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (referencing that the violation of an obligation erga omnes “constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued”).

²¹¹ See supra notes 113-120 and accompanying text.

²¹² Restatement (Third) of the Foreign Relations Law of the United States § 702 cmt. o (1987) (“Violations of the rules states in this section are violations of obligations to all other states and any state may invoke the ordinary remedies available to a state when its rights under customary law are violated.”).

²¹³ Air Strike, Rechtbank Den Haag 29 januari 2020, ECLI:NL:RBDHA:2020:667, ¶ 2.2 (Neth.) (recognizing that Zeyada alleges that the death of his family members was a result of a military air strike and policy that involved the targeting of civilian populations).

²¹⁴ Bassiouni, supra note 38, at 66.

²¹⁵ See supra Section II.C.

²¹⁶ But see Mack, supra note 45, at 94 (explaining that the majority of judges in Belgium v. Senegal did not believe that jus cogens norms give rise to specific state obligations).

²¹⁷ Vienna Convention on the Law of Treaties, art 53, May 23, 1969, U.N. Doc. A/Conf. 39/27, 8 I.L.M. 679; see supra Section II.A.

²¹⁸ Mack, supra note 45, at 86 (“It seems contradictory to, on the one hand, claim that crimes against humanity are so abhorrent to the International Community as a whole that all offenders should face justice for their acts and, on the other, to allow government officials to escape prosecution by virtue of their office. This is especially true for government officials, who are charged with working for and protecting citizens.”).