The issue is important, no doubt – to what extent do rules of immunity apply in respect of grave violations of international law? Over the past two decades, it has been addressed by lawmakers, the ILC, international and national courts in cases like Al Adsani, Jones, Bouzari and others – and of course in hundreds of articles, notes and books. In fact, few other questions have prompted as much intense debate in the literature. As the number of plausible arguments and approaches is finite (jus cogens, implied waiver, etc.), there was bound to be duplication and repetition. (Was I the only one gradually tiring of the debate?)
In any event, the ICJ’s judgment in Jurisdictional Immunities of early 2012 seemed to settle matters: immunity could be invoked in respect of war crimes, said the Court; jus cogens was not at issue; immunity had to be assessed as a preliminary matter and irrespective of the gravity of the allegations; grave violations could still be acts iure imperii; the territorial tort exception did not apply etc. In terms of international legal process, this seemed to show the Court at its strongest, acting as supreme arbiter in long-standing debates about the proper understanding of the law, and by virtue of its authority clarifying the state of international law. ‘At last we have certainty’ wrote Andrea Bianchi on EJIL:Talk! . And in 2013, Italy passed legislation implementing the ICJ judgment.
Two and a half years on, it’s clear that the matter remains a live one. The ECHR’s judgment in Jones seemed to accept the authority of the ICJ’s decision, but raised questions about the scope of personal immunities. (See Philippa Webb’s post). And in the past few weeks, things have accelerated. Two weeks ago, the High Court of England and Wales decided that a Bahraini prince is not immune from prosecution for torture allegations.
But that, it seems, was no more than the prologue: Because on Wednesday, the Italian Constitutional Court seems to have gone much further. It has quashed the Italian legislation implementing the 2012 judgment, which in its view violates constitutional provisions. The ICJ’s decision is duly addressed, but not followed. As my Italian is rudimentary (and as I have yet to find a translation of the decision), I will not even begin to discuss the merits and arguments set forward. All I want to do at this stage is draw readers’ attention to it. And suggest we all prepare for yet another round of debates about how to strike the balance between human rights and immunity. ‘Certainty at last?’ You wish.
UPDATE: Here is an English summary of the judgment, provided by Francesco Messineo, Honorary Research Fellow at Kent Law School.