Let the Games Continue: Immunity for War Crimes before the Italian Constitutional Court

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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.

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    Francesco Messineo says

    October 24, 2014

    Dear Christian,

    as a first rescue for non-Italian speakers (which will at least be better than google translate!), I have prepared a very brief rough synopsis in bullet points which may be accessed here: http://bit.ly/1yt7fAD - This is very informal and it can be freely further circulated, but I do not take any responsibility as to how accurate it is etc.. For obvious reasons linked to my current employment, I cannot comment any further on these interesting developments.

    Francesco Messineo says

    October 24, 2014

    PS: you should amend the title/text - it is the Italian Constitutional Court (Corte Costituzionale), not the Supreme Court of Cassation (Corte Suprema di Cassazione).

    Christian Tams says

    October 24, 2014

    Dear Francesco
    thanks, that's great! The summary is very helpful. Thanks also for the correction - slightly embarassing, but now quickly taken on board. If it's any consolation, I tend to confuse supreme court and constitutional court even when speaking about courts in my home country, Germany... Christian

    Martino Olivari says

    October 26, 2014

    I wrote a brief summary of the sentence in English, adding just a couple of thoughts. Posted on my blog: http://wp.me/p5aTwN-1a

    Pierre d'Argent says

    October 26, 2014

    Dear Christian,

    Thanks for bringing this to our attention, and thanks to Francesco for this most useful summary. All this sounds very much dualism, but dualism 'à la carte' -- which is in some ways worse from the point of view of international law, even if all this is of course done for the benefit of fundamental rights (note however that the right to a judge is not considered absolute even under ECHR). Kadi signalled that dualism could be virtuous and it does not come as a surprise that domestic courts follow suit. What is both strange and interesting is that dualism is used in legal orders that present themselves as being very much "international-friendly". But maybe all this is well beyond any systemic rationalization -- maybe dualism is just of word for fundamental political choices. The result is of course heretic from the point of view of international law, unless and until it shares the same values... which seems to be the hidden hope of the constitutional court?

    best,

    Pierre

    Helmut Aust says

    October 26, 2014

    Thanks Christian and Francesco! I agree with Pierre's observation on the dualism à la carte. Not unfamiliar from a German perspective if one sees how the German Constitutional Court is operating with the so-called "eternity clause", embodying the supreme values of the constitutional order.

    For those who can read German, there is an excellent post by my colleague Stefan Raffeiner at Verfassungsblog:

    http://www.verfassungsblog.de/italien-im-dilemma-zwischen-verfassungs-und-voelkerrechtstreue-2/#.VE19ZhYZiyx

    Riccardo Pavoni says

    October 27, 2014

    Of course it is easy to refer to Kadi here; everybody, including myself, like to refer to Kadi here; the Constitutional Court itself quotes Kadi, and this is one of the very few non-Italian citations (not a nice decision for the judicial-dialogue enthusiasts...).
    However, this remains just an easy comparison; there are persistent structural differences between the CJEU and a domestic constitutional court, and I think it cannot be said that the Constitutional Court here followed suit from Kadi. This jurisprudence comes from a long-standing tradition, as that of Germany's Constitutional Court to which Helmut is referring.
    Moreover, the decision did not view the right to a judge as absolute. It was subject to proportionality balancing vis-à-vis the immunity rule; the balance was however inexorably in favour of the right to a judge IN THE CIRCUMSTANCES, ie, claims involving international crimes deprived of any alternative means of redress/remedy. Precisely the proportionality test that the ECtHR has avoided in its State immunity jurisprudence, preferring instead to use an 'international law-compatibility' sui generis (...) test.
    I am afraid the dilemma 'immunity vs access to justice' will be with us for the years to come... Perhaps it is not useless to highlight that at the same time as the Constitutional Court published its decision, an American Federal judge was holding a hearing in the Cholera case against the United Nations, a case involving that same legal issue.
    Here's a pertinent link for those who are interested
    http://www.ijdh.org/2014/10/topics/health/hearing-held-in-un-cholera-case/

    Christian Tams says

    October 27, 2014

    Dear all,

    so we're back to the same old issues, aren't we - this time with a bit of 'Kadi' (curiously invoked, as Ricardo and Pierre note) and a dose of dualism added.

    Two further references, for those who neither tire nor despair:
    - another interesting perspective provided by the VERFASSUNGSBLOG, but this one in English: --> http://www.verfassungsblog.de/know-wrong-just-cant-right-first-impressions-judgment-238-2014-italian-constitutional-court/#.VE5F3YuG9PQ.
    - a refreshing piece by Roger O'Keefe, who criticises the 'HR v Immunity' logic that underlies much of the debate (incl the CC judgment) and who does not just rehearse the predictable arguments: --> http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/OKeefe-cr.pdf.

    Best wishes, Christian

    Jordan says

    October 27, 2014

    With respect to nonimmunity for sitting heads of state, it may be of interest that the following four questions were used to start the discussion during a panel session at the annual meeting of the American Branch of the ILA in NYC:
    2014 Am. Branch, ILA Annual Meeting, Questions for the Panel on Chaos and Impunity: Core Crimes and Siting Heads of State (Friday, October 24, 2014):

    1. The Opinion and Judgment of the International Military Tribunal at Nuremberg famously affirmed that representatives of a state “cannot shelter themselves behind their official position” with respect to “acts which are condemned as criminal by international law” and used the ultra vires rational while affirming that “[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.” The 1950 Principles of the Nuremberg Charter and Judgment adopted by the U.N. General Assembly affirmed that “[a]ny person who commits an act that constitutes a crime under international law is responsible therefor and liable to punishment” and stated more specifically that the fact that the person “acted as Head of State or responsible Government official does not relieve him from responsibility under international law.” Should these recognitions of nonimmunity for international crimes still prevail today? With respect to civil sanctions as well as criminal sanctions? Are they in jeopardy? What should be done to correct deviant practices globally and/or in the United States?

    2. The majority opinion in the ICJ’s Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) concluded that a sitting Minister of Foreign Affairs “when abroad enjoys full immunity from criminal jurisdiction and inviolability” in another State, which protect “against any act of authority of another State which would hinder him or her in the performance of his our her duties.” There was hardly any citation of any sort in the opinion, although there was a terse reference to alleged state practice.
    In sharp contrast, the dissenting opinion of Judge Van Den Wyngaert declared: “I see no evidence for the existence of such a norm, not in conventional or in customary international law.” She went on to criticize the lack of adequate attention to state practice and opinio juris and stated that the surprisingly short majority opinion “takes an extremely minimalist approach by adopting a very narrow interpretation of the ‘no immunity clauses’ in international instruments. Yet there are many codifications of this principle..., including the Nuremberg Principles and Article IV of the Genocide Convention..., several United Nations resolutions and reports..., a plethora of recent scholarly writings,” reports of various NGOs, and other court decisions.
    Who had the better claim? Is there any international criminal instrument that expressly provides any sort of immunity for any sort of official? Is nonimmunity for criminal sanctions necessarily set forth in the Genocide Convention? In Articles 1(1) and 4-5 of the Convention Against Torture? In the preamble to and Articles 2 and 5 of the International Convention for the Protection of All Persons from Enforced Disappearance? Is nonimmunity for civil sanctions for human rights violations guaranteed in Article 2(3) of the ICCPR, especially in view of the phrase: “notwithstanding that the violation has been committed by persons acting in an official capacity”? In Article 25(1) of the American Convention on Human Rights? Is it time to abandon the ICJ majority opinion’s preference for “full immunity” for sitting officials before foreign courts? If so, should the international community recognize that some acts of officials are necessarily ultra vires, beyond the lawful authority of any government? Should U.S. courts?

    3. The majority opinion Congo v. Belgium did note that “after a person ceases to hold office..., he or she will no longer enjoy all of the immunities.” Should there be any form of immunity for a former official who is reasonably accused of authorizing, perpetrating or facilitation an international crime over which there is universal jurisdiction? The preamble to the Rome Statute o the ICC expressly affirms the international community’s expectation “that the most serious crimes ... must no go unpunished and that their effective prosecution must be ensured by taking measures at the national level,” adding “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” Does the majority opinion in Congo v. Belgium, which is clearly inconsistent, need to be revisited? Do U.S. efforts at prosecution, and the manifest lack thereof, stand in stark opposition? Is there a need for national redirection or transformation? What sort of options might exist?

    4. The majority opinion in Congo v. Belgium also affirmed the decidedly clear point that an official can be “subject to criminal proceedings before certain international criminal courts where they have jurisdiction.” In fact, there is no prior or present international criminal court that must provide immunity for a sitting or former official. In particular, the Rome Statute of the ICC expressly affirms the determination of its creators “to put an end to impunity for the perpetrators of” core crimes addressed in the instrument and, in Article 27, the Statute expressly denies immunity with respect to the Court’s exercising of its jurisdiction. Should all new global and regional international criminal tribunals follow suit? Should the United States take action to join international efforts to end impunity?

    Filippo Fontanelli says

    October 27, 2014

    Thanks for this heads-up, I would like to stress a point that is implicit in some of the comments but somewhat underrated in the early reactions. The Constitutional Court is not replicating the reasoning of Ferrini or the defense at The Hague. More precisely, the Constitutional Court does not harbour any intention to re-consider customary law; it only reviews the constitutionality of the internal effects of the ICJ's judgment. In this sense, it resembles Kadi 2, in which the CJEU operates a proportionality test while stating repeatedly that it is not reviewing the UN SC Resolutions, but just the legality of the EU Regulations.

    If you crave for more commentaries, mine (in English) is up on http://www.verfassungsblog.de/know-wrong-just-cant-right-first-impressions-judgment-238-2014-italian-constitutional-court/

    Alessio Gracis says

    November 23, 2014

    Dear Professor Tams,

    In case you were interested, I have translated the entire judgment of the Constitutional Court. It can be accessed at http://italyspractice.info/judgment-238-2014/

    Best Regards,

    Alessio Gracis