THE HAGUE — Can a foreign sovereign claim jurisdictional immunity in a domestic civil court when accused of peremptory norm (jus cogens) violations, torture, or armed aggression?
Despite persistent efforts by municipal judiciaries to carve out an “atrocity exception,” the International Court of Justice’s doctrine established in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) remains the dominant—and most contested—principle of customary international law.
1. Substance vs. Procedure: The Ferrini Clash
The doctrinal clash peaked when the Italian Court of Cassation held in the Ferrini judgment that sovereign immunity must yield when a state breaches peremptory norms of international law. The argument rested on normative hierarchy: because jus cogens norms occupy the apex of international law, subordinate procedural rules of state immunity cannot shield unlawful acts.
The ICJ decisively rejected this hierarchy:
- Procedural in Nature: State immunity is a procedural preliminary plea. It determines whether a domestic forum possesses adjudicative jurisdiction over a foreign state; it does not adjudicate the substantive legality of the underlying conduct.
- No Normative Conflict: Because procedural rules of immunity operate independently of substantive prohibitions against war crimes or torture, no direct conflict of norms exists.
- Sovereign Equality Principle: Derived directly from par in parem imperium non habet (equals have no sovereign authority over one another), codified under Article 2(1) of the UN Charter.
2. Modern Strains: Enforcement Actions and Sovereign Assets
The strict procedural bar is facing immediate practical strain across two primary fronts:
- Seizure of Sovereign Central Bank Reserves: Attempts by domestic jurisdictions to immobilize and repurpose frozen central bank reserves to fund reparations for foreign aggression test the outer bounds of customary immunity from execution.
- Tort Exceptions to Immunity: National legislation (such as Justice Against Sponsors of Terrorism statutes) establishing non-immune categories for designated foreign actors operates outside customary consensus, creating asymmetric enforcement risks globally.