THE HAGUE — Can a foreign state claim jurisdictional immunity in a domestic civil court when sued for serious violations of international humanitarian law, war crimes, or peremptory norms (jus cogens)?
Despite persistent efforts by national courts to establish an exception for atrocity crimes, the rule articulated by the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) remains the governing doctrine of customary international law.
1. Substance vs. Procedure: The Jurisdictional Distinction
The primary theoretical argument against absolute sovereign immunity, advanced by the Italian Court of Cassation in Ferrini, asserted a normative hierarchy: because jus cogens norms occupy the highest tier of international law, subordinate procedural rules of state immunity must yield when such norms are breached.
The ICJ rejected that hierarchy on procedural grounds:
- Procedural Character: State immunity is a preliminary plea going strictly to jurisdiction. It determines whether a domestic court has the authority to adjudicate claims against a foreign sovereign; it does not assess the substantive legality of the underlying conduct.
- Absence of Direct Conflict: Because rules of immunity operate independently of substantive prohibitions against war crimes or torture, the Court found no direct normative conflict between the two bodies of law.
- Sovereign Equality: The doctrine is rooted in the maxim par in parem imperium non habet (equals have no jurisdiction over one another), codified under Article 2(1) of the UN Charter.
2. Enforcement Measures and Sovereign Assets
The strict procedural bar is under renewed pressure in two specific contexts:
- Central Bank Reserves: Attempts by municipal authorities to immobilize and reassign foreign sovereign bank reserves to fund war reparations test the customary boundary separating jurisdictional immunity from immunity from execution.
- Domestic Statutory Exceptions: National statutes that remove sovereign immunity for designated state sponsors of unlawful acts operate outside the multilateral consensus, raising unresolved jurisdictional questions under customary international law.