War Crimes, Constitution, International Law: …Quid Juris? The Opinion of the Italian Constitutional Court

—Francesco Duranti, Università per Stranieri di Perugia (Italy)

With Judgment no. 238/2014 delivered on 22 October 2014, the Italian Constitutional Court (CC) “dialogues” with the International Court of Justice (ICJ) on the international custom of immunity of States from the civil jurisdiction of other States, as interpreted by the ICJ in its Judgment Germany v. Italy of 3 February 2012. The ICJ decision considered war crimes and crimes against humanity, in breach of inviolable human rights, committed in Italy and Germany against Italian citizens in the period 1943 to 1945 by Third Reich troops, to be acts jure imperii and thus excluded from the jurisdiction of civil courts.

According to the Constitutional Court, the aforementioned principles are in conflict with the principle of the absolute guarantee of judicial protection, enshrined in Article 24 of the Italian Constitution, since they preclude the judicial examination of the action for damages for the gross violations of human rights suffered by the victims of war crimes and crimes against humanity, committed by another State, albeit in the exercise of sovereign powers (jure imperii).

The principle of absolute guarantee of judicial protection is a supreme principle of the Italian constitutional order and, as such, constitutes a limit to the introduction in the domestic legal order of generally recognized norms of international law under Article 10, para. 1 of the Constitution.

So, observed the Constitutional Court, the impossibility of effective judicial protection of fundamental rights, acknowledged by the ICJ, makes apparent the contrast between international law, as defined by the ICJ, and Articles 2 and 24 of the Constitution. This contrast, insofar as the international law of immunity of States from the civil jurisdiction of other States includes acts considered jure imperii that violated international law and fundamental human rights, obliged the Constitutional Court to declare that, to the extent that international law extends immunity to actions for damages caused by such serious violations, the referral of Article 10, para. 1 of the Constitution does not operate.

Consequently, insofar as the law of immunity from jurisdiction of States conflicts with the aforementioned fundamental principles of the Constitution, it has not entered the Italian legal order and, therefore, does not have any effect therein.

The Constitutional Court also concluded that international law, to which the Italian legal order conforms under Article 10, para. 1 of the Constitution, does not include the norm of immunity of States from civil jurisdiction in the case of actions for damages for war crimes and crimes against humanity, in breach of inviolable human rights.

These rights are therefore not deprived of the necessary effective judicial protection.

…and now, what’s the next step for the judicial dialogue between the Courts?

Suggested citation: Francesco Duranti, War Crimes, Constitution, International Law: …Quid Juris? The Opinion of the Italian Constitutional Court, Int’l J. Const. L. Blog, Dec. 17, 2014, available at: www.iconnectblog.com/2014/12/war-crimes-constitution-international-law-quid-juris-the-opinion-of-the-italian-constitutional-court/