¹ Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (3 February 2012), online: ICJ <http://www.icj-cij.org/docket/files/143/16883.pdf> [Jurisdictional Immunities of the State].

² Ferrini v Federal Republic of Germany (2004), 128 ILR 658, 87 RDI 539 (Ct Cass It) [Ferrini]. For critical comment, see Focarelli, Carlo, “Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision” (2005) 54 ICLQ 951 CrossRefGoogle Scholar; Gattini, Andrea, “War Crimes and State Immunity in the Ferrini Decision” (2005) 3 J Int’l Crim J 224 CrossRefGoogle Scholar; De Sena, Pasquale and De Vittor, Francesca, “State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case” [2005] 16 EJIL 89.CrossRefGoogle Scholar

³ Federal Republic of Germany v Mantelli (2008), 134 Foro Italiano 1568 (Ct Cass It); Federal Republic of Germany v Maietta (2008), 91 RDI 896 (Ct Cass It) [collectively Mantelli]. For comment, see Focarelli, Carlo, “Federal Republic of Germany v. Giovanni Mantelli and others” (2009) 103 AJIL 122.CrossRefGoogle Scholar

⁴ MaxJosef Milde (2009), 92 RDI 618 (Ct Cass It) [Milde]; Max Josef Milde (10 October 2006), Case no 49 (Military Court of First Instance of La Spezia). The civil action for redress was attached by the families of the massacre victims to the prosecution of these crimes before the Military Court of First Instance.

⁵ Prefecture of Voiotia v Federal Republic of Germany (2000), 129 ILR 513 (Hellenic Supreme Court) [Prefecture of Voiotia 2000], aff’g Prefecture of Voiotia v Federal Republic of Germany (30 October 1997), Case no 137/1997 (Court of First Instance of Livadia) [Prefecture of Voiotia 1997].

⁶ Prefecture of Voiotia v Federal Republic of Germany (2008), 92 RDI 594 (Ct Cass It); Prefecture of Voiotia v Federal Republic of Germany (12 January 2011), Case no 11163 (Ct Cass It) [collectively Prefecture of Voiotia]. The damages awarded by the Court of First Instance of Livadia were held to be unenforceable in Germany. Greek Citizens v Federal Republic of Germany (2003), 129 ILR 556 (German Federal Supreme Court) [Greek Citizens].

⁷ Jurisdictional Immunities of the State, supra note 1 at para 35.

⁸ Ibid at paras 6–10.

⁹ Ibid at paras 109–33.

¹⁰ See Jurisdictional Immunities of the State, supra note 1 at paras 22–26.

¹¹ Ibid (memorial of the Federal Republic of Germany) at para 45.

¹² For an unconvincing suggestion that rules on jurisdictional immunity have peremptory status, see Hope, Lord in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3), [2000] 1 AC 147 at 244, 119 ILR 136 [Pinochet (No 3)]Google Scholar and Black-Branch, Jonathan, “Sovereign Immunity under International Law: The Case of Pinochet” in Woodhouse, Diana, ed, The Pinochet Case: A Legal and Constitutional Analysis (Portland, OR: Hart Publishing, 2000) 93 at 93.Google Scholar

¹³ Compare Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade J) at para 134.

¹⁴ Ibid at para 81.

¹⁵ Ibid at paras 93, 97.

¹⁶ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (New Application: 2000) (Jurisdiction and Admissibility), [2006] ICJ Rep 6 at para 64 [Armed Activities].

¹⁷ Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (20 July 2012) at para 99, online: ICJ <http://www.icj-cij.org/docket/files/144/17064.pdf> [Obligation to Prosecute or Extradite].

¹⁸ “Second Report on the Law of Treaties by MrFitzmaurice, GG, Special Rapporteur,” UN Doc A/CN.4/156 (1963) 2 YB ILC 52 Google Scholar; Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 [VCLT].

¹⁹ The widespread ratification of the VCLT, which limits in Articles 53 and 64 the operation of treaties that conflict with peremptory norms, demonstrates the acceptance by states of the concept. See Lepard, Brian, Customary International Law: A New Theory with Practical Applications (New York: Cambridge University Press, 2010) at 244.CrossRefGoogle Scholar

²⁰ Armed Activities, supra note 16 at para 64. The International Court ofJustice (ICJ) had previously referred indirectly to jus cogens when citing use of the term by others. See, for example, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits), [1986] ICJ Rep 14 at para 190 [Nicaragua]; and Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), [2002] ICJ Rep 3 at para 56 [Arrest Warrant]. The term had, however, been frequently used in several separate and dissenting opinions of the ICJ. For commentary doubting the existence of jus cogens, see, for example, Schwarzenberger, Georg, “International Jus Cogens?” (1965) 43 Tex L Rev 455 at 467 Google Scholar. Early work that recognizes peremptory norms includes von Verdross, Alfred, “Forbidden Treaties in International Law” (1937) 31 AJIL 571 CrossRefGoogle Scholar. In a later piece, the concept is traced to the classical eighteenth-century work of Wolff and Vattel. See von Verdross, Alfred, “ Jus Dispositivum and Jus Cogens in International Law” (1966) 60 AJIL 55 at 56 Google Scholar. Dinah Shelton, however, traces the concept to the earlier sixteenth-century work of Grotius. See Shelton, Dinah, “International Law and ‘Relative Normativity’” in Evans, Malcolm, ed, International Law, 3rd edition (New York: Oxford University Press, 2010) 141 at 144.Google Scholar

²¹ Jurisdictional Immunities of the State, supra note 1 at para 95.

²² Ibid at para 93.

²³ See, for example, Aust, Anthony, Handbook of International Law, 2nd edition (Cambridge: Cambridge University Press, 2005) at 11.CrossRefGoogle Scholar

²⁴ VCLT, supra note 18, Articles 53, 64; ILC, “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc A/56/10 (2001), in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, c IV, para 76, Article 41 [DARS].

²⁵ For examples of academic writing, see Brownlie, Ian, Principles of Public International Law, 7th edition (New York: Oxford University Press, 2008) at 510 Google Scholar; Cassese, Antonio, International Law, 2nd edition (Oxford: Oxford University Press, 2005) at 199 Google Scholar; D’Amato, Anthony, The Concept of Custom in International Law (Ithaca, NY: Cornell University Press, 1971) at 132 Google Scholar; Onuf, NG and Birney, Richard, “Peremptory Norms of International Law: Their Source, Function and Future” (1974) 4 Denv J Int’l L & Pol’y 187 at 191 Google Scholar; Lepard, supra note 19 at 7; Higgins, Rosalyn, Problems and Process: International Law and How We Use It (New York: Oxford University Press, 1994) at 22 Google Scholar; Zimmermann, Andreas, “Sovereign Immunity and Violations of International Jus Cogens: Some Critical Remarks” (1995) 16 Mich J Int’l L 433 at 438 Google Scholar. See, further, American Law Institute, Restatement of the Law (Third): Foreign Relations Law of the United States (St Paul, MN: American Law Institute, 1986) at s 102, comment 6. Compare American Branch of the International Law Association, “Report of the Committee on the Formation of International Law” (1987–88) Proceedings of the American Branch of the International Law Association 101; Simma, Bruno and Alston, Philip, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988–89) 12 Austl YB Int’l L 82 at 102–6.Google Scholar

²⁶ VCLT, supra note 18, Articles 53, 64.

²⁷ DARS, supra note 24, Article 40.

²⁸ Armed Activities, supra note 16 at para 64.

²⁹ Bouzari v Islamic Republic of Iran (2004), 71 OR (3d) 675 at paras 65, 86, 243 DLR (4th) 406, 122 CRR (2d) 26 (CA) [Bouzari].

³⁰ Sampson v Federal Republic of Germany, 250 F 3d 1145 at 1149 (7th Cir 2001).

³¹ For cases that review international practice when considering whether jus cogens norms prevail over rules on state immunity, see text accompanying notes 77–83.

³² ILC, “Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries,” UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2) (2001) 2(2) YB ILC 26, online: ILC <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> at 56 [DARS Commentary].

³³ See Danilenko, Gennady, “International Jus Cogens: Issues of Law-Making” (1991) 2 EJIL 42 at 44 CrossRefGoogle Scholar.

³⁴ Statute of the International Court of Justice, 26 June 1945, Can TS 1945 No 7, Article 38(1) [ICJ Statute].

³⁵ VCLT, supra note 18, Article 53.

³⁶ DARS Commentary, supra note 32 at 84; DARS, supra note 24.

³⁷ Baker, Roozbeh, “Customary International Law in the 21^st Century: Old Challenges and New Debates” (2010) 21 EJIL 173 at 177.CrossRefGoogle Scholar

³⁸ Siderman de Blake v Republic of Argentina, 965 F 2d 688 at 715, 103 ILR 454 (9th Cir 1992) [Siderman de Blake]. This view was endorsed by the US Court of Appeals for the Seventh Circuit in Sampson, supra note 31 at 1150.

³⁹ Onuf and Birney, supra note 25 at 190.

⁴⁰ Orakhelashvili, Alexander, Peremptory Norms in International Law (New York: Oxford University Press, 2006) at 113.Google Scholar

⁴¹ Higgins, supra note 25 at 22.

⁴² Jurisdictional Immunities of the State, supra note 1 at para 95. See also DARS Commentary, supra note 32 at 112, similarly stating that “[t]he obligations referred to in article 40 arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values.”

⁴³ Armed Activities, supra note 16 at para 64.

⁴⁴ Obligation to Prosecute or Extradite, supra note 17 at para 99.

⁴⁵ Jones v Ministry of Interior of the Kingdom of Saudi Arabia; Mitchell v Al-Dali, [2006] UKHL 26 at para 44, [2007] 1 All ER 113, 129 ILR 629 [Jones].

⁴⁶ Bouzari, supra note 29 at para 87. It was noted by Goudge JA that this conclusion was not questioned by either party in the appeal.

⁴⁷ Jurisdictional Immunities of the State, supra note 1 at para 93.

⁴⁸ Arrest Warrant, supra note 20 ( joint separate opinion of Higgins, Kooijmans, and Buergenthal JJ) at para 74.

⁴⁹ In Jones, supra note 45 at para 44, Lord Hoffmann further recognized: “Nor is the … [foreign state,] in claiming immunity, justifying the use of torture.”

⁵⁰ The rules of state immunity may also defer consideration of responsibility to other mechanisms that may remedy the breach. See Jurisdictional Immunities of the State, supra note 1 (separate opinion of Bennouna J) at para 8. On other mechanisms that may remedy the breach, see text accompanying notes 191–97.

⁵¹ Jurisdictional Immunities of the State, supra note 1 at para 93. The contrast between the strictly procedural nature of state immunity and substantive liability was emphasized by the ICJ in Arrest Warrant, supra note 20 at para 60. See also Al-Adsani v United Kingdom, No 35763/97, (2002) 34 EHRR 11 at para 48 [Al-Adsani]; Jones, supra note 45 at para 24 (Lord Bingham) and at para 44 (Lord Hoffmann), both citing with approval Fox, Hazel, The Law of State Immunity (New York: Oxford University Press, 2002) at 524–25Google Scholar. See, further, the earlier comments made to this effect by Zimmermann, supra note 25 at 438. For criticism of the separation between procedure and substance, see Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade J) at paras 295–96, 315. See also Orakhelashvili, supra note 40 at 78–82, 340–43, 348–50; McGregor, Lorna, “Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty” (2007) 18 EJIL 903 at 906–7, 911–12CrossRefGoogle Scholar; Pavoni, Riccardo, “Human Rights and the Immunities of Foreign States and International Organizations” in de Wet, Erika and Vidmar, Jure, eds, Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012) 71 at 84.Google Scholar

⁵² See Yang, Xiaodong, “ Jus Cogens and State Immunity” (2006) 3 NZYB Int’l L 131 Google Scholar, for the argument that there must be two separate norms, as the procedural rule denying immunity cannot logically be derived from the substantive prohibition.

⁵³ If the civil action is to be brought before a domestic court of a foreign state, it must also be shown that that state has extraterritorial civil jurisdiction over the alleged conduct. For the view that peremptory norms do not establish universal civil jurisdiction, see David Mora, Paul, “The Legality of Civil Jurisdiction over Torture under the Universal Principle” (2009) 52 Ger YB Int’l L 367 at 384–90Google Scholar. Compare McConville, Anne, “TakingJurisdiction in Transnational Human Rights Tort Litigation: Universality Jurisdiction’s Relationship to Ex Juris Service, Forum Non Conveniens and the Presumption of Territoriality,” in Scott, Craig, ed, Torture as Tort (Portland, OR: Hart Publishing, 2001) 157 at 173–74Google Scholar; Orakhelashvili, supra note 40 at 307–10; Parlett, Kate, “Universal Civil Jurisdiction for Torture” (2007) 4 Eur HRL Rev 385 at 399.Google Scholar

⁵⁴ See similarly, for the view that the effects of jus cogens should be identified through international practice, Focarelli, Carlo, “Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects” (2008) 77 Nordic J Int’l L 429 at 449.Google Scholar

⁵⁵ See text accompanying notes 77–83. In Arrest Warrant, supra note 20 at para 58, the ICJ also examined state practice when considering whether the incumbent Congolese minister for foreign affairs enjoyed immunity ratione personae from the criminal jurisdiction of a Belgian court that had issued an arrest warrant in absentia charging him with crimes against humanity and grave breaches of the 1949 Geneva Conventions, 1125 UNTS 3. Although the ICJ did not make express use of the term “jus cogens” in that decision, it subsequently declared, in describing Arrest Warrant in Jurisdictional Immunities of the State, supra note 1 at para 95, that the “Minister for Foreign Affairs was accused of criminal violations of rules which undoubtedly possess the character of jus cogens.” For criticism of surveying state practice in evaluating jurisdictional immunities, see Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Yusuf J) at paras 26–27.

⁵⁶ Ferrini, supra note 2 at para 7.

⁵⁷ Ibid at para 9.1.

⁵⁸ Ibid at para 9 (references omitted). The Court of Cassation incorrectly cited the following international decisions in support of this conclusion: Al-Adsani, supra note 51 at para 61; Prosecutor v Furundžija, Case IT-95-17/1-T 10 (10 December 1998) at paras 153–55 (International Criminal Tribunal for the Former Yugoslavia); Prosecutor v Kupreškić, Case IT-95-16-T (14 January 2000) at para 520 (International Criminal Tribunal for the Former Yugoslavia). The passage cited from Al-Adsani, in fact, held the opposite of the conclusion for which it was cited by the Italian Court of Cassation. In addition, although Furundžija and Kupreškić considered the consequences that ensue from violations of peremptory norms, neither suggested that such consequences override the rules on state immunity.

⁵⁹ Ferrini, supra note 2 at para 9.1.

⁶⁰ Ibid at para 9.2.

⁶¹ See Focarelli, supra note 3 at 124–25.

⁶² See, for example, the authors cited in note 2 of this article. For criticism of the Court of Cassation’s reasoning on universal civil jurisdiction, see Mora, supra note 53 at 386–88.

⁶³ Jones, supra note 45 at para 22.

⁶⁴ United States v Tissino, Case no 4461 (25 February 2009) at para 16 (Ct Cass). This passage was cited by Focarelli, Carlo, International Law as Social Construct: The Struggle for Global Justice (New York: Oxford University Press, 2012) at 434, n 519.CrossRefGoogle Scholar

⁶⁵ Milde, supra note 4, cited by Ciampi, Annalisa, “The Civitella Case” (2009) 7:3 J Int’l Crim Jus 597.CrossRefGoogle Scholar

⁶⁶ Such a position was also taken in Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade J) at paras 72, 172–83, 288–99, 302–3.

⁶⁷ Ferrini, supra note 2 at para 7.

⁶⁸ Jones, supra note 45 at para 63. See similarly Bouzari, supra note 29 at para 95. Compare Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Yusuf J) at para 48.

⁶⁹ Case of the SS “Lotus” (France v Turkey), (1927), PCIJ (Ser A) No 10 at 18 [Lotus]. See also Weil, Prosper, “Towards Relative Normativity in International Law?” (1983) 77 AJIL 413 at 419.CrossRefGoogle Scholar

⁷⁰ Lotus, supra note 69 at 18. See also Nicaragua, supra note 20 at para 269.

⁷¹ Armed Activities, supra note 16 at paras 64, 125. Judge Ad Hoc Dugard argued that this holding of the ICJ “stress[ed] that the scope of jus cogens is not unlimited and that the concept is not to be used as an instrument to overthrow accepted doctrines of international law” (at para 6).

⁷² Jurisdictional Immunities of the State, supra note 1 at para 26 (memorial of the Federal Republic of Germany). See also Focarelli, supra note 3 at 127, citing statements of the Italian Presidency of the Council of Ministers (6 May 2008).

⁷³ Margellos v Federal Republic of Germany, (2002) 129 ILR 526 at 532 (Greek Special Supreme Court) [Margellos].

⁷⁴ Greek Citizens, supra note 6 at 560; Natoniewski v Federal Republic of Germany (2010) 30 Pol YB Int’l L 299 [Natoniewski]; AA v Germany, Case no Up-13/99 (8 March 2001) (Constitutional Court of Slovenia) [AA]. Although Greek Citizens was not decided by a court of the state in which the violations were alleged to have occurred (namely, Greece), the Federal German Supreme Court specifically found that the Greek courts had not been competent to exercise jurisdiction over the alleged massacres committed in the Greek village of Distomo, and that jus cogens did not provide an exception to this conclusion.

⁷⁵ Kalogeropoulou v Greece and Germany, Case no 59021/00, [2002] X ECHR 415, 129 ILR 537 (Eur Ct HR) [Kalogeropoulou]. The application brought against Greece and Germany arose from the refusal of both contracting states to enforce the judgment of the Court of First Instance of Livadia in Prefecture of Voiotia 1997, supra note 5.

⁷⁶ Kalogeropoulou, supra note 75 at para 9.

⁷⁷ Bouzari, supra note 29 at para 90.

⁷⁸ Ibid at para 94, affirming a similar conclusion by the motion judge.

⁷⁹ Jones, supra note 45 at para 45.

⁸⁰ Ibid at paras 46–64. Lord Hoffmann at times appears to cite this practice as supporting the non-existence in customary international law of an exception to the general principle of state immunity for torture. As discussed in the next part of this article, such a customary rule would be distinct from one concerning the procedural consequences flowing from violations of peremptory norms, which is being considered here.

⁸¹ Fangv Jiang, [2007] NZAR 420 at paras 33–34, 51, 141 ILR 702 (HC) [Fang].

⁸² Al-Adsani, supra note 51.

⁸³ Ibid at para 61. See also ibid at para 66.

⁸⁴ Mantelli, supra note 3.

⁸⁵ See text accompanying note 61.

⁸⁶ Al-Adsani, supra note 51 (joint dissenting opinion of Rozakis and Caflisch JJ) (joined by Wildhaber, Cabral Barreto, Costa and Vajić JJ, and agreed by Loucaides J) at paras 1, 4. The dissenting opinion of Ferrari Bravo J appears also to endorse the conclusion drawn by the joint dissenting opinion.

⁸⁷ Both the joint dissenting opinion and the dissenting opinion of Ferrari Bravo J alluded to the House of Lords’ decision in Pinochet (No3), supra note 12. This decision, however, was concerned with immunity from criminal and not civil jurisdiction. The requirement of direct conflict as a condition of the overriding effect of peremptory norms was clearly recognized by the ICJ in the Jurisdictional Immunities of the State, supra note 1 at para 93.

⁸⁸ Cassese, supra note 25 at 106–7.

⁸⁹ Ibid at 107–8.

⁹⁰ Orakhelashvili, supra note 40 at 352–53.

⁹¹ See also Lozano, (2008) 91 RDI 1223 (Ct Cass It).

⁹² See Ciampi, supra note 65.

⁹³ ICJ Statute, supra note 34, Article 38(1)(b).

⁹⁴ North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany vNetherlands), [1969] ICJ Rep 3 at para 77.

⁹⁵ VCLT, supra note 18, Article 53.

⁹⁶ Focarelli, supra note 64 at 435.

⁹⁷ Jurisdictional Immunities of the State, supra note 1 at para 97. Whether there exists a customary rule to the effect that peremptory norms override immunities from criminal jurisdiction is a separate matter and one beyond the scope of this article. The ICJ in Jurisdictional Immunities of the State, supra note 1 at para 87, suggested that the denial of immunity ratione materiae in Pinochet (No3), supra note 12, “was based upon the specific language of the 1984 United Nations Convention Against Torture.” This comment is difficult to reconcile with the ICJ’s decision in Arrest Warrant, supra note 25 at para 59, where it stated that “although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension ofjurisdiction in no way affects immunities under customary international law.” It may however be that the comment in Arrest Warrant was not one of general application but instead limited to immunity ratione personae.

⁹⁸ See also Fox, supra note 51 at 524: “There is little State practice elucidating such [procedural] consequences.” This conclusion was repeated in the second edition of the monograph. Fox, Hazel, The Law of State Immunity, 2nd edition (New York: Oxford University Press, 2008) at 151.Google Scholar

⁹⁹ Jurisdictional Immunities of the State, supra note 1 at para 95.

¹⁰⁰ Compare Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade J) at paras 40, 302, characterizing state immunity as a privilege rather than a right. Both parties to the proceedings were in agreement that jurisdictional immunity is governed by international law and is not a mere matter of comity. Jurisdictional Immunities of the State, supra note 1 at para 53. See also on this point Compania Naviera Vascongado v The Cristina, [1938] AC 485 at 502 (Lord Wright).

¹⁰¹ Jurisdictional Immunities of the State, supra note 1 at para 54; European Convention on State Immunity, 16 May 1972, 74 ETS 3 [European Convention]; United Nations Convention on the Jurisdictional Immunities of States and Their Property, 16 December 2004, GA Res 59/38, UNGAOR, 64th Sess, UN Doc A/59/509 (2004) (not yet in force) [UN Convention].

¹⁰² This section only considers whether such an exception exists for serious violations committed outside the territory of the forum state, and is therefore concerned with the denial of immunity for the civil claim against Germany in respect of acts alleged to have been committed in Germany. When reviewing the judgments of national courts in order to determine whether custom recognizes an exception to immunity for serious violations of IHRL or the LOAC, the ICJ did not draw such a distinction. See Jurisdictional Immunities of the State, supra note 1 at para 85. The approach taken in this article is to treat the international practice separately. Whether customary law recognizes an exception for harm committed in the territory of the forum state is reviewed in the next section of this article.

¹⁰³ Jurisdictional Immunities of the State, supra note 1 at para 83.

¹⁰⁴ Ferrini, supra note 2 at paras 5, 10.

¹⁰⁵ Ibid at paras 10–10.1.

¹⁰⁶ Ibid at para 9.

¹⁰⁷ Mantelli, supra note 3 at 11, cited by Focarelli, supra note 3 at 124.

¹⁰⁸ But see text accompanying notes 133–38.

¹⁰⁹ Foreign Sovereign Immunities Act, 28 USC § 1330 (1976) [FSIA]. In Samantar v Yousuf, 130 S Ct 2278 (2010), the Supreme Court of the United States held that the immunity of an official acting on behalf of the state is not governed by the FSIA but by the common law. The Supreme Court did not consider in its judgment whether the state official enjoyed immunity under the common law for acts of torture or extrajudicial killings. The US Court of Appeals for the Fourth Circuit more recently held that a foreign state official could not claim immunity for acts of torture under the common law as jus cogens violations are not official acts, even if the acts were performed in an official capacity. Yousuf v Samantar, 699 F 3d 763 (2012). It was not suggested in this decision that peremptory norms come into conflict with the rules on jurisdictional immunity. A writ of certiorari to review the judgment of the Court of Appeals was petitioned to the Supreme Court of the United States on 4 March 2013.

¹¹⁰ Argentine Republic v Amerada Hess Shipping Corporation, 488 US 428 at 435, 109 S Ct 683, 79 ILR 1 (1989) (Rehnquist CJ for the court).

¹¹¹ Siderman de Blake, supra note 38.

¹¹² Saudi Arabia v Nelson, 507 US 349, 113 S Ct 1471 (1993).

¹¹³ Princz v Federal Republic of Germany, 26 F 3d 1166 at 1174, 103 ILR 594 (DC Cir 1994) (Ginsburg J for the majority) [Princz]. See also the findings of the US Court of Appeals for the Seventh Circuit in Sampson, supra note 30. Compare the dissenting opinion of Wald J in Princz. In Siderman de Blake, supra note 38 at 722, the US Court of Appeals for the Ninth Circuit held that Argentina had impliedly waived its immunity by deliberately involving US courts in the activity for which redress was sought. The court was keen to stress that a foreign state that takes action against private individuals in US courts would not fall within s 1605(a)(1) of the FSIA, as waiver by implication requires that there be a direct connection between the state’s activities in US courts and the relief sought by the victim (ibid).

¹¹⁴ State Immunity Act 1978 (UK), c 33 [UKSIA].

¹¹⁵ Al-Adsani v Government of Kuwait (No 2) (1996), 107 ILR 536 (Eng CA) [Al-Adsani (CA)].

¹¹⁶ Jones, supra note 45 at para 13.

¹¹⁷ Torture (Damages) (No 2) Bill, Bill 40, 54/4.

¹¹⁸ UK, House of Lords, Hansard, 2008–09, Vol 701, No 94 (16 May 2008) at Column 1228.

¹¹⁹ Joint Committee on Human Rights, Closing the Impunity Gap: UK Law on Genocide (and Related Crimes) and Redress for Torture Victims, Twenty-fourth Report of Session 2008–9, HL Paper 153, HC 533 at para 88. The government specifically cited the UN Convention, supra note 101.

¹²⁰ Al-Adsani (CA), supra note 115 at 542 (Stuart-Smith LJ).

¹²¹ Ibid at 549 (Ward LJ).

¹²² Human Rights Act 1998 (UK), c 42 [HRA]; Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS no 005 [ECHR].

¹²³ Jones, supra note 45 at paras 14–28, 39–64. The House of Lords raised doubt as to whether there was a prima facie engagement of Article 6(1) of the ECHR when a domestic court accords immunity in accordance with international obligations (at paras 14 and 64).

¹²⁴ State Immunity Act, RSC 1985, c S–18 [CSIA].

¹²⁵ Bouzari, supra note 29 at para 67 (Goudge JA). It was also held that the subject matter of the claim did not fall within the other exceptions recognized by the act (ibid at paras 42–59). Swinton J in the Ontario Superior Court ofJustice held that recognition of such an exception to immunity would place Canada in breach of customary international law. Bouzari v Iran (2002), 114 ACWS (3d) 57 at para 73 (Ont Sup Ct).

¹²⁶ Arar v Syrian Arab Republic (2005), 28 CR (6th) 187, 127 CRR (2d) 252 (Ont Sup Ct); Islamic Republic of Iran v Hashemi, 2012 QCCA 1449, [2012] RJQ 1567, 354 DLR (4th) 385; Steen v Islamic Republic of Iran, 2013 ONCA 30, 300 OAC 306.

¹²⁷ Bouzari, supra note 29 at paras 57–59 (Goudge JA); Hashemi, supra note 126 at paras 36–60 (Morrissette JA); Steen, supra note 126 at paras 24–28 (Armstrong JA). See also Kazemi (Estate of) v Islamic Republic of Iran, 2011 QCCS 196 at paras 51, 213, 330 DLR (4th) 1 (Mongeon JSC) (Qc Sup Ct).

¹²⁸ Foreign States Immunities Act 1985 (Cth) [AFSIA].

¹²⁹ Zhang v Zemin, [2010] NSWCA 255 at para 9, 148 ILR 555.

¹³⁰ Ibid at para 136.

¹³¹ Ibid.

¹³² Nor does legislation in the remaining states that have given domestic effect to international rules on jurisdictional immunity recognize such an exception. Law 24.488 on Statute on the Immunity of Foreign States before Argentine Tribunals 1995 (Argentina) [Law no 24.488 (Argentina)]; Foreign State Immunity Law 2008 (Israel) [IFSIA]; Act on the Civil Jurisdiction of Japan with Respect to a Foreign State 2009 (Japan) [Foreign Civil Jurisdiction Act (Japan)]; State Immunity Ordinance 1981 (Pakistan) [PSIO]; State Immunity Act (Cap 313, 1985 Rev Ed Sing) (Singapore) [SSIA]; Foreign States Immunities Act 87 of 1981 (South Africa) [SAFSIA].

¹³³ Anti-Terrorism and Effective Death Penalty Act (1996), 28 USC § 1605(a)(7).

¹³⁴ Jurisdictional Immunities of the State, supra note 1 at para 88.

¹³⁵ Justice for Victims of Terrorism Act, SC 2012, c 1, s 2.

¹³⁶ O’Keefe, Roger, “State Immunity and Human Rights: Heads and Walls, Hearts and Minds” (2011) 44 Vand J Transnat’l L 999 at 1022 Google Scholar. Van Alebeek, Rosanne, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (New York: Oxford University Press, 2007) at 355 Google Scholar, has claimed that “the terrorist state exception to the FSIA causes the United States to violate its obligations under international law.”

¹³⁷ Fox, Hazel, “In Defence of State Immunity: Why the UN Convention on State Immunity Is Important” (2006) 55 ICLQ 399 at 405 CrossRefGoogle Scholar; Gattini, Andrea, “The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?” (2011) 24 Leiden J Int’l L 173 at 174.Google Scholar

¹³⁸ Justice for Victims of Terrorism Act, supra note 135, s 3.

¹³⁹ Jones, supra note 45 at para 13.

¹⁴⁰ Bouzari, supra note 29 at para 67.

¹⁴¹ Ibid at paras 68–95.

¹⁴² Jones, supra note 45 at paras 14–28, 39–64. The UK Secretary of State for Constitutional Affairs intervened before the House of Lords in Jones to support Saudi Arabia’s claim to immunity. See also the statement of the (then) UK Prime Minister in Parliament to the effect that the government’s intervention in this case was “to ensure that the rules of international law and State immunity … [were] fully and accurately presented and upheld.” UK, House of Commons, Hansard, 2005–06, Vol 447, No 165 (14 June 2006) at Column 768.

¹⁴³ Fang, supra note 81 at para 73. The attorney-general for New Zealand submitted to the High Court that the foreign state officials were entitled to immunity under international law.

¹⁴⁴ Jurisdictional Immunities of the State, supra note 1 at para 89.

¹⁴⁵ Report of the Chairman of the Working Group, UNGAOR, 54th Sess, UN Doc A/C.6/54/L.12 (1999) at 7, para 47.

¹⁴⁶ Jurisdictional Immunities of the State, supra note 1 at para 89.

¹⁴⁷ AIG Capital Partners Inc v Republic of Kazakhstan, [2005] EWHC 2239 (Comm) at para 80, [2006] 1 All ER 284 (Aikens J). This passage was cited with approval by Lord Bingham in Jones, supra note 45 at para 8.

¹⁴⁸ Jones, supra note 45 at para 26 (Lord Bingham). The High Court of New Zealand in Fang, supra note 81 at para 65, similarly found: “This Convention is a very recent expression of the consensus of nations on this topic.”

¹⁴⁹ The preamble to the UN Convention indicates that it “contribute[s] to the codification and development of international law and the harmonization of practice in this area.” For the view that the UN Convention, although not yet in force, is likely to consolidate the customary status of its rules on immunity see Fox, supra note 137 at 405. Although the ICJ found it unnecessary to consider whether all aspects of Article 19 of the UN Convention (on state immunity from post-judgment measures of constraint) reflected customary law, it proceeded on the basis that parts of Article 19 did codify custom. Jurisdictional Immunities of the State, supra note 1 at paras 117–18. On how Article 11 of the ILC’s Draft Articles on Jurisdictional Immunities of States and Their Property 1991 (1994) 2:2 YB ILC 41 [Draft Articles on Jurisdictional Immunities], on which the UN Convention is based, has codified customary international law and is binding on non-states parties to the UN Convention, see Cudak v Lithuania (2010), No 15869/02, 51 EHRR 15 at paras 66–67; Sabeh El Leil v France (2012), No 34869/05, 54 EHRR 14 at para 54.

¹⁵⁰ Al-Adsani, supra note 51 at para 56. In Jurisdictional Immunities of the State, supra note 1 at para 90, the ICJ cited passages from Al-Adsani concerned with whether the prohibition of torture takes precedence over the rules on state immunity when considering whether there was an exception under customary international law for serious violations of IHRL or the LOAC. Strictly speaking, this part of the judgment in Al-Adsani was concerned with the separate issue of whether there is a customary rule that violations of peremptory norms entail a procedural right of access to a foreign domestic court. More recently, in Association SOS Attentats and de Boëry v France (4 October 2006), No 76642/01 (Eur Ct HR), both France and the United Kingdom (as a third party intervener) submitted that there was no exception to immunity from civil jurisdiction under custom for serious violations of IHRL or the LOAC (ibid at paras 21, 26–27). The Grand Chamber struck out the application on other grounds.

¹⁵¹ Jurisdictional Immunities of the State, supra note 1 at para 91.

¹⁵² O’Keefe, supra note 136 at 1030; Fox, supra note 98 at 569.

¹⁵³ European Convention, supra note 101, Article 11; UN Convention, supra note 101, Article 12.

¹⁵⁴ Jurisdictional Immunities of the State, supra note 1 at para 64.

¹⁵⁵ European Convention, supra note 101, Article 11; UN Convention, supra note 101, Article 12.

¹⁵⁶ See Jurisdictional Immunities of the State, supra note 1 (separate opinion of Koroma J) at para 6. For an implicit suggestion to the same effect, see the judgment of the ICJ, ibid at para 65.

¹⁵⁷ This justification thus excluded the civil claim for acts alleged to have been committed outside of Italy.

¹⁵⁸ Moreover, and as discussed later in this article, even if the conventions had been in force between the parties, they would not have been applicable given that the torts were alleged to have been committed by military forces during an armed conflict.

¹⁵⁹ Cançado Trindade, J was of the view that “[international crimes perpetrated by States are not … acts jure imperii; they are crimes, delicta imperii ” (Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade, J) at para 306)Google Scholar. The better view is, however, that of the ICJ, which found that, notwithstanding their unlawfulness, “[t]he acts of the German armed forces and other State organs which were the subject of the proceedings in the Italian courts clearly constituted acta jure imperii” (at para 60). See also the separate opinion of Keith J at para 15; and of KoromaJ at para 4. See further the decision of the European Court of Justice (Second Chamber) in Lechouritou v Federal Republic of Germany, C-292/05, [2007] ECR I-1519, holding that acts of armed forces during a military occupation are jure imperii, and therefore do not fall within the ratione materiae scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, [1978] OJ L304/36.

¹⁶⁰ Ferrini, supra note 2 at para 10.1.

¹⁶¹ Ibid.

¹⁶² European Convention, supra note 101, Article 31.

¹⁶³ See “Report of the International Law Commission on the Work of its Forty-Third Session,” UN Doc A/46/10, (1994) 2:2 YB ILC 46 para 10, UN Doc A/CN.4/SER/A/1991/Add.1 (Part 2). See also the statements made in the Report of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property to the Sixth Committee of the General Assembly, cited in Jurisdictional Immunities of the State, supra note 1 at para 69. Moreover, both Norway and Sweden, when ratifying the UN Convention, made declarations to the effect that the convention does not apply to the activities of armed forces during an armed conflict (ibid). For the view that the UN Convention applies to civil proceedings arising from military activities, see Dickinson, Andrew, “Status of Forces under the UN Convention on State Immunity” (2006) 55:2 ICLQ 427.CrossRefGoogle Scholar

¹⁶⁴ UKSIA, supra note 114, ss 5, 16(2).

¹⁶⁵ Mantelli, supra note 3 at 14, cited by Focarelli, supra note 3 at 125.

¹⁶⁶ See text accompanying notes 56–61 in this article.

¹⁶⁷ Lozano, supra note 91. The alleged conduct in respect of which the criminal proceedings were instituted in Italy (killing and injuring Italian officers) was not committed in the territory of the forum state but abroad in Iraq. Moreover, in FILT-CGIL Trento v United States of America (2000), 128 ILR 644 (Ct Cass It), the Court of Cassation held that a foreign state was entitled to claim jurisdictional immunity for torts committed jure imperii by its armed forces when training in Italy.

¹⁶⁸ See text accompanying note 72 in this article.

¹⁶⁹ Jurisdictional Immunities of the State, supra note 1 at para 77. The ICJ made reference to judicial decisions that granted immunity in respect of acta jure imperii committed by armed forces but not in the course of an armed conflict (ibid at para 72). This practice was, however, recognized as not being directly relevant to the specific issue before the court.

¹⁷⁰ Prefecture of Voiotia 2000, supra note 5 at 519.

¹⁷¹ European Convention, supra note 101, Article 11; Draft Articles on Jurisdictional Immunities, supra note 149, Article 12; Prefecture of Voiotia 2000, supra note 5 at 517–18. A four member minority dissented on the reference made to this practice (at 522–23).

¹⁷² Margellos, supra note 73 at 533.

¹⁷³ Ibid at 529–30.

¹⁷⁴ See Jurisdictional Immunities of the State, supra note 1 at para 76.

¹⁷⁵ Greek Citizens, supra note 6.

¹⁷⁶ Ibid at 560–61.

¹⁷⁷ Natoniewski, supra note 74 at 302–3.

¹⁷⁸ Botelberghev German State (1 November 2001) (Court of First Instance of Ghent); Barreto v Federal Republic of Germany (9July 2008) (Federal Court, Rio de Janeiro); Bucheron v Federal Republic of Germany, Cass civ 3ieme (16 December 2003), Bull civ I 206, No 258; Gimenez-Esposito v Federal Republic of Germany, Cass civ 1^re (2 June 2004), Bull civ I 132, No 158(the X case); Grosz v Federal Republic of Germany, Cass civ, 3 January 2006; (1 November 2001) (Court of First Instance of Leskovac; AA, supra note 74.

¹⁷⁹ Law no 24.488 (Argentina), supra note 132, Article 2(e); AFSIA, supra note 128, s 13; CSIA, supra note 124, s 6; IFSIA, supra note 132, s 5; Foreign Civil Jurisdiction Act (Japan), supra note 132, Article 10; SSIA, supra note 132, s 7; SASFIA, supra note 132, s 6; UKSIA, supra note 114, s 5; FSIA, supra note 109, s 1605(a)(5). The exception is the PSIO, supra note 132.

¹⁸⁰ UKSIA, supra note 114, s 16(2); SSIA, supra note 132, s 19(2)(a).

¹⁸¹ Jurisdictional Immunities of the State, supra note 1 at para 78; see also ibid (separate opinion of Koroma J) at para 7. Compare ibid (dissenting opinion of Gaja J Ad Hoc).

¹⁸² Kalogeropoulou, supra note 75.

¹⁸³ Grosz v France (16 June 2009), No 14717/06 at 7 (Eur Ct HR).

¹⁸⁴ The Schooner Exchange v McFaddon, 11 US (7 Cranch) 116 at 137 (1812) (Marshall CJ). For doubt on whether sovereign equality provides a satisfactory basis for the doctrine of state immunity, see Jennings, Robert and Watts, Arthur, eds, Oppenheim’s International Law, 9th edition (London: Pearson, 1992) at 342 Google Scholar; Lauterpacht, Hersch, “The Problems of Jurisdictional Immunities of Foreign States” (1951) 28 Brit YB Int’l L 220 at 228–29Google Scholar; Yang, Xiaodong, State Immunity in International Law (Cambridge: Cambridge University Press, 2012) at 44–48 CrossRefGoogle Scholar. See also Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Yusuf J) at para 51.

¹⁸⁵ Jurisdictional Immunities of the State, supra note 1 at para 57.

¹⁸⁶ Ibid.

¹⁸⁷ Ibid at para 97. The ICJ made clear that the applicable customary law was that when Germany was denied immunity by the Italian courts, and not that when Germany was alleged to have committed the acts during the Second World War, as the former was the subject matter of the dispute before the ICJ (ibid at para 58).

¹⁸⁸ Ibid at paras 91, 79.

¹⁸⁹ Arrest Warrant, supra note 20 at para 60. Compare ibid (dissenting opinion of van den Wyngaert J Ad Hoc) at paras 34–38.

¹⁹⁰ Arrest Warrant, supra note 20 at para 61.

¹⁹¹ Jurisdictional Immunities of the State, supra note 1 at para 100. See the similar comments at para 94.

¹⁹² Fox, Hazel, “State Immunity and the International Crime of Torture” (2006) Eur HRL Rev 142 at 143.Google Scholar

¹⁹³ For an example of consideration being given to whether satisfaction could be obtained from the courts of the state in which the harm occurred, see Bouzari, supra note 29 at para 24. When considering whether there was a more appropriate forum in which to entertain the action pursuant to its rules of private international law, the Court of Appeal for Ontario noted that the victim could not bring an action in the state in which he was allegedly tortured as there was evidence that he might be killed by agents of that state if he returned there.

¹⁹⁴ See ILC, “Draft Articles on Diplomatic Protection 2006,” UN Doc A/61/10 (2006), in Report of the International Law Commission on the Work of its Fifty-Eighth Session, UN GAOR, 61^st Sess, Supp No 10 at chapter IV, para 49, Article 1 [DADP]. According to the ICJ in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections), [2007] ICJ Rep 582 at para 39 [Diallo], Article 1 of DADP reflects custom. The ICJ also recognized in Diallo that the ratione materiae scope of diplomatic protection now includes internationally guaranteed human rights (ibid).

¹⁹⁵ This was confirmed in R (on the application of Abbasi) v Secretary of State for the Foreign and Commonwealth Affairs, [2002] EWCA Civ 1598 at paras 69, 106, [2002] All ER (D) 70 (Nov), 126 ILR 685; Kaunda v President of the Republic of South Africa, [2004] ZACC 5 at paras 23–29, 2004 (10) BCLR 1009 (CC), 136 ILR 452.

¹⁹⁶ Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), [1970] ICJ Rep 3 at 79.

¹⁹⁷ Ibid at 78.

¹⁹⁸ McGregor, supra note 51 at 905. A further mechanism for redress may be provided by international human rights instruments that confer rights on individuals that are accompanied by a separate right of access to an international body for enforcement of those rights.

¹⁹⁹ Jurisdictional Immunities of the State, supra note 1 at paras 98–104. Compare ibid (dissenting opinion of Yusuf J) at paras 21–42; and (dissenting opinion of Cançado Trindade J) at paras 299, 303–14. This argument has also found support in legal doctrine. See Orakhelashvili, supra note 40 at 358–59; Pavoni, supra note 51 at 91. See also Tomonori, Mizushima, “Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means” (2008) 71:5 MLR 734 CrossRefGoogle Scholar. The separate opinion of Judge Bennouna in Jurisdictional Immunities of the State, supra note 1 at paras 11–27, suggested that a state could be denied immunity where it denied responsibility for an internationally wrongful act. The ICJ also rejected the argument that the cumulative effect of the gravity of the violations, the status of the rules violated, and the absence of alternative means of redress justified the denial of Germany’s immunity by the Italian courts (at para 106).

²⁰⁰ See, for example, UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution 60/147, 21 March 2006, UN Doc A/RES/60/147 (2006) [Basic Principles].

²⁰¹ Jurisdictional Immunities of the State, supra note 1 at para 101. Clause XII of the Basic Principles, supra note 200, recognizes that the Basic Principles are without prejudice to special rules of international law. On custom not providing an obligation to make available a right to civil redress in domestic courts against foreign states, see Fox, supra note 98 at 139; Gattini, supra note 137 at 180. See also Jurisdictional Immunities of the State, supra note 1 (separate opinion of Koroma J) at para 9, suggesting that international law does not provide individuals with “a legal right to make claims for compensation directly against a foreign State” [emphasis in the original]. The ICJ decided that it did not need to consider this issue in its judgment (at para 108).

²⁰² The ICJ squarely acknowledged this point when arriving at its conclusion. Jurisdictional Immunities of the State, supra note 1 at para 104. In any event, it observed that the civil claims could still be resolved by diplomatic negotiation between the states concerned (ibid). For early criticism, see Orakhelashvili, Alexander, “Jurisdictional Immunities of the State” (2012) 106 AJIL 609 at 612–16.Google Scholar

²⁰³ Jurisdictional Immunities of the State, supra note 1 at para 57.

²⁰⁴ For the suggestion that giving priority to the prohibition of torture over the rules on jurisdictional immunity would damage international co-operation, see Al-Adsani, supra note 51 (concurring opinion of Pellonpää J, joined by Bratza J). Compare Jurisdictional Immunities of the State, supra note 1 (dissenting opinion of Cançado Trindade J) at para 129.

²⁰⁵ Jurisdictional Immunities of the State, supra note 1 at para 108.