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Riccardo Pavoni, How Broad is the Principle Upheld by the Italian Constitutional Court in Judgment No. 238?, Journal of International Criminal Justice, Volume 14, Issue 3, July 2016, Pages 573–585, https://doi.org/10.1093/jicj/mqw016
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Abstract
The present article discusses the breadth of the principle upheld by the Italian Constitutional Court in Judgment No. 238 of 2014, concerning the unconstitutionality of grants of foreign state immunity over international crimes and comparable grave breaches of human rights. This article takes the view that two — and only two — requirements qualify that principle: first, the commission of an international crime by state agents; and second, the unavailability of effective compensatory remedies for the victims, which would provide an alternative to a suit in the courts of the forum state. The necessity of a territorial nexus — that the crime was perpetrated, at least in part, in the territory of the forum state — is ruled out. These two requirements are examined in light of Judgment No. 238 as well as the broader context of the Italian jurisprudence on state immunity and human rights both prior to, and falling after, the Constitutional Court’s decision. The article briefly considers the prospects for universal civil jurisdiction over compensation claims arising from international crimes committed by foreign state agents. It submits that the coming challenge for Italian courts may involve an effort to reconcile the norms governing civil jurisdictional competence over states responsible for international crimes, and thus not entitled to immunity, with the right of access to justice as bolstered by Judgment No. 238.
