Abrogation of Jursidictional Immunities of State in Cases of Torture and Inhumane Acts

Should there raise a conflict between the customary rule of States’ Jurisdictional Immunities and a peremptory norm of international law (Jus Cogens), the latter shall prevail. However, the World Court has recently invalidated the rise of such a conflict (Jurisdictional Immunities, Germany v Italy (2012)), maintaining that the rule of immunity is concerned with procedures, while rules of Jus Cogens discuss the substance of rights and obligations. The Court also held that since Germany’s alleged violations were related to the conducts of military forces during the course of armed conflict, thus other exceptions to the rules of State Immunity (Territorial Tort exception) shall not apply. This article will criticize the first reasoning of the Court, arguing that such an absolute distinction between procedures and merits, while maintaining the priority of the former, will lead to absurdity. Then it will turn to the second line of reasoning of the Court and posit that the latter shall be read narrowly as such. The problem of conflict between the peremotory norms of international law and rules of immunity shall be studied in light of victims’ rights, or will otherwise be null. With this orientation, and in keeping with the contingencies of peaceful coexistence, cooperation and harmonization of States’ conducts, this article will propose establishment of international arbitration bodies to which the victims shall have the right to submit cases of torture and seek reparations. Such mechanisms, based on cooperation of States to maintain the fundamental norms to protect human dignity, might show promising in respect to various factors relevant to this question.