Serious Human Rights Violations As Potential Exceptions to Immunity: Conceptual Challenges

CHAPTER 14 Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges

Robert Uerpmann-Wittzack

1 Introduction

Possible exceptions to state immunity in cases of serious violations of human rights have been discussed for twenty years now.1 In 2004, the French and the German Societies of International Law met in Berlin in order to discuss ius cogens and obligations erga omnes.2 Isabelle Pingel and Thomas Giegerich presented excellent papers on possible exceptions to state immunity in case of ius cogens violations.3 Meanwhile, the International Court of Justice (icj) in Jurisdictional Immunities4 has confirmed the analysis given by Thomas Giegerich in 2004. In this volume, Michael Bothe and Christian Tomuschat comment on the Jurisdictional Immunities Case.5 Whilst Christian Tomuschat is in line with the icj, Michael Bothe argues in favour of another solution as Isabelle Pingel did in 2004. This shall not be repeated here. Rather, the present chapter shall consider the debate from a meta-level. The question is not, who is right, but why scholars and courts reach divergent results. Therefore, section 2 will distinguish three different approaches to the

1 See e.g. Andrea Bianchi, “Denying State Immunity to Violators of Human Rights,” Austrian Journal of Public and International Law 46 (1994): 195–229. 2 Published in Christian Tomuschat and Jean-Marc Thouvenin, eds., The Fundamental Rules of the International Legal Order (Leiden: Brill, 2006). 3 Isabelle Pingel, “L’immunité des États,” in Tomuschat and Thouvenin, Fundamental Rules (n. 2), 239–48; Thomas Giegerich, “Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?,” in Tomuschat and Thouvenin, Fundamental Rules (n. 2), 203–38. 4 icj, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, icj Reports 2012, paras. 52 et seq. 5 Christian Tomuschat, “The Case of Germany v. Italy before the icj,” chapter 7 in this volume; Michael Bothe, “Remedies of Victims of War Crimes and Crimes against Humanities: Some Critical Remarks on the icj’s Judgment on the Jurisdictional Immunity of States,” chapter 8 in this volume.

© koninklijke brill nv, leiden, ��5 | doi ��.��63/9789004251632_015 Serious Human Rights Violations as Potential Exceptions 237 problem. Section 3 will then directly address the ethical foundation of international law.

2 Three Different Approaches

2.1 The Civilist Approach: Construing Legal Rules A series of scholars try to determine the limits of sovereign immunity by way of legal construction. They rely on accepted rules of international law which they apply to cases where a state has committed serious breaches of international human rights norms. This may be called a civilist approach. Some authors, for instance, contend that a state that violates fundamental human rights norms implicitly waives its immunity.6 Others apply the concept of forfeiture,7 or they contend that a breach of ius cogens may not be qualified as an actus iure imperii for which immunity is granted under contemporary international law.8 In this volume, Thomas Giegerich illustrates how the latter approach was applied by a us court, which relied on the commercial activity exception of the us Foreign Sovereign Immunities Act in order to discard immunity in a human rights case.9 It has also been tried to justify an exception to jurisdictional immunity by way of reprisal.10 Some of these constructions seem hardly convincing. Construing an implicit waiver by the state that violates fundamental norms, for instance, appears to be pure fiction. Other arguments have been put forward with much more emphasis. The most prominent example of a civilist approach to state immunity in case of serious violations of human rights is the argument based

6 See e.g. Adam C. Belsky, Mark Merva and Naomi Roht-Arriaza, “Implied Waiver under the fsia: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law,” California Law Review 77 (1989): 365–415; see also us Court of Appeals, Hugo Princz v. Federal Republic of Germany, Decision of 1 July 1994, 26 F.3d 1166 (dc Cir. 1994), dissenting opinion of Judge Wald, para. 68; but see Georg Karl, Völkerrechtliche Immunität im Bereich der Strafverfolgung schwerster Menschenrechtsverletzungen (Baden- Baden: Nomos, 2003), 133–34. 7 Juliane Kokott, “Mißbrauch und Verwirkung von Souveränitätsrechten bei gravieren- den Völkerrechtsverstößen,” in Ulrich Beyerlin et al., eds., Recht zwischen Umbruch und Bewahrung (Berlin: Springer, 1995), 135–51, 148–49. 8 But see icj, Jurisdictional Immunities (n. 4), para. 60, where the icj rebuts this argument. 9 Thomas Giegerich, “The Holy See, a Former Somalian Prime Minister, and a Confiscated Pissarro Painting: Recent us Case Law on Foreign State Immunity,” chapter 4 in this volume. 10 For a cautious use of this argument see Giegerich, “Damages Claims” (n. 3), 232–35.