State immunity or State impunity in cases of violations of human rights recognised as jus cogens norms


Özdan S.

International Journal of Human Rights, cilt.23, ss.1521-1545, 2019 (ESCI İndekslerine Giren Dergi) identifier identifier identifier

  • Cilt numarası: 23 Konu: 9
  • Basım Tarihi: 2019
  • Doi Numarası: 10.1080/13642987.2019.1623788
  • Dergi Adı: International Journal of Human Rights
  • Sayfa Sayıları: ss.1521-1545

Özet

State immunity is an inalienable concept in international law designed to prevent abuses of inter-State relations; on the other hand, state immunity removes the threat to the State of being forced to face justice for its sovereign acts as it relates to the most serious of human rights abuses. For these reasons, the granting of immunities to the State may lead to impunity from jurisdiction in cases in which certain human rights recognised as peremptory norm of general international law (jus cogens) have been violated.

This article analyses the tension between the violation of certain human rights and the preservation of State immunity by considering a landmark judgment by the International Court of Justice (Jurisdictional Immunities of the State – Germany v Italy). At the heart of this article lies a significant argument: State immunity (procedural rule) should not equate to State impunity when certain human rights recognised as jus cogensnorms (substantive rule) are violated. It also highlights some exceptions to immunity ratione materiaeagainst the backdrop of violations of jus cogens norms by applying State practices in order to support the criticism of the ICJ judgment and that the claim of immunity does not equal to impunity.