Dai Delicta Imperii alle immunità internazionali

Abstract

This study examines the relationship between the principle of jus cogens in international law and the concept of delicta imperii, with a particular focus on state immunity. The analysis begins by exploring the hierarchy of international norms, emphasizing how jus cogens, comprising non-derogable principles such as the prohibition of torture and war crimes, takes precedence over state jurisdictional immunities. Italian jurisprudence has progressively affirmed the primacy of fundamental rights over state immunity in cases involving serious violations of international law. The paper examines Italian Constitutional Court ruling 238/2014, which redefined the limits of state immunity in cases of war crimes and crimes against humanity, recognizing the possibility for national courts to assert jurisdiction over foreign states. This Italian approach contrasts with the stance of the International Court of Justice, which has reaffirmed the procedural nature of immunity, distinguishing it from liability for international crimes. Furthermore, the study explores the interaction between Italian constitutional law and international law, highlighting the role of Articles 10 and 11 of the Italian Constitution in Italy’s participation in international treaties. Finally, the German perspective on state immunities is analyzed, particularly the distinction between jure imperii and jure gestionis acts. The research concludes that, while traditional international law upholds state immunity, evolving case law suggests an increasing openness to the justiciability of international crimes, thus redefining the boundary between state sovereignty and human rights protection.