Identifying Conflicts of Norms: The ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

Abstract

AbstractThe potential for conflicts of norms is particularly great in modern international law. Yet until now, the International Court of Justice has said very little as to what it considers a conflict of norms. The opportunity to do so arose in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). There, it was argued that granting Germany sovereign immunity in proceedings before Italian courts involving civil claims for violations of international humanitarian law (IHL) committed by the German Reich between 1943 and 1945 would come in conflict with prevailing peremptory (jus cogens) norms of international law. In its 3 February 2012 Judgment, the ICJ rejected this argument. In the present article, the author argues that the conceptions of conflict of norms underlying the Court's judgment and the dissent of Judge Cançado Trindade both have weaknesses. The author suggests an alternative framework to ascertain conflicts of norms. He then applies this framework to the rules of state immunity and the IHL rules breached by Germany, agreeing in the end with the conclusion reached by the majority of the ICJ that these rules did not conflict.