State immunity and human rights: The Italian Supreme Court decision on the Ferrini case

Abstract

In the Ferrini case the Italian Supreme Court affirmed that Germany was not entitled to sovereign immunity for serious violations of human rights carried out by German occupying forces during World War II. In order to reach this innovative conclusion, the Court widely referred to international legal arguments, such as the concept of international crimes, the principle of primacy of jus cogens norms and the notion of a strict analogy between state immunity and the 'functional immunity' of state officials. Based upon a systematic interpretation of the international legal order, the Court conducted a 'balancing of values' between the two fundamental international law principles of the sovereign equality of states and of the protection of inviolable human rights. This article explores the Court's reasoning and its consistency with international legal theory and preceding case law with the view to verifying whether, and in which sense, the Ferrini judgment may facilitate a radical reappraisal of the relationship between human rights and the law of state immunity. © EJIL 2005; all rights reserved.