Civil actions for damages caused by war crimes vs. State immunity from jurisdiction and the political act doctrine: ECtHR, ICJ and Italian Courts

Francesco De Santis di Nicola

Abstract


Civil actions for war crimes serve the purposes of obtaining a public acknowledgment of the tort and that of reaffirming the legal binding force of the rules protecting fundamental human rights. However, two main obstacles arise before such actions since the defendant is a State: immunity from jurisdiction and the political act doctrine. The interaction between the Italian Supreme Courts (Corte di Cassazione and Corte Costituzionale), the European Court of Human Rights and the International Court of Justice provides clear examples of the achievements and the remaining challenges in this field, where the right of access to a court and the right to an effective remedy should not be excluded in the name of an absolute sovereignty or of an unaccountable raison d’État.

Keywords


Civil action; Serious violations of human rights; Right of access to a court; Right to an effective remedy; State immunity from jurisdiction; Political act doctrine European Convention on Human Rights; Italian Constitution

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