'Time Will Tell Who Just Fell and Who’s Been Left Behind’: On the Clash between the International Court of Justice and the Italian Constitutional Court

Articolo che affronta i nodi cruciali del conflitto tra Corte internazionale di giustizia e Corte costituzionale sulla riparazione alle vittime dei crimini di guerra. Si tratta di un contributo di ricerca pubblicato in rivista internazionale di fascia A pubblicata da Oxford University Press (con double blind peer review e impact factor) The article dwells on the conflict of views between the International Court of Justice(ICJ) and the Italian Constitutional Court on the issue of possible exceptions to state immunity from the jurisdiction of foreign domestic courts. It focuses specifically on the so-called ‘last resort’ argument and argues that a type of ‘jurisdiction by necessity’ should be exercised by domestic courts in cases where there is no other forum in which victims of the most serious violations of international law committed by a state could reasonably seek redress. The exception to state immunity would apply in residual cases, precisely where no other option than adjudication before a foreign domestic court is available. In the last part of the article, the potential impact of Judgment No. 238 of 2014 handed down by the Italian Constitutional Court on the evolution of international law is taken into account. The article dwells on the conflict of views between the International Court of Justice (ICJ) and the Italian Constitutional Court on the issue of possible exceptions to state immunity from the jurisdiction of foreign domestic courts. This author focuses specifically on the so-called ‘last resort’ argument and argues that a type of ‘jurisdiction by necessity’ should be exercised by domestic courts in cases where there is no other forum in which victims of the most serious violations of international law committed by a state could reasonably seek redress. The exception to state immunity would apply in residual cases, precisely where no other option than adjudication before a foreign domestic court is available. In the last part of the article, the potential impact of Judgment No. 238 of 2014 handed down by the Italian Constitutional Court on the evolution of international law is taken into account.