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

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.