Read on Twitter
U.S. Considers Granting Immunity to #SaudiArabia Prince #MBS in attempted extrajudicial killing and actual killing. https://www.nytimes.com/2020/12/22/us/politics/mbs-saudi-immunity-trump.html Such approach would be based on the "equality among states" principles and the personal immunity of State agents
2. But there are alternative approaches. For instance, rather than equality among States, considerations of international comity may be considered to underlie sovereign immunity. (Eboe-Osuji)
3. As argued by Eboe-Osuji, this means that principles of international justice, eg jus cogens norms, should trump any concerns of sovereign immunity and allow suits to proceed against foreign states when the causes of action arise from particularly heinous conduct
4. In Ferrini v. Federal Republic of Germany, the Italian Supreme Court stated that jus cogens, as a fundamental principle, dictates the scope of other principles of international law that are less fundamental, including the principle of state immunity.
5. The Court therefore held that Germany’s claim to the state immunity did not bar its finding that the Nazis violated jus cogens norms in its treatment of an Italian citizen.
6. 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
between the two fundamental international law principles of the sovereign equality of states
and of the protection of inviolable human rights
7. The jurisdiction of the Italian courts over Germany was justified, not on account of the actual content of
such norms, nor as the mere consequence of their formal rank, but as result of the substantial importance that can be given to the value of human rights protection
such norms, nor as the mere consequence of their formal rank, but as result of the substantial importance that can be given to the value of human rights protection
8. The court also drew an analogy between ‘functional immunity’ of state officials and state immunity in the field of international crimes: functional immunity’ and sovereign immunity are the expression of a single principle which aims to protect state sovereignty
7. In the House of famous Pinochet decision, the UK jurisdiction over the former Chilean head of state was upheld because of the jus cogens nature of the crime of
torture, for which Pinochet’s extradition to Spain was requested.
torture, for which Pinochet’s extradition to Spain was requested.
8. In the Israeli Supreme Court Eichmann decision, the criminal responsibility of a state official for war crimes/crimes against humanity was interpreted as resulting from an exception to the principle of sovereign immunity in the case of gross violations of international law
9. In conclusion, there are far greater values at stake than that of immunity of an almost-Sovereign that has proven that he is prepared to violate international law, including as it relates to the Vienna Convention on Consular relations and the UN Charter,
10. an almost-Sovereign that has no commitment to uphold the sovereignty of other states - through his killing of Jamal Khashoggi, the attempted abduction/killing of Mr. Aljabri, and others; the surveillance of dissidents abroad.
11. The protection of human rights, and of the supreme right, the right to life; the prohibition against disappearance and torture: these should take primacy over other principles within the international legal system. Let justice be delivered.
Sources: Roman A. Kolodkin, “Immunity of State Officials from Foreign Criminal Jurisdiction,” Judge Chile Eboe-Osuji, President of the International Criminal Court on state immunity; Pasquale De Sena and Francesca De Vittor, The Italian Supreme Court Decision on the Ferrini Case
