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Article
German War Crimes and the Rule of International Law
Journal of International Criminal Justice (2016)
  • Gianluigi Palombella
Abstract
This article considers the opposite stances taken by the International Court of Justice (ICJ), the European Court of Human
Rights (ECtHR) and the Italian Constitutional Court from the point of view of the international rule of law. On the one hand,
the ICJ and the ECtHR relied on the existence of a customary rule of state immunity as hierarchically prevailing — either
in the international legal order as a jus cogens rule or in state constitutions — over any commitments to human rights. On the other hand, the Constitutional Court considered
the normative weight of the conflicting principles at stake. While acting as a gatekeeper of its constitutional order, the
Court did not disregard normative imperatives stemming from international law and eventually stuck a balance between the two
legal orders on a substantive and contextual basis. In so doing, it encouraged an innovative, coherent attitude towards a
comprehensive view of international law as a whole, one that the ICJ was unable to consider.
Keywords
  • Jus Cogens,
  • Human Rights,
  • ICJ,
  • Italian C.C.
Disciplines
Publication Date
Winter January 22, 2016
DOI
10.1093/jicj/mqv070
Citation Information
Gianluigi Palombella. "German War Crimes and the Rule of International Law" Journal of International Criminal Justice (2016)
Available at: http://works.bepress.com/gianluigi_palombella/21/