Inside the International Court of Justice, judges hush. Outside, when they don’t fear for their reputation or re-election, they speak about the elephant in the courtroom. This elephant is the lack of means for individuals to sue states in the courts of other states and in international courts. Two examples of such judges: Hersch Lauterpacht and Dame Rosalyn Higgins.
Hersch Lauterpacht pleaded for an International Court of Human Rights, criticizing the positivistic statist view of International Law (IL): “Once the cobwebs of that antiquated theory have been swept aside, the procedural incapacity of individuals is deprived of its logical foundation.”1 Dame Rosalyn Higgins argues that “there is nothing in the nature of international law which”2 dictates that individuals should not be parties to the ICJ and continues:
“Power, to be sure, rests still to a substantial degree with sovereign states: it is within their power, for the moment, to block the access of the individual to certain international tribunals and to continue to assert the old rule of nationality of claims. But the very notion of international law is not predicated upon this assumption, and the international legal system survives conceptually even were this to change. Additionally, these assumptions about access to international tribunals and force are in fact changing rapidly, with significant consequences in the delicate balance between the state and the individual.”3
Other judges have been caught in the act of having similar heretical thoughts outside the Court, people like Taslim Olawale Elias, Humphrey Waldock and Thomas Buergenthal. But Judge Cançado Trinidade, in his Dissenting Opinion in Germany v. Italy,4 is the first active servant of the Court painting the Sovereign Kaiser in his naked splendor.
Judge Cançado Trinidade is not shy in his writings5 about how the Inter-American Court of Human Rights, while under his rule, has hurt states in their Sovereign Ego. For instance, when South American juntas indulged themselves in self-amnesty, the Court declared those laws null and void. Therefore, when he was elected as ICJ-judge I was filled with mixed feelings. “Yes! – I thought – we have finally got our Trojan Horse into the ICJ.” But the thrill was mixed with fear: that he would buckle under the load of the statist assumptions that haunt the Palace.
But who is this ‘we’ I’m talking about? It is we the people, the individuals of the world who see “the traditional positivist doctrine on the subject obsolete and unworkable” (Lauterpacht). What we individuals want is the chance to sue states, including our own, in other states or in international courts; at least when the courts of the sued state do not provide us with redress for human rights violations. Maybe also for gross violations of Humanitarian Law. What we really want are some new International Courts of Human Rights, resembling the European one, covering all states and all individuals. And we want a ‘functional’ model of human rights, rather than territorial: see Judge’s Bonello’s concurring opinion in Al-Skeini v. UK. Al-Adsani should be able to sue Kuwait, and El-Masri should be able to sue the U.S. in an international court. If we had that, we would not care about Germany’s state immunity in Italian courts at all.
The very concept of state immunity seems funny to me. The sovereign equality of states prevents them from adjudicating over one another, they say. Therefore, one cannot sue a state in the courts of other states, except for private and trade activities. Sovereignty is defined as the power to make laws, and to be the supreme power in a defined territory. But this sovereignty of the forum state is suddenly no longer absolute when a foreign state comes and kills and tortures and violates IL, violating the rights of the forum state and those of individuals. Thus, while the violator is not expected to renounce any bit of her sovereignty, the victim is expected to swallow that, to sacrifice her sovereignty, being obliged to grant immunity to the violator. There is no good reason whatsoever why the victim – and not the violator – should be the one to cede some of her freedom.
An analogy. Imagine that, as equally free citizens, you were to discover me filling my bags with jewelry from your home, where you have supreme authority, and I would not be expected to appear before a court, giving up my freedom. Rather you would be obliged not to force me to appear in court, therefore obliged to renounce your freedom.
However, the same IL entitles the victim state to countermeasures. To continue our analogy, this would mean that, while you are not free to drag me before a judge, you are free to strip me of my cloths; and this, supposedly, does not violate my freedom. At the same time, if I disagree about the ownership of the jewels, I cannot sue you to stop you from stripping me, since this would violate your freedom, but I am free to take counter-countermeasures by seizing your silverware as well. And we do this in the name of comity, they say.
Thus, IL irrationally hurts humans of flesh and blood to grant undeserved privileges to fictitious constructions – the states – and pushes the envelope of logic with the concept of state immunity. Within the scenery of this idée fixe in International Law imagine Cançado Trinidade’s dissenting opinion enter the stage. He guides our catharsis from the State-centric view of International Law: “State immunities has nowadays to be reassessed in the light of fundamental human values.” He concludes that this is already the case: “contemporary international legal doctrine,[…], gradually resolves the tension between State immunity and the right of access to justice rightly in favour of the latter, particularly in cases of international crimes.”
Human beings are the ultimate rights holders, and states cannot cancel that. Even their parent state cannot waive those rights, because one cannot waive the rights of others. When states waive the rights of their subjects they violate jus cogens norms. (para. 72)
Germany claimed that “a decision to set aside immunity would destabilize peace settlements and the principle of pacta sunt servanda itself” and “that the common good ought not to be undermined for the individual good, – and thus human rights cannot be recognized to be able to jeopardize the structure of the international society.” Judge Cançado Trinidade ignited:
“In my understanding, what jeopardizes or destabilizes the international legal order, are the international crimes, and not the individual suits for reparation in the search for justice. In my perception, what troubles the international legal order, are the cover-up of such international crimes accompanied by the impunity of the perpetrators, and not the victims’ search for justice. When a State pursues a criminal policy of murdering segments of its own population, and of the population of other States, it cannot, later on, place itself behind the shield of sovereign immunities, as these latter were never conceived for that purpose. Grave breaches of human rights and of international humanitarian law, amounting to international crimes, are not at all acts jure imperii. They are anti-juridical acts, they are breaches of jus cogens, that cannot simply be removed or thrown into oblivion by reliance on State immunity. This would block the access to justice, and impose impunity. It is, in fact, the opposite [that] should take place: breaches of jus cogens bring about the removal of claims of State immunity, so that justice can be done.” (para. 129)
Allow me a small digression. The Advisory Committee of Jurists, mandated with the drafting of the Statute of the Permanent Court of International Justice in 1920, received from Germany a proposal stating that the Court shall deal with disputes between States but also with “[c]omplaints of private persons against foreign States and heads of States, when the State tribunals have declared their incompetency.”6 Thus, Judge Cançado Trinidade gave Germany what she always wanted: the chance to be sued by individuals outside her own lebensraum.
His position in short: jus cogens norms and the individual right of access to justice – a jus cogens norm in itself – do and should trump whatever rights and immunities states might hold, at least in cases of grave violations of human rights and of International Humanitarian Law. The majority of Judges disagree with Cançado Trinidade, and Professor Andrea Bianchi asserted at EJIL-Talk that 97% of international lawyers would agree with the Court. The majority is wrong again. And even if it was right, the majority should change its mind and the International Law. With urgency and without remorse.
 H. Lauterpacht, International law and human rights. Archon Books, 1968, p.57.
 R. Higgins, ‘Conceptual Thinking about the Individual in International Law,’ 24 N. Y. L. Sch. L. Rev. 11 (1978): p.15.
 Higgins, ‘Conceptual Thinking’, p.15.
 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening).
 See for instance: A.A. Cançado Trindade, The access of individuals to international justice. Oxford: Oxford University Press, 2011.
 Advisory Committee of Jurists, Documents presented to the Committee relating to existing plans for the establishment of a permanent court of international justice. The Hague: 1920, p.29.