I have just had to read through the entire ICJ decision on the Jurisdictional Immunities (Germany v Italy) case, including the mammoth dissent by Brazilian Judge Antônio Augusto Cançado Trindade, which was longer than the leading judgment and all of the other separate and dissenting opinions combined. I’ve been reading up on the guy a little and it sounds like he’s the ICJ version of Michael Kirby (anyone who has studied law in Australia would know what I mean).
I did come across one portion of his judgment that I thought would be worth reproducing. The case in general concerned judgments made in Italy against Germany for war crimes committed between 1943 and 1945. The issue was whether Italy had the right to put Germany on trial for war crimes or whether Germany had state immunity.
Trinidade thought they should, and he spent 88 pages constructing a legal system where the interests of humanity prevail over the interests of States and people subjected to massacres and slave labour would be entitled to justice in any legal jurisdiction. Fanciful? Maybe, but definitely compelling.
This is the best point that he made IMO, it concerns how the State creates a collective identity that dehumanises the individual to the point where atrocities like the ones committed by Nazi Germany can occur. These acts could never have been carried-out by individual people without the State structures giving them the physical means and resources, as well as the psychological impression that they were “doing their job” rather than committing acts for which they were accountable.
XVII. The State-Centric Distorted Outlook in Face of the Imperative of Justice
172. The beginning of the personification of the State ⎯ in fact, of the modern theory of the State ⎯ in the domain of International Law took place, in the mid-XVIII century, with the work of E. de Vattel (Le Droit des gens ou Principes de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains, 1758), which was to have much repercussion in the international legal practice of his times. The emphasis on State personality and sovereignty led to the conception of an International Law applicable strictly to the relations among States (the jus inter gentes, rather than the jus gentium), that is, an inter-State legal order; it amounted to a reductionist outlook of the subjects of the law of nations, admitting only and exclusively the States as such.
173. The consequences of this State-centric distortion were to prove disastrous for human beings, as widely acknowledged in the mid-Xth century. In the heyday of the inter-State frenzy, individuals had been relegated to a secondary level. To G.W.F. Hegel (1770-1831), ⎯ apologist of the Prussian State, ⎯ for example, the individual was entirely subsumed under the State; society itself was likewise subordinated to the State. The State was an end in itself (Selbstzweck), and freedom could only be the one granted by the State itself. Hegel endorsed and justified the authoritarian and absolutely sovereign State; to him, the State should be stronger than society, and individuals could only pursue their interests within the sovereign State.
174. From the late XIXth century onwards, legal positivism wholly personified the State, endowing it with a “will of its own”, and reducing the rights of human beings to those which the State “conceded” to them. The consent of the “will” of the States (according to the voluntarist positivism) was erected into the alleged predominant criterion in International Law, denying jus standi to individuals, to human beings; this rendered difficult a proper understanding of the international community, and undermined International Law itself, reducing its dimension to that of a strictly inter-State law, no more above but rather among sovereign States. In fact, when the international legal order moved away from the universal vision of the so-called “founding fathers” of the law of nations (droit des gens ⎯ supra), successive atrocities were committed against human beings, against humankind.
175. Such succession of atrocities, ⎯ war crimes and crimes against humanity, ⎯ occurred amidst the myth of the all-powerful State, and even the social milieu was mobilized to that end. The criminal policies of the State ⎯ gradually taking shape from the outbreak of the I world war onwards ⎯ counted on “technical rationality” and bureaucratic organization; in face of the aforementioned crimes, without accountability, individuals became increasingly vulnerable, if not defenceless. It soon became clear that there was a great need for justice, not only for the victims of their crimes and their relatives, but for the social milieu as a whole; otherwise life would become unbearable, given the denial of the human person, her annihilation, perpetrated by those successive crimes of State.
176. It was at the time of the prevalence of the inter-State myopia that the practice on State immunity took shape and found its greatest development, discarding legal action on the part of individuals against what came to be regarded as sovereign “acts of State”. Yet, the individual’s submission to the “will” of the State was never convincing to all, and it soon became openly challenged by the more lucid doctrine. The idea of absolute State sovereignty, ⎯ which led to the irresponsibility and the alleged omnipotence of the State, not impeding the successive atrocities committed by it (or in its name) against human beings, ⎯ appeared with the passing of time entirely unfounded. The State ⎯ it is nowadays acknowledged ⎯ is responsible for all its acts ⎯ both jure gestionis and jure imperii ⎯ as well as for all its omissions. In case of (grave) violations of human rights, the direct access of the individuals concerned to the international jurisdiction is thus fully justified, to vindicate such rights, even against their own State.