I. Introduction

This chapter situates Judgment 238/2014Footnote 1 in the wider debate on immunity and human rights. It does so by analysing the argumentative strategy adopted by the Italian Constitutional Court (ItCC) and assessing how it could influence the development of international law. My key argument is that the judgment’s influence is likely to be limited, and that this is largely for the better. More specifically, Judgment 238/2014 contributes fairly little to the long-standing debates about the scope of immunities enjoyed, under international law, by states responsible for grave breaches of international law.

To set the stage, I begin by revisiting those long-standing debates and argue that notwithstanding decades of discussion and fervent support among some commentators, a ‘grave breaches’ exception has only ever been endorsed by a small number of states and international organizations (section II). Against that background, it comes as no surprise that the ItCC, in Judgment 238/2014, did not assert the existence of a grave breaches exception as a matter of international law. Instead, the ItCC relied on what might be termed a ‘foreign relations law’ approach,Footnote 2 holding that Italian constitutional law required it not to give domestic effect to the international law of state immunity (section III). This foreign relations law approach offers a last line of defence for those seeking to limit the reach of rules of state immunity. As is set out in section IV, this approach is an effective line of defence, as international law does not ‘by itself, possess the force to amend or repeal internationally unlawful domestic (…) acts’.Footnote 3 At the same time, it is a dangerous line, as it risks weakening international law generally and not just in the area of immunity. The chapter suggests that, when read as a foreign relations law decision, Judgment 238/2014 is not as such unusual: it is one of many decisions accepting some form of ‘constitutional override’ that limits the effects of international law within domestic legal orders. However, it stands out because—unlike decisions of other domestic courts preserving the possibility of a constitutional override—it seems to refuse international law any place in the construction of constitutional law: in the ItCC’s ‘separatist treatment’,Footnote 4 international law is denied any ‘directive function’ (‘Orientierungswirkung’); it is not factored into the equation.Footnote 5 Seen in that light, Judgment 238/2014 (perhaps counter-intuitively, for a ‘Roman’ decision) has a ‘Lutheran’ quality; it is informed by a stubborn ‘here I stand, I can do no other’ mindset, which limits the potential for constructive dialogue between domestic and international judiciaries (section V).Footnote 6 Section VI briefly comments on the implications of this ‘Roman-Lutheran’ approach to international law.

II. Immunity and Grave Breaches of International Law: The State of Play in Late 2014

Much of the initial reaction to Judgment 238/2014 viewed it as yet another contribution to the debate about immunity and grave breaches of international law affecting the rights of individuals.Footnote 7 That, no doubt, is the substantive focus of the decision: the ItCC declared unconstitutional domestic rules intending to give effect to international law principles of immunity, insofar as they covered certain grave breaches of international law, and to the decisions of the International Court of Justice (ICJ), insofar as they concerned the application of the Jurisdictional Immunities Judgment of 3 February 2012. In taking a stand on these matters, the ItCC joined a major, decades-long debate that had, in fact, been one of international law’s grands débats of the 1990s and 2000s: whether sovereign immunity should shield a state, and its representatives, from civil claims in foreign courts with respect to conducts that (if established) would amount to grave breaches of international law, notably violations of fundamental human rights.Footnote 8

Many contributions to this controversy, until recently, followed a fairly predictable script. Those arguing that sovereign immunity could not—or no longer—be invoked, argued for a reform of international law that should recognize an immunity exception for grave breaches.Footnote 9 Those defending immunity, even for grave breaches, claimed that no such exception was recognized in international law—that the case for it had not been made out.Footnote 10 Just as the script was predictable, so too were the roles assigned to the discussants: the call for reform was one of progress and optimism that emphasized the centrality of human rights;Footnote 11 to this the sceptics typically responded by insisting on the careful application of the sources of law and by warning against overzealousness. Less predictable were the manifold arguments advanced in support of an immunity exception; these were diverse and at times both ingenious and creative. They were also frequently used in combination with one another in order to present as far as possible a strong case against the granting of state immunity.

For the sake of simplicity, they can be grouped into five broad and overlapping categories:

  1. 1.

    Normative hierarchy/ius cogens: sovereign immunity would have to yield to superior rules of international law recognized as peremptory from which no derogation is permitted (such as rules prohibiting torture or war crimes);Footnote 12

  2. 2.

    A duty to exercise jurisdiction deriving from other fields of international law, such as international conventions to which the state is party: immunity would be superseded by state obligations to exercise jurisdiction, or to give effect to the human right to an effective remedy;Footnote 13

  3. 3.

    Refusal to extend immunity to egregious acts: state conduct amounting to grave breaches could not be qualified as an ‘official’ or ‘sovereign act’ benefiting from immunity, or in any case such behaviour would constitute an ‘implied waiver’ on behalf of the state; alternatively, reliance on immunity would be considered abusive and ineffective;Footnote 14

  4. 4.

    A justified response: the denial of immunity could be considered lawful as a reprisal or countermeasure to the previously unlawful conduct of the defendant state;Footnote 15

  5. 5.

    Acceptance of an exception in international practice: cutting across these substantive considerations, the simplest argument has always been that international practice had come to accept an immunity exception, either for all grave breaches or at least for those qualifying as territorial torts.Footnote 16

By October 2014, when the ItCC rendered its decision, all of these arguments were well known and had been tried out, mostly unsuccessfully, dozens of times.Footnote 17 They did not, of course, go away. But it is probably fair to say that they showed significant signs of wear and tear.Footnote 18 No doubt, ‘the cause endured, the hope still lived, the dream would never die’;Footnote 19 but in seeking to translate their claims into winning legal arguments, supporters had made limited headway. So rare had been their successes, and so frequent and resounding their defeats, that the project of a grave breaches exception seemed to have either lost steam or stalled altogether. To illustrate:

  1. 1.

    The concept of an immunity exception for grave breaches of international law had not been, by 2014, recognized in an international treaty. In the course of the international community’s most significant law-making project on jurisdictional immunities, the UN Convention on Jurisdictional Immunities of States and Their Property (UN Convention),Footnote 20 the drafters considered the introduction of a limited immunity exception for grave breaches affecting peremptory norms,Footnote 21 but decided the time was not ‘ripe’ enough to do so.Footnote 22

  2. 2.

    Regional human rights courts, like the European Court of Human Rights (ECtHR), faced with claims by victims alleging grave breaches amounting to, inter alia, torture and war crimes, as well as an impairment of their right of access to justice, repeatedly accepted the right of contracting states to uphold immunity. This was neither affected by the peremptory character of the norms allegedly breached nor by the victims’ right of access to justice and an effective remedy. In particular, the ECtHR construed Article 6 of the European Convention on Human Rights and Fundamental Freedoms in light of (and limited by) the principles of sovereign immunity, therefore not requiring the recognition of a grave breaches exception. In a series of cases, the ECtHR accepted that Article 6 was not disproportionally restricted by the grant of sovereign immunity and largely deferred to the judgment of the contracting states.Footnote 23

  3. 3.

    Relatively little pressure towards admitting a ‘grave breaches’ exception came from domestic legislation; state immunity statutes on balance do not offer much support for a ‘grave breaches exception’.Footnote 24 Reforms at the domestic level mainly aimed to align national law with the UN Convention and in some instances to facilitate judicial proceedings against states accused of supporting terrorism.Footnote 25 Yet, to my knowledge, there was not in the years prior to 2014 any concerted attempt by states to enshrine a grave breaches exception via domestic law. This is worth noting because it sets apart the controversies about immunity from, for example, debates about universal jurisdiction, where claims towards effective remedies have resulted in law reforms at the national level—the gradual assertion, by states, of extraterritorial jurisdiction over international crimes being the most prominent example.Footnote 26

  4. 4.

    Domestic courts asked to adjudicate on claims brought in response to grave breaches by a foreign state upheld in their overwhelming majority that foreign state’s immunity: in so doing they rejected arguments based on ius cogens, on the right to an effective remedy, on abuse of rights, or on the nature (official or otherwise) of the impugned conduct. As for ius cogens in particular, the overwhelming majority of courts across jurisdictions accepted the superiority argument in principle but did not think it relevant. In line with the ECtHR’s jurisprudence, courts in Canada,Footnote 27 Australia,Footnote 28 England,Footnote 29 New Zealand,Footnote 30 France,Footnote 31 and the US,Footnote 32 among others, did not consider there to be a clash, in the main because in their view, despite the presumably peremptory nature of the rules violated, the remedial rights of victims did not qualify as peremptory themselves. Domestic courts in Greece and, notably, Italy took a different (heretical or progressive—depending on one’s perspective) view,Footnote 33 but they too faced domestic opposition.Footnote 34

  5. 5.

    Finally, in its Jurisdictional Immunities Judgment, the ICJ rejected arguments advanced in support of an immunity exception for grave breaches. It did so after a rather detailed perusal of international practice (which, in view of the Court, did not support an immunity exception, not even for territorial torts) and following a full analysis of the various arguments set out above.Footnote 35

None of this, however, settled the debate (what debate is ever settled in international law?). And of course, the largely negative response did not invalidate the arguments set out in support of an immunity exception: they remain plausible, and who knows, they might one day find greater acceptance.Footnote 36 However, even from the briefest summary just offered, it should be clear that to argue for an immunity exception as a matter of existing international law—at the time of the ItCC’s decision in October 2014—was the argumentative equivalent of embarking on a very steep, and very long, uphill struggle. The argument had been made in dozens of settings, and almost invariably rejected—by states, by international courts, and by a large majority of domestic courts and tribunals called upon to address claims. What is more, the argument had been rebuffed comprehensively in its different manifestations, from the ius cogens variant to the ‘abuse of rights’ doctrine. Support for it was never more than marginal. Decisions such as Ferrini or Prefecture of Voiotia met with approval in some sectors but clearly deviated from a fairly solid mainstream approach. Viewed from that perspective, the 2012 ICJ Judgment could plausibly be described at the time as the ‘final nail in the coffin of attempts to circumvent state immunity in domestic civil proceedings’.Footnote 37

III. Judgment 238/2014 of 22 October 2014: Changing Tack

Several years after the Jurisdictional Immunities Judgment, we know that it was not the ‘final nail’. But the grand controversy of the past two decades does yield important lessons. It testifies to the resilience of traditional concepts of international law (such as immunity) and to the difficulty of seeking to rewrite international law through domestic judicial activism and academic commentary. As regards the former, in particular, domestic courts can be powerful agents of legal developments,Footnote 38 and have been so in the field of immunity.Footnote 39 But as regards the debate about immunity and human rights, few domestic courts have embraced that role, and their arguments persuaded few others.

Perhaps more than anything else, the debate about an immunity exception illustrates the weakness of deducing concrete legal consequences from abstract concepts such as ius cogens, abuse of rights, the right to a remedy, or even the international rule of law. While all of these concepts have a sound foundation in international law, deductions from them simply do not take us far; the specific legal consequences are a matter of balancing and debate.

As regards the ius cogens argument, years of debate have demonstrated the fragility of deductive reasoning. Yes, torture and war crimes are prohibited by peremptory norms—and perhaps, in litigation about war crimes committed during World War II, one could even (somehow) argue that they were prohibited with peremptory force in the 1940s. But from this it in no way necessarily follows that the right of victims to seek damages was peremptory in nature too, and less still that the right to seek damages before foreign domestic courts was peremptory. To be sure, such an argument can be made—but it actually has to be made, as this is not a mere matter of deduction from an abstract legal principle. The experience of the last two decades suggests that when the argument was made, it only ever convinced a minority of listeners: perhaps because its implications were undesirable; perhaps because, once admitted, the argument was so difficult to reign in; perhaps because the time was not ‘ripe’. Many might have preferred a different result and would have been happier had a more ambitious construction of ius cogens been endorsed by more than a small minority. (‘What a pity!’, began one of the dissents appended to the ECtHR’s Al-Adsani judgment). Whatever the reasons for its inability to convince more than a minority, Roger O’Keefe, commenting on decades of legal argument, had a strong point when encouraging proponents of the reform movement to take stock and accept (or at least entertain the possibility) that their initial arguments had been ‘heading nowhere’.Footnote 40

Perhaps the ItCC, in Judgment 238/2014, accepted as much. While continuing the struggle against immunity, it opted for a new approach. The Court now sidestepped debates about the scope of immunity under international law; in fact, it accepted (albeit grudgingly, one can assume) the ICJ’s construction of international law as set out in Jurisdictional Immunities: ‘It has to be recognized that, at the international level, the interpretation by the ICJ (…) is particularly qualified and does not allow further examination by national governments and/or judicial authorities, including this Court’.Footnote 41 The claim that international law should recognize an immunity exception for grave breaches is all but abandoned: the international rules of immunity have been ‘defined by the ICJ’, and as rules of international law they reach into the Italian legal order (as the ItCC observes in a remarkable passage) ‘as interpreted in the international legal order’.Footnote 42 Not even an echo, then, in Judgment 238/2014, of the clarion calls of Ferrini, in which the Italian Supreme Court had boldly refused to give effect to immunity rules if these ‘would hinder the protection of values whose safeguard is to be considered (…) essential to the whole international community’.Footnote 43 And no serious attempt, unlike in Prefecture of Voiotia, to apply the ‘territorial tort’ exception to the conduct of armed forces (and to free it from the shackles of the ICJ’s restrictive reasoning). The ItCC, while persisting in its struggle for an immunity exception, displays a remarkable argumentative flexibility.

Instead of rehearsing the international law debates, the ItCC approached the matter from the perspective of (Italian) foreign relations law: in its words, it was ‘clear that another issue has to be examined and resolved, namely the envisaged conflict between the norm of international law (…) incorporated and applied in the domestic legal order, as interpreted in the international legal order, and norms and principles of the [Italian] Constitution’.Footnote 44 This is a significant change of tack. As noted by Filippo Fontanelli, the ItCC ‘deploy[s] its judicial authority in foro domestico’.Footnote 45 In rather plainer terms, one might state that the ItCC prefers home games to away games; and on Italian home ground, the ‘human rights cause’ (battered in The Hague, Strasbourg, London, and elsewhere) triumphed. The Italian constitutional right to an effective remedy in case of infringements of ‘the inviolable rights of the person’, said the ItCC, was not to be construed in light of immunities ‘as interpreted in the international legal order’; it had an autonomous existence and is limited by competing constitutional principles only.Footnote 46

Whether or not that construction is convincing as a matter of Italian law is for others to judge.Footnote 47 From an international law perspective, the ItCC’s approach calls for two comments. The first is fairly obvious and taken up in many chapters in this volume: by refusing to give effect to sovereign immunity as construed by the ICJ, the Constitutional Court puts Italy on a collision course with international law.Footnote 48 Judgment 238/2014 may not itself amount to a breach of international law, but with the highest judicial authority directs Italian state organs towards such a breach, and towards non-compliance with the 2012 ICJ Judgment. The second comment concerns the implications of the ItCC’s reasoning for future debates about immunity and human rights. In this respect, the Court’s argumentative change of tack is seemingly clever (as it takes the argument to a different level), but also potentially dangerous (as it is based on a problematic understanding of the relationship between domestic and international legal orders). The remainder of this chapter addresses these aspects in turn.

IV. A Clever Move and Its Implications

On the face of it, the Italian Constitutional Court’s change of tack is indeed rather clever. It shields Judgment 238/2014 from the obvious criticism: that the ItCC thought it knew international law better than the ICJ, the ECtHR, and the majority of states and other domestic courts. The ItCC does not make such a claim. Rather, it claims to know Italian constitutional law better. And who would fault it for that? Put differently, on the ‘home turf’ of the Italian Constitution, the scope of immunities depends on the status of international law within the Italian constitutional order. Unless one ignores the ItCC’s reasoning,Footnote 49 this argumentative move limits the significance of Judgment 238/2014 to the long-standing debate about immunity and grave breaches sketched out above—with two related consequences.

First, based on Italian constitutional law, Judgment 238/2014 is (dare one say) ‘immune’ from the usual arguments developed in the long-standing international law debates. There is little point in a further round of discussion about the impact of ius cogens, or the scope of the territorial tort exception, or the proper way of characterizing egregious conduct—the ItCC has conceded the international law argument. Second, and conversely, based on constitutional law, Judgment 238/2014 has relatively little to contribute to the international law debate about immunity and grave breaches. In order to do that it would have had to play the ‘away game’. Or rather, in the words of Filippo Fontanelli:

[T]he Italian ruling cannot possibly hope to persuade the international community about the correctness of its conclusion under international law, because it expressly avoided a re-consideration of the international legal custom. Unlike the previous Ferrini judgment, the Constitutional Court’s decision confined itself to deploy judicial authority in foro domestico. There is ample literature of how effective national courts can be in shaping international law through interpretation. This judgment did not try to do that, thus it cannot succeed.Footnote 50

It might still be argued that, irrespective of its (international or constitutional) reasoning, Judgment 238/2014 should matter as international practice: it stands, after all, for the proposition that domestic courts in fact are prepared to accept an immunity exception.Footnote 51 Yet that argument only goes so far. The judgment indeed is relevant for the assessment of customary international law; but in an assessment of international practice, it should not carry much weight. It helps assess the practice of precisely one state, and one state that had previously deviated from the international law mainstream at that: Italy.Footnote 52 What is more, Sentenza 238/2014 is not really a reliable guide to the approach of Italy as such. Over the past decades, Italian practice has been anything but uniform—with parliament and the executive leaning more towards the international law mainstream and the courts remaining divided.Footnote 53 In line with recent attempts to clarify the process of custom formation, such domestic discord affects the weight to be accorded to Italy’s practice: as noted in the ILC’s recent work on custom, ‘where different organs or branches within the State adopt different courses of conduct on the same matter or where the practice of one organ varies over time (…), that State’s contribution to “a general practice” may be reduced’.Footnote 54

That still leaves open the possibility that Judgment 238/2014 is followed by other actors of international law, whose practice would then matter. In this respect, Fontanelli’s aforementioned statement needs to be qualified. Perhaps in retrospect Judgment 238/2014 will come to be seen as the beginning of a trend: perhaps we will see a wave of domestic court decisions all relying on constitutional law guarantees, as their ‘last line of defence’, to keep immunity at bay. While such a possibility cannot be excluded, trends in international practice sketched out above suggest this to be remote. Remote not only because (so far) a clear majority of domestic courts have been inclined to uphold immunity for grave breachesFootnote 55 but also because the ItCC’s reasoning in Judgment 238/2014 is firmly based on Italian constitutional law, and depends on so many premises: the acceptance of a robust constitutional right to a remedy, a refusal to construe that remedial right in light of competing principles such as those protecting immunity, and not least (to foreshadow a point addressed in section V) a preparedness to play havoc with international law. Thus, Italian constitutional law both enables the clever change of tack and limits the probable impact of the decision. In short, whether one looks at its reasoning or its outcome, it seems that precisely because the ItCC opted to ‘go constitutional’, Judgment 238/2014 will have a limited impact on the international law debate on sovereign immunities.

V. ‘Here I Stand, I Can Do No Other’: A Problematic Last Line of Defence

The relative loss of influence on future international law debates is not the only price of ‘going constitutional’. Judgment 238/2014 also—and the point has been hinted at already—plays havoc with international law. It does so in two respects: its outcome, and the process by which that outcome is reached. Regarding the former, by refusing to give effect to the duty to respect the immunity of foreign states, as concretized in a binding ICJ judgment, the ItCC pushes Italy towards breaching international law,Footnote 56 and this in a setting where the international law dispute had been referred to court in an attempt (in the words of the two governments) ‘to clarify a complex question’.Footnote 57 The fact that many will sympathize with the ItCC’s conduct does not make that breach any less blatant.

The second point is less obvious, but systemically more relevant. By construing constitutional law in splendid isolation from international law, and by giving it primacy, the ItCC displays an inward-looking mindset that shields constitutional guarantees from international law. This of course has not escaped commentators, including those who might have looked favourably on the outcome of Judgment 238/2014: Anne Peters has criticized the ItCC’s ‘Triepelian understanding’,Footnote 58 and Robert Kolb seems to go further when warning of a ‘shattering schism between internal and international law’.Footnote 59 Underlying these and similar statements is a feeling that by opting to decide the case on constitutional grounds, the ItCC has taken a new, and highly dangerous argumentative path, which other domestic actors engaging with international law will happily take to avoid international legal constraints.

Upon reflection, the stark language warning of ‘schisms’ and ‘Triepel’s triumph’ seems unduly dramatic. For a domestic court to emphasize the primacy of constitutional law over international law is not as such unusual. Most domestic legal systems, even those that profess an openness towards the international or supranational level, preserve the option of some constitutional override.Footnote 60 To mention but the most obvious override strategies, within many domestic legal orders parts of international law have some status but are ranked below constitutional law (so that they yield in the event of a clash); in others, domestic law (including constitutional law) may have to be construed in light of international law principles but with the caveat that such enlightened interpretations should not fall foul of overarching constitutional principles; still elsewhere, domestic legal systems limit the number of international law rules that can be invoked before domestic courts (for example by requiring them to be recognized by domestic law as ‘self-executing’). High-profile decisions from the Solange jurisprudence and its follow-up,Footnote 61 to Görgülü,Footnote 62Medellin,Footnote 63 and KadiFootnote 64 (to name but a few) are attempts to strike the right balance, but they all insist on the possibility of some constitutional overrides. All of them, even the internationally-minded ones, assume that constitutional law determines just how intrusive international law should be, and that, where domestic and international law clash, ‘any change in national laws still remains contingent upon the will of the failing state’.Footnote 65 Perhaps this is international law’s real Achilles heel in the era of inward-looking obligations:Footnote 66 outside niche areas, international law does not ‘by itself, possess the force to amend or repeal internationally unlawful domestic (…) acts’.Footnote 67 But cases like Kadi and perhaps now Judgment 238/2014 should give even some die-hard internationalists pause: it is easy to call for international law to be strong, robust, and intrusive when one likes its prescriptions, and rather more difficult when it prescribes outcomes that are unpopular. In areas such as immunities and draconian sanctions, but also in investment protection, international law has recently appeared on a collision course with constitutionally protected values. In these and other fields, international law deserves engagement rather than ‘blind faith’. Constitutional overrides may every now and then serve as a necessary safety valve,Footnote 68 and it is certainly a very common technique for protecting international law from itself.

If few domestic courts or domestic legal orders are free from protectionist leanings, Judgment 238/2014 stands out for its bluntness. The constitutional override comes without niceties, with an almost ‘Lutheran’ directness to it. ‘Here I stand, I can do no other’ seems to be the motto: international law is refused effect without regrets, and without any balancing or the pretence of a constructive dialogue. International law and constitutional law are neatly separated, and in the ItCC’s ‘separatist treatment’Footnote 69 the former plays no role in the construction of the latter. (In fact, international legal rules are denied any ‘directive function’ [‘Orientierungswirkung’Footnote 70], even though they were authoritatively ‘defined by the ICJ’Footnote 71 in a case directed against Italy). In the discussion of constitutional law, international law no longer features, at least not expressly: neither as part of a balancing exercise (weighing the need to grant an effective remedy against the need to comply with international law), nor as part of a ‘Solange II construction’ in which non-compliance with international law remains an option but is the exception to the default position.

The problem with Judgment 238/2014, then, is not that it insists on the primacy of constitutional law over international law but that it refuses to factor international law into its constitutional law reasoning.Footnote 72 The principle of a constitutional override may be fine (though it is international law’s Achilles heel), but the process by which the ItCC overrides international law is highly problematic. To speak of ‘high peak dualism’Footnote 73 may be one way of looking at it. More than anything else, however, it is the refusal of balance—the ‘here I stand, I can do no other’—that disturbs and disappoints.

VI. Concluding Thoughts

Judgment 238/2014 is an interesting case because it forces us to question some easy and cheap ‘truths’ in the way that earlier foreign relations decisions did not. To illustrate, it was easy (and perhaps a bit cheap) to chide the US Supreme Court for its Medellin judgment, in which constitutional law trumped an ICJ judgment and resulted in the execution of José Medellin: international law was on the side of progress after all, and so—of course!—it should be robust and intrusive.

Judgment 238/2014 is trickier because opinion is at best mixed on whether international law—as presented in section II—is on the side of progress. Many would say it is not (or, in fact, that it impedes progress), hence the constant incantations that immunity were ‘archaic’. But then again, only very stubborn progressivists will be able to ignore the resilience of that archaic notion, and there is no way of denying that in this particular case the archaic notion was confirmed and crystallized in a binding ICJ judgment.

In Judgment 238/2014, as noted in the preceding sections, the ItCC adopted a straightforward approach. Faced with an international legal rule that it considered regressive, it took the debate to its ‘home turf’. It conceded the international law arguments and opted to stop international law at the last, constitutional, line of defence, and all this without giving it the benefit of any constructive engagement. All this, as noted above, it did with a stubborn determination: like Martin Luther at the Diet of Worms, it ‚‘could do no other’.

So, what should be done about Judgment 238/2014? Criticism, protest and scandalization are all obvious responses, and of course they are trusted strategies for dealing with non-compliance and of keeping up the pressure. Since 2014 they have informed many responses to the judgment and are still being articulated.Footnote 74 The preceding sections suggest that criticism and protest remain crucial: the judgment is a fairly blatant case of ignoring the demands of a clearly worded international decision, not an instance of minimalist compliance or muddling through. At the same time, the preceding sections also yield a number of insights that argue for a more nuanced, perhaps cautious, approach. Three of these stand out.

First, while refusing to give effect to international law, Judgment 238/2014 employs a last line of defence that is prima facie effective. International law has no means of compelling ‘rogue’ domestic courts to fall back in line, not least because it values the judicial independence that makes decisions like this possible. And Judgment 238/2014 is not the only domestic court decision that ignores international law. Domestic disobedience is a fact of international legal life: not welcome but common. This does not mean international lawyers should ‘keep calm and carry on’—but suggests that Judgment 238/2014 has to be engaged with, not just scandalized.

Second, while the judgment‘s ‘Lutheran’ refusal to engage with international law is unfortunate, it is difficult to take issue with the ItCC’s starting-point: domestic legal actors (governments, parliaments, courts) in most countries insist on some form of constitutional override, and in an era of inward-looking international lawFootnote 75 this is plausible. The difference between Kadi, Medellin, the various Solanges, and Judgment 238/2014 is one of degree, not of principle. In this sense, most domestic and regional courts have some ‘Triepelian’ leanings; some occasionally choose to be more openly ‘Triepelian’ than others. Again, this is not a plea for a non-committal ‘anything goes’ but an attempt to more clearly define the focus of debate.

Third, as international lawyers reflect on their strategy of engaging with the rogue decision, they (we) should be mindful of the character of the particular legal rule that is being defended. In section II, I have offered a purposefully robust dismissal of the grave breaches exception to immunities, which in my view has never enjoyed much support among states and international organizations. But of course, whatever its status in international law, the grave breaches exception has wide appeal among groups on whose support international law regularly counts in its pursuit of progressive causes. In Judgment 238/2014, the ItCC failed to give effect to state immunity, but in so doing disregarded a fairly unpopular rule of international law—a discipline that often reflects the hopes of many, and that typically benefits from being a projection of hopes. Perhaps, in fact, it should give international lawyers pause that in Judgment 238/2014 the ItCC effectively gives up on international law as a means of protecting remedial rights of victims.

In offering these three considerations, I do not mean to undermine the international law argument set out in sections II–V of this chapter. But there is some scope for argumentative disarmament, and for moving away from the ‘holier than thou’ attitude that continues to characterize much of the debate.