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 the 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.
GERMAN WAR CRIMES AND THE RULE OF INTERNATIONAL LAW / Palombella, Gianluigi. - In: JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE. - ISSN 1478-1387. - :1(2016). [doi: 10.1093/jicj/mqv070]
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