Is Pandora's Box About to Open? State Immunity in Cases of Grave Violations of International Humanitarian Law and Human Rights
ISTANBUL HUKUK MECMUASI, cilt.84, sa.2, ss.858-887, 2026 (ESCI, TRDizin)
- Yayın Türü: Makale / Tam Makale
- Cilt numarası: 84 Sayı: 2
- Basım Tarihi: 2026
- Doi Numarası: 10.26650/mecmua.2026.84.2.0005
- Dergi Adı: ISTANBUL HUKUK MECMUASI
- Derginin Tarandığı İndeksler: Emerging Sources Citation Index (ESCI), TR DİZİN (ULAKBİM)
- Sayfa Sayıları: ss.858-887
- Karadeniz Teknik Üniversitesi Adresli: Evet
Özet
The rules of state immunity originate in customary international law. Constantly evolving in line with state practices, they have undergone periodicturning points. In civil claims brought before national courtsto seekcompensation for harms resultingfrom seriousviolations of international humanitarian law and human rights, the question ofwhether the respondent state enjoys immunity constitutes a significant but highly contested example. In its 2012 judgment, the International Court of Justice ("ICJ") held that no rule of customary international law had yet been established exempting respondent states from immunity in such claims, and that, because immunity is inherently procedural, such cases must be dismissed on procedural grounds. This decision has sparked extensive scholarly debate and remained unimplemented foryears by the losingstate, Italy. In recent years, the high courts of three different states from three continents, namely Brazil, South Korea and Ukraine, have adopted a stance directly contrary to that of the ICJ's decision and have thereby joined the initiative launched by Italy. An examination of these courts' reasoned judgments shows that, they all denied defendant states immunity based on common grounds such as the juscogens nature of the violations and individuals' right of access to justice. Moreover, virtually all of these courts are seen to have created a normative synergy by citing and drawing upon each other's jurisprudence. The ICJ's ruling in 2012, which had not yet crystallized due to an insufficient level of state practice, is now highly likely to be revisited with the growth of such state practices. Given T & uuml;rkiye's proximity to regions marked by grave violations of humanitarian and human rights law, this evolving issue warrants careful debate, and the State would benefit from articulating a clear position.