© 2003 by Oxford University Press
To What Extent are State Immunity and Non-Justiciability Major Hurdles to Individuals' Claims for War Damages?
1 University of Urbino
Claims for war damages that individuals bring before domestic courts against foreign states are usually rejected, either on account of lack of a substantive right conferred upon the individual by international law, or the exception of state immunity. In view of the uncertainties surrounding both arguments, the author maintains that the difficulty in tackling this issue is due instead to the question of non-justiciability. Even if this argument is not always clearly articulated, domestic courts are aware that the complex issues of post war settlements exceed the scope of their jurisdiction and should therefore be left to governments, which are in a better position to reach overall satisfactory and internationally binding settlements. It does not, however, follow that states are free to waive any claim and to reach any settlement: they may not reciprocally condone violations of those rules of humanitarian law which belong to jus cogens. In such situations, individuals' claims, although dubiously founded in international law, could have the beneficial effect of spurring states to reach settlements consistent with international law.