국가면제 규칙과 인권의 중대한 위반에 관한 이탈리아 법원 및 헌법재판소의 입장에 관한 연구 - ICJ의 국가관할권 면제 판결에 관련하여 -

State immunity rule still plays a fundamental role in the relationship between States although it has been reduced from the absolute immunity rule to the relative immunity rule. It has not yet been confirmed in the positive law that state immunity rule was gradually weakened in event of serious violations of international law, such as serious violations of human rights. It has been only recognized by Italian judgments. This judgments in Italy was not supported by the ICJ judgment on Ferrini case in 2012. The ICJ concluded that, under customary international law as it presently stands, a State was not deprived of immunity by reason of the fact which was accused of serious violations of human rights. After the ICJ judgment, Italian courts followed the ICJ judgment, declaring that the Italian judgment on Ferrini case was exceptional and not supported by the ICJ judgment. And the Italian Court of Cassation also declared that it was no need to raise a question of constitutionality in favour of the immediate and direct effect of the 2012 ICJ judgment within the Italian legal system, contrary to its own stance adopted in the 2004 Ferrini judgment. Therefore Italy is subject to customary international law and ICJ judgment which recognize state immunity to Germany. However, in 2014 the Tribunal of Firenze asked the Italian Constitutional Court to review whether Italy’s compliance with the 2012 ICJ judgment was breaching the Italian Constitution. With the judgment No.238 of 2014, the Italian Constitutional Court confirmed that Italian court did not have to implement the ICJ judgment in which Italy breached customary international law relating to jurisdictional immunity of State. After the judgment of Constitutional Court, various proceedings began in Italian courts in 2015. Some judgment of Italian courts have decided that Germany has to compensate the Italian victims. The Italian Court of Cassation denied the state immunity to Germany on grounds that it was compelled to align with Constitutional Court judgment No.238. In this decision, the Court of Cassation has conceded that it had changed its attitude. Therefore, the Italian courts and Court of Cassation clearly violated the 2012 ICJ judgment. Italy is a developed country in Western Europe which plays a major role in the development of international law. Italian judges and legal scholars also have a deep knowledge of international law. Nevertheless they denied state immunity to Germany due to serious violations of human rights during World War II and refused to implement ICJ judgment. Thus in this paper, I try to clarify the legal logic of Italian judges and legal scholars who decided to compensate Italian victims. Chapter 2 of this paper explains the historical background of the Ferrini case and the proceedings in Italian courts, and Chapter 3 analyzes the ICJ judgment on the Ferrini case and legal logic in the unconstitutionality judgment of the Constitutional Court. Chapter 4 analyzes the recent trends in Italian jurisprudence after the Constitutional Court judgment in 2014, and Chapter 5 examines the legal logic of Korean courts judgments in proceedings for Japanese military sexual slavery victims, similar to the situation unfolding in Italy. In conclusion, state immunity rule is inevitably applied to proceedings in reparation for injury against victims of wrongful act of Germany and Japan under current regime of international law. If the courts of the victim’s country does not recognize the rules of customary international law on state immunity and decide to win the case against the victims and implement the compulsory execution procedures on reparation for injury, diplomatic conflicts with other country will inevitably occur.