The guilty delay of People’s Republic of China in the communication of the first cases of contagion from Covid-19 (December 2019) integrates a war crime – like those of Nazi Germany – which excludes theimmunity of the State and roots the jurisdiction national for the purposes of compensation for damages. This one suggestive thesis, rejected however, by the United Sections of the Supreme Court, order no. 16136 filed today, of an Italian citizen who had lost her mother due to the pandemic and had ended up herself intubated at the risk of his life. In fact, for the Supreme Court: “Only the immediate, direct and deliberate attack on fundamental rights could call into question the recognition of immunity”.
According to the appellant, China’s inertia which it had waited until January 22, 2020 to implement quarantine the city of Wuhanas well as the deliberate attempt to conceal information, violated the International Health Regulations (IHR) which required 24-hour communications. A similar violation resulted from the illegal trade of wild animals (Pangolin) and failure to comply with the Memorandum with our Ministry of Health for health cooperation.
With an interesting historical-legal reconstruction, the Court of Cassation recalls the stages of the progressive “narrowing” of the area of State immunity which was initially “absolute” and then gradually limited to “iure imperii” government acts, thus excluding those implemented as subject of private law “iure gestionis”.
For the judges, however, even abstracting from the fact that the “evidence” adduced is from journalistic sources and not the subject of “unanimous conviction”, the conduct accused of China “is evidently expressive of activities called iure empires”. Such conduct (like the restrictions adopted by Italy) are in fact “to be linked to the exercise of public powers”.
Aware of this risk, the appellant therefore attempted to equate the “international crimes”.
There Constitutional Courtintervening at the end of a long jurisdictional rebound on the crimes of the Third Reicheven with the International Court of Justice which expressed a different opinion, stated (sentence no. 238/2014) that the immunity of foreign states cannot be predicated through rules that conflict with the fundamental rights of the constitutional order .
And the subsequent jurisprudence of legitimacy, in implementation of what was stated by the Consulta, has therefore recognized the prevalence of the principle of respect for inviolable rights in front of delicta imperii“so that – we read in the decision – the principle of respect for the ‘sovereign equality’ of States must remain ineffective in the event of crimes against humanity, i.e. committed in violation of international norms of jus cogensas such harmful to universal values which transcend the interests of individual state communities and whose true substance consists in an abuse of state sovereignty”.
However, the Court continues, “the aspiration of the appellant attransplant this interpretative path“even in the case of the pandemic”however, it cannot be followed up”.
The conduct that would constitute the responsibility of the People’s Republic of China, in fact, cannot however be evaluated in the same way as the commission of international crimes, the initial description of which dates back to the London Agreement of 1945, and which today is essentially found in the provisions (articles . 5-8) of Statute of the International Criminal Court. And not just for the “mismatch” compared to specific listing made but also for “theabsence of purpose which in accordance with the same rule must apply to the various conducts attributed to the person responsible”.
