Authored By: Nameera Meraj
Aligarh Muslim University
Humanitarian law’s failure in Hormuz does not remain a localized tragedy it mutates into a systemic world crisis. The central question that emerges is: who remains liable when sovereign immunity takes over personal liability in international law?
When humanitarian law fails, the consequences often extend far beyond the immediate suffering of affected populations and transform into systemic crises with global reach. The Strait of Hormuz is a clear example. Disruption in this chokepoint does not merely lead to shortages of essential goods locally; it destabilizes energy markets, trade routes, and geopolitical balances worldwide. What begins as a humanitarian issue loss of access to food, fuel, and medicine quickly becomes a crisis with global economic and political implications.
Humanitarian failures in such regions repeatedly escalate into broader crises because they directly impact international security frameworks. In this context, understanding the nature of international crimes becomes crucial. Crimes against humanity involve widespread or systematic attacks against civilian populations, including acts such as murder, enslavement, and sexual violence.[i] Genocide, on the other hand, specifically targets national, ethnic, racial, or religious groups with the intent to destroy them, either wholly or partially.[ii]These definitions are not merely theoretical; they form the backbone of international accountability frameworks.
War crimes, as grave breaches of international humanitarian law (IHL), target protected persons and property during armed conflicts, whether international or non-international. They establish individual criminal responsibility for violations against civilians, prisoners of war, and cultural property. The distinction between jus ad bellum and jus in bello further clarifies that even if the use of force itself is unlawful, the conduct during conflict remains subject to regulation.
The codification of these principles can be traced to the Geneva Conventions of 1949 and their Additional Protocols, which define acts such as murder, torture, and hostage-taking as war crimes.[iii]The Rome Statute of the International Criminal Court further strengthens this framework by establishing mechanisms for prosecuting such crimes at an international level.[iv]
Historically, the idea of humane conduct in warfare is not new. Traditions such as the Dharma Yuddha in the Mahabharata, as well as early Greek and Islamic practices, prohibited the targeting of non-combatants. These moral principles were later codified in legal instruments such as the Lieber Code (1863) and the St Petersburg Declaration (1868) , followed by the Hague Conventions of 1899 and 1907.[v]
A significant turning point came after the Second World War with the Nuremberg and Tokyo Tribunals, which established that individuals not just states could be held liable for international crimes.[vi]This shift laid the foundation for modern international criminal law and was further expanded by tribunals such as the ICTY and ICTR, which recognised sexual violence and internal conflicts within the scope of war crimes.[vii]
- The Enrica Lexie Case and the Question of Liability
Against this backdrop, the Enrica Lexie case emerges as a landmark in understanding the tension between sovereign immunity and personal liability. The case arose in 2012 when two Indian fishermen were shot by Italian marines aboard an Italian-flagged vessel. The incident occurred within India’s Exclusive Economic Zone, leading to a jurisdictional conflict between India and Italy. India asserted jurisdiction based on the territorial principle and the passive personality principle, arguing that the victims were Indian nationals. Italy, however, invoked Article 92 of the United Nations Convention on the Law of the Sea (UNCLOS) claiming exclusive flag-state jurisdiction.[viii] Additionally, Italy argued that the marines were entitled to functional immunity as state officials performing official duties. The dispute was eventually resolved through arbitration under Annex VII of UNCLOS. The Permanent Court of Arbitration recognised Italy’s claim of functional immunity, thereby granting it jurisdiction over the marines. At the same time, it held Italy responsible for compensating India for the deaths of the fishermen.[ix] This outcome reflects a complex balance between sovereign immunity and state responsibility, but it also highlights the limitations of individual accountability.
From a humanitarian perspective, the case raises serious concerns regarding the protection of civilians. The killing of unarmed fishermen brings into question the adequacy of rules of engagement in maritime security operations. Even in anti-piracy contexts, the use of excessive force against civilians constitutes a violation of both legal and moral norms.
- Sovereign Immunity in Maritime Conflict
The doctrine of sovereign immunity plays a central role in such situations. Traditionally, it holds that a state cannot be subjected to the jurisdiction of another state’s courts without its consent.[x] In its absolute form, this doctrine extends to all acts of the state, whether sovereign or commercial.
However, modern legal systems have increasingly adopted a restrictive approach, distinguishing between jure imperii (sovereign acts) and jure gestionis (commercial acts). The case of Victory Transport Inc v Comisaria General is significant in this regard, as it established that immunity does not extend to commercial activities.[xi] Despite this evolution, actions carried out by naval or military forces continue to be classified as sovereign acts. This means that in situations like Hormuz, where state actors interfere with navigation or engage in maritime enforcement, they are shielded by sovereign immunity. As a result, private parties affected by such actions often lack direct legal remedies.
The Strait of Hormuz presents a clear example of the tension between state sovereignty and international navigation rights. Under UNCLOS, all vessels enjoy the right of transit passage through straits used for international navigation.[xii] This right is non-suspendable and ensures continuous and expeditious passage.
However, coastal states sometimes attempt to impose unilateral restrictions, citing security concerns. Such actions create a legal conflict between domestic regulations and international obligations. Even though customary international law supports the principle of transit passage, enforcement remains a challenge.
- The Immunity–Accountability Paradox and the Need for Reform
The use of force against neutral shipping further complicates the situation. International humanitarian law requires distinction between civilian and military targets. Attacks on civilian vessels violate this principle and may amount to war crimes.[xiii] Similarly, naval mining is subject to strict regulations under instruments such as the Hague VIII Convention (1907) and the San Remo Manual.[xiv]
Despite these legal frameworks, enforcement remains weak. States controlling strategic chokepoints often exercise de facto power, allowing them to influence or restrict navigation regardless of legal constraints. This creates a gap between legal norms and practical realities.
At the heart of this issue lies the conflict between sovereign immunity and accountability. While immunity protects states from external interference, it can also shield wrongful conduct from scrutiny. Individuals acting on behalf of the state may escape liability, leaving victims without effective remedies. Although international law provides mechanisms for state responsibility, these are typically limited to inter-state proceedings before bodies such as the International Court of Justice or the International Tribunal for the Law of the Sea.[xv]Private actors, such as shipping companies or affected individuals, cannot directly initiate such proceedings.
This creates a paradox. On one hand, sovereign immunity preserves the principle of equality among states. On the other, it undermines accountability and weakens the enforcement of humanitarian norms. The result is a legal system that recognises violations but struggles to provide effective remedies. To address this imbalance, certain reforms become necessary. Domestic legal systems should incorporate international navigation rights more explicitly, ensuring that principles such as transit passage are upheld consistently. Multilateral cooperation is also essential, particularly in regions like Hormuz where unilateral action can have global consequences.
There is also a need to integrate humanitarian and environmental considerations into maritime law frameworks. This would ensure that security measures do not come at the expense of civilian protection. Additionally, compulsory dispute resolution mechanisms should be strengthened to reduce reliance on voluntary compliance.
Finally, aligning national laws with fundamental human rights norms is crucial. The protection of civilians and seafarers must be prioritised, even in contexts involving national security or maritime enforcement.
Conclusion
In conclusion, the doctrine of sovereign immunity continues to dominate international legal practice, particularly in maritime conflicts involving strategic regions such as the Strait of Hormuz. While it serves an important function in preserving state sovereignty, it also creates significant challenges for accountability.
The Enrica Lexie case illustrates this tension clearly. While the state was held responsible, individual liability was effectively limited by the doctrine of immunity. This reflects a broader pattern in international law, where state interests often outweigh individual justice.
Thus, the challenge lies in striking a balance between sovereignty and accountability. Without meaningful reform, the current framework risks allowing immunity to overshadow fundamental principles of humanitarian protection and justice.
Reference(S):
[1] Law Student in Aligarh Muslim University
[i] United Nations Regional Information Centre, ‘Crimes Against Humanity’;
[ii] United Nations Regional Information Centre, ‘Genocide’;
[iii] Geneva Conventions (1949) and Additional Protocols (1977, 2005;
[iv] Rome Statute of the International Criminal Court 1998;
[v] Hague Conventions (1899, 1907); Lieber Code 1863; St Petersburg Declaration 1868 ;
[vi] Nuremberg Charter 1945; Tokyo Charter 1946;
[vii] ICTY Statute 1993; ICTR Statute 1994;
[viii] United Nations Convention on the Law of the Sea 1982, art 92;
[ix] Enrica Lexie Incident (Italy v India) PCA Award (2020);
[x] Jurisdictional Immunities of the State (Germany v Italy) [2012] ICJ Rep 99;
[xi] Victory Transport Inc v Comisaria General 336 F 2d 354 (2d Cir 1964);
[xii] UNCLOS 1982, arts 37–44;
[xiii] San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994);
[xiv] Hague VIII Convention (1907);
[xv] ITLOS, Bangladesh/ Myanmar (Judgment, 14 March 2012);
